WP (C) No. 1334/2025 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR WP ( C ) No. 1334/2025 Reserved on 10.09.2025. Pronounced on .09.2025. Malika Rashid Wani ... Petitioner Through: Mr. Tasaduq. H. Khawja, Sr. Advocate with Mr. Iman Muizz, Advocate. Vs Bar Council Of Jammu and Kashmir & Anr. … Respondent(s) Through: Mr. Shah Amir, Advocate with Mr. Areeb Kawoosa, Advocate. CORAM: HON’BLE MR JUSTICE JAVED IQBAL WANI, JUDGE HON’BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE J U D G M E N T (Per Javed Iqbal, J’) 1. The petitioner in the instant petition filed under Article 226 of the Constitution has prayed for the following reliefs:- (I) “Issuance of appropriate writ of direction quashing Order No. 1201 of 2024 dated 05.08.2024 and Notification No. 1676/2024/RG/LP dated 05.08.2024 issued by respondent No. 1 in purported exercise of powers under section 58 of the Advocates Act, 1961, whereby the provisional license No. JK- 423/2022 dated 22.07.2022 of the petitioner, extended vide notification No. 2420 of 2023/RG/LP dated 18.10.2023, stands cancelled. (II) Issuance of appropriate writ or direction including one in the nature of mandamus commanding the respondents to treat the petitioner as on rolls of the State Bar Council of the Union Territory of Jammu and Kashmir from the date of issuance of provisional notification dated 22.07.2022 till 05.02.2024 i.e. date of her appointment as a Prosecuting Officer. (III) Issuance of appropriate writ or direction including one in the nature of mandamus commanding the respondents to issue absolute license in favour with effect from the date of provisional license notification i.e., 22.07.2022”. Page 2 of 13 WP (C) No. 1334/2025 2. The facts under the shade and cover of which the aforesaid reliefs are prayed and as are stated in the petition for are that the petitioner was admitted to a five-year Integrated Bachelors of Arts and Bachelor of Law (B. A. LL.B.) program in the year 2017, and after successfully completing the said course, the petitioner came to be awarded a provisional degree certificate on 25.05.2022 and the final degree certificate on 17.08.2023. It is further stated that pursuant to receiving of her (B.A. LL.B) degree, the petitioner become eligible to be enrolled as an Advocate and to practice law in terms of Section 29 and 30 of the Advocates Act, 1961, as a consequence whereof the petitioner claims to have applied to the respondent 1 herein for her enrolment on the rolls of Bar Council of Union Territory of Jammu and Kashmir and for issuance of license to practice as an Advocate in accordance with the provisions of the Act of 1961. It is further stated that the said application filed by the petitioner came to be entertained by the respondent 1 and vide Notification No. 981 of 2022/RG/LP dated 27.07.2022, the petitioner was enrolled provisionally as an Advocate and the validity of the said notification was for a period of one year or, otherwise, subject to completion of verifications of her degree certificate from the concerned University and her character and antecedents from the CID wing of Police. It is also stated that since the said provisional license was to remain valid for a period of one year unless extended or the absolute/final license is issued and that since the said absolute license was not issued within said period, the petitioner applied to the respondent 1 for renewal and extension of the said provisional license which came to be granted until 31st October, 2024, vide notification No. 2420 of 2023/RG/LP dated 18.10.2023. Page 3 of 13 WP (C) No. 1334/2025 It is next stated that however, despite completion of aforesaid necessary verifications, the respondent 1 did not issue absolute/final license to the petitioner. It is further stated that in the meanwhile, the petitioner had applied for appointment against the post of Prosecuting Officer, advertised by the Government of Jammu and Kashmir, and was selected for the same on 15.09.2023, and that post her such selection, but ahead of her anticipated appointment as Prosecuting Officer, and receipt of aforesaid verifications by the respondent 1 as envisaged in the provisional license, the petitioner claims to have applied to respondent 1 for issuance of absolute license in her favour in the month of September, 2023, whereupon the petitioner stated to have been informed by the concerned office that the said application is being processed. It is being next stated that during the intervening period and prior to any call taken on her application for issuance of absolute/final enrollment, the petitioner came to be appointed as Prosecuting Officer vide Government Order No. 73-Home of 2024 dated 05.02.2024, on which date even the license of the petitioner was still provisional despite the fact that the respondent 1 have had received necessary verifications thereof and that the petitioner had in fact already applied before hand for the issuance of said final/absolute license before respondent 1. It is further stated that under said circumstances, the petitioner submitted a detailed representation dated 28.02.2024, to the respondent 1, disclosing her appointment as Prosecuting Officer and simultaneously made a request for issuance of absolute/final license in her favour which she was supposed to surrender immediately, owing to her such WP (C) No. 1334/2025 appointment and that the petitioner subsequently, came to be directed by the office of the respondent 1 to submit a duly sworn affidavit attested by the Judicial Magistrate 1st Class, affirming details of her appointment as Prosecuting Officer which the petitioner claims to have submitted. It is being also stated that the respondent 1 though was obligated to issue the absolute license in favour of the petitioner, particularly after having received all requisite verifications as well as the voluntarily disclosure made by the petitioner that she has been appointed as Prosecuting Officer, the respondent 1 instead chose to initiate unwarranted action based on some enquiry and concluded thereon that the petitioner is required to be dealt with under Rule 14 of Bar Council of India Rules and, subsequently, cancelled the license of the petitioner in terms of the Order No. 1201 of 2024 dated 05.08.2024 and Notification No. 1676/2024/RG/LP dated 05.08.2024 (impugned in the instant petition). It is being also stated that the petitioner thereafter preferred an application on 18th March, 2025 before the respondent 1, seeking withdrawing of the impugned order and notification, considering the fact that the verifications concerning genuineness of her B.A.; LL.B Degree and antecedents and character from the CID wing of police had already been received prior to her appointment as Prosecuting Officer which fact had not been brought to the attention of the Committee as the same was not reflected in the notification, however, the said review application is stated to have not been responded to by the respondent 1. It is being lastly stated that the petitioner has even qualified All India Bar Examination (AIBE), a certificate whereof had been submitted and is lying with the respondent 1 and despite that the respondent 1 proceeded WP (C) No. 1334/2025 to cancel the license of the petitioner in terms of the impugned order and notification without any justifiable reason. 3. Petitioner has maintained the instant petition while seeking the aforesaid reliefs on multiple grounds, urged in the petition. 4. Reply to the petition has been filed by the respondent 1 wherein the petition is being opposed, inter alia, on the premise that the impugned order and notification did not suffer from any illegality, infirmity and also that no fundamental, constitutional, statutory or any other right of the petitioner is breached by the answering respondent. It is further stated that the petitioner submitted an application on 22.06.2022, seeking her enrollment as an Advocate on the Rolls of the Bar Council of Jammu and Kashmir whereupon the petitioner vide notification dated 27.07.2022 came to be admitted and enrolled as an Advocate provisionally for a period of one year from the date of issuance of notification, subject to the verification of her provisional LL.B degree certificate from the concerned University and verification of her character and antecedents from the CID wing of the police and it was specifically provided therein that the renewal/extension of provisional license/enrollment must be sought before the date of expiry unless the absolute/final enrollment is ordered therebefore. It is next stated that on 24.07.2023, the petitioner submitted an application for extension of her provisional license on the ground that her LL. B. degree was under process before the concerned University and on 07.08.2023, the petitioner submitted another application for release of her original certificates/documents on the ground that she had to appear in WP (C) No. 1334/2025 examination of Prosecuting Officer and the certificates/documents were returned to her on the same day. It is also stated that the vide notification dated 15.09.2023, the petitioner was selected as Prosecuting Officer (G) as per the declaration of the result of J&K Prosecuting Officer (G) Examination, 2022. It is also stated that the petitioner submitted B.A.LL.B degree on 28.09.2023, for issuance of absolute license and on 18.10.2023, petitioner submitted another application for release of her original LL.B degree certificate on the ground that the same is required by her for performing legal formalities with respect to her selection as Prosecuting Officer (G) which was returned to her on the same date, while stating further that in the meantime, vide notification dated 18.10.2023, petitioner’s provisional license was extended upto 31.10.2024, as the verification of her degree certificate was not received at that point of time. It is also stated that in the meantime, the petitioner was learnt to have been appointed vide Government Order 73-Home of 2024 dated 05.02.2024, as Prosecuting Officer (G) under direct recruitment quota whereafter, the petitioner submitted an application on 28th February, 2024, for grant of absolute license, however, in contravention of Rule 49 of the Bar Council of India Rules as the petitioner ceased to be an Advocate on her joining the Government service and had voluntarily suspended herself as an Advocate. It is also stated that on one hand, the petitioner has declared in her application on 28.02.2024, that she has been appointed as Prosecuting Officer vide Government order dated 05.02.2024, and on the other hand she requested for issuance of her final/absolute license and, thus, her WP (C) No. 1334/2025 provisional enrollment could not be declared as absolute in view of the fact that she came to be appointed as Prosecuting Officer (G), however, in terms of Rule 49 of the aforesaid Rules whenever an Advocate stands appointed in Government service he/she ceases to be an Advocate. It is also stated that in any case, the application submitted by the petitioner on 28.02.2024, seeking grant of final/absolute license was placed before the Enrollment Committee on 22.04.2024, and in furtherance of the desire of the Chairman of the said Committee, the petitioner was called vide communication dated 30.04.2024 to submit her order of appointment as Prosecuting Officer and also to intimate about the date of her joining against the said post along with a duly attested affidavit and that in response thereof, the petitioner submitted an application on 03.05.2024 alongwith the requisite affidavit, swearing therein that she has joined the Government service on 06.02.2024. It is next stated that thereafter the matter was again placed before the Enrollment Committee and after thorough consideration of the matter under rules, the Committee resolved on 08.07.2024, that the application of the petitioner for grant of absolute license be rejected as being devoid of merit and the provisional license issued to the petitioner on 22.07.2022 be treated as cancelled, as a consequence whereof a detailed order dated 05.08.2024, came to be passed. It is also stated that the petitioner has suppressed the material fact of her having joined the Government service on 06.02.2024, pursuant to the order of appointment dated 05.02.2024, while filing an application on 28.02.2024 for issuance of absolute/final license which too has been done against Rule 49 of the Bar Council of India. Page 8 of 13 WP (C) No. 1334/2025 Heard counsel for the parties and perused the record. 5. Before proceeding to advert to the respective submission made by the appearing counsel for the parties in tune with the case setup in their respective pleadings, it is deemed appropriate to refer to the following relevant and germane provisions of the Advocates Act, 1961 and Bar Council of India’s Rules framed by the Bar Council of India in its rule making powers under the Advocates Act of 1961. Section 29 of the Advocates Act, 1961, “Advocates to be the only recognized class of person entitled to practice law.- Subject to the provisions of this Act and any rules made thereunder, there shall, as from the appointed day, be only one class of person entitled to practice the profession of law, namely, advocates. Section 30, Right of advocates to practice--Subject to the provisions of this Act every advocate whose name is entered in the State roll shall be entitled as of right to practice throughout the territories to which this Act extends— (i) In all courts including the Supreme Court; (ii) Before any tribunal or person legally authorized to take evidence; and (iii) Before any other authority or person before whom such advocates is by or under any law for the time being in force entitled to practice. Rule 49 of the Bar Council of India, states that an advocate shall not be a full-time salaried employee of any person, government, firm, or corporation while continuing to practice. On taking up such employment, the advocate must inform the Bar Council and will cease to practice for the duration of their employment As is manifest from Sections 29 and 30 supra, Advocates enrolled alone are entitled to practice law throughout the territories to which the Act applies. It also emanates from the perusal of Rule 49 supra, that an advocate shall not be a full time salaried employee of any person, government, firm, or corporation or concern so long as he continues to practice and upon taking up any such employment, has to intimate the fact to the Bar Council WP (C) No. 1334/2025 of India under whose rolls his name appears and shall thereafter cease to practice as an advocate so long as he continues in such employment. 6. Reverting back to the case in hand indisputably, the petitioner herein came to be enrolled as an Advocate provisionally on 27.07.2022, and the validity of the said enrollment was for a period of one year provided in the said notification or otherwise subject to completion of verification of degree certificate of the petitioner from the concerned University and of her antecedents and character from the CID Wing of the Police and admittedly, the said provisional enrollment was extended until 31st October, 2024. 7. It is also not in dispute that the petitioner had applied for her appointment as Prosecuting Officer and came to be appointed vide order dated 05.02.2024. It is also not in dispute that the petitioner submitted a representation dated 28.02.2024 before respondent 1, disclosing her appointment as Prosecuting Officer and also having made a request therein for issuance of absolute license in her favour, although the petitioner also claims to have applied for the said absolute license in the month of September, 2024, i.e. prior to her appointment as Prosecuting Officer on 05.02.2023. Record reveals that the petitioner as per the version of the respondent 1 has submitted her original LL.B degree certificate on 28.09.2023, yet the respondents in the reply affidavit filed to the petition have not anywhere disclosed as to when the verification of the said certificate was obtained from the concerned University as also the verifications of the antecedents and character of the petitioner from the CID wing of police or else as to what steps the respondent 1 have had WP (C) No. 1334/2025 taken for obtaining such verification prior to the appointment of the petitioner as Prosecuting Officer on 05.02.2024, although it was incumbent and obligatory upon the respondent 1 after having received the original Degree Certificates of the petitioner not only to have the same verified without any delay also to ensure the receipt of the verification of her character and antecedents from the CID wing of the police with due dispatch. 8. Be that as it may, it is not the case of the respondent 1 that the Degree Certificate of the petitioner was not found to be genuine or else her character and antecedents were not favourably verified by the CID wing of the police, therefore, under no circumstances and in absence of any adverse verification report, the respondent 1 could not have cancelled the enrollment of the petitioner and, if at all, the respondent 1 had any grievance viz-viz appointment of the petitioner as Prosecuting Officer, the respondent could have taken recourse to the provisions of Section 35 of the Advocates Act, 1961, which deals with the punishment of Advocates for misconduct and declare the action of the petitioner of allegedly not informing the respondent 1 about her appointment as Prosecuting Officer as misconduct. However, in such situation as well, the respondent 1 was under an obligation to refer the case of the petitioner to the Disciplinary Committee for such purpose. Here it needs to be mentioned that the petitioner herself has informed the respondent 1 about her appointment immediately after being appointed while submitting an application on 28th February, 2024 and also made a request therein the said application for issuance of absolute license in her favour indisputably claimed to have been having been earlier WP (C) No. 1334/2025 applied for in the months of September, 2023, i.e, immediately after having obtained the absolute degree certificate. In this view of the matter, thus the respondent 1 even could not have had an occasion to take recourse to the Provisions of said Section 35 of the Advocates Act, 1961. 9. It is also significant to mention here that the Provisions of Advocates Act, 1961 in general and the aforesaid Provisions in particular read with Bar Council of India’s Rules, the sole object thereof seemingly is that a full time salaried person should not be allowed to practice as a full time Advocate and in such situation, the petitioner herein at the best upon being appointed as a Prosecuting Officer can be deemed to have lost the right to practice only from the date of her appointment, i.e. 5th February, 2024 and undoubtedly entitled, in law, to avail the benefit of her practice from the date she got provisionally enrolled, w.e.f, 22.07.2022 till her appointment as Prosecuting Officer on 5th February, 2024. In this view of the matter, therefore, the impugned order as well as notification cannot be said to have any legal sanctity for having cancelled the license of the petitioner arbitrarily, w.e.f. 22.07.2022. 10. It is also pertinent to note here that even otherwise also the appointment of the petitioner as Prosecuting Officer does not bar the petitioner from remaining enrolled as an Advocate with the Bar Council as such appointment is not practically barred under the Advocates Act supra and the Bar Council Rules supra, therefore, on this count as well the impugned order and notification is legally flawed and the respondents could not have scraped the period of actual practice of the petitioner under the provisional license w.e.f. 22.07.2022 till her appointment on 5th February, 2024, as WP (C) No. 1334/2025 otherwise said experience obtained by the petitioner would go unaccounted for. 11. Perusal of the record available on the file tends to show that the respondents ought to have taken appropriate course of action upon receipt of the requisite verification of the Degree Certificate of the petitioner as also her character and antecedents and ought to have issued absolute/final license in favour of the petitioner and upon issuance thereof, and consequent to her appointment as Prosecuting Officer, the petitioner would then surrender the said license with the respondent 1, however, having regard to the facts noticed in the preceding paragraphs, the failure of the respondent 1 to issue absolute/final license in favour of the petitioner prior to such surrender thereof cannot be attributed to the petitioner and could not have been subsequently made a ground for issuance of the impugned order and notification. 12. What emanates from the cumulative consideration of the facts of the case inasmuch as, the record available on the file is that the impugned order and notification have been issued by the respondent upon mis-appreciation and mis-application of Rules supra and in violation of due process, having essentially rendered the petitioner ineligible for future enrollment with the respondent 1 or any other Bar Council, and such an outcome having far- reaching consequences cannot, in law, sustain in absence of adherence to the safeguards guaranteed under the Provisions of the Advocates Act, 1961, the Bar Council Rules supra and that fundamental principles of natural justice. WP (C) No. 1334/2025 13. Viewed thus, for what has been observed, considered and analyzed hereinabove, the only inescapable conclusion that could be drawn is that the impugned order and notification are not legally sustainable. 14. Resultantly, the petition succeeds, as a consequence whereof by issuance of a writ of Certiorari, the impugned Order No. 1201 of 2024 dated 05.08.2024 and Notification No.1676/ 2024/ RG/LP dated 05.08.2024, issued by the respondent 1 herein are quashed and by issuance of a writ of mandamus, the respondent is commanded to treat the petitioner to be on the rolls of the State Bar Council of Union Territory of Jammu and Kashmir from the date of issuance of provisional notification dated 22.07.2022 till 05.02.2024, i.e. the date of her appointment as Prosecuting Officer and consequently issue absolute/final license in favour of the petitioner w.e.f. the date of provisional notification dated 22.07.2022, whereupon the issuance of the same, it shall be incumbent upon the petitioner to surrender the same before the respondent 1 herein owing to her appointment as Prosecuting Officer. 15. Disposed of along with connected CM(s) in the above terms. (MOKSHA KHAJURIA KAZMI) (JAVED IQBAL WANI) JUDGE JUDGE SRINAGAR .09.2025. Ab. Rashid, PS. Whether the Judgment/order is reportable Yes/No. Whether the judgement/order is speaking: Yes/No. Abdul Rashid Ganaie I attest to the accuracy and authenticity of this document :26.09.2025 16:43