Delhi High Court: Pursuing LLM will Not be Considered as Suspension or Break in Practice of an Advocate

Delhi High Court: Pursuing LLM will Not be Considered as Suspension or Break in Practice of an Advocate

The Delhi High Court has ruled that pursuing a Master's course in law does not count as a break in practice of a lawyer. The division bench of Justices Vibhu Bakhru and Amit Mahajan further noted that, the eligibility criterion of seven years of continuous practise as an advocate to be appointed as a District Judge, as set out in Rule 9(2) of the Delhi Higher Judicial Services (DHJS) Rules, 1970 or Article 233(2) of the Constitution of India, does not require any inquiry into the actual area of practice of an advocate.

In the present case, a petition was filed by a candidate named Karan Antil who had appeared for the DHJS exams. The Petitioner challenged the inclusion of three people in the select list of candidates on various grounds.

The Petitioner contended that 5th respondent was not eligible to appear for the DHJSE-22 since he failed to satisfy the eligibility criterion set out in Rule 9(2) of the DHJS Rules, which requires the candidate ‘to have been continuously practicing as an Advocate for not less than seven years as on the last date of receipt of the application.’

The eligibility of one of the candidates was challenged on the ground that he had pursued a full time Master of Law Program at the University College London (UCL) from September 2015 to June 2016. and therefore, the continuous period of practice for respondent was required to be reckoned from June 2016.

The Petitioner further argued whether a person was in practice is dependent on the functions performed by the said person. He contended that pursuing a Master’s course in law could not be considered as practice.

The Bench after going through the facts of the case discerned that the petitioner would be entitled to inclusion in the select list only if he succeeds in his challenge to the appointment of all the three candidates.

The Court observed that the enrolment of a person as an advocate and grant of certificate is synonymous to him being in practice of law. An advocate, who is not practicing the profession of law, is a misnomer, said the Court.

Apropos to this, the Court dealt with the challenge to the eligibility of the candidate whose appointment was challenged on the grounds of his studying abroad.

The Court on pursual of the eligibility criteria set out for an advocate under Article 233(2) of the Constitution and Rule 9(2) of the DHJS Rules noted that, “in terms of Article 233(2) of the Constitution of India, any person who has been an advocate for not less than seven years, is eligible to be appointed as a District Judge. It is implicit that the term ‘advocate’ would mean a person who is in practice as an advocate. We are not persuaded to accept that there is a difference between a person who is an advocate, and a person who has practiced as an advocate.”

Hence, the bench on examining Article 233 (2) of the Indian Constitution and Rule 9(2) of the DHJS rules, held, “we reject the contention that Rule 9(2) of the DHJS Rules contemplates the condition of active practice as an advocate, in addition to the eligibility criteria stipulated under Article 233(2) of the Constitution of India. We are of the view that the Rule 9(2) of the DHJS Rules has to be read embodying the eligibility criteria for appointment of an advocate as set out in Article 233(2) of the Constitution of India.”

The bench further referred to the Resolution No.160/2009 of the Bar Council of India, as per which the practicing advocates can join an LL.M. course as a regular student without suspending the practice.

Consequently, the Court concluded that the respondent no.5’s practice as an advocate was not suspended during the period when he was pursuing the Master of Law Program. By virtue of Resolution No. 160/2009 passed by the BCI, he was not required to suspend his enrolment as an advocate on account of pursuing the said full-time course, the bench said.

Accordingly, the petitioner’s prayer that the DHC be directed to appoint him in the DHJS failed and the petition was dismissed by the Court.