INTRODUCTION

A lawyer is "a person learned in the law; as an attorney, counsel or solicitor; a person licensed to practice law." The profession of law is called a noble profession. It does not remain noble merely by calling it as such unless there is a continued, corresponding and expected performance of a noble profession. Its nobility has to be preserved, protected and promoted. An institution cannot survive in its name or on its past glory alone. The glory and greatness of an institution depends on its continued and meaningful performance with grace and dignity. The profession of law being noble and honourable one, it has to continue its meaningful, useful and purposeful performance inspired by and keeping in view the high and rich traditions consistent with its grace, dignity, utility and prestige. The legal profession and lawyers being an integral part of society fulfilling a dire and pressing need must therefore be regulated and bound by rules and ethics which bind their profession and practice. Hence the provisions of the Advocates Act and Rules made there under inter alia aimed at to achieve the same ought to be given effect to in their true spirit and letter to maintain clean and efficient Bar in the country to serve cause of justice which again is noble one. An advocate shall, at all times, comport himself in a manner befitting his status as an officer of the Court, a privileged member of the community, and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an Advocate. The Bar Council has framed specific rules in this regarding putting restriction on senior advocates and on to take up other employments by the Advocates. The main objective of the project is to analyze about restriction on senior advocates and other advocates to take up other employments, as a legal practioner, while he is on the roll of a high court, is not entitled to enter into any business or service without permission of the court. If he does, disciplinary action may taken against such person. Senior advocates, that they shall in the matter of law as mentioned in the section 30 of the Advocate Act, subjected to the restriction under the powers provided under Rule 16 (3) and 49 (1) (g) of Act and Part VI of Bar Council of India Rules deals with the Rule
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governing Advocates that, deals with the Restrictions imposed on Senior Advocates that they shall not file a vakalatnama or act in any Court, or Tribunal, or before any person or other authority, shall not appear without an Advocate on Record in the Supreme Court or without an Advocate in Part II of the State Roll in any court, or tribunal, or before any person or other authorities, shall not accept instructions to draft pleading or affidavits, advice on evidence or to do any drafting work of an analogous kind in any Court or Tribunal, shall not accept directly from a client any brief or instructions to appear in any Court or Tribunal,who had acted as an Advocate (Junior) in a case, shall not after he has been designated as a Senior Advocate advise on grounds of appeal in a Court of Appeal or in the Supreme Court, except with an advocate as aforesaid. A Senior Advocate may in recognition of the services rendered by an Advocate in Part II of the State Roll appearing in any matter pay him a fee, which he considers reasonable. The analyze also give a clear view about the other advocates restricted to take up other employments provided under Rules 47 to 52 of Section VII of the Bar Council of India rules deals with restrictions on other employments. This restriction is considered as a general etiquette on the part of lawyers as the profession of law is a noble profession and requires full time dedication such as, shall not personally engage in any business, shall not be a managing director, shall not be a full-time employee of any person, Government, firm, corporation, or concern and on taking up such employment and the test, therefore, is not whether such person is engaged on terms of salary or by payment of remuneration, but whether he is engaged to act or plead on its behalf in a court of law as an advocate., and an advocate who has inherited, or succeeded by survivorship to a family business may continue it, but may not personally participate in the management thereof. It states that nothing in these rules shall prevent an advocate from accepting after obtaining the consent of the State Bar Council, part-time employment provided that in the opinion of the State Bar Council, the nature of the employment does not conflict with his professional work and is not inconsistent with the dignity of the profession. Thus shall be subject to such directives if any as may be issued by the Bar Council India from time to time i.e. shall intimate such fact to the Bar Council concerned and shall cease to practise as long as he is in such employment.
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RESTRICTION ON SENIOR ADVOCATES

Under the Advocates Act 1961, the Bar Council of India may impose certain restrictions on practice by Senior Advocates it is thought necessary in the interests of the legal profession. Senior Advocates shall, in the matter of their practice of the profession of law mentioned in Section 30 of the Act, be subject to the following restrictions1: (a) A Senior Advocate shall not file a vakalatnama or act in any Court, or Tribunal, or

before any person or other authority mentioned in Section 30 of the Act. To Act means to file an appearance or any pleading or application in any court, to Tribunal or before any person or other authority mentioned in Section 30 of the Act, or to do any act other than pleading required or authorised by law to be done by a party in such Court, or Tribunal, or before any person or other authority mentioned in the said Section either in person or by his recognised agent or by an advocate or an attorney on his behalf.However, examining or cross-examining witnesses is not cobered by the term "acting" and hence, senior counsels are not restrained from carrying out the same. (b) (i) A senior Advocate shall not appear without an Advocate on Record in the

Supreme Court or without an Advocate in Part II of the State Roll in any court, or tribunal, or before any person or other authorities mentioned in Section 30 of the Act. (ii) Where a Senior Advocate has been engaged prior to the coming into force

of the Rule in this Chapter, he shall not continue thereafter unless an Advocate in Part II of the State Roll is engaged along with him. Provided that a Senior Advocate may continue to appear without an Advocate in Part II of the State Roll in cases in which he had been briefed to appear for the prosecution or the defence in a criminal case, if he was so briefed before he is designated as a Senior Advocate or before coming into operation of the rules in this Chapter as the case may be.

J.P.S.Sirohi, Professional Ethics, Accountability for Lawyers and Bench-Bar Relations, edition, 2002, Allahabad Law Agency., pg no.409

Advocate on Record, is an advocate who has passed a qualifying examination conducted by the Supreme Court. The examination is taken by an advocate who has been enrolled with a Bar Council for at least five years and has completed one years training with an AOR of not less than five years standing, so that the senior advocate shall not be appear without him. (c) He shall not accept instructions to draft pleading or affidavits, advice on evidence or

to do any drafting work of an analogous kind in any Court or Tribunal, or before any person or other authority mentioned in Section 30 of the Act or undertake conveyancing work of any kind whatsoever. This restriction however shall not extend to settling any such matter as aforesaid in consultation with an Advocate in Part II of the State Roll. (cc) A Senior Advocate shall, however, be free to make concessions or give undertakings in the course of arguments on behalf of his clients on instructions from the junior Advocate. Senior Advocates are designated as such by the Supreme Court of India or by any High Court. The Court can designate any advocate, with his consent, as Senior Advocate if in its opinion by virtue of his ability and standing at the Bar or special knowledge or experience in law, the said advocate is deserving of such distinction. He is also not entitled to accept instructions to draw pleadings or affidavits, advise on evidence or do any drafting work of an analogous kind in any court or tribunal in India or undertake conveyancing work of any kind whatsoever. (d) He shall not accept directly from a client any brief or instructions to appear in any

Court or Tribunal, of before any person or other authority in India. (e) A Senior Advocate who had acted as an Advocate (Junior) in a case, shall not after

he has been designated as a Senior Advocate advise on grounds of appeal in a Court of Appeal or in the Supreme Court, except with an advocate as aforesaid. This prohibition shall not extend to settling any such matter as aforesaid in consultation with a junior.

(f)

A Senior Advocate may in recognition of the services rendered by an Advocate in

Part II of the State Roll appearing in any matter pay him a fee, which he considers reasonable.

CASE STUDY:
Ram Sagar Shukla v. U.P. Textile Printing Corporation Ltd.2
Fact: It appears that the Writ Petition No. 7937 of 1985. Ram Sagar Shukla v. U.P. Textile Printing Corporation Ltd. Khalilabad, Basti and Ors., was dismissed in default on 16.7.2003 and restoration application has been filed by Sri K. P. Agrawal designated Senior Advocate on 14.8.2003 and this Court has passed the order dated 18.8.2003 which reads as below : 'List this case before me on 21.8.2003. A notice has to be issued to Sri K. P. Agrawal, Senior Advocate to indicate under what circumstance he has filed this application, being a Senior Advocate he is not supposed to file any application and he is not supposed to file Vakalatnama by his signature as the Full Court of Allahabad High Court has designated him as Senior Advocate. If satisfactory explanation is not given by him the case shall be referred to Hon'ble the Chief Justice for consideration for removal of his senior's counsel designation and the matter shall be sent to Bar Council of U. P. and Registrar General shall intimate to Sri K. P. Agrawal about this order with an intimation to this Court.' The affidavit enclosed with the restoration application was sworn by Sri NazmeHasan claims to be the registered clerk of Sri K. P. Agrawal, Senior Advocate. It has been contended in paragraph 3 that when the case was listed on 16.7.2003 at serial No. 4 at page 121 the name of Sri K. P. Agrawal, Sri B. C. Tripathi and Sri Hari Om Khare were shown as counsel for the petitioner. Since the name of other than Sri K. P. Agrawal was shown it was presumed that the petitioner had engaged the other two counsel and he was not present when the case was called out, however, it was not noted in the office of Sri K. P. Agrawal, Senior Advocate and Sri K. P. Agrawal has no knowledge that the case was
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AIR 2004 All 209

listed otherwise he certainly might have appeared before the Court and might have argued the case. As contended in the affidavit that at the time of filing the Writ Petition No. 7937 of 1985 in the name and signature of Sri K. P. Agrawal, he was not a designated Senior Advocate. It has further been contended in paragraph 4 of affidavit that it was not on account of any negligence but for bona fide reasons the case was dismissed in default. No satisfactory explanation however has been given in this application besides the important aspect that despite designated as Senior Advocate Sri K. P. Agrawal has filed the application in derogation to the applicable provisions after being designated as Senior Advocate he could not be engaged as counsel for any party on Vakalatnama3. Now in the present facts and circumstances, the following questions arise : (i) Whether Senior Advocate could be engaged by client on Vakalatnama? (ii) Whether a Senior Advocate could directly receive instruction from the client/ party? (iii) Whether the present application of restoration could be filed for and on behalf of Senior Advocate and on the signature of Senior advocate? For dealing these aspects it is necessary to deal the relevant provisions of the Advocates Act and the Bar Council of India Rules and other different provisions applicable in the present case. 30. Right of advocates to practise.--Subject to provisions of this Act, every advocate whose name is entered in the (State roll) shall be entitled as of right to practise throughout the territories to which this Act extends,-(i) in all courts including the Supreme Court ; (ii) before any Tribunal or person legally authorised to take evidence ; and (iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise4.

3 4

http://indiankanoon.org/doc/1902098/(accessed on 16/8/13) https://www.google.co.in/search?q=restrictions+on+senior+advocates&newwindow=1&ei=waUPUtXxA4 mOrQeU4YDoDw&start=10&sa=N&biw=1024&bih=667

Chapter VI deals with Miscellaneous parts of 'Act' and Section 49 deals with General power of the Bar Council of India to make rules and the relevant part is provided as below : Section 49(1)(g) : The restrictions in the matter of practice to which senior advocates shall be subject : Under the powers provided under Rule 16 (3) and 49 (1) (g) of Act and Part VI of Bar Council of India Rules deals with the rule governing advocates and Chapter I deals with the Restrictions on Senior Advocates. Held: Only an advocate having at least 20 years of practice can be recommended :Provided that a retired Judge of any High Court who is qualified to practice in the Allahabad High Court may also be recommended for being designated as Senior Advocate :Provided further that it shall be open to the Court to relax the qualification in an exceptional case. (ii) The recommendation shall be accompanied by a written consent and bio-data of the person recommended to be designated as Senior Advocate. -The recommendation shall be screened by a Committee comprising of five seniormost Judges of the Court at Allahabad and two seniormost Judges of the Court at Lucknow, and if it is not disapproved by the Committee, it shall be placed by the Chief Justice before the Full Court for consideration and approval through secret ballot. 7. In these circumstances, it was not in consonance to the provisions of 'Act' as well as provisions of Bar Council of India Rules that Senior Advocate Sri K. In these circumstances, it was not in consonance to the provisions of 'Act' as well as provisions of Bar Council of India Rules that Senior Advocate Sri K. P. Agrawal signed the restoration application and got the affidavit sworn by a clerk attached to him. The conduct of Sri K. P. Agrawal, designated Senior Advocate is unbecoming of Senior Advocate and here all his conduct and projection is unlike a Senior Advocate. It was not necessary to file restoration application by his own signature as after the designation as Senior Advocate, he is not supposed to file Vakalatnama of any client and is not supposed to file any application in his own handwriting. A senior counsel is ceased to be counsel for the purpose of filing pleadings, representing and engagement by a client. The petitioner might have engaged some other counsel or the earlier counsel might have filed the restoration application only or application or submissions could only be settled by a
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Senior Advocate. In the present facts and circumstances, this application cannot be treated to be duly filed, therefore, it is difficult to accept the justification and explanation given in the supporting affidavit. Therefore, it is not necessary to go into the contents and justification of the restoration application and in these circumstances, it is only indicated that Sri K. P. Agrawal was to maintain and uphold the dignity of Senior Advocate in the present facts and circumstances. For dealing the restoration application this Court referred and relied on the order passed in Restoration Application No. 138670 of 2003 in W. P. No. 28709 of 1993 that if Sri K. P. Agrawal was earlier a junior counsel and was engaged by a client after designated as Senior Advocate he ceased to be counsel for the party and he cannot say that since earlier he was not senior counsel, therefore, he has legal right to file restoration application in his signature. For the reasons recorded in the order dated 18.12.2003 passed in Restoration Application No. 138670 of 2003 in Writ Petition No. 28709 of 1993, the restoration application is rejected.

V.G. Tamaskar vs High Court of Chhattisgarh & Others5

Fact: The petitioner is an advocate practising in the High Court of Chhattisgarh and has a background of public service. He has filed this writ petition praying for quashing the designation of respondents 5 to 21 as Senior Advocates of this Court and for directing the High Court of Chhattisgarh to designate all those lawyers who had applied to be designated as Senior Advocates by issuing appropriate writ of certiorari / mandamus. The petitioner has also prayed for directing the High Court of Chhattisgarh to frame separate rules for designating the lawyers as Senior Advocates by issuing appropriate writ of mandamus. The petitioner who has appeared in person submitted that a Full Bench of the Allahabad High Court has held in the case of Democratic Bar Association vs. High Court of Judicature at Allahabad6, writ petition filed by Association of Advocates and the
5 6

AIR 2006 Chh 153 2001 (5) SLR 88

Advocates practising in the High Court of Allahabad questioning the legality of the rules for designation of Senior Advocates was maintainable. He submitted that in view of the said decision of the Full Bench of the Allahabad High Court, the present writ petition by which designation of Senior Advocates of this Court has been challenged, is maintainable at the instance of the petitioner.With no doubt in our mind that an Advocate of this Court has the locus standi to file a writ petition challenging the decision of the High Court to designate a Senior Advocate. In the case of S.P. Gupta vs. President of India7, the Supreme Court has held that practising lawyers have vital interest in the maintenance of a fearless and an independent judiciary to ensure fair and fearless justice to the litigants and can challenge a circular issued by the Law Minister with regard to the short term extensions of the sitting Additional Judges of High Courts and such practising lawyers either in their individual capacity or representing Lawyers' Association have not merely sufficient interest but special interest of their own in the subject matter of the writ petition. Similarly, practising lawyers of the High Court of Chhattisgarh have sufficient interest in the subject matter of the present writ petition namely, designation of Senior Advocates of the High Court of Chhattisgarh and we cannot dismiss the present writ petition at the threshold on the ground that a practising advocate does not have any locus standi to file a writ petition challenging the designation of Senior Advocate by the High Court. But we make it clear that when a challenge is made by a practising Advocate to the designation of the Senior Advocate by the Court, the Court will not interfere with the decision of the High Court to designate an Advocate as Senior Advocate except on well settled principles of judicial review. Mr. V.G. Tamaskar next submitted that the High Court of Madhya has framed the rules in exercise of its powers under Section 34(1) read with Section 16(2) of the Advocates Act, 1961 laying down therein the procedure for designation of Senior Advocates as well as the manner in which the applications will be filed by an Advocate for designating him as a Senior Advocate and the manner in which such applications will be dealt with, but the aforesaid Rules framed by the High Court of Madhya Pradesh have not been followed by the High Court of Chhattisgarh while designating the respondents 5 to 21 as Senior

AIR 1982 SC 149

Advocates of this Court. Mr. Tamaskar vehemently submitted that if respondents 5 to 21 have not been designated in accordance with the provisions of the rules framed by High Court of Madhya Pradesh, then their designation as Senior Advocates is invalid. He submitted that till the rules for designation of Senior Advocate are framed by the Chhattisgarh High Court, the rules framed by High Court of Madhya Pradesh are in force and have to be applied by the High Court of Chhattisgarh. The Full Court of High Court of Chhattisgarh has formed opinion in its meeting held on 09.01.2002 and in its Meeting held on 06.01.2005 that the Advocates named in the said resolutions be designated as Senior Advocates under Section 16 (2) of the Advocates Act, 1961. Unless, the said opinion is shown to be vitiated by mala fide or extraneous considerations, this Court in exercise of its powers under Article 226 of the Constitution will not interfere with the same. In the present case, the petitioner has not made any allegation that mala fide or extraneous consideration has influenced the Full Court of High Court of Chhattisgarh to designate respondents 5 to 21 as Senior Advocates. We are thus not in a position to interfere with the same. Mr. Tamaskar submitted that it be clear from the document in Annexure P-16, annexed to the writ petition that he applied on 07.02.2005 to the Registrar General of High Court of Chhattisgarh for furnishing certified copies of the proceedings of the Full Court of the High Court in its meetings convened after 01.11.2000 for designating Advocates practising in the High Court of Chhattisgarh as Senior Advocates but no such certified copy was made available to him. It be clear from the bare language of the Section 76 of Indian Evidence Act, 1872 that a public document which any person has a right to inspect can only be given to such person applying for a certified copy. Nothing has been brought to our notice to show that the petitioner in the present case has a right to inspect the resolutions of the Full Court of High Court of Chhattisgarh convened after 01.11.2000 for designating Senior Advocates practicing in the High Court of Chhattisgarh. Held: Henceforth the designation or non-designation of an Advocate as Senior Advocate by the High Court of Chhattisgarh is transparent, it be appropriate if the High Court frames
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guidelines for designation of an Advocate as Senior Advocate and notifies the same to all concerned including the Advocates practising in the High Court and District Courts as has been done in other High Courts. Therefore, direct respondent No.1 to frame guidelines for designation of an Advocate as Senior Advocate keeping in mind the provision of Section 16(2) of the Advocates Act, 1961. Hence disposed, writ petition with a direction to respondent No.1 to frame, within two months from today, guidelines for designation of Advocates as Senior Advocates and thereafter consider the pending applications of the Advocates for designation of Senior Advocates in accordance with such guidelines. Also direct that the respondent No. 1 to ensure that Advocates those who have been designated as Senior Advocates including respondents 5 to 21 do not file any vakalatnama in this Court and their names do not appear in the cause list, as per the restrictions imposed by the Bar Council of India under Section 16(3) and 49 (1) (g) of the Advocates Act, 1961.

RESTRICTION ON OTHER EMPLOYMENTS

Rules 47 to 528 of Section VII of the rules deals with restrictions on other employments. This restriction is considered as a general etiquette on the part of lawyers as the profession of law is a noble profession and requires full time dedication. Rule 47 provides that an advocate shall not personally engage in any business; but he may be a sleeping partner in a firm doing business provided that in the opinion of the appropriate State Bar Council, the nature of the business is not inconsistent with the dignity of the profession. As the rule insist an advocate shall not engage himself in any business but he can act as a sleeping partner i.e. a partner who usually provides capital whose association with the enterprise is not public knowledge he will deals with provided with the opinion of the appropriate State Bar Council9.

Prof. KailashRai, Legal Ethics, Accountability for Lawyers and Bench-Bar Relations, 8 ed, 2013, Central Law Publications, Allahabad., pg no.89 9 (accessed on 16/8/13)

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Rule 48 makes it very clear that an advocate may be Director or Chairman of the Board of Directors of a company with or without any ordinarily sitting fee, provided none of his duties are of an executive character. However an advocate shall not be a Managing Director or a Secretary of any company10. If the functions of the advocate as a member of the Board of Directors is in case executive in nature, then that action would be against rule 48. An advocate cannot run any business personally and earn a profit. Rule 47 strictly prohibits that. Under Rule 49 of the Bar Council of India Rules, an advocate shall not be a full-time employee of any person, Government, firm, corporation or concern and on taking up such employment, shall intimate such fact to the Bar Council concerned and shall cease to practise as long as he is in such employment. In SushmaSuri v. Government of National Capital Territory of Delhi11, Fact: The appellant responded to an advertisement issued by the High Court of Delhi inviting applications from candidates who have practiced as advocate for recruitment to the Delhi High Judicial Service Claiming that she had put in experience for not less than seven years as advocates at the time of filing the application. In 1982 Mrs. Sushma Suri passed the examination of Advocate on Record conducted by Supreme Court of India and in 1986 she was appointed as Assistant Government Advocate. Thereafter she was promoted to the post of India. When she was not called for interview, she filed petition in the High Court under Article 226 of the Constitution. However, there was an exception made in such cases of law officers of the Government and corporate bodies despite his being a full- time salaried employee if such law officer was required to act or plead in court on behalf of others. It was only to those who fall into other categories of employment that the bar under Rule 49 would apply, the Supreme Court of India pointed out that practice with the profession of law was the genus within which fell activities
10 11

Bar council of India, Ethics no.45 AIR 1993 (3) S.L.J 34 at p. 38 (S.C): Satish Kumar v. Bar Council of Himachal Pradesh, AIR 2001 S.C 509 at p. 516

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such as appearing and pleading before the Courts or Tribunals as also activities of rendering professional advice, drafting documents, etc as carried on outside the Courts. Held: In this Writ Petition under Article 32 of the Constitution, the petitioner is seeking for a direction to consider his candidature for appointment to Higher Judicial Service in the State of Rajasthan. That have examined the position of similar claims and declared the law in the matter. An advocate is a person who acts or pleads for another in a Court and if a Public prosecutor or a Government Counsel is on the rolls of the Bar Council and is entitled to practise under the Advocates Act, 1961, he answers the description of the Advocate. Thus High Court was not justified in holding that appellant is not entitled to be considered for appointment. The Supreme Court of India pointed out that practice with the profession of law was the genus within which fell activities such as appearing and pleading before the Courts or Tribunals as also activities of rendering professional advice, drafting documents, etc. as carried on outside the Courts. An advocate employed by the Government or a body corporate as its law officer even on terms of payment of salary would not cease to be an advocate in terms of Rule 49 if the condition is that such advocate is required to act or plead in courts on behalf of the employer. But this exception were deleted in June, 2001 meeting vide Resolution No.65/200112. The test, therefore, is not whether such person is engaged on terms of salary or by payment of remuneration, but whether he is engaged to act or plead on its behalf in a court of law as an advocate. In that event the terms of engagement will not matter at all. What is of essence is as to what such law officer engaged by the Government does whether he acts or pleads in court on behalf of his employer or otherwise. If he is not acting or pleading on behalf of his employer, then he ceases to be an advocate. If the terms of engagement are such that he does not have to act or plead, but does other kinds of work, then he becomes a mere employee of the Government or the body corporate. Therefore, the Bar Council of India has understood the expression "advocate" as one who
12

Gazette of India, Part III, Sec 4, dated 13th October, 2001.

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is actually practicing before courts which expression would include even those who are law officers appointed as such by the Government or body corporate. In Satish Kumar v. Bar Council of Himachal Pradesh case, a person was enrolled as an advocate despite being a full time salaried employee as Law officer. The State Bar Council (Bar Council of Himachal Pradesh) had not made any Rule entitling full time salaried Law officers for practicing as an advocate. The work of the person so enrolled was not mainly or exclusively to act or plead in Court as Law officer. He was not entitled to be enrolled as an advocate. His name may be removed from the roll of State bar council. Such removal was not taken as punishment but rectification of mistake. Thus the cancellation or withdrawal of enrolment was not taken as a punishment and therefore, in such condition the procedure to be followed in case of punishment for professional misconduct was not required to be observed. If in the rules of any State Bar Council, a provision is made entitling Law officers of the Central government or a State or any Public Corporation or body constituted by a statute, the bar contained in Rule 49 shall not apply to such officers despite them being full time salaried employees. The court has observed further that not every Law officer, but only a person who is designated as a Law Officer by terms of his appointment and who, by the said terms is required to act and/or plead in courts on behalf of his employer can avail the benefit of the exception contained in Rule 49. Rule 50 provides that an advocate who has inherited, or succeeded by survivorship to a family business may continue it, but may not personally participate in the management thereof. He may continue to hold a share with others in any business which has descended to him by survivorship or inheritance or by will, provided he does not personally participate in the management thereof. As the purpose of these restrictions is to preserve the dignity and nobility of the legal profession, holding of share with others in any business which he inherited is not prohibited provided he is not participating in the management of the business there by compromising on the dedication and attention to the profession.
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13

AIR 2001 S.C 509

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According to rule 51 an advocate may review Parliamentary Bills for a remuneration, edit legal text books at a salary, do press-vetting for newspapers, coach pupils for legal examination, set and examine question papers; and subject to the rules against advertising and full-time employment, engage in broadcasting, journalism, lecturing and teaching subjects, both legal and non-legal. An advocate has a duty to his colleagues under Rule 36 not to solicit work or advertise, either directly or indirectly, whether by circulars, advertisements, touts, personal communications, interviews not warranted by personal relations, furnishing or inspiring newspaper comments or producing his photographs to be published in connection with cases in which he has been engaged or concerned. The occupations allowed under Rule 52 are subject to this rule also. Rule 51 enacts a prohibition. It is a principle of professional ethics now embodied in a statutory rule. The violation of the rule makes the legal practitioner guilty of professional misconduct. But it does not prohibit a dismissed Government servant who has obtained so laboriously a declaration in his favour from claiming his just dues of salary or arrears of pay. The members of a profession must conform to the ethical standards of the profession. Rule 51 requires conformity. Law is monopolistic profession in the case of

Union of India v. Kewal Krishna Mittal14.

The fact of this case is that the respondent, late Shri Kewal Krishan Mittal, in 1963 brought a suit for declaration that his services had been wrongly terminated by the appellant, Union of India. At the relevant time he was holding the post of a Managing Officer-cum-Assistant Custodian at Delhi. On 14th June, 1960 his services were terminated. The principal ground of challenge was that Art. 311 of the Constitution was breached. He clamed a decree of Rs. 2,358.72 as the difference between the suspension allowance and his pay. The subordinate judge decreed the suit on 2nd December, 1967. The Union of India appealed. The Additional District Judge by order dated 30th October, 1971 accepted the appeal and dismissed the suit. On a second appeal to this court H.L. Anand J. reversed the lower appellate court and restored the decree of the trial court. He
14

Equivalent citations: AIR 1984 Delhi 38, 25 (1984) DLT 24, 1984 RLR 20

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declared that the order of termination of the appellant's services was null and void and th From the order of the learned single judge the Union of India filed a letters patent appeal on 17th December, 1974. The appeal was admitted by a bench of this court on 2nd April, 1975. On 31st October, 1978 Shri Mittal died. This fact was brought to the notice of counsel of the Union of India. But as no steps were taken to bring the legal representatives of the deceased respondent on record, the appeal abated. This was sought to apply for setting aside the abatement and condensation of delay. Time was granted. But no application for setting aside the abatement was made. As a result on 29th July, 1980 we held that the appeal had abated and as no steps for setting aside the abatement were taken the record be consigned to the record room. Because there was nothing else to do. Later on an application for setting aside the abatement was made. That application we dismissed on 5th August, 1980, at that he continued to be in service throughout. He also gave a decree for Rs. 2,358.72. On 11th July, 1983 the sons of late Shri Mittal made an application to this court under Section 151, Code of Civil Procedure praying for a direction to the Union of India to pay to them all the pay and allowances due to their late father in terms of the declaration made in this favor that he continued in service right up to 31st March, 1976 when Shri Mittal would have superannuated on attaining the age of 58 years. This application was opposed by the Union of India on a variety of grounds. In the reply the Union of India filed a statement before us showing that a sum of Rs. 1,31,136.65 was' due to late Shri Mittal for the period from 18th June, 1960 to 31st March, 1976. On this we directed the Government to deposit this amount in court. We were requested not to make payment to the legal representatives until the objections of the Union of India are heard and disposed of by us. We agreed to this suggestion. The Union of India has deposited in this court the entire amount of Rs. 1,31,136.65. Now we have heard Mr. P.P. Khurana, counsel for Union of India, at length. Issue The single question in these proceedings is whether this court can issue a direction to the Union of India for the payment of arrears of salary to the Government servant after the dismissal order has been set aside. Three objections were raised. In the first place counsel
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contended that we had no jurisdiction to issue the direction to the Government to make payment of arrears of salary to the legal representatives of late Shri Mittal. He submitted that the legal representatives have started execution proceedings against the Union of India in the court of subordinate judge and the Government has paid the decretal amount of Rs. 2,358.72 in full satisfaction of the decree. He argued that the executing court was the complete court to execute the decree and that this court had become functus officio after the appeal had abated and the application for setting aside the abatement had been refused. In other words his main contention was that this court is not competent to order the Union of India to pay to Shri Mittal's heirs the arrears of salary due to the deceased. Held: Mr. Mittal was engaged in the legal profession. He was not in service during the period of dismissal and reinstatement. So the rules relied upon have no application. Profession is different from service. Profession has been defined as "a calling requiring specialized knowledge and often long and intensive preparation including instruction in skills and methods as well as in the scientific, historical or scholarly principles underlying such skills and methods, maintaining by force of organisation or concerted opinion high standards of achievement and conduct, and committing its members to continued study and to a kind of work which has for its prime purpose the rendering of a public service". Defacto Mr. Mittal bad been thrown out of employment. De jure be continued to r-main in the service of the government throughout. To reconcile this reality with an assumed state of affairs is the main question in this litigation. Payment of salary to the dismissed employee is the only way to do justice to him.Mr. Mittal was engaged in the profession of liw and was not in "full-salaried" employment of any one as contemplated by Rule 51. Nor in service as contemplated by Fundamental Rule 54. On dismissing the objections of the Union of India and order that the legal representatives of the deceased Shri K..K. Mittal will be paid Rs. 1,31,136.65 (Rupees one lac thirty one thousand one hundred thirty six and paise sixty five only). The amount deposited in this court will be paid to them. The appellant will pay costs of these proceedings. Counsel fee Rs. 500.00 .

17

B. Shivakumar Vs. Govt. of A.P., Law Department, Hyderabad and another15

Fact: Since the petitioner was successful in the written examination and also in the interview and since his name was included in the merit list, the 2nd respondent recommended his name to the 1st respondent-Government for appointment as District and Sessions Judge (Gr. 4. In the counter-affidavit filed by the 2nd respondent, it is admitted that the petitioner was successful in the written examination as well as in the interview and that his name was recommended to the Government by the High Court on 13-3-1997 for appointment to the post of District and Sessions Judge (Gr. However, it is stated that a complaint petition was received against the petitioner stating that he is not a practicing advocate, that he is full time Lecturer in the Law College in Ongole, that he is staying at Ongole with one married woman who was not his wife and got a son out of the illicit contacts with the said married woman, that his conduct is not good and that his appointment is unjust as he is not possessed of required qualifications. on the allegations against the petitioner and one Sri Rahamatullah Khadri, another candidate whose name was also recommended for appointment. Thus, the part-time engagement in teaching law without detriment to practice is complimentary and supplementary in synthesising theory with practice and improving articulation rather than derogatory to the efficiency of legal practice and, therefore, the withdrawal of the name of the petitioner from the recommended list is arbitrary and unjust. The petitioner was successful in the interview and his name was recommended by the High Court to the Government for appointment as District and Sessions Judge (Gr. (2) Having recommended the name of the petitioner to the Government for appointment as District and Sessions Judge (Gr. II) as he faired well in the interview after passing the written test and also as he received attestation form from the respondent. The Counsel also submitted that under Article 233(2) of the Constitution of India, a person is eligible to be appointed as District Judge, if he has been an Advocate for not less than 7 years or a
15

1999(3)ALD528; 1999(3)ALT389

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pleader and he is recommended by the High Court for appointment. Sub-Article (2) of Article 233 provides that a person not already in the service of the Union or of the State shall only be eligible to be appointed as a District Judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment. Registrar, Co-operative Societies16 ;and Madan Mohan Choudhary v, State of Bihar17 ;and contended that even in the case of administrative order which involves civil consequences, the principles of natural justice should be complied with and that the dividing line between administrative power and quasi judicial power is quite thin and is being gradually obliterated and that, therefore, when once the petitioner's case was considered and recommended to the Governor, the High Court should not have withheld the said recommendation on the basis of the report of the Sub-Judge, Kavali without disclosing the said document to the petitioner. 'He further contended that the Constitution has conferred upon the High Court a sacred and noble duty to give the best of advice or opinion to the Governor and it is, therefore, essentially a matter of trust and confidence between the Governor and the High Court and that the High Court cannot act arbitrarily in giving its opinion to the Governor or else it will be a betrayal of that trust. Held: The petitioner is, therefore, not entitled to complain that there is violation of principles of natural justice. Ramana Reddy next contended relying on the Doctrine of Legitimate Expectation that since the name of the petitioner was recommended by the High Court to the Governor, before withholding or withdrawing the recommendation, it is necessary that an opportunity is given to the petitioner18.Coming to the actual facts, the contention of the petitioner is that he is working as a part-time lecturer in the Indira Priyadarshini Law College, Ongole and that he is practising in Kavali before the Sub-Judge. The distance between Kavali and Ongole is 65 Kms. It is practically impossible for the petitioner to travel 260 Kms., per day. Therefore, even taking into account the
16 17

(1999)ILLJ527SC (1999)IILLJ229SC 18 http://www.legalcrystal.com/judgements/description/436379

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probabilities of the case, it would be improbable for the petitioner, if not impossible, to travel 260 Kms. in a day and work as a lecturer in the College and also attend to the Court work, even assuming that there are transport facilities available.In any view of the matter, the writ petition has no merit and it is accordingly dismissed.

In Akhilesh Kumar Misra v. High Court of Judicature at Allahabad case19,

Fact: Here that the High Court as well as the State Bar Council and the Bar Council of India have been empowered to frame rules to carry out the objectives of this Act. It may be noted here that reliance upon sub-section (9) of Section 24 as well as Section 25 of the Code of Criminal Procedure was placed by the learned Bench only in order to show that for the purposes of considering Rule 44 of the Bar Council of India Rules, the petitioners therein did not cease to practise as a Advocate. The writ petition under Article 226 of the Constitution of India with the prayer that a writ in the nature of certiorari should issue quashing the orders dated 21-12-1994 issued by the Additional Registrar of this court telling each of the petitioner that their applications for seeking permission to appear in the U.P. Higher Judicial Service Examination has been rejected. Further prayer in the writ petition is that each of the petitioner should be permitted to appear in the U.P. Higher Judicial Service Examination scheduled to be held on 7th and 8th of January, 1995. Sri K. N. Tripathi, learned Senior Advocate assisted by Sri Rakesh highlight Advocate has been heard at sufficient length in support of this writ petition. Since notice of this writ petition was already given to the opposite parties, the Additional Advocate General Sri Rakesh Dwivedi assisted by Sri R. I. Saxena, learned Standing Counsel have put appearance on behalf of the opposite parties and have argued at length for dismissing the writ petition.

19

AIR 1995 All 148

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In the State of U.P. there has come to exist a service known as U.P. Higher Judicial Service. For recruitment to the said service, U.P. Higher Judicial Service Rules 1975 have been framed. Under Rule 5 of the rules, it is provided that there would be two sources of recruitment. Sources of recruitment. -- The recruitment shall be made by direct recruitment of pleaders and advocates of not less than seven years standing on the first day of January next following the year in which the notice inviting applications is published; by promotion of confirmed members of the Uttar Pradesh Nyayaik Sewa who have put in not less than seven years' service . Provided that for so long as suitable officers are available from out of the dying cadre of the Judicial Magistrates, confirmed officers who have put in not less than seven years' service to be computed as aforesaid shall be eligible for appointment as Additional Sessions Judge in the service. When a person has been both a pleader and an advocate his total standing in both the capacities shall be taken into account in computing the period of seven years under clause (a). Held: As noted above, since the rules framed by the Bar Council of India exclude advocates who have been appointed to some posts except Law Officer of the Central Government or the State Government, the argument of Sri Tripathi that since the names of the petitioners continued to exist in the State roll and they would be deemed to be Advocates, is without any force. It may be suggested that the moment an Advocate joins an employment, the effect of the provisions contained in Section 26A of the Advocates Act are implicitly applicable. There is no merit in the writ petition. It is dismissed summarily. Petition dismissed. Therefore, if the appointment as Assistant public Prosecutor is for the purpose of creating an employment for him, then it is needless to say that Rule 51 of the Bar Council of India Rules would segregate him from advocates. Therefore, it would not be possible for him to contend that by adding the years, of working as A.P.P he would be having seven years standing as an advocate. But if it is to be interpreted that Sec 25 of the Code of Criminal Procedure enjoins the appointment of an advocate as Assistant Public Prosecutor for conducting prosecution in courts of Magistrates, then it debars the appointee to call himself an advocate. Sections 24, 29 and 30 of the Advocates Act, 1961 and the rules of
21

the Bar Council of India also would deny him the right to be called an advocate as having been appointed as A.P.P. Therefore, such a person cannot be permitted to add the period serving as A.P.P to the period of practising as advocate for claiming seven years standing as an advocate. Rule 51 permits the lecturing and teaching subjects, both legal and non-legal. However, this right is subject to the Advocates (Right to take up Law teaching) rules, 1979. According to rule 3 of the said rules an advocate may, while practicing, take up teaching of law in any educational institution which is affiliated to a University within the meaning of the University Grants Commission Act, 1956 (3 of 1956), so long as the hours during which he is so engaged in the teaching of law do not exceed three hours in a day. When any advocate is employed in any such educational institution for the teaching of law, such employment shall, if the hours during which he is so engaged in the teaching of law do not exceed three hours, be deemed, for the purposes of the Act20 and the rules made there under, to be a part-time employment irrespective of the manner in which such employment is described or the remuneration receivable (whether by way of a fixed amount or on the basis of any time scale of pay or in any other manner) by the advocate for such employment.Teaching of law for not more than three hours a day is considered as a part-time employment. Rule 5221, It states that nothing in these rules shall prevent an advocate from accepting after obtaining the consent of the State Bar Council, part-time employment provided that in the opinion of the State Bar Council, the nature of the employment does not conflict with his professional work and is not inconsistent with the dignity of the profession. This rule shall be subject to such directives if any as may be issued by the Bar Council India from time to time22. Teaching of law for not more than three hours a day is considered as a part-time employment.

20 21

http://lawmin.nic.in/la/subord/bcipart4.htm(accessed on 16/8/13) Journal of Bar Council of India. 22 Bar Council of India, Ethics no 47.

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Anees Ahmed and Anr. Vs. University of Delhi and Ors.23

Fact: Most of the full time law teachers are also practicing as advocates, the students community pursuing the law course in the University of Delhi has been badly affected as the law teachers have been neglecting their obligation to their students and number of complaints on that count have been lodged. 1, namely, Bar Council of India, under Section 26 of the Act, were bad in law and are required to be set aside and quashed. 2 had satisfied itself about the eligibility of Sh. 18. In order to appreciate the rival contentions, centring around the aforesaid points, it would be necessary to have a look into the various statutory provisions and other connected documents like resolutions etc. [Provided that the Bar Council of India may, if satisfied, either on a reference made to it in this behalf or otherwise, that any person has got his name entered on the roll of advocates by misrepresentation as to an essential fact or by fraud or undue influence, remove the name of such person from the roll of advocates after giving him an opportunity of being heard. Full time law teachers may, however, be permitted to appear in the courts for social action/public interest litigation matters as well as legal aid/public interest litigation matters as well as legal aid/services programme. For the purposes of this resolution, the expression 'Full-Time' teachers in law means a teacher appointed on recognised by a University enjoying fully salaries tenure, promotional avenues, security of service as well as terminal benefits. Then there are the obligations of research which include one's own research as well as the Supervision of the research required to be done by students. For the present, the best course for the university will be to persuade the Bar Council to initiate similar action against all teachers regarding whom there is a presumption that they are engaged in legal practice. degree and which maintains a legal aid clinic as part of its teaching programme where poor persons receive legal aid, advice and related services; Implicit in the conferment of such rule-making power is the guidelines laid down by the legislature itself that the conditions must be commensurate with the fructification of the very purpose of the Act of putting the profession of advocates on a sound footing so that
23

AIR 2002 Delhi 440

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the new entrant concerned can well justify his role as an officer of the Court admitted to the fold of the noble profession to which he seeks his admission. Any conditions laid down by the State Bar Councils for fructifying this laudable object of legislature would remain germane to the exercise of this power and can well be said to be logically flowing from it. If is for ensuring full-time attention of legal practitioners towards their profession and with a view to bringing out their best so that they can fulfill their role as an officer of the court and can give their best in the administration of justice, that the impugned rule has been enacted by the State Legislature. On the contrary that procedure has been found to be well sustained under Article 19(1)(g) read with Article 19(6). Once that conclusion is reached the absolute requirement of Article 21 would be out of the way. In the absence of express or positive rule, the appellant could not fit in the exception and the bar contained in the first paragraph of Rule 49, was clearly attracted, as rightly held by the High Court24, wherein the Supreme Court held that the writ petitioner who comes to the Court for relief in public interest petition must come not only with clean hands, like any other writ petitioner but must further come with a clean heart, clean mind and clean objective25, it was held by the Division Bench of this Court that the Court has to be satisfied about, (a) the correctness of the credentials of the applicant; Strong reliance was placed by the respondent-Full time Law teachers on the provisions of Advocates rights to take up law teaching Rules, 1979 (hereinafter referred to as 'the 1979 Rules'). The said provisions are also extracted hereinabove26. Therefore, the said rules clearly establish that the same are applicable and come into operation post enrollment and have no application to a person prior to his enrollment as an advocate. the court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. Over and above the teaching Faculty also has an obligation of doing research while includes one's own research as well as supervision of research required to be done by the students. Besides there are other responsibilities to be
24 25

(1994) SCC 620 87 (2000) DLT 170 26 http://www.legalcrystal.com/judgements/description/699530(accessed on 16/8/13)

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discharged by a teacher like, administrative responsibilities etc. The University Grants Commission also by its letter dated 7.12.1995 informed the Registrar of the Delhi University that full time law teacher in University Departments and affiliated Law Colleges would not be permitted to enroll as members of the Bar entitling them to be a full time lawyer but they should be allowed and permitted to appear to Courts for social action or public interest litigation matters as well as legal aid/public interest litigation connected therewith. Held: The said full time law teachers were not eligible to be enrolled as an advocate and, therefore, enrollment itself was clearly contrary to Rule 103 of the Rules. Bar Council of Himachal Pradesh27, wherein it was held as follows :The contention that the respondent could not have cancelled enrollment of the appellant almost after a decade and half and that the respondent was estopped from doing so on the principle of promissory estoppel, did not impress us for the simple reason that the appellant suffered threshold bar and was not eligible to be enrolled as an Advocate and his enrolment itself as clearly contrary to Rule 49 of the Rules in the light of the facts stated above. In terms of the aforesaid observations and directions all the writ petitions stand disposed of holding that the full time law teachers of the law Faculty of the Delhi University could not have enrolled themselves as advocates and, therefore, enrollment given to the said teachers by the State Bar Council was per so void and illegal and any action taken by the Bar Council of India to rectify the said mistake in exercise of its power cannot be said to be bad or illegal. However, so far the issue relating to the rights of the practicing advocates to take up full time law teaching, post enrolment, is concerned, it is necessary to mention that in none of the present petitions the validity of Rule 3 of the Advocates (Right to Take up Law Teaching) Rules, 1979 was challenged. Therefore, the aforesaid issue specifically does not fall for our consideration and there is no scope for deciding the aforesaid issue in these writ petitions.

27

2001 (2) SCC 365

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CONCLUSION & SUGGESTIONS

The paper draws conclusions based on the preceding chapters. The cardinal principle which determines the privileges and responsibilities of advocate in relation to the court is that he is an officer to justice and friend of the court and restricted to the rules laid. This is the primary position. A conduct therefore which is unworthy of him as an officer of justice cannot be justified by stating that he did it as the agent of his client. His status as an officer of justice does not mean he is subordinate to the judge. It only means that he is an integral part of the machinery for the administration of justice. An advocate is the most accountable, privileged and erudite person of the society and his act are role model for the society, which are necessary to be regulated. The advocate must not place himself in a position which he cannot effectively discharge his obligations to the Court as minister of justice. He should not have any personal interest in the litigation he is conducting. Advocates in their professional capacity address each other as brothers. This spirit of fraternity at Bar is one of the noblest traditions of the legal profession and is many centuries old. Senior Advocates are designated as such by the Supreme Court of India or by any High Court. The Court can designate any advocate, with his consent, as Senior Advocate if in its opinion by virtue of his ability and standing at the Bar or special knowledge or experience in law, the said advocate is deserving of such distinction. A Senior Advocate is not entitled to appear without an Advocate-on-Record in the Supreme Court or without a junior in any other court or tribunal in India. He is also not entitled to accept instructions to draw pleadings or affidavits, advise on evidence or do any drafting work of an analogous kind in any court or tribunal in India or undertake conveyancing work of any kind whatsoever, but this prohibition shall not extend to settling any such matter as aforesaid in consultation with a junior. As far as the senior advocate is concerned, it is professional malpractise that he is indulging in by accepting briefs. And the State Bar Council is the authority that regulates it. But the problem is proving that it is happening. And remember the State Bar Council is usually loaded in favour of a Senior Advocate who has over time proved his standing at
26

the bar vis a vis an upstart junior lawyer. And not to forget an enmity with him could harm you in the long run. As far as payment is concerned, unless you have a written agreement there is little you can do. Paying a junior engaged in his chambers is more moral than legal without a contract. Nothing quite as exhilarating as being your own boss. The role of the lawyers in the society is of great importance. They being part of the system of delivering justice holds great reverence and respect in the society. Each individual has a well-defined code of conduct which needs to be followed by the person living in the society.so a legal practitioners, therefore at every given opportunity seek to enlighten and educate ourselves on the contents of these rules as we strive for a better legal profession and also all carry out our expected duties as practitioners and resolve to co-operate sincerely with ourselves. Honesty and honourable dealing are, of course, expected from every man, whether he is engaged in professional practice or in any other gainful occupation. But in a profession, pecuniary success is not the only goal. Service is the ideal, and the earning of remuneration must always be subservient to this main purpose. So it is suggested in the phrase practice of law under Rule 2(xx) is very wide and includes giving of legal advice and contemplates a degree of independence and neutrality in the legal advice given and does not appear to include legal advice given by in-house counsel (that is, a salaried employee of a Company etc.) to their employer. Thus, inhouse counsel cannot be considered to be into practice of law or a legal professional legal adviser within the meaning of section 129 of the Evidence act. Nor, are they advocates within the meaning of Section 2(a) of the Act of 1961. In case an advocate take up full time employment, he must inform the bar council on whose roll his name is entered and must cease to practice as an advocate for the duration of his employment. In case an advocate wants to take up part time work, he may do so with the consent of the state bar council, which must be satisfied that such work, will not conflict with his professional work, and is not inconsistent with the dignity of the profession.

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BIBLIOGRAPHY
BOOKS REFERRED
SanjeevRao, Indian Advocates Act, 1971. J.P.S.Sirohi, Professional Ethics, Accountability for Lawyers and Bench-Bar Relations, edition, 2002, Allahabad Law Agency., pg no.409 Krishna Murthy Iyers Book on Advocacy. Journal of Bar Council of India. Gazette of India, Part III, Sec 4, dated 13th October, 2001. Ramantha Aiyer, Legal and Professional Ethics, 3 ed, 2003, Wadhwa& Co, Nagpur SandipBhalla, Advocates Act 1961 and Professional Ethics,2 ed, 2004, Nasik Law house Prof. KailashRai, Legal Ethics, Accountability for Lawyers and Bench-Bar Relations, 8 ed, 2013, Central Law Publications, Allahabad., pg no.89

WEBSITE REFERRED http://newindianexpress.com/states/tamil_nadu/Advocating-a-degree-of-caution-toraise-the-bar/2013/07/01/article1661261.ece

http://www.scjudgments.com/display.aspx?8d268256-addd-4d48-86ad
b4a099dc2636/

http://www.lawweb.in/2013/05/other-professional-can-not-be-granted.html www.legalserviceindia.com http://rdalegal.wordpress.com/2013/02/27/honble-supreme-court-of-india-considerspublic-prosecutors-to-be-eligible-for-district-judiciary-posts-clarifies-the-restrictionsunder-rule-49-of-the-bci-rules/

https://www.google.co.in/search?q=restrictions+on+senior+advocates&newwindow=
1&ei=waUPUtXxA4mOrQeU4YDoDw&start=10&sa=N&biw=1024&bih=667

http://indiankanoon.org/doc/1902098/

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