Madras High Court
S.Prabhakar vs Bar Council Of India on 3 August, 2022
W.P.No.8867 of 2014 and MP.No.1 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.08.2022
CORAM:
THE HONOURABLE MR. JUSTICE R. MAHADEVAN
and
THE HONOURABLE MR. JUSTICE MOHAMMED SHAFFIQ
W.P.No.8867 of 2014
and
MP.No.1 of 2014
S.Prabhakar
...Petitioner
Vs
1. Bar Council of India,
rep.by its Chairman,
No.21, Rouse Avenue,
New Delhi - 110 002.
2. Bar Council of Tamil Nadu & Puducherry,
rep.by its Chairman,
High Court Buildings,
Chennai - 104. ...Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorari, calling for the records pertaining to the
proceeding bearing R.O.C.No.927 of 2014 dated 06.03.2014 issued by the
secod respondent and to quash the same as arbitrary, illegal and without
jurisdiction.
For Petitioners : Mr.T.K.S.Gandhi
For R1 : Mr.S.R.Raghunathan
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W.P.No.8867 of 2014 and MP.No.1 of 2014
For R2 : Mr.Fakkir Mohideen
ORDER
[Order of the Court was made by R. MAHADEVAN, J.]
Heard both sides and perused the materials available on record.
2. This Court by order dated 03.02.2014, in W.P(MD)No.10315 of
2013, directed the Bar Council of Tamil Nadu and Puducherry to take
necessary action for removal of advocates, who have completed the law course
in violation of clause 28 Schedule III Rule 11 of Rules of Legal Education,
2008 of Bar Council of India. Placing reliance on the same, the second
respondent / Bar Council of Tamil Nadu and Puducherry issued show cause
notice, calling upon the petitioner to explain as to why his name should not be
removed from the rolls of the Bar Council of Tamil Nadu and Puducherry, for
the alleged violation referring to his age. Challenging the said notice, the
petitioner has come up with this writ petition to quash the same.
3. The issue involved herein is no longer res integra. The Hon'ble
Supreme Court in the case of Indian Council of Legal Aid and Advice and
others v. Bar Council of India and another reported in 1995 (1) SCC 732,
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W.P.No.8867 of 2014 and MP.No.1 of 2014
has observed that fixing a bar at the age of 45 years is violative of Article 14 of
the Constitution of India, discriminatory, unreasonable and arbitrary.
Paragraph 13 of the said judgment is usefully extracted below:
“13. The next question is the rule reasonable or arbitrary
and unreasonable? The rationale for the rule, as stated earlier, is to
maintain the dignity and purity of the profession by keeping out
those who retire from various Government, quasi-Government and
other institutions since they on being enrolled as advocates use their
past contacts to canvass for cases and also pollute the minds of
young fresh entrants to the profession. Thus the object of the rule is
clearly to shut the doors of the profession for those who seek entry
into the profession after completing the age of 45 years. In the first
place, there is no reliable statistical or other material placed on
record in support of the inference that ex-government or quasi-
government servants or the like indulge in undesirable activity of the
type mentioned after entering the profession. Secondly, the rule does
not debar only such persons from entry into the profession but those
who have completed 45 years of age on the date of seeking
enrolment. Thirdly, those who were enrolled as advocates while they
were young and had later taken up some job in any Government or
quasi-Government or similar institutions and had kept the sanad in
abeyance are not debarred from receiving their sanads even after
they have completed 45 years of age. There may be a large number
of persons who initially entered the profession but later took up jobs
or entered any other gainful occupation who revert to practise at a
later date even after they have crossed the age of 45 years and
under the impugned rule they are not debarred from practising.
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W.P.No.8867 of 2014 and MP.No.1 of 2014
Therefore, in the first place there is no dependable material in
support of the rationale on which the rule is founded and secondly
the rule is discriminatory as it debars one group of persons who
have crossed the age of 45 years from enrolment while allowing
another group to revive and continue practise even after 45 years.
The rule, in our view, therefore, is clearly discriminatory. Thirdly, it
is unreasonable and arbitrary as the choice of the age of 45 years is
made keeping only a certain group in mind ignoring the vast
majority of other persons who were in the service of Government or
quasi-Government or similar institutions at any point of time. Thus,
in our view the impugned rule violates the principle of equality
enshrined in Article 14 of the Constitution.”
4. Following the aforesaid decision, a Division Bench of this Court in
the case of M.Radhakrishnan v. the Secretary, Bar Council of India and
another reported in 2006 (5) CTC 705, has also held that “the object of the
rule is only to curtail group of persons from entering into profession and to
satisfy other group of person who also stand on the same footing. The State
Bar Council cannot widen / expand its rule-making power so extensively to
discriminate or classify between two similarly placed persons based on utter
arbitrariness”.
5. Therefore, from the above judgments, it is clear that the fixation of
upper age limit in enrolling in the Bar is construed to be unreasonable.
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W.P.No.8867 of 2014 and MP.No.1 of 2014
6. However, Mr.Fakkir Mohideen, learned counsel appearing for the
Bar Council of Tamil Nadu and Puducherry and Mr.S.R.Raghunathan, learned
counsel appearing for the Bar Council of India submitted that the subject
matter in issue is pending before the Hon'ble Supreme Court in the case of
Rishabh Duggal and another v. the Bar Council of India and another in
WP(Civil)No.1023 of 2016 and the Hon'ble Supreme Court has stayed the
Notification issued by the Bar Council of India in BCI:D:1519 (LE:Cir.-6)
dated 17.09.2016, on 03.03.2017.
7. In view of the above, this writ petition is disposed of subject to result
of the Writ Petition (Civil) No.1023 of 2016 pending before the Hon'ble
Supreme Court. No costs. Consequently, connected miscellaneous petition is
closed.
[R.M.D., J.] [M.S.Q., J.]
03.08.2022
Index:Yes/No
Internet: Yes/No
av
https://www.mhc.tn.gov.in/judis
W.P.No.8867 of 2014 and MP.No.1 of 2014
R. MAHADEVAN, J.
and
MOHAMMED SHAFFIQ, J.
av
To
1. The Chairman,
The Bar Council of India,
No.21, Rouse Avenue,
New Delhi - 110 002.
2. The Chairman,
The Bar Council of Tamil Nadu & Puducherry,
High Court Buildings,
Chennai - 104.
W.P.No.8867 of 2014
and
MP.No.1 of 2014
03.08.2022
https://www.mhc.tn.gov.in/judis
