ASHOK PANDE Vs. UNION OF INDIA AND ORS.

JUDGEMENT

(1.) By way of this petition, framed and styled as Public Interest Litigation, the petitioner, a practicing Advocate in this Court, has attempted to raise the question as to whether a designated Senior Advocate could function as a Law Officer of the Union or of the State. Besides the others, the petitioner has arrayed the present Attorney General for India as respondent No. 3; the present Solicitor General of India as respondent No. 4; and present Advocate General and two Additional Advocate Generals for the State of Uttar Pradesh as respondent Nos. 5 to 7 respectively.

(2.) The petitioner would submit in paragraph No. 4 of the petition that he is bringing the following substantial question of law for consideration of this Court :

(3.) The petitioner has submitted in this petition that Section 16 of the Advocates Act, 1961 (" the Act of 1961" ) provides for two classes of Advocates i.e., Senior Advocate and other Advocates; and the Supreme Court and the High Courts are authorized to designate the Senior Advocates with their consent and to frame the rules in that regard. The petitioner has further referred to Sections 16 (3) and 49(1)(g) of the Act of 1961 authorising the Bar Council of India to frame the rules governing the Advocates as well as Senior Advocates and then, has referred to the Bar Council of India Rules, 1975, particularly Chapter 1 of Part-VI thereof, laying down restrictions on Senior Advocates. With reference to these Rules of the Bar Council of India, the contention of the petitioner is that when a Senior Advocate cannot appear directly, cannot accept instructions to draft pleading or affidavits, cannot give advice on evidence, cannot do any drafting work of analogous kind, cannot be approached by a client directly and cannot be briefed or instructed by the client to appear directly in the Court, and is to pay reasonable fee to his assisting counsel, he cannot function as a Law Officer of the State because these restrictions cannot be adhered to by the Senior Advocate, if appointed by the Government. With reference to the above Rules and particularly clauses (b) (i), (c), (d) and (f) thereof, the petitioner would argue that in view of such specific prohibitions against drafting, advising and accepting briefs directly, a Senior Advocate cannot function as a Law Officer of the State; and he cannot function as Attorney-General, Advocate-General or Additional Advocate-General. It is further submitted that when a Senior Advocate cannot 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, appointment of a Senior Advocate as Advocate-General or Additional Advocate-General entails extra liability on the State to engage an assisting counsel who is to be paid fees by the Senior Advocate as required by clause (f) of the Rules aforesaid. The petitioner has also referred to the names of two Advocates, who were earlier holding the office of Chief Standing Counsel, but they resigned after being designated as Senior Advocate. The petitioner has submitted that the question of appearance of one of the Senior Advocates as Additional Advocate General in the Court on behalf of the State was raised in Writ Petition No. 4618 (M/B) of 2015 and as he was asked to file a proper application, hence is filing the present petition. The petitioner has prayed for the following reliefs :