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. 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 is actually practicing before courts which expression would include even those who are law officers appointed as such by the Government or body corporate. [emphasis supplied] As stated in the above para the test indicated is whether a person is engaged to act or plead in a court of law as an Advocate and not whether such person is engaged on terms of salary or payment by remuneration. The essence is as to what such Law Officer engaged by the Government does.
The word Advocate in Article 233(2) of Indian constitution was held to include a Law Officer of Central or State Government, public corporation or a body corporate who is enrolled as an Advocate under exception to Rule 49 of Bar Council of India Rules and is practicing before courts for his employee.
In case the appellant gives up his full time employment or ceases to be employee of the Board, he may be allowed to practice maintaining his seniority as an advocate from the date of his enrolment on the rolls of the respondent; if the enrolment is cancelled or withdrawn he would lose the seniority for no fault of him. There is a difficulty in accepting this argument. When the appellant was not entitled for enrolment and his enrolment itself was opposed to law, such enrolment was non-est. Hence the question of maintaining his seniority on the rolls of the respondent does not arise. However, we make it clear that in case the appellant resigns or ceases to be a full time employee of the Board, it is open to him if so desired to apply afresh for enrolment as an advocate.