MOHD RIYAZ Vs. STATE OF BAR COUNCIL

JUDGEMENT

(1.) THE petitioner No. 1 is a practicing lawyer and is registered as an Advocate in the rolls of the State Bar Council of Madhya Pradesh ( for short "the State Bar Council" ). He has filed this writ petition as a Public Interest Litigation contending inter alia that the respondent No. 7, who is working as Secretary of the State Bar Council has already attained the age of superannuation but is still being continued by the State Bar Council and that he is being paid salary much in excess of what is permitted under the rules. The petitioner has therefore prayed that this Court should issue a writ/direction to the State Bar Council to remove the respondent No. 7 from the post of Secretary of the State Bar council forthwith and for a further writ/direction to the State bar Council and its Chairman to recover all payments towards salary made to the respondent No. 7 in excess of what is permitted under the rules and all payments of salary made to respondent No. 7 after the age of his superannuation.

(2.) MR. K. K. Trivedi, learned counsel for the petitioner submitted that the State Bar Council in exercise of its powers under Section 15 and other relevant provisions of the advocate Act, 1961 (for short "the Act") has made rules with the approval of the Bar Council of India in the year 1963 (hereinafter called "the Rules of 1963" ). He submitted that chapter II of the Rules of 1963 provides for appointment of a secretary, Accountant, Clerks and Peons by the State Bar council as well as the qualifications and conditions of service of the stipendiary Secretary and other members of the staff. He submitted that in Rule 2 of Chapter II of the Rules of 1963 it is provided that the Secretary shall be a full time employee of the Bar Council and shall draw salary in the scale of rs. 300 -25 -800/ -and benefits of provident fund and leave salary at such rates as are admissible under the rules. He submitted that the Rule 2 of the 1963 Rules further provides that the Secretary shall retire on attaining the age of 55 years provided the Bar Council may in case of the Secretary otherwise physically fit extend his tenure for a period of three years. He submitted that sub -section (3) of Section 15 of the act provides that the no rules made under Section 15 of the state Bar Council shall have effect unless they have been approved by the Bar Council of India. He submitted that the rules of 1963 have been approved by the Bar Council of india, and cannot be altered without the approval of the Bar council. He vehemently submitted that notwithstanding the aforesaid provisions in the Rules of 1963 that the Secretary of the Bar Council will draw salary in the scale of Rs. 300-25800 and that he will retire at the age of 55 years, the State bar Council has fixed the basic pay of the respondent No. 7 at rs. 34,750/ -and reduced the same to Rs. 27,400/subsequently and has continued the service of the respondent no. 7 beyond 57 years. The respondent No. 4adopted the aforesaid submissions made by Mr. Trivedi.

(3.) MR. Rajendra Tiwari, learned Senior Counsel, appearing for the respondents No. 1 and 2, on the other hand, submitted relying on the return filed by respondents No. 1 and 2 that the state Bar Council has made Service Rules in the year 1975 (hereinafter called " the Service Rules of 1975") which were approved by the Bar Council of India in its Resolution no. 86/1975 dated 31. 5. 1975 and Rule 5 of the Service Rules of 1975 provides that the age of retirement of the members of the staff shall be 58 years. He submitted that the Service rules of 1975 do not make any provision regarding pay -scales of the members of the staff but Rule 31 of the Service Rules of 1975 provides that wherever Service Rules of 1975 are silent in any matter, the rules in that regard applicable to the employees of the High Court Madhya Pradesh in the same cadre shall be applicable to the employees of the State Bar council. He submitted that in accordance with Rule 31 of the service Rules of 1975, the staff of all the grades of State Bar council are being paid the salary as applicable to the staff of the High Court of Madhya Pradesh. He further submitted that by resolution dated 13. 11. 1978 the State Bar Council has resolved that the pay -scale of the Secretary will be at par with the Additional District Judge and the pay -scales of the remaining employees of the Bar Council shall be equivalent to the pay-scales of the corresponding grade of the employees of the High Court. He further submitted that this resolution has come into force from 1. 1. 1979 and in accordance with the resolution, the respondent No. 7 is being paid the pay-scale of an Additional District Judge as recommended by the Shetty commission. Mr. Tiwari argued that the Service Rules of 1975 will prevail over Chapter II of the Rules of 1963 containing the conditions of service of the Secretary of the bar Council and other members of the staff of the Bar council.