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P. Chandrasekharan Vs. the Bar Council of Tamil Nadu Represented by Its Secretary and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1974)1MLJ387
AppellantP. Chandrasekharan
RespondentThe Bar Council of Tamil Nadu Represented by Its Secretary and ors.
Cases ReferredSunil Kumar v. State of West Bengal
Excerpt:
- .....act of 1961 was extended to the state of pondicherry, seek the assistance of the bar council of tamil nadu, which is the first respondent in these petitions, for the purpose of being enrolled as an advocate on the rolls of the bar council of tamil nadu. his main contention is that, in the absence of any effort on the part of the 2nd respondent to get into the portals of the institution of law through the bar council of the quandom pondicherry state, he cannot circumvent the procedure and seek the assistance of the first respondent and get himself enrolled as an advocate. the first respondent's case is that, in accordance with section 58-aa of the advocates act of 1961, which was introduced after the act was extended to the state of pondicherry, the first respondent had the requisite.....
Judgment:
ORDER

T. Ramaprasada Rao, J.

1. The petitioner in these petitions is the Secretary of the Bar Association of Pondicherry. When the Pondicherry State was part of the French Settlements in India, persons intending to practise the profession of law were governed by certain regulations contained in the Arrete dated 22nd June, 1932. I shall presently refer to the same. The petitioner's complaint is that the second respondent in each of these two petitions, though having the requisite legal qualification to practise as an advocate, yet, he not having taken the initiative of enrolling himself as a legal practitioner entitled either to plead or to plead and act in accordance with the Arrete as above, cannot by the mere accidental circumstance of his having been in Government service at the time when the Advocates Act of 1961 was extended to the State of Pondicherry, seek the assistance of the Bar Council of Tamil Nadu, which is the first respondent in these petitions, for the purpose of being enrolled as an advocate on the rolls of the Bar Council of Tamil Nadu. His main contention is that, in the absence of any effort on the part of the 2nd respondent to get into the portals of the institution of law through the Bar Council of the quandom Pondicherry State, he cannot circumvent the procedure and seek the assistance of the first respondent and get himself enrolled as an advocate. The first respondent's case is that, in accordance with section 58-AA of the Advocates Act of 1961, which was introduced after the Act was extended to the State of Pondicherry, the first respondent had the requisite power and authority to entertain the application of the second respondent to be enrolled as an advocate on the rolls of the Bar Council of Tamil Nadu and it was after due and full enquiry and after a perusal of the necessary records, such an enrolment was effected and therefore the present petitions seeking for a writ of mandamus directing the second respondent who has been so enrolled by the first respondent not to practise the profession of law in the Union Territory of Pondicherry and restraining the first respondent from so permitting the second respondent to practise are unsustainable.

2. The entire case depends upon the interpretation of section 58-AA of the Advocates Act of 1961 in the light of the Arrete of 1932. The Arrete dealing with the institution of Bar Council has three chapters. It is gathered from the text of such chapters that there were three distinct classes of advocates under the French Settlements in India, which included Avocate Conseils, Conseils Agrees and Avocate Stagiaires. The number of persons who could be taken into each class is prescribed for each of the Settlements such as Pondicherry, Karaikal and Chandranagore. Certain qualifications are prescribed for each of the above classes. The Avocate Conseils must be provided with the diploma of Licence et droit issued by a State University of France or by the State University of Algiers (Article 2). Avocate Conseils and Conseils Agrees are the only qualified legal practitioners qualified to plead and represent. In contradistinction to this, Avocate Stagiaires are authorised only to plead. Provision is made for the preparation of a list of such members in each class of advocates as above, which is to be prepared by the Bar Council of the Settlements. Article 8 provides that Avocate Stagiaires would also be entitled to be entered in the list as Avocate Conseils or Conseils Agrees, provided certain conditions mentioned therein are satisfied. Article 9 is a formal provision providing for the furnishing of security by the first two classes of advocates and enjoining on them to swear on oath in the prescribed manner before the prescribed authority. The decree is also prescribed. Chapter III (Title III), deals with Avocate Stagiaires. They are called probationary advocates. Article 19 says that he should have completed the age of 21 years, should produce his diploma of Licence et droit, should be a French citizen, should have a civil status and should morally be to the satisfaction of the Chief of the Judicial Department etc. He has to seek entry as a probationer through the Bar Council of the Colony and take an oath before the prescribed authority. On such entry the probationary advocate takes the title of Avocate Stagiaire and he would be entitled to wear a robe and he is subject to all such disciplinary code of conduct applicable to the other two classes of advocates. The probation is for a period of two years and on the expiry of the probation period he has to appear for an examination and if he successfully passes the examination, he would be enlisted as a regular advocate. These provisions, in short, are the relevant provisions for our purposes.

3. Section 24 of the Advocates Act of 1961, as it originally stood prior to the amendment of 1968, prescribed certain educational qualifications, to wit, a degree in law from any University in the territory of India or such other University as is prescribed and referred to in this Section Section 1.7 enjoins the State Bar Council to maintain a roll of advocates in which shall be entered the names of those who are admitted as advocates by it in accordance with the statutory provisions. On 10th June, 1968, the Advocates Act was extended to the State of Pondicherry and section 58-AA was added to the statute book. That section reads as under:

Special provisions in relation to the Union of pondicherry: (1) Notwithstanding anything contained in this Act, all persons who, immediately before the date on which the provisions of Chapter III arc brought into force in the Union territory of Pondicherry, were entitled to practise the profession of law (whether by way of pleading or acting or both) under any law in force in the said Union territory/or who would have been so entitled had they not been in public service on the said date, shall for the purposes of Clause (a) of Sub-section (1) of Section 17 be deemed to be persons who were entered as advocates on the roll of a High Court under the Indian Bar Councils Act, 1926, and every such person may, on an application made in this behalf within such time as may be specified by the Bar Council of Madras, be admitted as an advocate on the State roll maintained in respect of the said Union territory.

(2) Notwithstanding anything contained in this Act every person who, immediately before the date on which the provisions of Chapter IV are brought into force in the Union territory of Pondicherry, was practising the profession of law (whether by way of pleading or acting or both or in any other way) by virtue of the provisions of any law in force in the said Union territory, who does not elect to be or is not qualified to be, enrolled as an advocate under Sub-section (r) shall, notwithstanding the repeal of the relevant provisions of such law by the Pondicherry (Extension of Laws) Act, 1968, continued to enjoy the same rights as respects practice in any Court or revenue office or before any authority or person and be subject to the disciplinary jurisdiction of the same authority which he enjoyed, or, as the case may be, to which he was subject, immediately before the said date and accordingly, the relevant provisions of the law aforesaid shall have effect in relation to such persons as if they had not been repealed.

That the Advocates Act, 1961 has been extended to the State of Pondicherry is seen from the Pondicherry (Extension of Laws) Act, 1968, which contains various schedules which delineate the various Acts applicable to that State and one such schedule includes the Advocates Act of 1961.

4. In the instant case, it is not denied that the second respondent in each of these petitions was in public service on 10th June, 1968 when the Advocates Act was extended to the State of Pondicherry.

5. Mr. Venugopal, learned Counsel for the Petitioner, after referring to the salient features of the Arrete of 1932, urges that, unless and until the second respondent or persons similarly placed sought entry and entered into one or other of the classes of advocates set out in the Arrete, it cannot be said that the second respondent is a person who had the requisite statutory qualifications to move the first respondent for being enlisted as an advocate under the Advocates Act of 1961. In the main, it is stated that even though the second respondent in each of the petitions was in public service, as he did not take steps to enrol himself as a probationary advocate or avocate stagiaire, he cannot be said to be an advocate who was entitled on the crucial date, namely, 10th June, 1968, to practise the profession of law either by pleading or by acting. On the other hand, Mr. Balasubramaniam, learned Counsel for the Bar Council, who has produced the records on the issue of the rule nisi, says that the Council as a body was satisfied that the second respondent was entitled to practise the profession of law, but for the accident of his having been in public service on the crucial date, and that such entitlement by itself is sufficient within the meaning of section 58-AA of the Act to enrol him as an advocate on the rolls of the Bar Council of Tamil Nadu. That the second respondent in each of these petitions is qualified under Article 2 of Arrete is not in dispute. The question is whether a person should have entered into the portals of the Bar Council of the colony by enrolment at least as a probationary advocate before he could move the first respondent for a similar enrolment in the State of Tamil Nadu. Section 58-AA could be scanned and understood thus. (1) There is a nonobstante clause in the beginning of the section which obviously means that a special provision has been made as regards persons in the Union territory of Pondicherry qualified in law, but who have not yet entered into the arena of the profession of law. (2) All persons who are entitled to practise the profession of law, whether by way of pleading or acting or both under the law in force in the said Union territory, belong to a 'definite class' entitled to be enlisted as advocates of the Bar Council of Tamil Nadu. (3) Again, persons who would have been so entitled had they not been in public service on 10th June, 10.68, shall also by a fiction be deemed to be persons who could claim entry as advocates on the rolls of the Bar Council, Tamil Nadu. (4) They should however make an application as prescribed and within the time stated, to the Bar Council, Tamil Nadu. Thereafter the Bar Council on verification and enquiry admits such a person or persons as advocates on the State roll. We are not in the instant case concerned with section 58-AA (2).

6. The second requirement which would enable a person to seek such entry into the Bar Council of Tamil Nadu is the subject of controversy. The petitioner would say that the word entitlement in the section could only mean persons who have been already admitted by the Bar Council of the Settlements on its rolls as advocates of one or other of the categories enumerated in the Arrete or persons who have taken reasonable and bona fide steps for being enrolled at least as a probationary advocate. Merely because a person has the requisite legal qualification it cannot be said that he is one who is entitled to be enrolled in accordance with the deeming provision in Sub-clause (1) of section 58-AA. I am unable to agree that the entitlement referred to in the sub-clause as above should be understood in such a restricted way. The Parliament was conscious of the fact that persons in public service on the crucial date, who are otherwise entitled to enter into the arena of legal profession, should not by reason of such accident or circumstance of their being in public service be prohibited from entering into the legal profession. In fact, the deeming clause, as contained in the third requirement in my view, has been introduced so as to benefit such of those public servants who by reason of their preoccupation in such public service are unable to enter into the legal profession though they have the requisite qualifications to do so. It, therefore, follows that if the second respondent in these petitions bad the requisite qualifications to enter into one or other of the classes of advocates delineated in the Arrete, then such entitlement per se would enable him to seek entry in the roll of advocates kept by the Bar Council under Section 17 of the Advocates Act of 1961. It is conceivable that in situations like that, it would not be possible for such a public servant to apply to the Bar Council of the colonies under Title III of the Arrete. He has to take an oath as prescribed under Article 21. He has to wear a robe and is put in probation as an Avocate Stagiaire for a period of 2 years. Article 29 no doubt prohibits Avocate Conseils and Conseils Agrees from carrying on any other profession or any other bargain. But in public interest it cannot be expected that a probationary advocate can so indulge in other activities other than the practice of the legal profession. It would be unwise to comprehend such a situation because Article 19 provides that the morality of the candidate who seek admission as a probationary advocate should be very high. All these things taken together gives the impression that a person who has the requisite qualifications to enter as a probationary advocate need not necessarily take steps to enrol himself as such to gain entitlement under section 58-AA (1) and move the Bar Council of Tamil Nadu to include him in the list maintained by the latter Council under Section 17 of the Advocates Act. Entitlement is an elastic expression and could not be ironjacketed as is sought to be made out by the learned Counsel for the petitioner. The fiction created under section 58-AA Will not properly work itself out to its fullest extent, if such a restricted meaning as contended by the petitioner is to be given to the class of persons who could be enrolled by the first respondent as advocates of this State. As long as the second respondent had the legal qualifications then he would be entitled as a matter of right and particularly because of the statutory fiction to gain admission into the list of advocates this State by enrolling himself through the Bar Council of Tamil Nadu,

7. The decision in Sunil Kumar v. State of West Bengal : AIR1963Cal614 . was referred to in the course of the arguments in support of the petitioner's contention. I do not think that this decision helps the petitioner in any way. That was a case where the Mukhtearship examination which entitled persons to practise as legal practitioners was stopped after the Advocates Act of 1961 was introduced. The consequence was that nobody could therefore be admitted or be enrolled as Mukhtear under the provisions of the quandom Legal Practitioners Act, which was repealed by the later Advocates Act. Some of the persons who were so kept out and who were prejudiced by reason of the examination for Mukhtearship not being held went to Court and sought for a direction compelling the Committee of Legal Education to hold-such examination. In the course of the hearing of the case it was contended that even if there had been a deprivation of the right of the appellants in that case to appear at the Mukhtearship examination and seek enrolment as Mukhtears, yet their right was restored by section 58(4) of the Act. The Court negatived the contention. Section 58(4), which is though not in part materia but similar in sense to section 58-AA of the Act, was considered by Mitter, J., who observed that section 58(4) did not apply to persons who had not acquired the necessary qualifications under Section 6 of the Legal Practitioners Act and that it was designed to safeguard the rights of persons who had already acquired the necessary qualifications mentioned in Section 6. I have referred to this decision only for the purpose of demonstrating that, if a person is qualified to become an advocate, then he has the requisite entitlement to move such of those statutory authorities as are available to him from time to time and ask them to enrol him as an advocate. The second respondent in each of these petitions could not move the Bar Council of the Colony on or before 10th June, 1968 because they Were public servants and they were engaged in an avocation of their own. After the Advocates Act was extended to the State of Pondicherry they having acquired already the qualifications for entry, wanted to enter the profession of law. At that stage, can it be said that they are not entitled to seek admission into the profession? I do not think any such conclusion can be arrived at either generally or in the circumstances of the instant case. As the second respondent in each of these petitions did have the necessary qualifications to seek entry as advocates, they could have done so under the Arrete, and having not done so, they could move the first respondent to enrol them as advocates and the act of the first respondent in having enrolled them is in full accord with the text and intendment of section 58-AA of the Act.

8. I may incidentally point out that the petitioner cannot be said to be an aggrieved person either. He is the Secretary of the Bar Association of Pondicherry. He was therefore, an Advocate on the rolls of the Colonies then and is in the list of the Bar Council of Tamil Nadu now. He cannot prevent the expansion of the list of Advocates as there is no such prohibition as to number as was contemplated by the Colonies under the Arrete. There at least a minimum number was prescribed for each class of advocates. But, fortunately, there is no such limitation in the list of advocates to be enrolled by the Bar Council of Tamil Nadu and under the Advocates Act of 1961. Again, no personal right o{ the petitioner is affected by the enrolment of the second respondent in each of these petitions by the first respondent. Even if there is any irregularity in the matter of enrolment by the first respondent, it is for other authorities, other than the petitioner, who should seek to correct the act of the Bar Council of Tamil Nadu. It is not for the petitioner to come up to the Court under Article 226 of the Constitution and seek for a writ of mandamus preventing the second respondent in each of these petitions from practising though they have the necessary certificates and also passport to practice as given and endorsed by the Bar Council of Tamil Nadu. On the ground that the petitioner is not a person affected also, these writ petitions should fail.

9. Incidentally I am informed that when the Bar Council of India had occasion to deal with the alleged impropriety or irregularity in the act of the first respondent in having enrolled, the second respondent in each of these petitions, it appears that it had approved the act of the Bar Council of Tamil Nadu. On this ground also, no writ can issue against an order which has merged in the order of the Bar Council of India.

10. These writ petitions are dismissed. There will be no order as to costs.


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