IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O. O. C. J.
WRIT PETITION (L) NO.1827 OF 2012
Brihanmumbai Mahanagarpalika & Anr. ...Petitioners.
Vs.
The Secretary, Bar Council of Maharashtra
& Goa & Anr. ...Respondents.
….
.....
CORAM : DR.D.Y.CHANDRACHUD,
V.M. KANADE AND
A.A. SAYED, JJJ.
October 17, 2012.
JUDGMENT (PER DR.D.Y.CHANDRACHUD, J.) :
In exercise of the powers conferred by Section 49(1)(ah) of the
Advocates Act, 1961, the Bar Council of India framed Rule 49 under which
there is a prohibition on an Advocate being a full time salaried employee of
any person, government, firm, corporation or concern, so long as he or she
continues to practise. Upon taking such employment, an Advocate is required
to intimate that fact to the Bar Council on whose rolls the name appears.
Thereupon, such a person would cease to practise as an Advocate so long as
he continues in employment. An exception was engrafted into Rule 49 as it
was originally framed in regard to a Law Officer of the Central Government or
the Government of a State or of any public corporation or body constituted by
the State who is entitled to be enrolled under the rules of the State Bar
Council made under Section 28(2)(d) read with Section 24(1)(e) despite
being a full time salaried employee. The Bar Council of Maharashtra andVBC
Goa framed rules under which persons who are Law Officers of the Central
Government or the Government of a State were excepted from the prohibition
on an Advocate accepting full time salaried employment. On 22 June 2001,
the Bar Council of India resolved to delete the exception carved out in Rule
49. Following that, the State Bar Council passed a resolution on 21 July 2002
deleting the rule allowing Law Officers to appear as Advocates, though they
were in full time and salaried employment. In these proceedings, the right to
act, appear and plead in courts is sought to be asserted on behalf of
municipal advocates in the full time salaried employment of the Municipal
Corporation of Greater Mumbai.
2. These proceedings under Article 226 of the Constitution have
been instituted in order to impugn the validity of (i) The resolution of the Bar
Council of India dated 22 June 2001 amending Rule 49; (ii) A clarification
issued by the Bar Council of India in its resolution dated 22/25 December
2001; and (iii) The resolution of the Bar Council of Maharashtra and Goa
dated 21 July 2002. There is a consequential challenge to a communication
addressed by the Chairperson of the State Bar Council on 12 October 2007
and to a communication dated 7 June 2012 of the Bar Council of India
rejecting a representation made by a Law Officer of the Municipal Corporation
of Greater Mumbai.
3. The Petitioners before the Court are the Municipal Corporation of
Greater Mumbai and its Principal Law Officer. The Municipal Corporation has
a full fledged legal department consisting of full time salaried Advocates, whoVBC
attend to and appear in legal proceedings in various Courts and Tribunals,
including before this Court. The Advocates appointed by the Municipal
Corporation are designated as Law Officer, Joint Law Officer, Deputy Law
Officer, Assistant Law Officer and Junior Law Officer. The powers and duties
of the officers and employees of the Municipal Corporation are prescribed in a
manual an extract of which has been placed on the record. The Law Officer is
the administrative head and over all incharge of the Legal Department. His
duties are to attend to the entire administrative work and to supervise the dayto-day work of the Department. The incumbent has to attend to important
matters before this Court and the Supreme Court, hold conference with
Counsel, supervise and guide the other Law Officers, attend meetings with
the Municipal Commissioner and the Additional Municipal Commissioner and
to take all necessary steps to defend the matters filed against the Corporation.
Deputy Law Officers are sectional heads in the Legal Department and
function under the guidance and supervision of the Law Officer. The work of
the Deputy Law Officers entails appearing before the Court and drafting,
pleading matters before the Court, holding conferences with Counsel,
supervising Assistant Law Officers, Junior Law Officers, Legal Assistants and
the Court Superintendent of his Section and attending meetings with the
Municipal Commissioner, Additional Municipal Commissioners, Deputy
Municipal Commissioners and other Heads of Departments regarding pending
legal proceedings. The Deputy Law Officer is also required to give legal
opinions to various Departments of the Corporation as allocated by the Law
Officer. There is a Deputy Law Officer whose functions relate to
conveyancing. Assistant Law Officers work under the supervision of theVBC
Deputy Law Officers in various Sections of the Legal Department. Assistant
Law Officers are comprised in Grade I and Grade II. Besides attending to
Court matters and appearing in Court, the work of Assistant Law Officers
entails instructing subordinates, examining judgments and preferring appeals
and attending conferences with Counsel and meetings with the Deputy
Municipal Commissioners and other Municipal Officers. An Assistant Law
Officer is required to perform any other work which is assigned by his or her
superiors. The post of Junior Law Officer, the Court is informed at the
hearing, has been abolished.
4. In or about 1978, municipal advocates were designated as
Municipal Prosecutors and Advocates and Senior Municipal Prosecutors and
Advocates. The Bar Council of Maharashtra and Goa addressed a
communication to the Municipal Commissioner recording that it was not
satisfied that the present designation of Municipal Advocates amounted to
designation as Law Officer within the meaning of the rules framed by the
State Bar Council and by the Bar Council of India. The Bar Council of
Maharashtra and Goa granted an exemption for a period of six months with a
view to prevent any hardship to the municipal administration in order that
during that period steps may be taken to designate persons engaged by it as
Law Officers. On 4 July 1978, the State Bar Council accepted the proposal
made by the Municipal Corporation to designate Municipal Advocates as Law
Officers “with appropriate distinguishing epithets”. On 9 November 1978, the
then Municipal Commissioner addressed a communication to the Chairman of
the State Bar Council stating that Senior Municipal Prosecutors andVBC
Advocates were redesignated as Deputy Law Officers, Municipal Prosecutors
and Advocates as Assistant Law Officers and Assistant Municipal Prosecutors
and Advocates as Junior Law Officers. The Petitioners aver that the
Municipal Corporation appoints Advocates with a minimum of three and five
years' practice as Junior Law Officer and Assistant Law Officer respectively
which are entry level posts. Promotions are granted to the posts of Deputy
Law Officer, Joint Law Officer and Law Officer on seniority-cum-merit basis.
Advocates Act, 1961 and the rules:
5. Section 24 of the Advocates Act, 1961 provides for persons who
may be admitted as Advocates on a State roll. Under sub-section (1) of
Section 24, a person shall be qualified to be admitted as an Advocate on a
State roll, if he fulfills certain conditions namely, of being a citizen of India,
completing twenty-one years of age, obtaining a degree in law of the nature
specified and fulfilling such other conditions as may be specified in the rules
made by the State Bar Council under the Chapter. Section 28 confers upon
the State Bar Councils, the power to make rules to carry out the purposes of
the Chapter. Sub-section (2) of Section 28 stipulates that without prejudice to
the generality of the power, the rules may provide for “the conditions subject
to which a person may be admitted as an Advocate on any such roll”.
1
The
Bar Council of India is entrusted with a rule making power under Section 49(1)
for discharging its functions under the Act. Among other things, clause (ah)
provides that the rules may prescribe “the conditions subject to which an
Advocate shall have the right to practise and the circumstances under which a
1 Section 28(2)(d)VBC
person shall be deemed to practise as an Advocate in a court”.
6. Rule 49 of the Rules framed by the Bar Council of India, as
originally made, provided as follows:
“49. An Advocate shall not be a full-time salaried employee
of any person, government, firm, corporation or concern, so long
as he continues to practise and shall, on taking up any such
employment intimate the fact to the Bar Council on whose rolls
his name appears, and shall thereupon cease to practise as an
Advocate so long as he continues in such employment.
Nothing in this rule shall apply to a Law Officer of the Central
Government or the Government of a State or of any public
Corporation or body constituted by the State who is entitled to be
enrolled under the rules of his State Bar Council made under
Section 28(2)(d) read with Section 24(1)(e) of the Act despite his
being a full time salaried employee.
Law Officer for the purpose of this Rule means a person who is so
designated by the terms of his appointment and who by the said
terms, is required to act and/or plead in Courts on behalf of his
employer.”
The Bar Council of Maharashtra and Goa had framed rules under Section
28(2)(d) read with Section 24(1)(e) which inter alia provided as follows:
“1. A person who is otherwise qualified to be admitted as an
Advocate but is either in full or part-time service or employment or
is engaged in any trade, business or profession shall not be
admitted as an Advocate:-
Provided however that this rule shall not apply to -
(i) Any person who is a Law Officer of the Central Government or
the Government of a State;
(ii) Any person who is an Articled clerk of an Attorney;
(iii) Any person who is an assistant to an Advocate or to an
attorney who is an Advocate;
(iv) Any person who is in part-time service as a Professor,VBC 7
Lecturer or Teacher-in-law;
(v) Any person who by virtue of being a member of a joint Hindu
family has an interest in a joint Hindu family business, provided he
does not take part in the management thereof; and
(vi) Any other person or class of persons as the Bar Council may
from time to time exempt.
2. Every person applying to be admitted as an Advocate shall
in his application make a declaration that he is not in full or parttime service or employment and that he is not engaged in any
trade, business or profession. But in case he is in such full or
part-time service or employment or is engaged in any trade,
business or profession, he shall in the declaration disclose full
particulars of his service, employment or engagement. He shall
also undertake that if, after his admission as an Advocate, he
accepts full or part-time service or employment or is engaged in
any trade, business or profession disqualifying him from
admission he shall forthwith inform the Bar Council of such service
or employment or engagement and shall cease to practise as an
Advocate.”
The decisions of the Supreme Court:
7. Rule 49 framed by the Bar Council of India came up initially for
consideration before a bench of three learned judges of the Supreme Court in
Sushma Suri vs. Govt. of National Capital Territory of Delhi.
2
The
Appellant before the Supreme Court was an Advocate on record and was
appointed as an Assistant Government Advocate, following which she was
promoted to the post of Additional Government Advocate in the Supreme
Court. She had applied in response to an advertisement for recruitment to the
Delhi Higher Judicial Service. Rule 7 of the Delhi Higher Judicial Service
Rules, 1970 stipulates two modes of recruitment, the first being from
members of the Delhi Judicial Service who have completed not less than ten
years of service in that service and the second being recruitment from the
2 (1999) 1 SCC 330VBC
Bar. Article 233(2) of the Constitution provides that a person not already in
service is eligible for appointment as a District Judge if he has been for not
less than seven years an Advocate or a pleader and is recommended for the
purposes by the High Court. The Appellant before the Supreme Court moved
the Delhi High Court since she was not called for an interview. The High
Court dismissed the Petition holding that she was not entitled to be
considered for appointment. The Supreme Court held that since the
expression “Advocate or pleader” was used in Article 233(2), to ascertain its
meaning reference would be made to the Advocates Act and the Rules
framed by the Bar Council. After adverting to the provisions of Rule 49
framed by the Bar Council of India, the Supreme Court held that for the
purposes of the Advocates Act and the Rules framed thereunder, a Law
Officer (Public Prosecutor or Government Counsel) will continue to be an
Advocate. The Supreme Court held as follows:
“Under Rule 49 of the Bar Council of India Rules, an advocate
shall not be a full-time employee of any person, Government, firm,
corporation or concern and on taking up such employment, shall
intimate such fact to the Bar Council concerned and shall cease to
practise as along as he is in such employment. However, an
exception is made in such cases of law officers of the
Government and corporate bodies despite his being a fulltime salaried employee if such law officer is required to act or
plead in court on behalf of others. It is only to those who fall
into other categories of employment that the bar under Rule
49 would apply. An advocate employed by the Government or a
body corporate as its law officer even on terms of payment of
salary would not cease to be an advocate in terms of Rule 49 if
the condition is that such advocate is required to act or plead in
courts on behalf of the employer. The test, therefore, is not
whether such person is engaged on terms of salary or by payment
of remuneration, but whether he is engaged to act or plead on its
behalf in a court of law as an advocate. In that event the terms of
engagement will not matter at all. What is of essence is as to
what such law officer engaged by the Government does – whether
he acts or pleads in court on behalf of his employer or otherwise.VBC 9
If he is not acting or pleading on behalf of his employer, then he
ceases to be an advocate. If the terms of engagement are such
that he does not have to act or plead, but does other kinds of
work, then he becomes a mere employee of the Government or
the body corporate. Therefore, the Bar Council of India has
understood the expression “advocate” as one who is actually
practising before courts which expression would include even
those who are law officers appointed as such by the Government
or body corporate.”
(emphasis supplied)
Rule 49 as it stood when the judgment in Sushma Suri's case was delivered
included both the prohibition and the exception in the case of Law Officers of
a stated description. To be a Law Officer, two tests were laid down in the
third para of Rule 49: (i) designation as a Law Officer by the terms of
appointment; and (ii) being required by the terms of appointment to act and/or
plead on behalf of the employer in Courts.
8. In Satish Kumar Sharma vs. Bar Council of H.P.,
the Appellant
was appointed as an Assistant (Legal) by the State Electricity Board of
Himachal Pradesh and was redesignated as Law Officer, Grade II. When his
application for seeking enrollment was submitted, the Bar Council requested
the Electricity Board to first designate him as Law Officer. The Appellant
was thereupon redesignated and was issued a certificate of enrollment. A
notice to show cause was issued to the Appellant as to why his enrollment
should not be withdrawn and a resolution to that effect was eventually passed.
The High Court dismissed the petition under Article 226 of the Constitution.
The Supreme Court explained the underlying basis of the prohibition
contained in the substantive part of Rule 49 of the Rules framed by the Bar
3 At para 10 pages 336 & 337
4 (2001) 2 SCC 365VBC
Council of India thus:
“As is clear from the rules contained in Chapter II of the Rules an
advocate has a duty to the court, duty to the client, duty to the
opponent and duty to colleagues unlike a full time salaried
employee whose duties are specific and confined to his
employment. Rule 49 has a specific purpose to serve when it
states that an advocate shall not be a full time salaried employee
of any person, Government, firm corporation or concern. As
already noticed above, Section 24(1) specifically states that a
person in addition to satisfying other conditions has also to satisfy
the provisions of the Act and the Rules. In other words, the Rules
made by the Bar Council of India are to be satisfied. Mere nonframing of rules by a State Bar Council under Section 28(2)(d)
read with Section 24(1)(e) of the Act cannot dispense with
obedience to Rule 49.
…
...the provisions of the Act and the Rules made thereunder inter
alia aimed to achieve the same ought to be given effect to in their
true letter and spirit to maintain clean and efficient Bar in the
country to serve the cause of justice which again is a noble one.”
5
The Supreme Court relied upon its earlier decision in Dr.Haniraj L.Chulani
vs. Bar Council of Maharashtra and Goa,
6
in which the Court had rejected
a plea by medical practitioner seeking enrollment as an Advocate after
obtaining a law degree. The Supreme Court had taken the view that the
simultaneous practice of the medical profession with the legal profession
would result in a conflict of loyalty. In Satish Kumar Sharma's case, the
Supreme Court observed that under his conditions of service, the Appellant :
(i) Was a full time salaried employee on a fixed scale of pay; (ii) Was
governed by conditions of service applicable to the State Electricity Board,
including disciplinary proceedings; (iii) In his duties was not exclusively or
mostly confined to acting and pleading in Courts; and (iv) Had received
promotions from time to time on the recommendation of the Departmental
5 At paras 9 and 10 pages 373 and 374
6 (1996) 3 SCC 342VBC
Promotion Committee. Explaining the import of Rule 49, the Supreme Court
held as follows:
“(i) the main and opening paragraph of the rule prohibits or bars
an advocate from being a full-time salaried employee of any
person, Government, firm, corporation or concern so long as he
continues to practice and an obligation is cast on an advocate who
takes up any such employment to intimate the fact to the Bar
Council concerned and he shall cease to practice so long as he
continues in such employment;
(ii) para 2 of the rule is in the nature of an exception to the
general rule contained in main and opening paragraph of it. The
bar created in para 1 will not be applicable to Law Officers of
the Central Government or a State or any public corporation
or body constituted by a statute, if they are given entitlement
under the rules of their State Bar Council. To put it in other
way, this provision is an enabling provision. If in the rules of
any State Bar Council, a provision is made entitling Law
Officers of the Government or authorities mentioned above,
the bar contained in Rule 49 shall not apply to such Law
Officers despite they being full time salaried employees;
(iii) not every Law Officer but only a person who is designated as
Law Officer by the terms of his appointment and who by the said
terms is required to act and/or plead in courts on behalf of his
employer can avail the benefit of the exception contained in para
2 of Rule 49.” (emphasis supplied)
No rules were framed by the State Bar Council of Himachal Pradesh entitling
a Law Officer appointed as a full time salaried employee to enroll as an
Advocate. The Supreme Court held that if there were no rules in that regard,
there would be no entitlement. The Court observed that the position of the
Appellant as a full time salaried employee of the State Electricity Board would
give rise to a conflict of duties and interest, particularly having regard to the
fact that he was amenable to the disciplinary jurisdiction of his own employer
as well as that of the Bar Council. The earlier judgment in Sushma Suri was
distinguished on the ground that on the facts relating to the employment of theVBC
Appellant as well as in the absence of the rules made by the State Bar
Council entitling a Law Officer to enroll as an Advocate despite being a full
time salaried employee, the Appellant was not entitled to enrollment as an
Advocate. In other words, the Supreme Court noted that a positive
requirement was contained in paragraph 2 of Rule 49 that unless a State Bar
Council has framed rules entitling Law Officers to enroll as an Advocate
even if they are full time employees, they are not entitled to enrollment.
Amendments to the Rules:
9. The Bar Council of India passed a resolution at a meeting held on
22 June 2001, noting that after considering the views received from the State
Bar Councils, it was resolved that the second and third paragraphs of rule 49
providing for the enrollment of Law Officers stand deleted. The following
resolution was passed:
“RESOLVED that the Second and Third paras of Rule 49, Section
VII, Chapter II, Part VI of the Bar Council of India Rules providing
for enrollment of 'Law Officers' be and is hereby deleted as the
responses received from the majority of the Bar Councils are in
favour of deletion of the Rule.”
This was published in the Gazette of India, dated 13 October 2001.
10. On 22/25 December 2001, the Bar Council of India passed a
clarificatory resolution in the following terms:
“RESOLVED and further clarified that as the Supreme Court has
struck down the appearance by Law Officers in Court even on
behalf of their employers the Judgment will operate in the case of
all Law Officers. Even if they were allowed to appear on behalf of
their employers, all such Law Officers who are till now appearing
on behalf of their employers shall not be allowed to appear as
advocates. The State Bar Council should also ensure that thoseVBC
Law Officers who have been allowed to practice on behalf of their
employers will cease to practice. It is made clear that those Law
Officers who after joining services obtained enrollment by reason
of the enabling provision cannot practice even on behalf of their
employers.”
At a meeting held on 21 July 2002, the Bar Council of Maharashtra and Goa
acted on the resolution of the Bar Council of India and passed the following
resolution:
“In furtherance of the Judgment of the Hon'ble Supreme Court and
the directions issued by the Bar Council of India, this House
RESOLVED that the Office should communicate to all the Bar
Associations and District Courts about the Implementation and
strict compliance of those directions and copies of this resolution
as well as Supreme Court citation also be sent.
Explanation : In view of the above Resolutions, the proviso
to Rule 1 of the Bar Council of Maharashtra and Goa framed
under Section 28(2)(d) read with Section 24(1)(e) of the
Advocates Act, 1961, allowing Law Officers to appear as
Advocates, is deleted.”
8
(emphasis supplied)
11. On 12 October 2007, the Bar Council of Maharashtra and Goa
issued a communication to the Municipal Commissioner and to the Law
Officer recording that it was reported “that day in and day out municipal
advocates are appearing in the court thereby committing contempt of court”
and that in spite of sufficient opportunity, they are continuing to appear. The
Municipal Commissioner was, therefore, called upon to make suitable
arrangement so that full time Advocates working in the office of the Municipal
Commissioner may not appear in Courts.
7 B.C.I. Resolution No.156 of 2001
8 B.C.I. Resolution No.181 of 2002VBC 14
12. A Petition under Article 226 of the Constitution was instituted
before this Court.
9
The Bar Council of India stated before the Court that the
representation submitted by the Petitioner would be decided within a period of
one year. As for the arrangement to be made during that period, the Court
observed as follows:
“We have been informed that the present practice of permitting
employees of the Corporation to appear in Court is in force right
from the year 1961. Though it has been discontinued in the year
2002, as a matter of fact their employees have been appearing in
Court as Advocates because of the statement made on behalf of
the Bar Council of Maharashtra and Goa. Considering the volume
of litigation pending in various Courts filed by the Bombay
Municipal Corporation and against it and considering the number
of years for which the practice is prevalent, we suggested to the
learned counsel appearing for Bar Council of Maharashtra and
Goa that as a transitory period, assuming that the representations
made to the Bar Council of India do not receive favourable
response, the practice be allowed to be continued. The learned
counsel appearing for the Bar Council of Maharashtra and Goa
therefore, made a statement before us that the Bar Council of
Maharashtra and Goa will continue to abide by the statement
which is already made and recorded previously in this petition for
a period of one year from today. In view of this statement, petition
is disposed off.”
At a meeting held on 1 June 2012, the Bar Council of India rejected the
representation in the following terms:
“The representation of Smt.V.K.Khatu has no merit and the Bar
Council of India and the State Bar Councils are to be governed by
Rule 19, Chapter II, Part VI of the Bar Council of India Rules
which clearly says that a full time salaried employee of any
corporate including the Municipal Corporation shall cease to
practice as an advocate so long as he/she continues in such
employment. In view of this aforementioned Rule, it is not
permissible for Smt.V.K.Khatu or any other similar person
continue to practice as an advocate so long as he/she is an
employee of any person, government, firm, corporation or concern
(Municipal Corporation) or any other”.
9 Brihanmumbai Mahanagarpalika and anr. vs. Bar Council of Maharashtra and
Goa and anr., Writ Petition 2154 of 2008.VBC 15 wpl1827.12-FB
13. The present petition was admitted by a Division Bench of this
Court and was directed to be heard together with Writ Petition 1916 of 2011
and PIL 53 of 2012. In Writ Petition 1916 of 2011, a Division Bench of this
Court has made a reference to the Full Bench. That Petition has been
instituted by full time salaried Assistant Public Prosecutors in the employment
of the State Government who asserted that they are eligible for appointment
as District Judges under Article 233(2) of the Constitution. The present
Petition has been heard together with Writ Petition 1916 of 2011 and PIL 53 of
2012. For convenience of exposition, we are delivering this judgment in the
present case. Learned Counsel for all the contesting parties have urged their
submissions for final disposal of the petition. Hence, the petition has been
taken up by consent for final hearing.
Submissions :
14. On behalf of the Petitioners, it has been urged by Learned Senior
Counsel that:
(i) Sections 24 and 28 of the Advocates Act, 1961, govern who is
eligible to be enrolled as an Advocate:
(ii) Sections 29, 30 and 33 regulate the right to practise;
(iii) Section 49(1)(ah) empowers the Bar Council of India to frame
rules in regard to the conditions subject to which an Advocate may practise;
(iv) In the decisions in Sushma Suri's case and Satish Kumar
Sharma's case what has weighed with the Supreme Court is whether the Law
Officers were engaged for work in the Court. If they are so engaged, noVBC 16 wpl1827.12-FB
matter what the terms of engagement are, the exemption under Rule 49
would apply;
(v) Municipal Law Officers fell within the purview of the second and
third paragraphs of Rule 49 and Rule 1(vi) of the Rules framed by the Bar
Council of Maharashtra and Goa. Since an exemption was granted under
proviso (vi) to Rule 1 of the Rules framed by the State Bar Council, Municipal
Law Officers are entitled to the benefit of the exception carved out by Rule 49;
(vi) The logic underlying the second and third paragraphs of Rule 49
still continues. The resolution passed by the Bar Council of India to delete the
second and third paragraphs is arbitrary and violates Article 14 of the
Constitution. The clarificatory resolution dated 22/25 December 2001
proceeds on the basis that the Supreme Court has struck down appearances
by Law Officers in Court on behalf of their employers which is not a correct
appreciation of the judgment of the Supreme Court in Satish Kumar
Sharma's case. The deletion of the exception in Rule 49 is violative of Article
14.
15. On the other hand, Counsel appearing on behalf of the Bar
Council of Maharashtra and Goa and the Bar Council of India, who are
Respondents to these proceedings, submitted that :
(i) The Bar Council of India acted within the scope and purview of its
power to frame subordinate legislation while deciding to delete the second
and third paragraphs of Rule 49;
(ii) Before taking a decision to delete the exception carved out in Rule
49, the Bar Council of India had taken into consideration the views of theVBC
State Bar Councils, a majority of whom were in favour of deleting the
exception;
(iii) The judgment of the Supreme Court in Satish Kumar Sharma's
case must be read as a whole. The Supreme Court adverted to the reason
why a person in full time employment should not be allowed to practise in a
Court and noted that such employment may give rise to conflicting loyalties or
a conflict between duties and interest;
(iv) The Bar Council as a rule making authority vested with the power
to frame subordinate legislation was entitled to delete the exception carved
out to the general principle that an Advocate should not accept any full time
salaried employment and that upon accepting such employment, he or she
would cease to practise at the Bar;
(v) In any event, even if the resolution of the Bar Council of India to
delete the second and third paragraphs of Rule 49 is set aside (though it is
submitted that the deletion is valid) that would not result in the revival of the
exception which was in force prior to the deletion. A writ of Mandamus cannot
be issued by the Court to revive a rule, particularly, a rule which has been
deleted as a result of a conscious decision.
Interpreting the Act and Rules:
16. Section 24 of the Advocates Act, 1961, deals with the admission
of Advocates on the State roll and is subject to the provisions of the Act and
the Rules. Under Clause (e) of sub-section (1), the State Bar Councils are
empowered to specify conditions which are to be fulfilled by a person who
seeks enrollment as an Advocate. A specific rule making power to prescribeVBC 18 wpl1827.12-FB
the conditions subject to which a person may be admitted as an Advocate on
a State roll is conferred on the State Bar Councils by Section 28(2)(d). The
rule making power of the Bar Council of India under Section 49(1)(ah) extends
to prescribing the conditions subject to which an Advocate shall have a right
to practise and the circumstances under which a person shall be deemed to
practise as an Advocate in a Court.
17. Rule 49 of the Rules framed by the Bar Council of India contains
in its substantive part, a bar on an Advocate being a full time salaried
employee of any person, government, firm, corporation or concern, so long as
he continues to practise. Moreover, on taking up such employment, an
Advocate is under a duty to intimate that fact to the Bar Council on whose
rolls his name appears and he would thereupon cease to practise as an
Advocate so long as he continues in such employment. The exception in the
second paragraph of Rule 49 as originally engrafted applied to a Law Officer
of the Central Government or the Government of a State or of any public
corporation or body constituted by the State. A Law Officer was defined as a
person who is so designated by the terms of his appointment and who by the
terms of appointment is required to act and plead in Court on behalf of the
employer. However, before the exception contained in the second paragraph
of Rule 49 would apply, it was necessary that the rules framed by the State
Bar Councils under Section 28(2)(d) read with Section 24(1)(e) recognised an
entitlement of such a person to be enrolled despite his being a full time
salaried employee. If the rules framed by a State Bar Council did not
affirmatively recognise the entitlement of a Law Officer (as defined in the thirdVBC
paragraph) to be enrolled despite being a full time salaried employee, the
exception in the second paragraph of Rule 49 would not have been attracted.
Rule 49 was, hence, in the nature of an enabling provision under which the
embargo on an Advocate taking up full time salaried employment was allowed
to be lifted in the case of a Law Officer of a specified description, provided the
rules framed by the State Bar Council concerned conferred an entitlement to
be enrolled despite being a full time salaried employee.
18. The facts in Sushma Suri's case and Satish Kumar Sharma's
case lay on opposite ends of the spectrum. As a result the exemption in Rule
49 was attracted in the former case and was not in the latter case. The
significant aspect which has to be noted is that when both these decisions
were rendered by the Supreme Court, Rule 49 in its unamended form was in
existence. In its unamended form, Rule 49 contained both the prohibition on
an Advocate accepting full time salaried employment and the exception made
in favour of Law Officers as defined. In Satish Kumar Sharma's case, the
rules framed by the State Bar Council did not specifically recognise a right of
enrollment in a full time salaried employee who was engaged as a Law Officer
by the State Electricity Board. The Supreme Court noted that the bar created
in paragraph 1 of Rule 49 would not apply to a Law Officer of the Central or
State Government or any public corporation or a body constituted by the
statute, if in the rules of the State Bar Council a provision is made entitling the
Law Officer of the Government or of such authority to enroll despite such a
person being a full time salaried employee. The Supreme Court emphasised
that the enabling provision which was contained in the second paragraph ofVBC 20 wpl1827.12-FB
Rule 49 would apply only if the rules of the State Bar Council contained a
recognition of the entitlement of a full time salaried Law Officer to be enrolled
as an Advocate. But for the exception contained in the second paragraph,
there would indeed be no entitlement and the prohibition contained in the first
paragraph of Rule 49 would continue to apply.
19. The rules framed by the Bar Council of Maharashtra and Goa
under Section 28(2)(d) read with Section 24(1)(e) contained at the material
time provisions for exemption from the bar on the acceptance of full time
salaried employment. The substantive part of Rule 1 of the State Rules
stipulated that a person who is otherwise qualified to be admitted as an
Advocate but is either in full or part time service or employment or engaged in
any trade, business or profession shall not be admitted as an Advocate. The
proviso contained several exceptions. Clause (i) was in regard to any person
who is a Law Officer of the Central Government or the Government of a State.
Clause (vi) provided that the rule shall not apply to any other person or class
of persons as the Bar Council may from time to time exempt.
20. The Bar Council of Maharashtra and Goa by its letter dated 4 May
1978, intimated the Municipal Commissioner that the designation of Municipal
Advocates did not amount to designation as Law Officer within the meaning of
proviso (i) to Rule 1 of the Rules framed by the State Bar Council together
with the first paragraph of Rule 49 framed by the Bar Council of India. As
already noted earlier, the second paragraph of Rule 49 requires that before a
person could be called a Law Officer, he should be so designated by theVBC
terms of his appointment and in addition, that the terms of appointment should
require him to act or plead in Court on behalf of the employer. The Municipal
Commissioner was informed that the State Bar Council was allowing a period
of six months to prevent any hardship to the municipal administration during
which period steps were required to be taken to designate Municipal
Advocates as Law Officers. The Municipal Corporation appears to have
complied with the request and on 4 July 1978, the Bar Council communicated
its approval to a proposal to redesignate Municipal Law Officers and required
the Corporation to “do the needful” and intimate the change brought about
within six months of the date of the earlier resolution. On 9 November 1978,
the Municipal Commissioner informed the Bar Council of the redesignation of
Senior Municipal Prosecutors and Advocates, Municipal Prosecutors and
Advocates and Assistant Municipal Prosecutors and Advocates as Deputy
Law Officers, Assistant Law Officers and Junior Law Officers respectively.
21. Proviso (i) of Rule 1 to the Rules of the State Bar Council made a
provision of the nature contemplated in the second paragraph of Rule 49 of
the Bar Council of India Rules by recognizing an entitlement to enrollment in
respect of a Law Officer of the Central Government or the Government of a
State. Proviso (i) did not extend to Law Officers of all bodies but to only Law
Officers of the Union and State governments. Law Officers employed by the
Municipal Corporation are not Law Officers of the Central Government or of
the Government of a State. Municipal Corporations are statutory bodies
constituted under specific enactments such as the Mumbai Municipal
Corporation Act, 1888 or the Bombay Provincial Municipal Corporation Act,VBC 22 wpl1827.12-FB
1949. The State Bar Council, however, had made an enabling provision in
clause (vi) of the proviso to exempt any person or class of persons, other than
those specified in clauses (i) to (v). The correspondence which was
exchanged between the Bar Council of Maharashtra and Goa and the
Municipal Corporation would indicate that the State Bar Council was satisfied
about the redesignation of Municipal Advocates as Municipal Law Officers
and once that was done had no objection to their continuing to appear and
plead before Courts. We therefore proceed on a reasonable construction of
the events that transpired that the Bar Council of Maharashtra and Goa had
granted an exemption to Law Officers engaged on a full time salaried basis
by the Municipal Corporation of Greater Mumbai from the rigours of Rule 1,
under clause (vi) of the proviso.
22. But, as a result of the deletion of the second and third paragraphs
of Rule 49 by the Bar Council of India on 22 June 2001, no Advocate would
be entitled to be in full time salaried employment of a person, government,
firm, corporation or concern. On taking up such employment such a person is
under an obligation to inform the State Bar Council and “shall thereupon
cease to practise as an advocate so long as he continues in such
employment”. The exception which was available under the second
paragraph of Rule 49 stood deleted. Municipal Law Officers in the full time
employment of the Municipal Corporation of Greater Mumbai can no longer
assert an entitlement to act, appear and plead in any Court. VBC 23 wpl1827.12-FB
Constitutional validity:
23. The deletion of the exception to Rule 49 and the corresponding
deletion of the proviso to Rule 1 of the State Bar Council Rules is, however,
challenged on the ground that it is arbitrary. The vires of subordinate
legislation can undoubtedly be questioned on the ground of
unreasonableness,
since what is unreasonable would violate Article 14 of
the Constitution. But , a distinction has to be made in regard to the power of
judicial review when the constitutional validity of legislation or of subordinate
legislation is questioned as distinct from when an action of the executive is
challenged on the ground of unreasonableness. The validity of executive
action, when it is challenged as unreasonable can be assessed with
reference to inter alia the following considerations:
“(i) whether the discretion conferred upon the statutory authority
had been properly exercised;
(ii) whether the exercise of such discretion is in consonance with
the provisions of the Act;
(iii) whether while taking such action, the executive Government
had taken into consideration the purport and object of the Act;
(iv) whether the same subserved other relevant factors which
would affect the public at large;
(v) …...
(vi) whether in arriving at such a decision, both substantive due
process and procedural due process had been complied with.”
11
As the Supreme Court held in Bombay Dyeing:
“Judicial review of administrative action and judicial review of
10Bombay Dyeing & Mfg.Co. Ltd. vs. Bombay Environment Action Group, (2006)
3 SCC 434.
11Bombay Dyeing & Mfg. Co.Ltd. (supra) para 197 at page 510.VBC 24 wpl1827.12-FB
legislation stand on a different footing. What is permissible for the
court in case of judicial review of administrative action may not be
permissible while exercising the power of judicial review of
legislation.”
The test which has been laid down in regard to arbitrariness, where legislation
is challenged on the ground of unreasonableness, is the test of manifest
arbitrariness.
An arbitrary exercise of legislative power has to be
determined with reference to the purpose and object of the statute. The same
principle must apply to delegated legislation and unless the exercise which
has been undertaken by the rule making authority results in subordinate
legislation which is manifestly arbitrary, the Court would not exercise the
power of judicial review.
24. In Sharma Transport Represented by D.P.Sharma vs.
Government of A.P.,
the Supreme Court held as follows:
“The tests of arbitrary action applicable to executive action do not
necessarily apply to delegated legislation. In order to strike down
a delegated legislation as arbitrary it has to be established that
there is manifest arbitrariness. In order to be described as
arbitrary, it must be shown that it was not reasonable and
manifestly arbitrary. The expression “arbitrarily” means: in an
unreasonable manner, as fixed or done capriciously or at
pleasure, without adequate determining principle, not founded in
the nature of things, non-rational, not done or acting according to
reason or judgment, depending on the will alone.”
The same principle was enunciated in an earlier judgment of the Supreme
Court in Khoday Distilleries Ltd. v. State of Karnataka:
“So long as the policy as formulated in the amended Rules is not
manifestly arbitrary or wholly unreasonable, it cannot be
12At para 198 page 510
13At para 205 page 511
14(2002) 2 SCC 188
15AIR 1996 SC 911VBC
considered as violative of Article 14.”
25. The rationale underlying Rule 49 of the Bar Council of India Rules
is that employment in a full time salaried capacity detracts from the primary
role of an Advocate as an independent professional who is subservient to
none else than the cause of justice. A conflict of duties and interest may
arise. A member of the Bar engaged on behalf of a client is expected to
utilise his or her knowledge, experience and professional skill in an objective
and fair presentation of the case of a client. In doing so, an Advocate does not
cease to possess a sense of professional autonomy accompanied as it is by
a duty towards the cause of justice. The means which are deployed are as
significant as the ultimate end of pursuing justice for a client. The adage that
the ends do not justify the means, has a special sanctity in the profession of
law. Adversarial battles between litigating parties involve not only the parties
and the lawyers who represent them, but there is above all, a commitment to
the cause of justice that the institution of the Court embodies. Lawyers have
traditionally been regarded as officers of the Court precisely for this reason.
At one level, this is based on the principle that the conduct of a lawyer even
when he or she represents a client must be consistent with the need to secure
justice. The reason why a full time salaried employee is handicapped in
performing that role is because as an employee, the paramount concern is to
protect the interest of the employer. A lawyer who is engaged by a client is
undoubtedly engaged to pursue the case of the client. But the difference
between a professional who holds a brief and a full time salaried employee is
not merely one of degree. A full time salaried employee is subject to theVBC
administrative control of the employer and is answerable to the employer for
every aspect of the work rendered in the course of employment. A full time
salaried employee receives a prescribed salary, is borne on the establishment
of the employer and is subject to the disciplinary jurisdiction of the employer.
Within the service, the prospects for career advancement are determined by
the employer on the recommendations of a Departmental Promotion
Committee. They are subject to the hierarchies of service. Such a position
may, therefore, involve the employee in a conflict of duties and interest.
26. The Law Officers of the Municipal Corporation have been
appearing in Courts and Tribunals as part of their duties. But, they are in the
full time salaried employment of the Corporation. They are borne on the
establishment of the Municipal Corporation. They receive prescribed salaries
in accordance with applicable pay scales. They receive promotions and are
subject to the administrative control of their superiors. They are required to
hold meetings with the Municipal Commissioner, Additional Municipal
Commissioner, Deputy Municipal Commissioners, Heads of Department and
other officers of the Corporation. They form part of a full fledged legal
department of the Municipal Corporation.
27. The Supreme Court in Satish Kumar Sharma's case emphasized
this possibility of a conflict of interest and duty when a Law Officer is a full
time salaried employee in the following observations :
“.. there may be various challenges in courts of law assailing or
relating to the decisions/actions taken by the appellant himself
such as challenge to issue a statutory regulation, notification orVBC
order; construction of statutory regulation, statutory orders and
notifications, the institution/withdrawal of any prosecution or other
legal/quasi-legal proceedings etc. In a given situation the
appellant may be amenable to disciplinary jurisdiction of his
employer and/or to the disciplinary jurisdiction of the Bar Council.
There could be conflict of duties and interests. In such an event,
the appellant would be in an embarrassing position to plead and
conduct a case in a court of law.”
28. The Bar Council of India in the exercise of its rule making power
under Section 49(1) of the Advocates Act, 1961 is entitled to make rules for
discharging its functions under the Act. The conditions subject to which an
Advocate shall have a right to practise is under clause (ah) a specific subject
of the rule making power conferred by Parliament upon the Bar Council of
India. Hence, when it originally framed Rule 49, both with the substantive
prohibition as well as with the exception that was carved out in the case of a
Law Officer, the Bar Council of India acted within the purview of its statutory
jurisdiction. The Bar Council of India was entitled in law in the exercise of its
power to frame delegated legislation to delete the exception. The basis on
which the exception has been deleted, is not arbitrary or ultra vires the
functions of the Bar Council. A body which is vested with the power of making
subordinate legislation and in exercise of that power to formulate the
conditions subject to which an Advocate shall have a right to practise is
entitled to stipulate a condition to the effect that an Advocate shall not be a full
time employee of any person, government, firm, corporation or concern, so
long as he continues to practise and that upon taking such employment, he or
she shall cease to practise as an Advocate. Just as in the considered exercise
of the power of framing subordinate legislation, such a body may carve out aVBC
limited exception from the rule which is framed in the exercise of its power of
delegated legislation, it is equally open to the law making body to reconsider
whether the exception should continue to subsist. An exception is indeed a
deviation from the general principle which is enacted into law and if the
legislature or its delegate in the exercise of the power of subordinate
legislation abrogates an exception, that would not be ultra vires its statutory
powers. We have already underlined the rationale for the prohibition in Rule
49. The Rule is intended to protect the dignity, independence and autonomy
of the Bar. The Bar is a vital element in the dispensation of justice in our
country. A fearless Bar contributes to the objective and independent
dispensation of justice. The prohibition contained in Rule 49 is intended to
protect against inroads into the professionalism of the Bar. The rule making
body is entitled to perceive full time salaried employment as detracting from
the role which the Advocates Act, 1961 envisages for Advocates. The
prohibition in Rule 49 is based on rational considerations. That being valid,
the abrogation of the erstwhile exception cannot be regarded as
unreasonable.
29. But it was sought to be urged that the clarificatory resolution which
was passed by the Bar Council of India on 22/25 December 2001 proceeded
on the basis that the Supreme Court “has struck down the appearances by
Law Officers in Court” and that the judgment will operate in the case of all Law
Officers even if they were appearing on behalf of their employers earlier. This,
it is urged, is not a correct reading of the judgment of the Supreme Court in
Satish Kumar Sharma's case. The sequitor to that submission is that sinceVBC
the reason on the basis of which the Bar Council has abrogated the exception
is erroneous, the deletion of the exception became unreasonable and must
be struck down. We are unable to accept the submission for a number of
reasons. Firstly, the deletion of the second and third paragraphs of Rule 49
took place in pursuance of a decision which was taken on 22 June 2001 and
was gazetted on 13 October 2001. The deletion had already taken effect.
The clarificatory resolution of 22/25 December 2001 would, therefore, not be
dispositive of the power of the Bar Council of India to effect the deletion of the
second and third paragraphs of Rule 49. Secondly, the judgment of the
Supreme Court in Satish Kumar Sharma's case interpreted Rule 49.
Undoubtedly, one aspect of Satish Kumar Sharma's case was that there
was no rule framed by the State Bar Council of Himachal Pradesh recognising
the entitlement of a full time salaried Law Officer of a Corporation to practise
as an Advocate and hence, the basis of the exception in the second
paragraph of Rule 49 was not fulfilled. The judgment of the Supreme Court,
however, explains the basis of the underlying rationale for the prohibition
contained in Rule 49. The Supreme Court emphasized that a person in full
time employment in the service of the employer and subject to the disciplinary
jurisdiction of the employer would likely be involved in a conflict of interest and
duty while appearing in a Court of law. The judgment has to be read and
construed from a holistic perspective. The Bar Council of India was entitled
as a subordinate law making body to take a considered view on whether the
interests of the legal profession would warrant a reconsideration of the
exception that it had carved out to Rule 49 in the case of full time salaried Law
Officers. The observations of the Supreme Court in Satish Kumar Sharma'sVBC
case were certainly material and the Bar Council of India cannot be held to
have relied on a circumstance extraneous to its law making authority. The
decision of the Supreme Court in Satish Kumar Sharma's case certainly had
a material bearing on the issue.
30. For these reasons, we have arrived at the conclusion that the
deletion of the second and third paragraphs of Rule 49 and the corresponding
deletion by the State Bar Council of the exception cannot be regarded as ultra
vires or unreasonable. Moreover, we must also take note of the position in
law that the Court cannot issue a writ of Mandamus to the legislature to enact
a law and similarly a Court cannot direct a subordinate legislative body to
enact a particular rule.
In State of Tamil Nadu vs. K.Shyam Sunder,
the
Supreme Court held that if an amending Act of the legislature is struck down
for want of legislative competence or on the ground that it is violative of the
fundamental rights in Part-III of the Constitution, it would be unenforceable in
view of Article 13(2) and the old Act would revive. But this proposition of law,
the Supreme Court held, is not applicable to subordinate legislation. Hence,
even if the Court were to strike down the amendment made to Rule 49, that
would not result in a revival of Rule 49 in its original form. We must, however,
clarify that for the reasons that we have already indicated, we have come to
the conclusion that the deletion of the second and third paragraphs of Rule 49
was valid.
16Narindra Chand Hem Raj vs. Lt.Governor, Administrator, Union Territory, H.P.,
AIR 1971 SC 2399 and State of J. and K. vs. A.R.Zakki, AIR 1992 SC 1546 at
para 10.
17(2011) 8 SCC 737VBC
31. For these reasons, we do not find any merit in the petition. The
Petition shall accordingly stand dismissed. In the circumstances of the case,
there shall be no order as to costs.
32. On the conclusion of the judgment Mr. Sathe, learned Senior
Counsel requests the Court to grant adequate time to the Municipal
Corporation to make administrative arrangements consistent with the
judgment of the Court. Learned counsel states that a period of one year may
be granted in order to enable the Municipal Corporation to make necessary
arrangements for being represented in Courts and Tribunals in litigation
involving the Corporation. Having due regard to the fact that in an earlier
order of a Division Bench of this Court, a period of one year was granted by
the Court to the Municipal Corporation, we are of the view that a period of six
months would be sufficient in the interests of justice. We accordingly allow
the Municipal Corporation a period of six months to make necessary
administrative arrangements so as to ensure due compliance with the rules
framed by the Bar Council of India and the State Bar Council.
( Dr.D.Y.Chandrachud, J.)
( V.M.Kanade, J. )
( A.A. Sayed, J.)
No comments:
Post a Comment