Asok Pande [ P.I.L. ] vs Union Of India Thru. Ministry Of ...
2015 Latest Caselaw 3017 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

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Bar Council of India Rules as referred by the petitioner read as under :

"Senior Advocates shall, in the matter of their practice of the profession of law mentioned in Section 30 of the Act, be subject to the following restrictions:

(a) A Senior Advocate shall not file a vakalatnama or act in any Court, or Tribunal, or before any person or other authority mentioned in Section 30 of the Act.

Explanation : "To act" means to file an appearance or any pleading or application in any court or Tribunal or before any person or other authority mentioned in Section 30 of the Act, or to do any act other than pleading required or authorised by law to be done by a party in such Court or Tribunal or before any person or other authorities mentioned in the said Section either in person or by his recognised agent or by an advocate or an attorney on his behalf.

(b)(i) A Senior Advocate shall not appear without an Advocate on Record in the Supreme Court or without an Advocate in Part II of the State Roll in any court or Tribunal or before any person or other authorities mentioned in Section 30 of the Act.

(ii) Where a Senior Advocate has been engaged prior to the coming into force of the rules in this Chapter, he shall not continue thereafter unless an advocate in Part II of the State Roll is engaged along with him. Provided that a Senior Advocate may continue to appear without an advocate in Part II of the Sate Roll in cases in which he had been briefed to appear for the prosecution or the defence in a criminal case, if he was so briefed before he is designated as a senior advocate or before coming into operation of the rules in this Chapter as the case may be.

(c) He shall not accept instructions to draft pleading or affidavits, advice on evidence or to do any drafting work of an analogous kind in any Court or Tribunal or before any person or other authorities mentioned in Section 30 of the Act or undertake conveyancing work of any kind whatsoever. This restriction however shall not extend to settling any such matter as aforesaid in consultation with an advocate in Part II of the State Roll.

(cc)A Senior Advocate shall, however, be free to make concessions or give undertaking in the course of arguments on behalf of his clients on instructions from the junior advocate.

(d) He shall not accept directly from a client any brief or instructions to appear in any Court or Tribunal or before any person or other authorities in India.

(e) A Senior Advocate who had acted as an Advocate (Junior) in a case, shall not after he has been designated as a Senior Advocate advise on grounds of appeal in a Court of Appeal or in the Supreme Court, except with an Advocate as aforesaid.

(f) A Senior Advocate may in recognition of the services rendered by an Advocate in Part-II of the State Roll appearing in any matter pay him a fee which he considers reasonable."

It is not in dispute that so far this Court is concerned, the Senior Advocates are designated under the Rules framed under Designation of Senior Advocate Rules, 1999 which provide, inter alia, that a Senior Advocate shall be subject to such restriction as the High Court or Bar Council of India or the Bar Council of State may prescribe. It has not been stated that the High Court or the Bar Council of the State has placed any such prohibition on any Senior Advocate against his accepting engagement as a Law Officer of the State or the Union.

We are unable to accept the interpretation, as sought to be put and deduction as sought to be drawn by the petitioner on the Rules aforesaid. True it is that a Senior Advocate cannot appear in the Court without an assisting counsel as per the requirement of the Rules but that by itself cannot be considered prohibitive on the Union or the State against appointing a Senior Advocate as its Law Officer. As to how the appearance of such a Senior Advocate as Law Officer of the Union or State in the Court is to be ensured is again a matter for consideration of the Government and Advocate concerned but it is too far-stretched to suggest that the Senior Advocate cannot be a Law Officer of the State.

So far the restrictions in clause (c) aforesaid are concerned, it is but clear that the restrictions are put on Senior Advocate that he would not accept instructions to draft pleadings or affidavits and he cannot do any drafting work of analogous kind in any Court or Tribunal or authorities mentioned in Section 30 of the Advocates Act or conveyancing work of any kind whatsoever. The Senior Advocate, however, is still entitled to settle any matter in consultation with an Advocate in Part II of the State Roll. Senior Advocate is not to advice on evidence but it is difficult to accept that the Senior Advocate is otherwise prohibited from giving the necessary advice on legal matters. So far the pleadings are concerned, it is for the Union or the State to arrange its affairs as to the manner in which the pleadings are drafted and placed in the Court; and, even in that regard, a Senior Advocate is entitled to settle the pleadings.

So far clause (d) is concerned, the Senior Advocate has been put under restriction against accepting directly any brief or instructions to appear in any Court or Tribunal or before any person or authority. However, it is again too far-stretched to suggest that the prohibition against accepting directly any brief or instructions to appear in a Court on behalf of client could prohibit a Senior Advocate from taking any instructions whatsoever from the client.

We need not to dilate much further for the simple reason that under the Rules aforesaid, no such prohibition of accepting engagement by the Senior Advocate as a Law Officer of the State is seen. It is noteworthy that under Section 16 of the Act of 1961, an Advocate with his consent is designated as a Senior Advocate only when the Supreme Court or the High Court is of the opinion that by virtue of his ability, standing at Bar, or special knowledge or experience in the law he is deserving of such distinction. In the Rules of 1999, as framed by this Court, the standing at Bar has been defined as the position of eminence attained by an Advocate at Bar by virtue of his seniority, legal acumen and high ethical standards maintained by him both inside and outside the Court. It is, thus, clear that an Advocate gets designation as Senior Advocate by the Court in recognition of his ability, acumen and standard. This being the position of a Senior Advocate, in our view, the Union Government and the State Government are clearly entitled to consider and offer them appointment as Law Officers so as to ensure effective representation before the Courts. The suggestions as made by the petitioner, if accepted, would lead to an entirely unacceptable position that the State Government and the Union Government can never take the services of the Advocates of eminence for their purposes once they get designated as Senior Advocates. The suggestions, as made by the petitioner, are required to be and are rejected.

So far the suggestion of any particular resignation by any particular Advocate or any particular officer from any office is concerned, that by itself cannot be considered binding on any other Senior Advocate or the Government. The privileges and concessions, as given to the Law Officers by virtue of their office concerned, is again a matter between the Government and Law Officer and that hardly correlates with the issue sought to be raised in this petition. Such submissions seem to be entirely irrelevant.

In view of the above, the petition fails and stands dismissed.

The petitioner has prayed for certificate under Article 132 of the Constitution of India.

The prayer stands rejected.

Order Date :- 8.10.2015

Om.

[Rakesh Srivastava, J.] [Dinesh Maheshwari, J.]