Madras High Court
Sharmila D vs Union Of India on 31 March, 2022
W.P.No.9285 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 31.03.2022
CORAM
THE HONOURABLE MR. JUSTICE R. MAHADEVAN
AND
THE HONOURABLE MR. JUSTICE J.SATHYA NARAYANA PRASAD
W.P.No.9285 of 2014
and M.P.No.1 of 2014
Sharmila D .. Petitioner
Versus
1.Union of India,
Rep by its Secretary to Human
Resource and Development Department,
New Delhi.
2.The Union of India,
Law & Justice,
New Delhi.
3.The Bar Council of India,
Rep by its Chairman,
New Delhi.
4.The Secretary,
Bar Council of Tamil Nadu & Pondicherry,
Madras High Court Campus,
Chennai 600 104. .. Respondents
Writ Petition filed under Article 226 of the Constitution of India praying to
issue a Writ of Certiorari to call for the records relating to the order dated
17.03.2014 of the 4th respondent herein in ROC No.933 of 2014 and quash the
same.
https://www.mhc.tn.gov.in/judis
1/6
W.P.No.9285 of 2014
For Petitioner : Mr.Sandeep for
M/s.Shah and Shah
For Respondents : Mr.R.Meenakshi
Central Govt Standing Counsel for RR1&2
Mr.S.R.Raghunathan for R3
Mr.C.K.Chandrasekar for R4
ORDER
(Order of the court was delivered by R. MAHADEVAN, J.)
Heard both sides and perused the materials available on record.
2.This Court by order dated 03.02.2014, in WP(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 respondent / Bar Council of Tamil
Nadu and Puducherry issued a show cause notice dated 17.03.2014 in
ROC.No.933 of 2014, calling upon the petitioner to explain as to why her name
should not be removed from the rolls of the Bar Council of Tamil Nadu and
Puducherry, for the alleged violation referring to her age. Challenging the said
notice, the petitioner has come up with this writ petition to quash the same.
https://www.mhc.tn.gov.in/judis
W.P.No.9285 of 2014
3.The issue involved herein is no longer res integra. The Hon'ble Supreme
Court in Indian Council of Legal Aid and Advice and others v. Bar Council of
India and another [1995 (1) SCC 732] 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.
Therefore, in the first place there is no dependable
material in support of the rationale on which the
rule
https://www.mhc.tn.gov.in/judis is founded and secondly the rule is
W.P.No.9285 of 2014
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
M.Radhakrishnan v. the Secretary, Bar Council of India and another [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.
6.However, Mr.C.K.Chandrasekar, 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
https://www.mhc.tn.gov.in/judis
W.P.No.9285 of 2014
in issue is pending before the Hon'ble Supreme Court in 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.] [J.S.N.P., J.]
31.03.2022
Internet : Yes
Index : Yes / No
dhk/vkr
To
1.The Secretary to Government,
Union of India,
Human Resource and Development Department,
New Delhi.
2.The Union of India,
Law & Justice,
New Delhi.
3.The Chairman, Bar Council of India,
New Delhi.
4.The Secretary,
Bar Council of Tamil Nadu & Pondicherry,
https://www.mhc.tn.gov.in/judis
W.P.No.9285 of 2014
Madras High Court Campus,
Chennai 600 104.
R. MAHADEVAN, J.
AND
J.SATHYA NARAYANA PRASAD, J.
vkr/dhk
W.P.No.9285 of 2014
and M.P.No.1 of 2014
31.03.2022
https://www.mhc.tn.gov.in/judis
