Andhra HC (Pre-Telangana)
A. Bala Kameswara Rao vs Bar Council Of The State Of Andhra ... on 21 September, 2001
Equivalent citations: 2001(6)ALD224, 2002(2)ALT230
JUDGMENT S.R. Nayak, J.
1. The petitioner is an Ex-Judicial Officer who has been compulsorily retired, as a disciplinary measure on the basis of proved mis-conduct. The petitioner has filed this writ petition challenging the constitutional validity of Rule-7-A in Chapter-3, Part-VI of the Rules framed by the Bar Council of India as amended by its Resolution No.20 of 1999 and published in the Official Gazette on 26.2.2000 and the proceedings of the Bar Council of the State of Andhra Pradesh dated 10.1.2001 rejecting the application of the petitioner dated 13.6.2001 for resumption of practice in law.
2. The background facts leading to the filing of the writ petition are noted briefly as under:
3. The petitioner while serving as Court Master in the High Court was appointed as District Munsif. On the proved misconduct, the petitioner was retired compulsorily as a disciplinary measure by an order dated 8.4.1996 of the High Court. There afterwards the petitioner enrolled himself as an advocate on the Rolls of the Bar Council of the State of Andhra Pradesh, the 1st respondent herein on 12.6.1996. Subsequently, the High Court on administrative side set aside the order made by it on 8.4.1996 on the ground that the penalty of compulsory retirement being a major penalty, the order should have been passed by the Governor and not by the High Court. Consequently, the petitioner stood reinstated to the post. Thereafter, the petitioner sent up a letter to the 1st respondent, the Bar Council of the State of Andhra Pradesh suspending his practice with effect from 23.10.1999. When the matter stood thus, the Governor on the recommendation of the High Court passed the order on 29.2.2000 imposing the penalty of compulsory retirement as a disciplinary measure on the petitioner. Against the order of the Governor dated 29.2.2000, the petitioner filed W.P.No. 24227 of 2000 and that writ petition was dismissed by this Court on 12.9.2001. After the Governor passed the order on 29.2.2000, the petitioner submitted an application to the 1st respondent on 13.6.2000 for resumption of law practice. The said application was dismissed as noticed above by the 1 st respondent by a proceeding dated 10.1.2001. Hence, this writ petition assailing the validity of the said order dated 10.1.2001 as well as the validity of Rule 7-A in Chapter 3, Part-VI of the Bar Council of India Rules.
4. Sri K. V. Satyanaryana, learned counsel appearing for the petitioner would contend that Rule-7-A as introduced by the Bar Council of India by way of an amendment vide Resolution No.20 of 1999 is ex-facie ultra vires of Section 24-A of the Advocates Act. Elaborating his contention, the learned counsel would maintain that whereas the proviso to Sub-section (1) of Section 24-A of the Advocates Act provides disqualification of a person for enrollment as enumerated in clauses (a), (b) and (c) of Sub-section (1) have no effect after a period of 2 years have elapsed, since the applicant release or dismissal or removal as the case may be. Rule 7-A introduced by the Bar Council of India permanently debars the applicant like the petitioner to enroll himself as an advocate, though in relative terms the misconduct said to have been proved,by the High Court against the petitioner is undoubtedly is lesser than the misconduct and conviction apprehended in clauses a,b and c of Sub-section-1 of Section 24 of the Advocates Act. Looking from that angle, the learned counsel would maintain that Rule 7-A should be held to be not only ultra vires of Section 24-A, but also totally irrational and arbitrary. In support of his contention, the learned counsel would place strong reliance on the judgment of the Division Bench of this Court in Gummala Punishotham Reddy vs. Bar Council of A.P., 1986(1)APLJ30.
5. On the other hand, Smt. Nanda, learned Standing counsel for the respondents would support the impugned action of the 1st respondent and also the validity of Rule-7-A of the Bar Council of India Rules.
6. Let us first deal with the validity of Rule 7-A. Rule 7-A has been inserted in Chapter-3, part-VI of the Rules framed by the Bar Council of India by way of amendment vide Resolution No.20 of 1999 by virtue of the Rule making power vested in it under Section 49 of the Advocates Act, 1961. It is stated in the counter filed by the respondents that RuIe7-A was inserted in Chapter-Ill by virtue of the power conferred upon the Bar Council of India under clauses (ah) of Sub-section-1 of Section 49 of the Act.
7. It is true that under Section 49 of the Advocates Act, the Bar Council of India is armed with necessary power of Rule making for discharging its functions under the Advocates Act which includes among other things, the power to prescribe 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 Court of law. It is trite that the Bar Council of India is a creature of statute and is bound by the statute and it has to exercise its power, whatever be the nature of the power, within limitation defined by the statute and it cannot transgress the limitation. In other words, the Bar Council of India being a donee of the Rule making power under Section 49 of the Act cannot frame a Rule which would be in conflict with the provisions of the parent Act, thereby meaning the Advocate Act. In the premise of this settled position in law, we should state that Rule-7-A as inserted by the Bar Council of India by way of amendment vide Resolution No.20 of 1999 in Chapter-3, Part-III of the Rules of the Bar Council of India is ex facie ultra vires of Section 24-A of the Advocates Act. Section 24-A which deals with the disqualification for enrollment reads:
(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 :
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).
8. The provisions of Sub-section (1) of Section 24-A of the Advocates Act read with the proviso make it very clear that even a person who is released or dismissed or removed in three situations contemplated in clauses (a), (b), and (c) can seek his enrollment as an advocate after the expiry of a period of two years from the date of release or dismissal or removal, as the case may be. If a person who is dismissed from service under the State on the proved misconduct involving moral turpitude can seek enrollment as an advocate after the expiry of two years from the date of dismissal, it will be totally irrational to disqualify a person subjected to lesser punishment during all his life time and therefore Rule 7-A framed by the Bar Council of India would not stand the scrutiny of Article 14. Further, Rule 7-A has the effect of enlarging the contour of disqualification envisaged under Section 24-A of the Act. In Purushotham Reddy's case referred supra, the petitioner therein was working as a Reserve Inspector in the Special Armed Police and he was removed from the State Government service. The petitioner after his removal from the State Service acquired the required law decree qualification and he moved the Bar Council of the State of A.P. for enrolment as an advocate. The State Bar Council of A.P. thought that the petitioner was ineligible to be enrolled as an advocate. This opinion was formed by the Bar Council on the basis of Rule 70(AAA). Rule 70(AAA) read:
"a person who was otherwise qualified to be admitted as an advocate shall not be admitted as an advocate , if he had been either dismissed or removed from any service"
9. That Rule was also framed by the A.P. State Bar Council under Section 28, clauses 2(d) read with Section 24(1)(e) of the Advocates Act, 1961. The petitioner assailed not only the action of the A.P. State Bar Council in refusing to enroll him as an advocate, but also the validity of Rule 70(AAA). A Division Bench of this Court speaking through P.A.Chowdhary, J in the above judgment opined that:
"Applying the above test laid down by the Supreme Court to Rule 70 (AAA), we are of the opinion that the Rule suffers from the triple vices of over breadth vagueness and lack of legitimate social purpose. We have already seen that Rule 70(AAA) is attracted to every case of removal from service without reference to the nature of the causes behind removal in a particular case. Similarly, Rule 70 (AAA), literally read, applies even a removal from private service. Rule 70 (AAA), serves no legitimate State interests by debarring a person permanently from becoming an advocate on the trifling ground of his removal in the remote post. Damning one for eternity denying locus penetentia cannot easily be upheld by the standards of a secular democratic Constitution. At any rate, removal from service is two inadequate a justification for inflicting total deprivation of a right to enjoy such a vital fundamental freedom as a practice a profession like law. In order to invalidate Rule 70 (AAA), one need, not go that far as to hold that practice of law is a part of the protected right to free speech as the American Constitution law held. But we must admit that it is an honourable way of earning one's livelihood and one of the legitimate means of realizing oneself. One may not live by bread alone, but to there any one who lives without it? The Indian Advocates Act recognises these hard realities and leaves clear clues as to what that Act considers to be a just balancing of social interests and individual rights in the matter of debarring an applicant from being enrolled as an Advocate. Section 24(A) of the Advocates Act lays down that the statutory disqualification incurred by a person seeking enrolment as an advocate by reason of his conviction of an offence involving moral turpitude or even by reason of his conviction for commission of that inhuman and unconstitutional crime of untouchability, shall ceases to have effect after a period of two years from the date of his release from prison. This shows that it is not the policy of the Advocates Act to debar a person seeking admission to bar permanently even though that person is found guilty of a crime, which is a million fold more grave. Then there would be no reason for a rule like Rule 70(AAA) to enact a permanent bar for enrolment of the petitioner on the slender ground of his removal from service. It would amount to law placing greater burdens in the path of one person pursuing his happiness then it places in the path of another person similarly placed and situated. Long years ago the American Supreme Court observed in Barbier v. Connolly (10) 113. U.S.27 (1885) that equal protection of taws means:
"That equal protection and securities should be given to all under like circumstances in the enjoyment of their personal and civil rights that all persons should be equally entitled to pursue their happiness and acquire and enjoy property .....that no impediment should be interposed to the pursuits of any one except as applied to the same pursuits of other under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and conditions"
Applying the above tests, we cannot uphold the constitutional validity of Rule 70(AAA). There is no justification for permanently debarring a person from becoming an advocate on the ground of his removal while allowing the enrolment of a person found guilty of the unconstitutional crime or untouchability after lapse of just two years. For the above reasons, we declare Rule 70 (AAA) as unconstitutional and hold that the petitioners cannot be refused enrolment as an advocate solely on the grounds based upon Rule 70 (AAA) and struck down Rule-70 (AAA) as unconstitutional and held that the petitioner therein could not have been refused enrollment as an advocate solely on the grounds based upon Rule 70(AAA).
The Civil Appeal No. 5080 of 1985 filed against the above judgment of this Court was dismissed by the Apex Court by its judgment and order dated 25.4.1996.
10. In the result and for the foregoing reasons, we allow this writ petition and declare that Rule-7A in Chapter-3, Part IV of the Bar Council of India Rules as amended vide Resolution No.20 of 1999 is unconstitutional and invalid. Further we quash the order of the Bar Council of the State of A.P. dated 10.1.2001. A direction shall issue to the Bar Council of Andhra Pradesh, the 1st respondent to permit the petitioner to resume law practice subject to his fulfilling other formalities, if any. No costs.