Can Be Considered As Practicing Advocate Only From The Date AIBE Is Cleared: Orissa High Court Directs Election Committee To Invalidate Lawyer’s Nomination To Bar Association Treasurer’s Post

The Writ Petition before the High Court was filed by the Petitioner challenging the non-compliance with the order passed by the Central Election Committee to the Election Officer of the Khordha District Bar Association. The petitioner also sought the disqualification of a lawyer (Opposite Party No. 4) in accordance with Rule 25 of the Khordha District Bar Association Rules, 1957.

The Single Bench of Justice S.K. Panigrahi said, “The Central Election Committee’s finding in this regard is clear that he was required to clear the All India Bar Examination within two years of his enrolment, i.e., by February 2015. However, he cleared the All India Bar Examination only in March 2021. Therefore, for the period between February 2015 and March 2021, he was effectively a non-practicing advocate, having no right to vote in Bar Association elections or State Bar Council elections.”

Advocate Tusar Kumar Mishra represented the Petitioner, while Advocate A. P. Bose represented the Respondent.

Factual Background

The Secretary of the Odisha State Bar Council notified that the elections for the Office Bearers and Members of the Executive Body of affiliated Bar Associations for the year 2024-25 were to be conducted on the basis of ‘one bar, one vote, one day,’ in accordance with Sub-Rule 42 of Rule 21 of the Odisha State Bar Council Rules. The petitioner lodged a complaint before the Election Officer alleging that the Opposite Party No. 4 was ineligible to contest the election for the post of Treasurer due to having only three years of practice experience, as he had cleared the All-India Bar Examination in 2021. This complaint was dismissed, and the nomination of Opposite Party No. 4 was accepted.

The petitioner’s representation to the Odisha State Bar Council was looked into, and the Central Election Committee directed the Election Officer of the Khordha District Bar Association to verify whether the eligibility criteria for the post of Treasurer necessitated a minimum of ten years of regular practice. Aggrieved by the non-compliance with the directions of the Committee, the petitioner filed the present writ petition, seeking that Opposite Party No. 4 be treated as a non-practicing advocate from the date of his enrollment to March 2021 (i.e., the date of passing the All-India Bar Examination) and be disqualified under Rule 25 of the Khordha District Bar Association Rules, 1957.

Reasoning

Referring to Rule 9 of the All India Bar Examination Rules, 2010, the Bench explained that the rule clearly demonstrates that the All India Bar Examination is mandatory for all law students graduating from the year 2009-10 onwards. Passing this examination is a critical requirement, directly linked to maintaining the standard of individuals seeking to obtain a license to practice law as a profession. The Bench highlighted that the Supreme Court, in its judgment in Bar Council of India v. Bonnie Foi Law College (2023), has upheld the Bar Council of India’s power to conduct a pre-enrolment examination i.e. All India Bar Examination.

“It is further imperative to note that as per the BCI Resolution dated 31.01.2017, the right to practice for an advocate who has graduated after 1 st July 2010 would only be valid under a provisional enrolment for two years, during which time the advocate can take the Bar Examination as many times as necessary”, the Bench said.

On a perusal of the facts of the case, the Bench noted that the petitioner graduated after July 1, 2010, having graduated in 2012. He enrolled in 2013 but only cleared the All India Bar Examination in 2021. The Central Election Committee’s finding in this regard was clear that he was required to clear the All India Bar Examination within two years of his enrolment, i.e., by February 2015. However, he cleared the All India Bar Examination only in March 2021. Therefore, for the period between February 2015 and March 2021, he was effectively a non-practicing advocate, having no right to vote in Bar Association elections or State Bar Council elections. “Consequently, Opposite Party No. 4 can only be credited with three years of practice”, it said.

“Upon perusal of the Consolidated By-Laws of the Khordha District Bar Association, it is clear that, as per Rule 25(e), a candidate must be a senior valid member of the Association, with at least ten years of practice in the Bar”, it explained.

“It is undisputed that Opposite Party No. 4 had not cleared the All India Bar Examination until 2021. In light of the facts and applicable rules, it is evident that the nomination of Opposite Party No. 4 is invalid, as his experience can only be counted from 2021, as confirmed by the decision of the Odisha State Bar Council”, the Bench said while discarding the contention that the amendments are not applicable to the Khordha Bar Association in light of the fact that previous elections had been conducted in accordance with the amendments.

Thus, allowing the Writ Petition, the Bench directed the Election Officer, Khordha Bar Association, to comply with the order of the Central Election Committee and take the necessary steps to invalidate the nomination filed by Opposite Party No.4 as he does not meet the requisite eligibility criteria.

Cause Title: Biswakesh Mohapatra v. The Odisha State Bar Council & Ors (Case No.: W.P.(C) No. 11411 of 2024)

Appearance:

Appellant: Advocate Tusar Kumar Mishra

Respondent: Advocates A. P. Bose, M. K. Chand, S. Mohanty

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