TaxTMI 
TaxTMI 
2000 (5) TMI 1090
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.... Rule 9 of Chapter III of the Rules of the Court Hon'ble the Chief Justice called a Full Court meeting to be held on 9.4.2000. One of the items for consideration in this meeting was to judge the suitability of some advocates for being designated as senior advocates under Section 16(2) of the Advocates Act. 1961 (hereinafter referred to as the Act). Petitioners filed this writ petition on 6.4.2000 claiming relief mentioned above, Hon'ble the Chief Justice same day passed the following order : "Let the matter be placed before a Bench consisting of Hon'ble Mr. Justice R. R. K. Trivedi, Hon'ble Mr. Justice S. R. Singh and Hon'ble Mr. Justice M. Katju tomorrow at 10 a.m." 3. In pursuance of the aforesaid order, the writ petition was placed before us on 7.4.2000. After hearing learned counsel for the parties at some length we granted time to the parties to exchange counter and rejoinder-affidavits and passed following interim order for the reasons already recorded in the order : "Therefore, we direct that all the names recommended by the Hon'ble Judges of the Court under Rule 3 (A) of the Rules for consideration of conferring distinction of &#....
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....is at the discretion of the Court and the name can be considered only on recommendation by the Hon'ble Judge of this Court. Learned counsel has submitted that only an advocate whose name has been recommended may have locus standi to file the writ petition. Learned counsel has. In support of his submissions, cited certain judgments of Hon'ble Supreme Court, which shall be considered at relevant places. 6. Shri A. D. Girt, learned senior counsel appearing for the petitioners has submitted that petitioner No. 1 is a registered association of advocates practising in this Court, and in District Courts. Association has also been granted affiliation by Bar Council of Uttar Pradesh. Petitioner Nos. 2 and 3 are advocates practising in this Court for the last several years and they have necessary locus standi to file the present writ petition. Learned counsel has submitted that question of conferring honour of designation as 'Senior Advocate' under Section 16(2) is of vital Interest for the members of Bar and they are the best persons to know the affairs of Bar and its members and only they can agitate such matters before the Court. Such persons cannot be termed busy bodie....
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....s and they cannot be told off at the gates and the petitions at their instance are clearly maintainable." 8. If the facts of the present case are Judged in the light of the aforesaid observations, there remains no doubt that petitioners have sufficient focus standi to maintain the present writ petition. They have questioned the validity of the Rules alleging that they are not in consonance with Section 16(2) of the Act. They have also challenged the procedure, which has been evolved for consideration of the advocates being considered to be designated as senior advocate under the Advocates Act. which excludes the advocates practising in District Courts. For such challenges, lawyers practising in this Court cannot be termed to be busy bodies and Inter-meddlers. They have vital Interest in the subject-matter of considerations in this writ petition. Hon'ble Supreme Court in the case of Janata Dal v. H. S. Chowdhary and others (supra], after considering all the previous Judgments of Apex Court on the question of locus standi held in para 109 as under : "109. It is thus clear that only a person acting bona fide and having sufficient Interest in the proceeding of PIL will ....
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....specific and clear. The case is clearly distinguishable as in present case there 13 no allegation that pleadings and reliefs claimed are uncertain or vague. 11. In Malik Brothers v. Narendra Dadhich and others. (1999) 6 SCC 552, the dispute related to an auction of land. The matter was referred to arbitration. High Court in PIL filed by a person having no interest in the matter quashed public auction and reference made to the arbitrator. Hon'ble Supreme Court disapproved the action of the High Court and reversed the order. The judgment has no bearing in the facts of the present case. 12. Similarly, in Rajnit Prasad v. Union of India and others, JT 2000 (2) SC 31 Hon'ble Supreme Court rejected the special leave petition challenging the Judgment of Patna High Court saying that petitioner has no interest in the matter relating to departmental proceedings initiated against Dr. U. N. Biswas, Joint Director, C.B.I. This case does not support the contention raised on behalf of the respondents in any manner. Thus, we have no doubt that the writ petition is legally maintainable and the petitioners have Interest in the relief claimed, which is Intended for the benefit of all th....
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.... the copy of the resolution. We do not find any force in the submission of learned counsel that petitioner by placing the resolution of Screening Committee before this Court, disentitled themselves for the relief in this writ petition. 14. The second objection raised by the learned counsel for the respondents is somewhat surprising for us, as no such question was raised during the course of hearing of the writ petition. Learned counsel has chosen to mention it in written submissions. The objection is being reproduced below : " (b) it may be pertinent to place on record that in the present case, the question, directly or substantially involved Is, whether all the recommendations, including those made by Hon'ble Judges, hearing the matter, whether approved or disapproved, should be considered by Full Court. It is most respectfully and humbly pointed out that in this backdrop, the question ought to arise whether Hon'ble Judges ought to have and should reclused themselves from considering the matter, and enforcing the consideration by Full Court of the recommendations made by themselves." 15. It appears that by raising objection in written submissions an effort h....
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....ion of the Act or the Constitution, for the purposes of evolving the procedure to be followed for designation of an advocate as senior advocate. 4. Whether the procedure evolved under the impugned Rules excludes the advocates, practising in the District Courts, or in the Tribunals, from consideration to be designated as senior advocates. 5. To what relief, if any, in the facts and circumstances of the case petitioners are entitled in the present writ petition? 18. It shall be appropriate to deal with question No. 3 first, as before us authority of this Court to frame impugned Rules as 'Designation of Senior Advocate Rules, 1999', under Section 34(1) of the Act has been seriously questioned. Shri Rajeshwar Singh, petitioner No. 2, who appeared in person submitted that Section 16 of the Act is part of Chapter III of the Act. The power to make Rules rest with the State Bar Council as provided under Section 28 of the Act. It is submitted that Section 34 which is part of Chapter IV of the Act confers power in the High Court to make Rules laying down the conditions subject to which an advocate shall be permitted to practice in the High Court and the Courts su....
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....e been approved by the Bar Council of India." 21. Chapter III contains provisions regarding admission and enrolment of advocates, as Section 16 has been placed in this Chapter it has been submitted that Rules for the purposes of Section 16 also can be made under Section 28 by the State Bar Council. For resolving this controversy, it is necessary to determine as to whether designation as senior advocate by the High Court is connected with the right of practice or it may come under heading of admission and enrolment of advocates. From a close perusal of Sections 17 to 27, it is clear that provisions have been made for various purposes relating , to admission and enrolment of advocates. Section 17 of the Act is very material and a close scrutiny of this section shall demonstrate the real intention of the Legislature for placing Section 16 in Chapter III. Section 17(1) provides that every State Bar Council shall prepare and maintain a roll of advocates in which shall be entered the names and addresses of the advocates. Section 17(2) provides that each such roll of advocates shall consist of two parts, the first part containing the names of senior advocates and the second part, names....
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....e controlled or regulated by the Rules framed by the State Bar Council, under Section 28 of the Act, which may be derogatory of the independence of judiciary and against the Constitutional scheme. 23. The submission made by Shri Rajeshwar Singh, petitioner No. 2 and Shrl Sunil Ambwani that designation as senior advocate under Section 16(2) has no connection with the right to practice, can also not be accepted. Under Section 49. clause (g). Bar Council of India has been conferred power to make rules and to prescribe the restrictions in the matter of practice to which senior advocate shall be subject. Section 16(3) of the Act also provides that senior advocate shall. In the matter of their practice, be subject to such restrictions as the Bar Council of India may. In the Interests of the legal profession, prescribe. Thus, an advocate on being designated as senior advocate become subject to conditions and limitations, in the matter of practice prescribed by the Rules framed by the Bar Council of India and the designation as senior advocate is thus, has close nexus with the right to practice and High Court under Section 34(1) is fully competent to make Rules. Submission that High Cou....
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.... the Judges, which cannot be curtailed or reduced by delegating this function to any smaller body. It has not been provided in the Act specifically or by necessary implication that such a function can be delegated by the High Court to any smaller body of Hon'ble Judges. Though learned counsel for the petitioners raised question of delegation of function in wider sense but their grievance appeared to be only against the part of Rule 3 (B), which provides that 'if the name of any advocate is disapproved by the Screening Committee', his claim shall not be placed for consideration before the Full Court. Learned counsel also submitted that they shall have no objection if Rule 3 (B) is maintained and the objectionable part, namely, 'if it is not disapproved by the Committee, are deleted by applying the doctrine of severability. They conceded that the Committee of the Hon'ble Judges may be required to consider the large number of recommendations made by the Hon'ble Judges of the Court, for purposes of performing ground work of collecting facts and objectionable material against such advocates and for ascertaining whether the recommendations are in proper form and i....
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....t, which is a sufficient safeguard against arbitrariness in procedure and for which sufficient guidelines are provided in Section 16(2) of the Act. 28. Learned counsel has further submitted that no part of Rule 3 (B) is severable, and if words 'if it is not disapproved by the committee' are excluded, the Rule shall become non-workable and it shall lose its object and purpose. The Court is not required to give reasons for disapproving the recommendation. In case all the recommendees whether approved or disapproved are required to receive consideration of Full Court, the Full Court wilt not have the benefit of screening done by the Committee and in such event, the entire exercise will be ministerial and the object of entrusting power of screening to the seniormost Judges of the Court will lose its object and purpose. Learned counsel for the parties have relied on certain judgments of Hon'ble Supreme Court in support of their submissions, which shall be considered at the relevant places. 29. We have carefully considered the submissions made by the learned counsel for the parties. For answering question Nos. 1 and 2, which relate to delegation of function of High Cour....
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....disputed that function is necessarily administrative but it is statutory in nature. Whether such kind of statutory function, though administrative in nature, can be delegated. There is no doubt about the legal position that when any function is assigned to the High Court, the High Court means. Hon'ble the Chief Justice and all his companion Judges. Normally administrative functions and powers can be delegated in favour of coordinate authority or to a subordinate authority. However, when administrative function is statutory in nature and the function or the power is assigned under the statute, it should be performed or exercised by that authority unless the power to delegate such function or exercise of power is specifically provided or may be inferred by necessary implication from the provisions contained in the statute. Learned counsel for the respondents could not lay his hand on any provision contained in the Act on the basis of which it may be said that High Court has been conferred specific power to delegate this statutory function contemplated under Section 16[2] of the Act. Learned counsel could also not place before us any provision contained in the Act from perusal of ....
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....rned author have arisen, as stated by him at p. 265, in diverse contexts and many of them turn upon unique points of statutory interpretation. The true position as stated by the author is : The maxim delegatus non potest delegare does not enunciate a rule that knows no exception ; it is a rule of construction to the effect that *a discretion conferred by statute is prima facie Intended to be exercised by the authority on which the statute has conferred it and by no other authority, but this intention may be negatived by any contrary indications found in the language, scope or object of the statute. We have pointed out above that the amplitude of the power conferred by Article 235, the imperative need that the High Courts must be enabled to transact their administrative business more conveniently and an awareness of the realities of the situation, particularly of the practical difficulties involved in a consideration by the whole court, even by circulation, of every day-to-day matter pertaining to control over the district and subordinate Courts, lead to the conclusion that by rules framed under Article 235 of the Constitution the High Court ought to be conceded th....
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....t through secret ballot as provided in the Rules. Thus, provisions contained in Section 16(2) of the Act by necessary implication rule out the delegation of function of Court to any body else. 34. Learned counsel for the respondents also submitted that Screening Committee, as provided under the Rules, consists of seven Senior Hon'ble Judges and it is a sufficient safeguard to prevent any arbitrary exercise of power. In our opinion, this submission is wholly misplaced. Before us, no argument was advanced that Hon'ble Judges who are members of the Screening Committee may act arbitrarily. The submissions made were purely legal that function of the Full Court under Section 16(2) cannot be exercised through any Committee because it is based on personal observance, watch and reading of a Judge of this Court regarding a particular advocate, who is subject of consideration for being designated as senior advocate. Learned counsel for the petitioner also submitted before us that the result of the Full Court meeting of 9.4.2000 fully demonstrates that exercise of function through Screening Committee cannot be exact, safe and appropriate substitute of the Full Court. Full Court on 9....
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....he provisions if after removing the objectionable part, the statutory rule remains workable and may fulfil the object and purpose for which it has been enacted and framed. Learned counsel for the respondents, however, vehemently opposed and submitted that if the part mentioned above in Rule 3 (B) is deleted or declared ultra vires, the purpose and object for which Screening Committee has been provided under the Rules shall be frustrated and doctrine of severability has no application in the present case. We have carefully considered the submission of the learned counsel for the parties. However, in our opinion, Screening Committee shall continue to serve useful purpose, its existence is necessary for proper and smooth discharge of the function by the Full Court under Section 16(2) of the Act. The Screening Committee at its level may approve or disapprove the recommendations made by the Hon'ble Judges on the basis of the material made available to it. However, the entire report of the Screening Committee may be placed before the Full Court, which only has the final power to decide as to which advocate deserves for being designated as senior advocate. It is incorrect to say that ....
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.... is allowed subject to observations made above and with the following directions : 1. The words 'if it is not disapproved by the Committee' in Rule 3 (B) shall stand deleted from Rule 3 (B). being ultra vires of Section 16(2) of the Act ; 2. The result declared on April 9. 2000, by the Full Court shall be given effect to without any delay. There will be no order as to costs. S. R. Singh, J. 40. Present petition has been filed canvassing the validity of the "Designation of Senior Advocates Rules, 1999" |ln short the 'Rules'), as amended vide Notification No. 70/VIII-C-168, dated February 4, 2000 published by the Government in Extraordinary Gazette in Vidhal Parishist Part-4, Khand (Ka) and the reliefs claimed, inter alia, are that the Rules be declared ultra vires, inoperative, null and void ; that the respondents be restrained from designating senior advocates on the basis of the impugned Rules ; that the recommendations dated 6.3.2000 and 30.3.2000 of the Screening Committee be quashed ; and that the respondent No. 1 may be directed to consider the advocates practising in District Courts for designating senior advocates. 41. Sri A. D, ....
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....elve into as to what is the nature of function of the Court under Section 16(2) of the Act. Section 16(2) of the Act. according to me, confers two-fold power in the High Court : firstly, the power to designate an advocate as a senior advocate, and secondly, the implied power to make rules regulatory in character governing the exercise of its power in respect of designation of advocates as senior advocate and such function of the Court in Indubitably a legislative function. In fact, the function of the Court under Section 16(2) is an admixture of both legislative and administrative functions. The formation of opinion and consequential decision as to whether an advocate by virtue of his ability, standing at the bar, or special knowledge or experience in law. Is deserving the distinction of being designated as senior advocate is administrative in character. Though at times. It is difficult to draw distinction between the legislative and administrative function, there are certain well-established principles on the touchstone of which it may be determined whether a particular function is legislative or administrative in character. The power to make rule of general application is a legis....
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....es as senior advocates under Section 16(2) of the Act. Section 16(2) has the characteristics of a substantive provision, which vests powers on the Court to confer on an advocate the distinction of a senior advocate. The power so conferred would necessarily include the power to make Rules regulating the exercise of power. The Supreme Court has aptly stated the principle in State of U.P. v. Batuk Deo Pati Tripathi. 1978 (2) SLR 1. In these words : "The power to do a thing necessarily carries with it the power to regulate the manner in which a thing may be done. It is independent of the power itself and indeed without it, the exercise of power may in practice be fraught with difficulties which frustrate rather than further the object of the power." in our opinion, the High Court and the Supreme, Court have been ceded the Implied power to make Rules regulating the exercise of their powers under Section 16(2) by virtue of the substantive provision itself Independently of Section 34(1). This is, however, hedged in with the condition that the rules made in exercise of such power have regulatory complexion and do not lead to abdication of power of the Court in favour of a Judge or a Commit....
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....section (2) of Section 16 means the High Court comprising a Chief Justice and such other Judges as the President may. from time to time, deem it necessary to appoint. The classification of advocates, into two categories is a legislative function. But to designate an advocate as a senior advocate on the touchstone of the standard prescribed by sub-section (2) of Section 16 Itself is a statutory function of administrative complexion. The Parliament has delegated this power to the Supreme Court and the High Courts. The Committee constituted under Rule 3 (B). It has been submitted, cannot be equated as being 'High Court' so as to disapprove the recommendation of a Judge for designation of an advocate as senior advocate which power is conferred, by virtue of Section 16(2) of the Act, in the Supreme Court or the High Court, i.e., on a collective body. The latter cannot delegate that power to be exercised by a Committee. The phraseology "if it is not disapproved by the Committee" occurring in Rule 3 (B) of the Rules, in my opinion, is tinged with the vice of abdication of essential statutory function of administrative nature conferred in the Court under Section 16(2) of the Act. T....
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....y Law Board (Procedure) Rules, 1964. Both the orders passed by the Chairman and the Company Law Board (Procedure) Rules. 1964. were impugned on the ground of unauthorised sub-delegation of statutory power. Upon regard being had to the related provisions of the Companies Act, it was held that the Central Government had the power to constitute the Company Law Board, to delegate its function to the Board and to control the principle in the exercise of its delegated function and since the Company Law Board (Procedure) Rules. 1964, framed by the Government, authorises the Chairman to distribute the business of the Board, the Chairman in exercise of the powers so conferred could assign the business to himself under Section 237 of the Act. The maxim 'detegalus non polesf delegare' has been explained by Bachawat. J., as under : "As a general rule, whatever a person has power to do himself. he may do by means of an agent. This broad rule is limited by the operation of the principle that a delegated authority cannot be re-delegated, delegatus non potest delegare. The naming of a delegate to do an act involving a discretion Indicates that the delegate was selected because of ....
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.... ultimate decision, in our opinion, must be taken by the Court and the Committee should be left with the function of scrutinising the recommendations made by the Judges of the Court for designation of advocates as senior advocates and submitting its report according to the Chief Justice. 49. Sri Sunil Ambwani, learned counsel appearing for the respondents has vehemently relied upon the decision of the Supreme Court in State of U. P. v. Batuk Deopatt Tripathi (supra), to enforce his contention that the Committee constituted under Rule 3 (B) "is a mere instrumentality through which the entire Court acts for the more convenient transaction of its business". A District Judge in that case was compulsorily retired from service on the opinion recorded by the Administrative Committee constituted under Rule 1 of Chapter III of the Rules of the Court. The Supreme Court held, bearing in mind the nature of power conferred in the High Court under Article 235 of the Constitution and upon regard being had to the relevant rules, as under : "In fact, it is no exaggeration to say that the control will be better and more effectively exercised if a smaller committee of Judges has the autho....
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....so to do or there is compelling necessity. Unlike Article 235, the language used in Section 16(2) is not evincive of any contrary Indication. Section 16(2) of the Act is not in pari materia with Article 235 of the Constitution. And since the nature and content of power that is exercised by the High Court under Article 235 of the Constitution is quite different both in letter and spirit from the one under Section 16(2) of the Act, the decision of the Supreme Court in Batuk DeopatI Tripathi. Is unavailing in construing the provisions of Section 16(2) of the Act. In such view of the matter, 1 am of the firm view that the Rule in so far as it empowers the Committee to finally disapprove the recommendation of a Judge for an advocate being designated as senior advocate suffers from the vice of excessive delegation and leads to abdication of statutory power vested in the Court and is ultra vires the Section 16(2) of the Act. But challenge to the validity of the Rules as being violative of Article 14 of the Constitution is misconceived. The applicability of the Rules is not confined to advocates practising in the High Court and Supreme Court. The designation is made with the consent of ....