Gujarat high court has ruled that an advocate having a consultancy contract in the nature of a full-time job is not eligible for enrolment with the Bar Council of Gujarat (BCG) and cannot be given a certificate to practice law.
The case involves a woman, Jalpa Desai, who passed law from MSU and was seeking to enrol herself with the BCG as an advocate. Trouble arose when it did not take any decision on her application for enrolment on the ground that she was technically employed with the Gujarat Industrial Development Corporation (GIDC) since 2012, and a person can't practice as an advocate once she/he is in job.
However, Desai denied that she was an employee of GIDC. She maintained that she was engaged as a legal consultant/ legal expert. And hence the provisions of Advocates Act and BCG and the Bar Council of India rules can't prevent her from getting enrolled as an advocate. When the Bar did not take any decision, she moved the HC.
Before the high court, Desai argued that she was never treated as an employee and she was paying tax at source for professional services. What was paid to her was not a salary. BCG maintained that Desai's contract with GIDC, by which she was getting a monthly payment of Rs25,000 required her to be present in office during office hours and that made her a full-time employee according to the Advocates Act and Rule 49 of the Bar Council of India.
While summing up, Justice N V Anjaria ruled that BCG cannot give Desai a certificate to practice law as an advocate. "Considering the nature of service contract of the petitioner with the Corporation, there is no gain saying that she incurs debility in terms of Rule 49 as her employment could be characterized as a full-time salaried employment," the HC said, and concluded that refusal by BCG to grant her enrolment, and the certificate to practice law, is "eminently proper and legal".
The case involves a woman, Jalpa Desai, who passed law from MSU and was seeking to enrol herself with the BCG as an advocate. Trouble arose when it did not take any decision on her application for enrolment on the ground that she was technically employed with the Gujarat Industrial Development Corporation (GIDC) since 2012, and a person can't practice as an advocate once she/he is in job.
However, Desai denied that she was an employee of GIDC. She maintained that she was engaged as a legal consultant/ legal expert. And hence the provisions of Advocates Act and BCG and the Bar Council of India rules can't prevent her from getting enrolled as an advocate. When the Bar did not take any decision, she moved the HC.
Before the high court, Desai argued that she was never treated as an employee and she was paying tax at source for professional services. What was paid to her was not a salary. BCG maintained that Desai's contract with GIDC, by which she was getting a monthly payment of Rs25,000 required her to be present in office during office hours and that made her a full-time employee according to the Advocates Act and Rule 49 of the Bar Council of India.
While summing up, Justice N V Anjaria ruled that BCG cannot give Desai a certificate to practice law as an advocate. "Considering the nature of service contract of the petitioner with the Corporation, there is no gain saying that she incurs debility in terms of Rule 49 as her employment could be characterized as a full-time salaried employment," the HC said, and concluded that refusal by BCG to grant her enrolment, and the certificate to practice law, is "eminently proper and legal".
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