Madras High Court
P.Yasmin Begum vs )The Chairman on 6 April, 2015
Bench: S.Manikumar, G.Chockalingam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 06.04.2015 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR AND THE HONOURABLE MR.JUSTICE G.CHOCKALINGAM Writ Petition(MD)No.2508 of 2015 and M.P(MD)No.1 of 2015 P.Yasmin Begum ... Petitioner Vs. 1)The Chairman, Bar Council of India, 21, Rouse Avenue Institutional Area, Near Bal Bhawan, New Delhi-110 002. 2)The Chairman, Bar Council of Tamil Nadu & Puducherry, High Court Buildings, Chennai-104. ... Respondents Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Mandamus, directing the 2nd respondent to enroll the petitioner as advocate in the roll of Bar Council of Tamil Nadu within a time frame as fixed by this Hon'ble Court. !For Petitioner : Mr.S.Muthukrishnan For Respondents : Mr.M.Subash Babu :ORDER
(Order of the Court was made by S.MANIKUMAR, J.) The petitioner, who has completed her law course, in Government Law College, Madurai, in May 2013, submitted her application, on 19.08.2013, for enrollment as an advocate, before the Chairman, Bar Council of Tamil Nadu & Puducherry, Chennai, the 2nd respondent herein. Her application is pending.
2.Supporting affidavit shows that two criminal cases, in Crime No.1446 of 2010 and Crime No.558 of 2011, both on the file of Tallakulam Police Station, Madurai, have been registered, against the petitioner. Charge sheets have been filed and the learned Judicial Magistrate No.II, Madurai, has taken the same on file, in C.C.Nos.514 of 2010 and 140 of 2012 respectively.
3.Supporting affidavit further states that two petitions, in Cr.O.P(MD)Nos.13013 of 2012 and 13597 of 2012, have been filed, to quash the proceedings in Crime No.1446 of 2010 and Crime No.558 of 2011 on the file of Tallakulam Police Station, Madurai, and by a common order in Cr.O.P(MD)Nos.13013 of 2012 and 13597 of 2012, dated 09.11.2012, this Court, has granted interim stay of the proceedings, in which, the petitioner has been charge sheeted.
4.Mr.S.Muthukrishnan, learned counsel for the petitioner, submitted that interim stay granted, in the abovesaid quash petitions, continues to operate, even today. Despite the same, the application of the petitioner, dated 19.08.2013, submitted to the Chairman, Bar Council of Tamil Nadu & Puducherry, Chennai, the 2nd respondent herein, has not been considered so far. Hence, the present writ petition, for a Mandamus, directing the 2nd respondent, to enroll the petitioner, as an advocate, on the rolls of the Bar Council of Tamil Nadu & Puducherry, within a time frame, to be fixed by this Court.
5.Section 24-A of the Advocates Act, which provides for disqualification from enrollment as an advocate, is also referred, and it reads as follows:-
"24-A. Disqualification for enrollment.??(1) No person shall be admitted as an advocate on a State roll?
(a) if he is convicted of an offence involving moral turpitude;
(b) if he is convicted of an offence under the provisions of the Untouchability (Offences) Act, 1955 (22 of 1955);
(c) if he is dismissed or removed from employment or office under the State on any charge involving moral turpitude.
Explanation.?In this clause, the expression ?State? shall have the meaning assigned to it under Article 12 of the Constitution:
Provided that the disqualification for enrolment as aforesaid shall cease to have effect after a period of two years has elapsed since his release or dismissal or, as the case may be, removal. (2) Nothing contained in sub-section (1) shall apply to a person who having been found guilty is dealt with under the provisions of the Probation of Offenders Act, 1958 (20 of 1958)."
6.Opposing the relief sought for, the Secretary, Bar Council of Tamil Nadu & Puducherry, Chennai, in his counter affidavit has submitted that in M.P(MD)No.2 of 2014 in Crl.O.P(MD)No.14573 of 2014 dated 11.08.2014, a learned single Judge of this Court has ordered as follows:-
"13.The Bar Council of Tamil Nadu is also directed to file an affidavit as to how many candidates got enrolled, after the Rule relating to All India Bar Examinations was passed in 2009. The students have to pass the Bar examination, within 6 months from the date of their provisional enrollment. It is stated that approximately more than 5,000/- students got enrolled from 2009 onwards. The affidavit of the Bar Council of Tamil Nadu should give the information as to whether all the candidates, who were given provisional enrollment have passed the Bar examination within 6 months? Is there any suspension or cancellation of enrollment of any candidate for not passing the Bar examination, from 2009 onwards. All those informations are required to be given by the Bar Council of Tamil Nadu by 13.08.2014.
14.The Registrar General of High Court of Madras is requested to state whether steps have been taken as per paragraph No.242 of the Honourable Apex Court's Judgment in R.K.Ananth Vs. Registrar, Delhi High Court, reported in (2009) 8 SCC 106 to frame the rules."
7.According to the Secretary, Bar Council of Tamil Nadu & Puducherry, the Council is bound by the order of this Court and hence at this juncture, the request cannot be considered.
8.Attention of this Court, was also invited, to the order, dated 10.09.2014, passed by the Apex Court, declining to interfere with the order, dated 11.08.2014, stated supra. According to the learned counsel for the Bar Council, the only course, open to the petitioner, is to move the concerned criminal court, for modification of the order, dated 11.08.2014.
9.Heard the learned counsel for the parties and perused the materials available on record.
10.Material on record discloses that earlier, in M.P(MD)No.1 of 2014 in Crl.O.P(MD)No.14573 of 2014, dated 11.08.2014, a learned Judge of this Court, has issued certain directions, permitting the regular applicants, with no criminal records, against their names, to be enrolled. Thereafter, M.P(MD)No.2 of 2014 in Crl.O.P(MD)No.14573 of 2014 has been filed, seeking for modification. After considering the submissions, at paragraph 3, the learned Judge, has ordered as follows:-
"3.As far as other candidates are concerned, on 07.08.2014, time was given to the petitioner, who filed the writ petition, to find out as to whether any other candidates has got criminal background. For that, the learned counsel would submit that with the available information as on date, no other candidate has got criminal background. In view of that there should not be any other problem for rest of the candidates for getting themselves enrolled. Because of the order passed by this Court, unnecessarily the bona fide students should not be put to unnecessary hardship. They sincerely went through the course and studied, and successfully completed the course and they are awaiting for enrollment. Therefore, the Bar Council of Tamil Nadu is directed to enroll the balance 658 candidates, provided they complied with other rules and regulations and if their applications are otherwise in order. As far as the balance 81 candidates who declared and suppressed their criminal background should not be enrolled. The right of enrollment of those candidates would be decided at the time of final disposal. Moreover, it is made clear that if any candidate, out of the 658 candidates, is found to be having criminal background, at later stage, then it will be a problem. Therefore, the enrollment of the candidates is subject to the result of the main petition."
11.Though Mr.S.Muthukrishnan, learned counsel for the petitioner submitted that the modification order in M.P(MD)No.2 of 2014 in Crl.O.P(MD)No.14573 of 2014, dated 11.08.2014 would lend support to the case of the petitioner, in that, she has already made declaration of her criminal background, and therefore, the Bar Council cannot deny enrollment, this Court is unable to accept the said contention, for the reason that the learned Judge has taken into consideration, the case of the candidates, who have not declared their criminal background and those who have declared also. It is also observed that "Moreover, it is made clear that if any candidate, out of the 658 candidates, is found to be having criminal background, at later stage, then it will be a problem. Therefore, the enrollment of the candidates is subject to the result of the main petition."
12.Notwithstanding the views expressed and with due respect to the learned Judge, we only wish to observe that reading of Section 24-A of the Advocate's Act, provides for disqualification, in the case of conviction, for an offence, involving moral turpitude and for the offences stated in Section 24-A of the Advocate's Act.
13.It is well settled that by issuance of a Writ of Mandamus, a collateral proceedings, cannot be interfered with, more so, when the subject matter, has already been, dealt with by a Co-ordinate Bench of this Court.
14.While declining to issue a Writ of Mandamus, as prayed for, liberty is given, to the petitioner, to seek for appropriate modification of the order dated 11.08.2014.
15.With the above directions, the writ petition is closed. No costs. Consequently, M.P(MD)No.1 of 2015 is closed.
(S.M.K.J) (G.C.J) 06.04.2015 Index : Yes / No Internet : Yes / No NB2 To 1)The Chairman, Bar Council of India, 21, Rouse Avenue Institutional Area, Near Bal Bhawan, New Delhi-110 002. 2)The Chairman, Bar Council of Tamil Nadu & Puducherry, High Court Buildings, Chennai-104. S.MANIKUMAR, J. AND G.CHOCKALINGAM. J. NB2 W.P(MD)No.2508 of 2015 and M.P(MD)No.1 of 2015 06.04.2015