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indra Bahadur Singh Vs. Bar Council of U.P., Allahabad and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 4459 of 1985
Judge
Reported inAIR1986All56
ActsAdvocates Act, 1961 - Sections 7, 34, 49 and 49(1); Constitution of India - Articles 14, 19(1) and 220; Evidence Act, 1872 - Sections 115
Appellantindra Bahadur Singh
RespondentBar Council of U.P., Allahabad and ors.
Appellant AdvocateG.N. Verma and ;B.B. Paul, Advs.
Respondent AdvocateKuldip Amist and ;A.P. Singh, Advs.
DispositionPetition dismissed
Excerpt:
(i) constitution - power of bar council - sections 7, 34 and 49 of advocates act, 1961 and part 6 chapter iii rule 7 of rules framed by the bar council of india - rule 7 regarding professional conduct of advocates is framed under powers derived from clause (e) of section 49 (1) - hence rule 7 not ultra vires the rule making power of bar council. (ii) estoppel against statute - section 115 of evidence act, 1872 - no person can be estopped against a statute. - - 2 of 1985 initiated on the basis of the aforesaid resolution as well as the complaint made by sri jagdish kishore pathak. 8. it is true that section 49(1)(c) of the act specially refers to 'the standards of professional conduct and etiquette to be observed by advocates' the term which has been used in section 7(b) thereof, but.....n.d. ojha, j. 1. the petitioner, according to the facts stated in this writ petition, was a chief judicial magistrate in 1978 when he was promoted to the post of additional commissioner, allahabad division, allahabad, on a temporary basis. subsequently he was promoted to the post of judicial member of board of revenue, u. p., allahabad, again on a temporary basis which post he joined on 24th feb. 1979. while working as judicial member, board of revenue, the petitioner was confirmed on the post of chief judicial magistrate with effect from 1st dec. 1976, by notification dt. 9th nov. 1982. he retired as a judicial member, board of revenue, on 1st sept. 1984. thereafter he made an application to the bar council of uttar pradesh, allahabad, for enrolment as an advocate and was enrolled as.....
Judgment:

N.D. Ojha, J.

1. The petitioner, according to the facts stated in this writ petition, was a Chief Judicial Magistrate in 1978 when he was promoted to the post of Additional Commissioner, Allahabad Division, Allahabad, on a temporary basis. Subsequently he was promoted to the post of Judicial Member of Board of Revenue, U. P., Allahabad, again on a temporary basis which post he joined on 24th Feb. 1979. While working as Judicial Member, Board of Revenue, the petitioner was confirmed on the post of Chief Judicial Magistrate with effect from 1st Dec. 1976, by notification dt. 9th Nov. 1982. He retired as a Judicial Member, Board of Revenue, on 1st Sept. 1984. Thereafter he made an application to the Bar Council of Uttar Pradesh, Allahabad, for enrolment as an advocate and was enrolled as such on 27th Oct. 1984, and started practice as an advocate in the Board of Revenue.

2. Subsequently a complaint was made on 10th Feb. 1985 by Shri Jagdish Kishore Pathak, a member of the Bar Council of Uttar Pradesh, to the Secretary, Bar Council of Uttar Pradesh, Allahabad, alleging that the petitioner was practising in the Board of Revenue in violation of Rule 7 of Chap. III Part 6 of the Rules framed by the Bar Council of India (hereinafter referred to as the Rules) which amounted to professional misconduct and necessary action against the petitioner may accordingly be taken under Section 35 of the Advocates Act (hereinafter referred to as the Act). The petitioner by letter dt. 14th Feb. 1985 sent by the Secretary, Bar Council of Uttar Pradesh, was required to give his explanation within ten days of the receipt of the said letter. The petitioner submitted his reply on 14th Mar. 1985. Copies of the complaint of Sri Jagdish Kishore Pathak, the letter of the Secretary, Bar Council and the reply of the petitioner have been attached as Annexures 7, 8 and 9 respectively to the writ petition. The Bar Council of Uttar Pradesh thereafter by resolution No. 29 of 1985 dt. 17th Mar. 1985, found the petitioner to be prima facie guilty of professional misconduct and accordingly referred the matter to its Disciplinary Committee. The petitioner thereupon filed the present writ petition with the prayer for quashing the resolution No. 29 of 1985 dt. 17th Mar. 1985 aforesaid as also the proceedings of Disciplinary Committee case No. 2 of 1985 initiated on the basis of the aforesaid resolution as well as the complaint made by Sri Jagdish Kishore Pathak. A further prayer has been made that the standard of professional conduct and etiquette framed by the Bar Council of India be held to be ultra vires. At this place it may be pointed out that since the petitioner is aggrieved by Rule 7 alone referred to above counsel for the parties have confined their submission with regard to the validity of Rule 7 alone. The writ petition has been contested both by the Bar Council of Uttar Pradesh and the Bar Council of India.

3. Counter and rejoinder affidavits having been exchanged a prayer was made by counsel for the petitioner that this writ petition may be disposed of finally at the admission stage itself as contemplated by the second proviso to Rule 2 of Chap. XXII of the Rules of Court. Counsel for the respondents have no objection to this prayer and consequently this writ petition is being decided finally at this very stage.

4. Before adverting to the respective submissions made by counsel for the parties we find it necessary to point out that the impugned Rule 7 has undergone amendments from time to time. The latest amendment made by the Bar Council of India is dt. 16th Feb. 1984, and has been published in Part Ill-Section 4 of the Gazette of India dt. July 14, 1984. Rule 7 immediately before the aforesaid amendment reads as follows : --

'7. A Judicial Officer shall not, for a period of two years after he retires or otherwise ceased to be in service, practice in the area to which his jurisdiction extended at the time of retirement or ceasing to be in service :

Provided that nothing in these rules shall prevent any such person from practising in any Court of superior jurisdiction to the one in which he held the office :

Provided further that nothing in this rule shall apply to any Judicial Officer who is not permanent.

Explanation : (i) A Court of Session, a District Court or the City Civil Court shall be a Court of superior jurisdiction in relation to a Magistrate's Court or Small Cause Court, even though no appeal may lie from the latter to the former.

(ii) 'Area' in this Rule shall mean the district in which the Judicial Officer was last posted and in cases of a Metropolitan Magistrate, District Court or City Civil Court it shall mean the entire Metropolitan area of District or City as the case may be.'

After the aforesaid amendment this rule reads as follows :--

'7. An Officer shall not, for a period of two years after retirement or otherwise ceasing to be in service, practice in the area to which his jurisdiction extended at the time of his retirement or otherwise ceasing to be in service :

Provided that nothing in these Rules shall prevent any such person from practising in any Court or Tribunal or Authority of superior jurisdiction to one in which he held office.

Explanation : 'Officer' shall include, a Judicial Officer, Additional Judge of the High Court and Presiding Officer or Member of the Tribunal or Authority or such other Officer or Authority as referred to in Section 30 of the Act.

'Area' shall mean area in which the person concerned was exercising jurisdiction.'

5. The case of the respondents is that in view of the amended Rule 7 the petitioner even though he was holding a temporary post as Member, Board of Revenue, at the time of his retirement on 1st Sept. 1984, was not entitled to practice before the Board of Revenue for two years inasmuch as the amended Rule is dt. 16th Feb. 1984, and already has been published in the Gazette dt. July 14, 1984, i.e., much before the petitioner's retirement on 1st Sept. 1984, and his enrolment as an Advocate on 27th Oct. 1984.

6. It has been urged by counsel for the petitioner that Rule 7 was beyond the power of framing Rules conferred on the Bar Council of India by the Act. According to him Section 49(ah) which purported to be the source of this power did not confer any such power. On the other hand such a rule could, if at all, be framed only by the High Court under Section 34 of the Act. To appreciate this argument it would be useful to quote the relevant portion of Section 49 at this place. It reads :

'49. (1) The Bar Council of India may make rules for discharging its functions under this Act, and. in particular, such rules may prescribe -

.....

(ah) the conditions subject to which an advocate shall have the right to practise and the circumstances under which a person shall be deemed to practise as an advocate in a Court;

.....'

Counsel for the petitioner relying on the opening words of Sub-section (1) of Section 49 of the Act submitted that the Bar Council of India could make rules only for discharging its functions under the Act. Our attention was invited to Section 7 of the Act which deals with the functions of the Bar Council of India. It was urged that none of the sub-clauses of Section 7 mentions the laying down of conditions subject to which an advocate shall have the right to practice as one of the functions of the Bar Council of India. Consequently Rule 7 was beyond the power conferred on the Bar Council of India by Section 49 of the Act. We find it difficult to agree with this submission. At this place it may be pointed out that Clause (ah) was added in Section 49 of the Act by Section 20 of the Advocates (Amendment) Act, 1964 (hereinafter referred to as Act No. 21 of 1964). A Bill whereby the aforesaid amendment was proposed is to be found in the Gazette of India (Extraordinary) Part II Section 2 dt. April 18, 1964, at page 285 and the Statement of Objects and Reasons of the aforesaid Bill is to be found at page 297. Para 2 of the Statement of Objects and Reasons towards the end states'....... It is further proposed to give wider rule-making powers to the Bar Council of India........'

7. Reverting to Section 7 of the Act we are of opinion that Clauses (b) and (1) of the said section are relevant for dealing with the aforesaid submission. They read : --

'7. The functions of the Bar Council of India shall be : --

.....

(b) to lay down standards of professional conduct and etiquette for advocates;

.....

(1) to perform all other functions conferred on it by or under this Act;

.....

Clause (b) itself, in our opinion, is comprehensive enough to include laying down the condition subject to which an advocate shall have the right to practice as one of the functions of the Bar Council. Laying down 'standards of professional conduct and etiquette' on the face of it includes the laying down of conditions subject to which an advocate shall have the right to practice. Section 34 of the Act on the other hand deals with an entirely different situation. This section empowers the High Court to make rules laying down the conditions subject to which an advocate 'shall be permitted to practice in the High Court and the Courts subordinatethereto'.

When Clause (b) of Section 7 treats laying down standards of professional conduct and etiquette for advocates as a function of the Bar Council of India, laying down the condition subject to which an advocate shall have the right to practice apparently becomes one of the functions of the Bar Council inasmuch as the conditions subject to which an advocate shall have the right to practice is intrinsically connected or correlated with the professional conduct of an advocate. What has been laid down in Rule 7 on the face of it relates to professional conduct of an advocate.

8. It is true that Section 49(1)(c) of the Act specially refers to 'the standards of professional conduct and etiquette to be observed by advocates' the term which has been used in Section 7(b) thereof, but from the circumstances alone it does not necessarily follow that Clause (ah) of Section 49(1) thereof does not relate to a function envisaged by Section 7(b). In the alternative Clause (e) of Section 49(1) of the Act which uses the same phrase as Section 7(b) can be treated as the source of power to frame Rule 7. It is well settled that if the source of power can be traced in some statutory provision other than that which has been quoted as the source of power the exercise of power cannot be held to be illegal merely because of the misquotation of its source.

9. The matter can be looked into from another angle. Even if there was any doubt that laying down 'standards of professional conduct and etiquette' for or to be observed by advocates as contemplated by Section 7(b) and Section 49(1)(c) does not include the power to frame a rule laying down the condition subject to which an advocate shall have the right to practice Rule 7 would still be valid.

10. When Clause (ah) of Section 49(1). which as already pointed out above was added with the object 'to give wider rule-making powers to the Bar Council of India', specially confers power on the Bar Council of India to frame a rule on the subject referred to therein it shall by itself become one of the functions of the Bar Council of India to frame such a rule in view of the clear language of Clause (1) of Section 7 of the Act already quoted above which clause speaks of functions conferred on the Bar Council of India 'by or under this Act' and not by or under Section 7 alone. It cannot be disputed that Clause (ah) of Section 49(1) is a provision of the Act.

11. As regards Section 34 of the Act we are of opinion that it is not within the competence of the High Court to frame a rule such as the impugned Rule 7. The view which we take in this behalf finds support from the decision of a Division Bench of this Court in Prayag Das v. Civil Judge : AIR1974All133 . It was held :

'It is correct that the High Court does not possess the power to take away an Advocate's right to practise in Court. That power can be exercised only by the Bar Council which may also frame rules under Section 49(ab) of the Advocates Act. But in our opinion the High Court has a power to regulate the appearance of Advocates in Courts. The right to practise and the right to appear in Courts are not synonymous. An Advocate may carry on chamber practice or even practise in Court in various other ways, e.g., drafting and filing of pleadings and Vakalatnama for performing those acts. For that purpose his physical appearance in Court may not at all be necessary. For the purpose of regulating his appearance in Court the High Court should be the appropriate authority to make rules and on a proper construction of Section 34(1) of the Advocates Act it must be inferred that the High Court has the power to make rules for regulating the appearance of Advocates and proceedings inside the Courts. Obviously the High Court is the only appropriate authority to be entrusted with this responsibility. However, so far as the basic qualifications of an Advocate entitling him to practise without physically appearing in Court or disentitling him from doing so are concerned, the determination of such conditions must remain within the exclusive province of the Bar Council. The same division of functions is borne out by the difference in the language of the two provisions. Whereas Clause (ab) of Section 49 refers to the conditions subject to which an Advocate shall have the right to practice, Section 34(1) deals with the conditions subject to which an Advocate shall be permitted to practise. The expression 'permitted to practise' in the context can have only one meaning i.e., the right of physical appearance in Court. The word 'permitted' refers to a particular occasion when an Advocate wants to appear in the Court and not to his general right to practise which is solely determined by the Bar Council. Refusal by a Court to permit an Advocate to appear before it does not amount to extinction of the Advocate's legal entity as an Advocate. It merely bars his physical appearance in a particular Court on a definite occasion. For the purpose of deciding as to whether the Advocate's physical appearance in a Court may be allowed or disallowed, his dress can be a relevant factor. Consequently, the High Court was competent to frame Rule 12 prescribing Advocates' dress in exercise of the power under Section 34(1) of the Advocates Act. The words 'laying down the conditions subject to which an advocate shall be permitted to practise' must be given a restricted meaning of permitting physical appearance of the Advocate and not his general right to practise as an Advocate. We are therefore unable to hold that Rule 12 of the Rules framed by the High Court is void or ineffectual'.

At this place we may point out that Clause (ab) seems to have been mentioned in the decision of the case of Prayag Das (supra) due to some clerical error for Clause (ah) of Section 49 of the Act. It is apparent because what has been quoted in para 6 of the report as Clause (ab) is really Clause (ah) namely the clause under which the impugned Rule 7 has been framed and which inter alia, refers to the conditions subject to which an advocate shall have the right to practice.

12. For these reasons Rule 7 of the Rules cannot be held to be beyond the rule-making power of the Bar Council of India.

13. It was then urged by counsel for the petitioner that Rule 7 was arbitrary -- firstly because before framing the aforesaid rule no objection were invited from any member of the public who may be affected by it, and secondly, it offended against the fundamental right conferred on the petitioner by Article 19(1)(g) of the Constitution 'to practise any profession'. In regard to this submission it may be pointed out that Rule 7 has been framed by the Bar Council of India in exercise of the delegated legislative power conferred on it by Section 49 of the Act. Nothing has been brought to our notice making it incumbent to invite objections before the exercise of a legislative power. In the absence of any statutory requirement in this behalf the mere fact that no objections were invited before framing Rule 7 by the Bar Council of India it cannot be said that the said rule is arbitrary.

14. Coming to the second limb of the argument that Rule 7 is in violation of the fundamental right of the petitioner under Article 19(1)(g) of the Constitution to practise any profession reference may be made to Sub-art. (6) of Article 19 (hereinafter referred to as Article 19(6).) which inter alia provides that nothing in Sub--clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause. Article 19(6) therefore empowers the State to impose 'in the interests of the general public, reasonable restrictions' on the exercise of the right conferred by Sub--clause (g) of Article 19(1). The question which, therefore, falls for our consideration is as to whether the restriction imposed by the impugned Rule 7 is reasonable and in the interests of the general public. If the answer to this question is in the affirmative Rule 7 cannot be declared to be ultra vires on the ground that it violates the fundamental right of the petitioner conferred on him by Article 19(1)(g).

15. Before dealing with this question reference may be made to certain cases which lay down the principles which have to be kept in mind while dealing with such a question. In Bachan Singh v. State of Punjab : AIR1982SC1325 it was held at page 1349 of the report by Hon'ble Mr. Justice P. N. Bhagwati, as his Lordship then was : --

'Obviously, therefore, when a law is challenged on the ground that it imposes restrictions on the freedom guaranteed by one or the other sub-clause of Clause (1) of Article 19 and the restrictions are shown to exist by the petitioner, the burden of establishing that the restrictions fall within any of the permissive Clauses (2) to (6) which may be applicable must rest upon the State. The State would have to produce material for satisfying the Court that the restrictions imposed by the impugned law fall within the appropriate permissive clause from out of Clauses (21 to (6) of Article 19. Of course there may be cases where the nature of the legislation and the restrictions imposed by it may be such that the Court may, without more, even in the absence of any positive material produced by the State, conclude that the restrictions fall within the permissible category, as for example, where a law is enacted by the legislature for giving effect to one of the Directive Principles of State policy and prima facie, the restrictions imposed by it do not appear to be arbitrary or excessive.'

16. In Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupesh Kurmarsheth : [1985]1SCR29 while dealing with the question of validity of Regulation 104 of the Maharashtra Secondary and Higher Secondary Education Boards Regulations 1977, it was held : --

'In our opinion, this approach made by the High Court was not correct or proper because the question whether a particular piece of delegated legislation whether a rule or regulation or other type of statutory instrument is in excess of the power of subordinate legislation conferred on the delegate is to be determined with reference only to the specific provisions contained in the relevant statute conferring the power to make the rule, regulation, etc, and also the object and purpose of the Act as can be gathered from the various provisions of the enactment. It would be wholly wrong for the Court to substitute its own opinion for that of the legislature or its delegate as to what principle or policy would best serve the objects and purposes of the Act and to sit in judgment over the wisdom and effectiveness or otherwise of the policy laid down by the regulation making body and declare a regulation to be ultra vires merely on the ground that, in the view of the Court, the impugned provisions will not help to serve the object and purpose of the Act. So long as the body entrusted with the task of framing the rules or regulations acts within the scope of the authority conferred on it, in the sense that the rules or regulations made by it have a rational nexus with the object and purpose of the Statute, the Court should not concern itself with the wisdom or efficaciousness of such rules or regulations. It is exclusively within the province of the legislature and its delegate to determine, as a matter of policy, how the provisions of the Statute can best be implemented and what measures, substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act. It is not for the Courts to examine the merits or demerits of such a policy because its scrutiny has to be limited to the question as to whether the impugned regulations fall within the scope of the regulation making power conferred on the delegate by the Statute.................The Court cannot sit in judgment over the wisdom of the policy evolved by the legislature and the subordinate regulation making body. It may be a wise policy which will fully effectuate the purpose of the enactment or it may be lacking in effectiveness and hence calling for revision and improvement. But any drawbacks in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act. The legislature and its delegate are the sole repositories of the power to decide what policy should be pursued in relation to matters covered by the Act and there is no scope for interference by the Court unless the particular provision impugned before it can be said to suffer from any legal infirmity, in the sense of its being whereby beyond the scope of the regulation-making power or its being inconsistent with any of the provisions of the parent enactment or in violation of any of the limitations imposed by the Constitution.'

It was further held in the said case that it is also relevant to notice in this context the nature and the composition of the body on which the regulation making-power has been conferred by the Act. In this connection it may be pointed out that impugned Rule 7 has been framed by the Bar Council of India which as has been held in Bar Council, Maharashtra v. M. V. Dabholkar : [1976]1SCR306 'is the collective representative of the lawyers, the public, in regard to the observance of professional ethics by persons belonging to the noble profession'.

16A. In D. K. V. Prsada Rao v. Govt. of Andhra Pradesh : AIR1984AP75 it was held in para 97 of the report : --

'Therefore in adjudging the vires of the rule, we have to keep in view the following principles : it is now well settled that there is a presumption in favour of the constitutionality of the statute and the burden is upon him who attacks to show that there has been a clear transgression of the constitutional principles. It must be presumed that the Legislature understands and correctly appreciates the need of its people and that the laws it enacts are directed to problems which are made manifest by experience. The Legislature is free to recognise the degree of harm and may confine its restrictions to those where the need is deemed to be clearest. In order to sustain the presumption of a constitutionality the Court may take into consideration matters of common knowledge, matters of report, history of the time and may assume every state of facts which can be conceived existing at the time of legislation.'

17. Keeping in view the principles laid down in the aforesaid cases we may now consider the question as to whether the petitioner has an absolute right to practise as an advocate in any Court of the said right can be exercised only subject to the restrictions placed by the impugned Rule 7.

18. In the matter of Phool Din : AIR1952All491 while dealing with the provisions of Legal Practitioners Act 1879, with reference to Article 19(1)(g) of the Constitution it was held : --

'Article 19(1)(g) does not give an unfettered right to practise 'any profession' which a citizen may choose to adopt irrespective of the fact that engagement in such a profession is prohibited by law. It is subject to the provisions of Clause (6) of Article 19, which provides for imposition 'in the interests of the general public reasonable restrictions' on that right. It will be noted that the restrictions contemplated are those upon the very right conferred by Article 19(1)(g) and not those in the exercise of any particular profession adopted by a citizen. The question, therefore, is whether the aforesaid provisions in the Legal Practitioners Act are 'reasonable restrictions in the interests of general public' within the meaning of Article 19(6). We have no hesitation in answering this question in the affirmative.

.....

It has been argued also that restrictions contemplated by Clause (6) of Article 19 cannot mean total prohibition. As already stated, the restrictions contemplated by this clause do not mean the restrictions upon the practice of any particular profession, but the restriction upon the very right to engage oneself in 'any profession'. It is, therefore, permissible under Clause (6) to prohibit a profession altogether if it is necessary to do so in public interest. The profession must not be: opposed to public interest, we cannot interpret the words ''any profession' in Article 19(1)(g), as any profession which a citizen may choose to adopt regardless of its effect upon public interest. To do so, may be allowing even the profession of burglary. No one can be bold enough to say that the right to practise 'any profession' includes even the right to engage oneself in the profession of burglary. We see no force in the constitutional point raised'.

19. In Narendra Kumar v. Union of India : [1960]2SCR375 while considering the scope of the word 'restriction' used in Article 19(6) of the Constitution it was held : --

'..................It is reasonable to think that the makers of the Constitution considered the word 'restriction' to be sufficiently wide to save laws 'inconsistent with Article 19(1), of 'taking away the rights' conferred by the Article, provided this inconsistency or taking away was reasonable in the interests of the different matters mentioned in the clause. There can be no doubt therefore that they intended the word 'restriction' to include cases of 'prohibition' also. The contention that a law prohibiting the exercise of a fundamental right is in no case saved, cannot therefore be accepted. It is undoubtedly correct, however, that when, as in the present case, the restriction reaches the stage of prohibition special care has to be taken by the Court to see that the test of reasonableness is satisfied. The greater the restriction the more the need for strict scrutiny by the Court.

In applying the test of reasonableness, the Court has to consider the question in the back ground of the facts and circumstances under which the order was made taking into account the nature of the evil that was sought to be remedied by such law, the ratio of the harm caused to individual citizens by the proposed remedy to the beneficial effect reasonably expected to result to the general public. It will also be necessary to consider in that connection whether the restraint caused by the law is more than was necessary in the interests of the general public.'

In Jan Mohammed v. State of Gujarat : [1966]1SCR505 while dealing with the right of a citizen to carry on trade as contemplated by Article 19(1)(g) it was held :--

'Reasonable restrictions on the right of a citizen to carry on trade retail as well as wholesale may be placed by legislation. The test of the validity of the restriction lies in the nature of the restrictions and not in the nature of trade.'

20. In X. Thottakath v. State AIR 1974 Ker 190 while dealing with the submission that the petitioner had a fundamental right to enter into engagement to act as an advocate the following observations were made :--

'......On the question stated above there is the precedent of this Court in 0. P. No. 2343 of 1973. My learned brother Eradi, J. on an identical set of facts and on a similar question raised by the very same petitioner exhaustively considered the question as follows : 'Even apart from the above I do not find any merit in the contentions raised by the petitioner against Ext.P-1, It is argued by the petitioner that he has a fundamental right to bargain with his client and stipulate any terms regarding the fee payable for his professional services, that the arrangement so arrived at confers on him a right to property and that no order should be passed by the Court which infringes or affects that right. Rules 20 and 21 of the Rules framed by the Bar Council of India under Section 49(c) of the Advocates Act, 1961 regulating professional conduct and etiquette specifically lay down that an Advocate shall not stipulate for a fee contingent on the results of a litigation or agree to share the proceeds thereof and that he shall not stipulate for or agree to receive any share or interest in any actionable claim. The petitioner, however, contends that the said Rules as well as the Advocate's Fee Rules framed by this Court are ultra vires and unconstitutional since they impose arbitrary restrictions on his fundamental rights under Article 19(1)(g) of the Constitution I have no hesitation to reject this contention as totally devoid of any merit. The fundamental right guaranteed under Article 19(1)(g) is not absolute in character but is expressly made subject to the power conferred on the State by Clause (6) of the Article to make any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the said fundamental right. As pointed out by the Supreme Court In re Sant Ram : [1960]3SCR499 , it is in the interests of the general public to insist upon proper standards of conduct being observed by the legal practitioners with a view to insuring the purity and soundness of professional law. There are observations to the same effect in Sakhawant Ali v. State of Orissa : [1955]1SCR1004 ..........'

In view of the foregoing discussion it is apparent that on the fundamental right of the petitioner to carry on the profession of law conferred by Article 19(1)(g) of the Constitution, reasonable restrictions can be placed in public interest.

21. The next question which falls for consideration is whether the restriction placed by Rule 7 is reasonable and in public interest.

22. In Iqbal Ahmad v. Chief Justice : AIR1962All391 a direction of the Chief Justice dt. 25th Nov. 1948, imposing certain restrictions on the rights of the petitioner to carry on his profession as an Advocate was challenged. In that connection Hon'ble Mr. Justice V. Bhargava, as his Lordship then was made the following observations : --

'Further, even if it be held that the direction of the Chief Justice dt. 25th Nov. 1948, did impose a restriction on the right of the petitioner to carry on his profession of an Advocate, it appears that there can be no ground for holding that the restriction was unreasonable. The petitioner had been appointed a Puisne Judge of the erstwhile High Court of Judicature at Allahabad on his giving a specific undertaking not to practice before that Court and the Courts subordinate to it, and the restriction that existed when the Constitution came into force was an appropriate restriction for the purpose of giving effect to that undertaking given by the petitioner. The undertaking, dealt with a matter which was clearly in the interest of the general public. The undertaking was obtained from the petitioner because it was considered undesirable that, after ceasing to be a Judge of the erstwhile High Court of Allahabad, he should appear as an Advocate before that very Court or the Courts subordinate to it, which implied that it was considered to be a salutary principle that a person who had exercised jurisdiction a Judge of a High Court over a certain area should not appear and practice as an Advocate in the Courts functioning in that area.'

23. In P. S. Mudholkar v. Bar Council of India : AIR1980Bom38 the question about the validity of Rule 7 of the Rules framed by the Bar Council as it stood at that time came up for consideration. This rule as it then stood stands quoted in para 3 of the report. The main Rule 7 was almost similar as it stands today and has been challenged in the present writ petition. As is apparent from para 4 of the report, in Rule 7 as it then stood a second proviso was added by way of an amendment effected on 7th Mar. 1976. The said proviso was to the effect that 'nothing in this rule shall apply to any Judge of a High Court who is not a permanent Judge thereof'. The validity of Rule 7 was challenged on various grounds but without going into all the grounds the rule was struck down on a short ground that in view of the second proviso added on 7th Mar. 1976, the rule had become discriminatory. It was held that it was difficult to understand as to how the exception made in favour of a person who presided as a Judge over no less a Court than the High Court would in any way be justified. On the contrary, on this principle, a person who presided as a Judge over the High Court should be the first to come under the bar enacted by the said rule. Having presided over the highest Court in the State, his influence is likely to be felt by all the Courts and the authorities in the entire State. Yet, inexplicably and quite irrationally, such a person was exempted from the bar enacted by the said rule. In regard to the object and principle underlying Rule 7 which required that a person who had exercised judicial powers at the time of his retirement or otherwise ceasing to be in service shall not practice for a period of two years from the date of his retirement or ceasing to be in service as the case may be in the area in which he exercised judicial powers on the said date, it was, however, held :--

'Admittedly, the healthy and laudable purpose for which such restriction on practice by ex-judicial officers is placed is that justice should not only be done but should be seen to have been done. When an ex-judicial officer is briefed by one of the parties to the litigation to plead his cause before an authority or a Court holding a position which was either subordinate to or comparable with that held by such officer, the other party to the litigation is bound to entertain apprehension that the balance of justice is likely to be tilted in favour of the side represented by such officer on account of the aura of the office held by the ex-officer. His colleagues, officers holding similar posts and subordinates are likely to be influenced by the clothes of office till recently held by such officer. The social and official intercourse between such officers which ceased only recently is not unlikely to weigh on the mind of decision-making authorities at the time of considering the merits of the case before them. Whether in actuality the decisions are affected by such considerations or not, the litigants are bound to entertain, and can reasonably be expected to entertain, such apprehensions. It is to avoid such pernicious results and apprehensions that the said rule prohibiting practice at least for a period of two years has been enacted. The further presumption under the said rule is that after a lapse of a reasonable period of two years the influence of the ex-judicial officers may wane and the decision-making authorities are not likely to be swayed by such influence thereafter.'

In this connection it may be pointed out that on account of the bar created by Rule 7 it is no doubt true that the petitioner who retired as a Member of the Board of Revenue will not be in a position to practice before the Board of Revenue or any Court subordinate to the Board of Revenue for two years but in our opinion this should be of little significance in comparison to the public interest underlying the impugned Rule 7, keeping in view the fact that the profession to which the petitioner belongs is a noble one. The answer to the question as to why the profession of law is considered to be one of the noblest professions is to be found in the conduct of the members of this profession. Self denial in order to maintain the high standards of this noble profession is the hallmark of the nobility of its members. Not only that the restriction placed is confined to two years the petitioner is free to practice even during this period of two years in all Courts, where appearance of an Advocate is not barred, other than the Board of Revenue and the Courts subordinate to it.

24. In view of the foregoing discussion we are of opinion that the restriction placed by Rule 7 is not only reasonable but also in public interest and clearly falls within the ambit of Article 19(6) of the Constitution. It cannot, therefore, be held to be ultra vires on the ground that it infringes the fundamental right of the petitioner guaranteed under Article 19(1)(g) thereof.

25. It was then urged by counsel for the petitioner that a booklet was supplied to the petitioner at the time of enrolment by the Bar Council of Uttar Prdesh Allahabad, purporting to contain the rules for standards of professional conduct and etiquette and Rule 7 stated therein was the old Rule 7 which applied only to a person who occupied a permanent post and not Rule 7 as it was amended on 16th Feb. 1984, and published in the Gazette of India dt. July 14, 1984, already referred to above and that in this view of the matter the Bar Council of Uttar Pradesh was estopped from taking proceedings for professional misconduct for breach of the amended Rule 7. Suffice it to say so far as this submission is concerned that it is not the Bar Council of Uttar Pradesh but it is the Bar Council of India which has framed Rule 7. Further it is well established that there can be no estoppel against Statute. There can be no doubt that Rule 7 is a statutory provision. It was published in the Gazette long before the petitioner got himself enrolled as an Advocate and the plea of estoppel is not available to him.

26. It was then urged that even if Rule 7 was valid it did not debar the petitioner from practising in the Board of Revenue inasmuch as the petitioner was holding not a permanent but only a temporary post as a Member of the Board of Revenue. This submission is not sustainable even on a plain reading of Rule 7. It makes no distinction between a post being held at the time of retirement or ceasing to be in service on a temporary basis or permanent basis. Rule 7 as it stood before the amendment referred to above contained a proviso that nothing in the said Rule shall apply to a Judicial Officer who is not permanent. This proviso now stands deleted. It also clearly indicates that Rule 7 as it now stands makes no distinction between an officer who was permanent and another who was not permanent at the time of his retirement or ceasing to be in service.

27. Counsel for the petitioner then submitted that in view of Section 30 of the Advocates Act the petitioner an had absolute right to practice in any Court and that since Rule 7 imposed a restriction, even though for two years only, it was liable to be struck down being inconsistent with Section 30. In this connection reliance was placed on a decision of the Privy Council in Prafulla Ranjan Das v. Patna High Court . The facts of that case are that Shri Prafulla Ranjan Das, who was an ex-Judge of the Patna High Court, after his retirement as a Judge applied to have his name entered in the roll of Advocates. His application was allowed with a condition refusing him permission to appear in the Courts of the province. It was urged that the applicant's name having been entered on the roll of advocates he was entitled as of right to practice in the Courts of the province. In this connection reliance was placed on Section 14 of the Indian Bar Councils Act, 1926, which reads as follows :--

'14. Right of advocates to practice -

(1) An advocate shall be entitled as of right to practise -

(a) subject to the provisions of Sub-section (4) of Section 9, in the High Court of which he is an advocate, and

(b) save as otherwise provided by Sub-section (2) or by or under any other law for the time being in force in any other Court and before any other Tribunal or person legally authorised to take evidence, and

(c) Before any other authority or person before whom such advocate is by or under the law for the time being in force entitled to practise.

(2) Where rules have been made by any High Court within the meaning of Clause (24) of Section 3 of the General Clauses Act, 1897, or in the case of a High Court for which a Bar Council has been constituted under this Act, by such Bar Council under Section 15 to regulating the conditions subject to which advocates of other High Courts may be permitted to practise in the High Court, such advocates shall not be entitled to practise therein otherwise than subject to such conditions.

(3) Nothing in this section shall be deemed to limit or in any way affect the power of the High Court of Judicature at Fort William in Bengal or of the High Court of Judicature at Bombay to make rules determining the persons who shall be entitled respectively to plead and to act in the High Court in the exercise of its original jurisdiction.'

In that case the impugned restriction placed on the applicant was not because of any statutory rule but because of an order passed by the Chief Justice of the Patna High Court which stands quoted on page 23 and reads as follows :--

'That although in the opinion of a majority of the Judges, Mr. P. Rule Das is entitled to be enrolled as an advocate under Section 8(2)(a), Bar Councils Act, yet, in view of the fact that he was a permanent Judge of this Court the Judges refuse to allow him to appear in the Courts of this province.'

It was in this background that the observations relied on by counsel for the petitioner were made by the Privy Council. As regards Section 30 of the Advocates Act it may be pointed out that this section does not seem to have been enforced so far. It is apparent from the observation made in this behalf by the Supreme Court in Lingappa Pochanna v. State of Maharashtra : [1985]2SCR224 in para 34 of the report As such Section 14 of the Bar Councils Act, 1926, may still apply. Since the petitioner wishes to practice in the Board of Revenue his case will fall either under Clause (b) or Clause (c) of Section 14(1) of the Indian Bar Councils Act, 1926. His right to practice under Clause (b) shall be subject to any provision made 'by or under any other law for the time being in force' and under Clause (c) if he is 'by or under the law for the time being in force entitled to practice'. Rule 7 being a statutoy rule will, therefore, override the right of the petitioner conferred by Section 14(1) to practice before the Board of Revenue and the courts subordinate to it It may also be pointed out that right to practice, conferred even by Section 30 of the Advocates Act is not an absolute right but is 'subject to the provisions of this Act.' It is settled law that rules framed in the exercise of powers conferred by a statute so to speak become a part of the statute itself. Even if Section 30 had been in force on the date when the petitioner was enrolled as an advocate his right to practice under the said section would obviously have been subject to the restrictions placed by Rule 7. If authority were needed for this purpose reference may be made to Raghunath v. Mathura Municipality : AIR1952All465 . In para 14 of the report it was held :--

'Now, rules made by Government may be either statutory or, what may be termed, departmental Where a Statute prescribes that rules may be made by a certain authority to carry out the objects of the Statute or for a particular purpose the rules so made become part of the Statute and have the same force as the Statute itself : Her Majesty the Queen v. Burah, (1878) 3 AC 889; Powell v. Appolo Candle Co., (1885) 10 AC 282 at p. 291; Willingale v. Norris, (1909) 1 KB 57; National Telephone Co. v. Baker, (1893) 2 Ch 186.'

28. Counsel for the petitioner then urged that Rule 7 should have been incorporated in the enrolment certificate granted to the petitioner and this not having been done could not be enforced against him. Suffice it to say so far as this submission is concerned that a statutory rule operates on its own force and it was not at all necessary to quote it in the enrolment certificate granted to the petitioner by the Bar Council to make it enforceable.

29. Counsel for the petitioner then urged that since Rule 7 as it now stands debars even an Additional Judge of the High Court from practising before the High Court in which he was an Additional Judge it contravenes the spirit behind Article 220 of the Constitution. Firstly the petitioner does not come under this category because he did not retire as an Additional Judge of the High Court. In order to substantiate his submission that the bar created in regard to an Additional Judge of the High Court was in violation of the spirit behind Article 220 it was pointed out that even though the said Article prohibits an advocate who has been a permanent Judge of the High Court to practice in any Court or before any Authority in India except the Supreme Court and other High Courts as an advocate after retirement the said Article does not place any restriction in regard to an Additional Judge. It was brought to our notice that Article 220 was amended by the Constitution (7th Amendment) Act, 1956, whereby the absolute bar created by Article 220 as it stood earlier was modified and a permanent Judge of a High Court after retirement was permitted to practice as an advocate before the Supreme Court and other High Courts. In this connection it was further pointed out that the provision for appointment as an Additional Judge was also made by amending Article 224 of the Constitution by the same Constitution (7th Amendment) Act 1956. Reliance was placed on the statement of objects and reasons for amending Article 220 of the Constitution. They are published in Part II, Section 2 of the Gazette of India (Extraordinary), dt April 18, 1956, page 218. Clause 12 occurring at page 220 reads as follows : --

'An important factor effecting the selection of High Court Judges from the bar is the total prohibition contained in Article 220 on practice after their retirement from the bench. It is proposed to revise the article so as to relax this complete ban and permit a retired judge to practice in the Supreme Court and in any High Court other than the one in which he was a permanent Judge.'

Article 220 of the Constitution operates in a different field. It does not purport to lay down the rights and duties of an advocate nor does it deal with the professional conduct of an advocate or the conditions subject to which an advocate shall be allowed to practice. These are to be regulated by the statutory provisions made in this behalf such as the Indian Bar Councils Act, 1926, or the Advocates Act, 1961, and the Rules framed thereunder. It is, therefore, not right to urge that Article 220 either impliedly permits an Additional Judge of a High Court to practice in the same High Court after ceasing to hold office or prohibits a legislation in this behalf. What can at best be said is that Article 220 does not place a similar restriction on an Additional Judge as has been placed on a permanent Judge.

30. As regards Para 12 of the Statement of Objects and Reasons in regard to amendment of Article 220 suffice it to say that it refers to 'factor affecting the selection of High Court Judges from the bar' meaning thereby selection of permanent judges because Article 220 applies to permanent judges only. It does not refer to the appointment of an Additional Judge.

31. Further, if the Central Government ever feels any difficulty in selecting good advocates for appointment as Additional Judges in a High Court on account of the bar created by the impugned Rule 7 it can always nullify the said Rule by framing another rule in the exercise of the power conferred on it by section 49A of the Act. As is clear from Sub-section (4) of Section 49A, if any provision of a rule made by a Bar Council is repugnant to any provision of a rule made by the Central Government under the said Section 49A, then, the rule framed by the Central Government, whether made before or after the rule made by the Bar Council, shall prevail and the rule made by the Bar Council shall, to the extent of the repugnancy be void.

32. The impugned Rule 7 cannot, therefore, be held to be invalid on the basis of this submission either.

33. It was then urged that since proceedings for professional misconduct were initiated by the Bar Council of Uttar Pradesh on a complaint made by Shri Jagdish Kishore Pathak the provisions of Section 35 of the Act were not attracted. We find no substance in this submission also. Sub-section (1) of Section 35 of the Act which is relevant in this behalf reads thus :

'Whereon receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary Committee.'

Even on a bare reading of this provision it is apparent that the State Bar Council has the power to refer the case for disposal to its disciplinary committee if it 'has reason to believe that any advocate on its roll has been guilty of professional or other misconduct.' This 'reason to believe' may be on the basis of 'a complaint or otherwise'. As already noticed earlier on the receipt of the complaint of Sri Jagdish Kishore Pathak the State Bar Council called for an explanation from the petitioner which was submitted. The State Bar Council was satisfied that a prima facie case of professional misconduct was made out. The action of the State Bar Council was thus in conformity with the requirements of Section 35 of the Act.

34. Counsel for the petitioner then urged that proceedings for professional misconduct have been initiated against the petitioner on account of mala fides of certain members of the State Bar Council who appeared before him when he was a member of the Board of Revenue. According to him the petitioner earned the displeasure of these members. Allegations in this behalf are contained in para 9 of the writ petition. In that para only this much has been stated that 'incidentally the petitioner has earned the displeasure' of certain members of the State Bar Council. In the last sentence of para 9 of the writ petition it has been stated : --

'Presently the petitioner is avoiding to set out the details of mala fide of the persons referred to above but if necessary the same shall be subsequently brought on record of the case.'

Nothing specific has, however, been subsequently brought on the record of the case which may make out a case of mala fides. Further since proceedings for misconduct have been initiated on the ground that prima facie case for breach of statutory Rule 7 has been made out those proceedings could not be quashed even if a case of mala fide was made out. Whether or not the petitioner has contravened the provisions of Rule 7 is a question to be gone into in the proceedings before the Disciplinary Committee.

35. Lastly it was urged by counsel for the petitioner that it was a case of ignorance of the amended Rule 7 and consequently a lenient view of the matter deserves to be taken. Suffice it to say so far as this submission is concerned that this is a plea which if considered appropriate can be taken before the disciplinary committee. The reliefs prayed for in this writ petition cannot be granted on this score.

36. In the result the writ petition fails and is dismissed and the interim order passed therein is vacated. There shall, however, be no order as to costs.


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