LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

In a very persuasive, progressive, pragmatic, powerful, pertinent and path breaking judgment titled Jyotsana Rawat and otr vs State of Punjab and otr in CWP No. 13497 of 2023 (O&M) and other connected matters that was pronounced recently on October 13, 2023, the Punjab and Haryana High Court has allowed an appeal seeking to quash an order of the State Government to produce copies of six court orders of each year to prove their experience. It must be noted that the Court ruled that a certificate from the Bar Association is sufficient proof of a lawyer's experience and introducing additional requirements after the selection process violates the Constitution, suggesting that if the State wants only courtroom-experienced lawyers, they should amend the rules accordingly! To put it differently, the Chandigarh High Court has held in no uncertain terms that a certificate issued by the Bar Association of the concerned Court would have the same force as that of a certificate from any other judicial or quasi-judicial authority and would qualify as proof of one's experience.

Frankly speaking, the Chandigarh High Court found fault with the State's requirement for candidates to produce court orders deeming it overly restrictive. Most importantly, it underscored in no uncertain terms that legal practice extends beyond courtrooms, encompassing appearances in arbitration matters, tribunals, and other quasi-judicial bodies. This clearly implies that relying just on vakalatnamas as proof for being considered fit to be an advocate cannot be justified. We see so many senior advocates like eminent and learned Supreme Court lawyer Mr KTS Tulsi who himself conceded that he did not sign vakalatnamas for many years as he could not get work in his initial few years in Bar so that does not render him ineligible in any manner to be a lawyer! It also merits mentioning that the Court concluded that a certificate issued by the Bar Association of the concerned court is sufficient evidence of experience.

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon'ble Mr Justice Sanjeev Prakash Sharma sets the ball in motion by first and foremost putting forth in para 1 that, "All the aforementioned writ petitions raise common question of law and all the petitioners in various writ petitions are aggrieved of the same order dated 05.06.2023 issued by respondent No.3, hence being heard together."

To put things in perspective, the Bench envisages in para 2 that, "All the petitioners are aspiring candidates had applied under the advertisement dated 05.04.2023 by the Punjab Public Service Commission (hereinafter referred to as PPSC) for the post of Assistant District Attorney (hereinafter referred to as ‘ADA') and Deputy District Attorney (hereinafter referred to as ‘DDA'). They have been held eligible to participate in the selection process and have been finally placed in the merit list and their names were forwarded and recommended to the State Govt. for appointment on the posts. The State Govt. has, however, issued an order on 05.06.2023 directing the selected candidates to produce copies of six Court orders / zimni orders of each year showing their presence in the Court in order to prove the experience claimed by them. Aggrieved thereof, the present writ petitions have been filed."

While citing the most relevant case law, the Bench points out in para 20 that, "In Madan Lal v. State of Jammu Kashmir 1994 SCC page 546 somewhat similar issue came up before the Supreme Court and it was held that the candidates who were recommended namely respondents no.10 and 13 in the petition were not eligible to be appointed as they failed to satisfy the requirement of having to be into two years of actual practice at the Bar. The Supreme Court has held as under:-

"20. It was next vehemently contended by the petitioners that actual practice would mean that the concerned candidates should have appeared before courts and conducted cases during these two years. It is difficult to accept this contention. A member of the Bar can be said to be in actual practice for 2 years and more if he is enrolled as an Advocate by the concerned Bar Council since 2 years and more and has attended law courts during that period. Once the Presiding Officer of the District Court has given him such a certificate, it cannot be said that only because as an advocate he has put in less number of appearances in courts and has kept himself busy while attending the courts regularly by being in the law library or in the bar room, he is not a member of the profession or if not in actual practice for that period. The words ‘actual practice' as employed in rule 9 indicate that the concerned advocate must be whole time available as a professional attached to the concerned court and must not be pursuing any other full time avocation. To insist that the terms ‘actual practice' should mean continuous appearances in the court would amount to re-writing the rule when such is not the requirement of the rule. There is no substance even in this additional aspect of the matter canvassed by the learned senior counsel for the petitioners. It must therefore be held that respondent Nos. 10 and 13 were eligible for competing for the said posts of Munsiffs.""

Most significantly, what forms the cornerstone of this brilliant judgment and which cannot escape our maximum attention is that the Bench then mandates in para 21 that, "From the aforesaid judgments, this Court reaches to the conclusion that an advocate who is enrolled with the Bar Council starts actually practice and a certificate of such nature can be given to him by the concerned Bar Association or by the concerned Court where he is practicing or even from any of the judicial or quasi judicial forums where he may be practicing. A certificate issued by the Bar Association of the concerned Court would have the same force as that of a certificate from any other judicial or quasi judicial authority and he, therefore, is not required to necessarily provide further proof of his experience. However, if it is shown by other proof or documents that the concerned Advocate enrolls with the Bar Council is actually not practicing law but is doing any other business or engaged in gainful employment, the said aspect would result in his being ousted from the Bar Council Rules. Self attestation or an affidavit of being engaged in advocacy alone can be obtained from a candidate. State may also consider amendment in Rules."

Be it noted, the Bench notes in para 22 that, "The practice of law has been defined in the Rules of Legal Education 2008 framed by the Bar Council of India under the Advocates Act, 1961 to mean as under:-

"(xx) Practice of law" means and includes (a) practising before the Court, Tribunal, Authority, Regulator, Administrative Body or Officer and any Quasi Judicial and Administrative Body, (b) giving legal advice either individually or from a law firm either orally or in writing, (c) giving legal advice to any government, international body or representing any international dispute resolution bodies including International Court of Justice, (d) engaged in Legal Drafting and participating in any Legal Proceedings and (e) representing in Arbitration Proceedings or any other ADR approved by law.""

It cannot be lost sight of that the Bench then hastens to add in para 24 propounding that, "If a lawyer is regularly appearing in arbitration matters or is only practicing in the field of registration of documents or is appearing before a Wakf Board, Service Tribunal, Labour Courts, Industrial Tribunals and various other Central Administration Tribunals, Income Tax Appellate Tribunal or Distt. Consumer Courts and Commission, he or she cannot said to be not having an experience of practice at Bar limiting the practice to mean only appearing in the Court and that too having appearances in atleast 6 interim orders is limiting the participation of Advocate's in the open competition for appointment of the ADA. Similarly is the situation of the DDAs. The decision taken by the State Govt. for scrutinizing experience of the candidates is thus, found to be too circumscribe."

Briefly stated, the Bench underlines in para 25 that, "Thus, those Public Prosecutors who are appointed by the State would be presumed to have practice for seven years to their credit and the respondents demanding them for another certificate or proof of experience is nothing but a case of non application of mind."

Finally, the Bench concludes by holding in para 31 that, "Before concluding, this Court, however is of the view that the ADAs are required to present the case of the State Govt. effectively in the Courts and it appears that the State Govt. essentially intends to select those advocates who have rich experience of practice in the Courts alone. However, the method and manner adopted for searching out such ADAs by introducing the letter dated 05.06.2023 is wholly unjustified and incorrect approach. If at all the State wants to have only those advocates who have practiced in the Court of law and nowhere else should incorporate such condition in the rules by making appropriate amendments. They can also put a condition in the advertisement and demand of particular certificate from the candidates at the stage of participation. However, demanding of 6 zimni orders/interim orders with attendance of the lawyer cannot be said to be a sufficient proof of experience."

As a corollary, the Bench directs in para 32 that, "Accordingly, in view of the aforesaid discussion, all these writ petitions are allowed. The letter dated 05.06.2023 is quashed and set aside."

Finally, the Bench concludes by holding in para 33 that, "The respondents are now directed to immediately take steps for proceeding to fill up the posts of ADAs and DDAs within a period of one month from the date of receipt of certified copy of this order."

All told, the Punjab and Haryana High Court has made it indubitably clear that signing of vakalatnama is not a sine qua non to be eligible to be a lawyer and it would not be proper to restrict lawyer to just signing vakalatnamas only. It was also made clear that a certificate from the Bar Association is adequate proof of a lawyer's experience. No denying!

"Loved reading this piece by Adv. Sanjeev Sirohi?
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"

Tags :

Category Others, Other Articles by - Adv. Sanjeev Sirohi