Gujarat High Court Directs Bar Council Not To Insist on Resignation From Current Employment; Allows Employed Woman To Appear for the AIBE

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A Writ Petition was filed before the Gujarat HC by a woman whose application to appear for the AIBE was rejected by the Bar Council. The Gujarat High Court directed the State to allow the petitioner to sit for the AIBE without requiring her to resign from her current employment.

 

Background

The Petitioner took up studies of law in 2016, 20 years after completing her Bachelor’s in Commerce. After obtaining her law degree in 2019, the Petitioner applied for her enrolment as an Advocate. She filed in the application and deposited an amount of Rs. 16,600/- to appear for the All India Bar Examination (AIBE). The Petitioner also declared that she was currently in employment as required under the law. Her application, however, was rejected by the Bar Council of Gujarat who also informed her that only the applications of those who are not in employment were accepted.

 

Legal Background

The Bar Council of Gujarat formed the Bar Council of Gujarat (Enrolment Rules) under Section 28(2)(d) read with Section 24(1)(e) of the Advocates Act, 1961 (“Enrolment Rules”). 

According to Rule 1 of the Enrolment Rules, any person who is eligible to be an Advocate but is engaged in full or part-time service, or any other trade, business, or profession shall not be admitted as an Advocate.

Rule 2 states that every person applying to be admitted as an Advocate shall make a declaration to the effect that they are not engaged in service, trade, business, or profession of any kind. In case this requirement is not met, he/she shall make a declaration disclosing the particulars of such employment or engagement.

Rule 10 states that in case the requirement under Rule 2 is not met, the applicant shall deposit his enrolment certificate with the Bar Council and shall cease to practice until the applicant doesn’t resign from such employment or engagement.

 

Petitioner’s Submissions

It is the case of the Petitioner that after obtaining her law degree in 2019, she filed an application and deposited Rs. 16,600/- as required. In addition, she also declared that she is in employment. However, the aforesaid application was not accepted by the Bar Council who stated that she would be allowed to appear for the AIBE only after she resigned from her current employment as per the Enrolment Rules.

The Petitioner submitted that she was the only earning member in her family, and it was not possible for her to lose the current income. In light of this, she could not resign from her job unless she clears the exam and obtains the enrolment certificate.

The Petitioner assured that she would not be engaged in two professions at the same time. She further submitted that the aforesaid rules are arbitrary, unreasonable, and violative of Articles 14, 19(1)(g), and 21 of the Indian Constitution.

 

Petitioner’s Prayers

The Petitioner prayed for the following reliefs:

  • That the Court may issue an appropriate writ, order or direction quashing Rule 1 and 2 of the Enrolment Rules to the extent that they prohibit the admission of a person who is eligible to be an Advocate but is engaged in full or part-time service, or any other trade, business or profession shall not be admitted as an Advocate.

Alternatively, the Petitioner also prayed:

  • That a person who is eligible to be an Advocate but is engaged in full or part-time service, or any other trade, business or profession shall be admitted as an Advocate on the condition that the enrolment certificate of such person shall be withheld till the time the applicant doesn’t resign from such employment.
  • That in the interim the Court may direct the Bar Council to accept the Petitioners Application & permit her to take the AIBE. 

 

Courts Decision

In light of the impending facts and circumstances of the case, and with a view to protecting the interest of all parties involved, the Gujarat HC passed the following interim order – 

  1. The Petitioner shall submit an application for enrolment on or before 9th October 2020.
  2. The interim order has been passed for the sole purpose of allowing the Petitioner to appear in the AIBE and shall not be treated as permission to continue with both, her employment and legal practice.
  3. Since the Petitioner has deposited Rs. 16,600/- with the Bar Council of Gujarat, no further payment shall be required. However, if the current rules require a fee payment of more than Rs. 16,600, then the Petitioner shall pay the same.
  4. The Bar Council of Gujarat shall accept such an application without requiring the Applicant to resign from her current employment.
  5. The Bar Council shall issue a provisional enrolment certificate to the Petitioner on or before 15th October 2020 since the online registration for the next AIBE closes on 17th October 2020.
  6. The Respondents shall permit the Petitioner to appear for the AIBE.
  7. The Petitioner undertakes that she shall not practice as an Advocate on the basis of the Provisional Allotment Certificate issued.
  8. The Petitioner further undertakes that if after passing the AIBE, she continues to be in employment, she will deposit her certificate with the Bar Council as required under the Rules.
  9. Additionally, the Petitioner shall file an undertaking based on the above-mentioned conditions on or before 9th October 2020.

Click here to view the original judgement


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