P S MUDHOLKAR Vs. BAR COUNCIL OF INDIA

JUDGEMENT

(1.) The petitioner was enrolled as a District Pleader in the erstwhile Nagpur High Court in the year 1956 and practised as such Pleader at Akola, After the reorganisation of the States, the sanad issued by the Nagpur High Court was renewed by this Court in the year 1958. In the year 1961, the petitioner entered judicial service as a Civil Judge, Junior Division and Judicial Magistrate, First Class. In that capacity he worked at Ahmednagar, Pusad, Nagpur, Gondia and Amravati. In the year 1974, he was promoted as a Civil Judge, Senior Division and posted at Thane. On 7-6-1977 the petitioner resigned from judicial service and applied for a sanad of an Advocate, to the Bar Council of Maharashtra. The Maharashtra Bar Council issued the sanad on 27-6-1977 subject to Rule 7 of the Rules framed by the Bar Council of India under Section 49(1)(ah) of the Advocates Act 1961 which are hereinafter referred to as the said Rules and the said Act respectively. The said Rule 7 prohibits the petitioner from practicing for a period of two years from the date he ceased to be in service, in the area in which he exercised judicial powers at the said date in a Court which is not a Court of superior jurisdiction to the one in which he held the office. The petitioner therefore has filed the present writ petition under Article 226 of the Constitution challenging the validity of the said Rule on various grounds. To the petition, both the Bar Council of India which has framed the said Rules as well as the Bar Council of Maharashtra which has issued the sanad subject to the said Rule 7 are made party-respondents. Both the respondents have filed their returns disputing the various contentions raised in the petition attacking the validity of the said Rule.

(2.) Mr. Angal, the learned Counsel appearing for the petitioner, raised following contentions in support of the petition: --(1) the Bar Council of India has no power under the said Act to make the said Rule 7; (2) assuming that it has such power, Section 49 under which the said Rule is made does not lay down any guideline and hence the delegation to make the said rule is arbitrary and therefore illegal; (3) the said rule is bad inasmuch as it prohibits practice in an area and not before the Courts or authorities in the area, irrespective of whether the judicial powers exercised by the person at the date he ceased to be in employment had anything to do with the practice before such Courts or authorities; (4) the said rule casts an unreasonable restriction on the right of the petitioner to practise his profession and therefore is violative of the petitioner's fundamental rights under Article 19(1)(g) of the Constitution; (5) the said rule is also violative of the right to equality guaranteed by Article 14 inasmuch as it makes discrimination between judicial Officer and quasi-judicial Officer, and secondly because It makes a distinction between subordinate Judges and High Court Judges and such discrimination has no reasonable nexus with the object sought to be achieved by the said rule, and (6) the said rule is discriminatory also on the ground that it does not apply to Advocates who were enrolled prior to coming into operation of the said rule and applies to those who were enrolled thereafter.

(3.) We have not thought it necessary to deal with all the said contentions raised on behalf of the petitioner, since we are satisfied for reasons stated hereafter, that the said rule is liable to be struck down on the short ground that it makes unjustifiable discrimination between persons who were not permanent Judges of a High Court and those who were Judges permanent or otherwise, of Courts subordinate to the High Court. In order to appreciate the rival contentions on this point, it is necessary to quote the said Rule 7 as it stands today. The said Rule 7 is as under:--