R.R.K Trivedi, J.:— Petitioner No. 1, it is claimed, is an association of Advocates and petitioners Nos. 2 and 3, who are the Advocates practising in High Court, have filed this writ petition under Article 226 of the Constitution questioning the legality of Rules dated 4-2-2000 by which Designation of Senior Advocates Rules, 1999 (hereinafter referred to as the Rules) have been amended. It has been prayed that amending rules be declared ultra vires, inoperative, null and void. It has also been prayed that respondents be restrained from designating ‘Senior Advocates’ in pursuance of impugned rules, second relief sought is that respondent No. 1 be directed to consider the Advocates practising in District Courts for being designated as Senior Advocates. It has also been prayed that recommendations made by the Secreening Committee on 6-3-2000 and 30-3-2000 may be quashed.
2. Under 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 ‘Senior Advocates’ shall be placed before the Full Court in its meeting scheduled to be held on 9th April, 2000 irrespective of the fact whether the names have been ‘approved’ or ‘disapproved’ by the committee. The names shall be considered by the Full Court and decision taken through secret ballot as provided under the Rules and the result shall be declared subject to final decision on the writ petition.”
4. Counter-affidavit has been filed by Shri T.M Khan, Officer of Special Duty, High Court of Judicature at Allahabad. Rejoinder affidavit has not been filed by the petitioners. However, Shri Rajeshwar Singh, Advocate, petitioner No. 2 has filed a supplementary affidavit annexing therewith a certificate of registration of petitioner No. 1 under Societies Registration Act, 1860 which is Annexure I to the supplementary affidavit. A certificate dated 1-8-1994 has also been filed to the effect that petitioner No. 1 was granted affiliation by the Bar Council of U.P This certificate bears Affiliation No. 6 of 1994 and in is Annexure 3 to the supplementary affidavit.
5. On 7-4-2000 Sunil Ambwani, learned counsel for the respondents raised preliminary objections against the maintainability of the writ petition. Formal preliminary objection in writing has also been filed. On that date after hearing learned counsel for the parties at some length we postponed the hearing on the preliminary objection to a later stage at the time of final hearing. Now we wish to deal with the preliminary objection first, as occasion to consider the writ petition on merit shall come only when this Court does not accept the preliminary objection. Shri Sunil Ambwani in support of preliminary objection has submitted that petitioners have no locus standi to file writ petition, they are busy bodies and inter-meddlers and have no right or cause of action. It has also been stated that petitioner No. 1 is not a registered society. They have not filed copy of the by-laws to establish the purpose and object to be achieved by forming an association. It has also been submitted that they have not disclosed the names of office bearers. Learned counsel has submitted that such an association cannot be permitted to file present writ petition. It has also been submitted that designation of an advocate by the Court as senior advocate cannot be claimed as the matter of right, it 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 Giri, 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 affilication 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 Sec. 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 bodies and intermeddlers. Learned counsel has also placed reliance on the judgment of Hon'ble Supreme Court in the case Janata Dal v. H.S Chowdhary (1992) 4 S.C.C 305 : (AIR 1993 S.C 892)
7. We have carefully considered the submissions of the learned counsel for the parties. On maintainability of this writ petition at the instance of the petitioners there is no doubt that petitioner No. 1 is a registered body of the Advocates and has been duly registered under the Societies Registration Act. It was also granted affiliation certificate by the Bar Council. Even if for arguments sake it is accepted that the association, petitioner No. 1 could not file this petition, petitioners No. 2 and 3 are advocates practising in this Court, in these circumstances, it has to be seen whether they could file present writ petition for the relief claimed and mentioned in the earlier part of the judgment. On the question of locus standi of the Advocates to maintain writ petition, seven Judges' judgment of Hon'ble Supreme Court is the leading and landmark judgment in the case of S.P Gupta v. President of India, 1981 Supp SCC 87 : AIR 1982 SC 149. All the Judges constituting the aforesaid Bench concurred on the question that the practising lawyers have vital interest in the independence of judiciary and if any unconstitutional or illegal action is taken by the State or any public authority which has the effect of impairing the independence of the judiciary they would certainly be interested in challenging the constitutionality or legality of such action. They had clearly a concern deeper than that of a busy body and they cannot be told off at the gates. Concurring with the aforesaid view Hon'ble Tulzapurkar, J. observed as under:—
“The practising lawyers, who are nothing short of partners in the task of administration of justice undertaken by the Judges, are vitally interested in the maintenance of a fearless and an independence judiciary to ensure fair and fearless justice to the litigants. Hence, in challenging the constitutionality of law Minister's circular and grant of short-term extensions to sitting Additional Judges of High Courts, the practising lawyers, either in their individual capacity or representing Lawyers' Association have not merely sufficient interest but special interest of their own in the subject-matter of the writ petitions 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 locus standi to maintain the present writ petition. They have questioned the validity of the Rules alleging that they are not in consonance with Sec. 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 Janta Dal v. H.S Chowdhary (supra) after considering all the previous judgment of Apex Court on the question of locus standi held in para 109 as under:— (at Page 918, of AIR)
“109. It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have a locus standi, and can approach the Court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similar, a vexatious petition under the colour of PIL brought before the Court for vindicating any personal grievance, deserves rejection at the thereshould.”
9. In the present case learned counsel for the respondents have not been able to point out that petitioners have filed this writ petition for any personal gain or private profit or political motive or any such other oblique consideration. No mala fide on the part of the petitioner has been alleged. Designation of Advocates practising in the Bar as Senior Advocates, which forms a distinguished and elite class among Advocates is of vital interest for the Advocates practising in this Court and subordinate Courts and it is difficult to accept that they have no interest in the matter.
10. In the case of Prof. Chandra Prakash Agarwal v. C.D Parikh 1970 (1) SCC 182 : (AIR 1970 SC 1061) Hon'ble Supreme Court held that distinction, if any, between the words ‘an Advocate’ in Article 233(2) and the word ‘an Advocate of High Court’ in Article 217(2)(b) has no significance in any event after coming into force of Advocates Act, 1961 as by virtue of Sec. 16 of that Act there are only two classes of persons entitled to practice namely, Senior Advocates and other Advocates. The designation as Senior Advocates by the High Court is a question of vital interest for the Advocates pracitising in the High Court and District Courts. We have no doubt that present petitioners have locus standi to maintain this petition. Shri Sunil Ambwani relied on some judgments of Hon'ble Supreme Court. We have considered the judgment and, in our opinion, they are clearly distinguishable on facts. In Gaini Devendra Singh Sant Seopy Sikh v. Union of India, (1995) 1 SCC 391 : AIR 1995 SC 1847 a Division Bench of M.P High Court passed the order giving general direction to the authorities though the allegations made in the writ petition were vague and general. Hon'ble Supreme Court observed that High Court should not take the matters lightly and relief in the PIL case should be granted only after ascertaining the facts clearly and the order passed should also be specific and clear. The case is clearly distinguishable as in present case there is no allegation that pleadings and reliefs claimed are uncertain or vague.
11. In Malik Brothers v. Narendra Dadhich (1999) 6 SCC 552 : (AIR 1999 SC 3211) 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. That judgment has no bearing in the facts of the present case.
12. Similarly, in Ranjit Prasad v. Union of India, 2000 (2) JT S.C 31 : (2000 AIR SCW 2221) 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, CBI. 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 the Advocates of the State.
13. On behalf of the respondents other two questions have also been raised which we wish to consider at this stage. The first question is that petitioners have not disclosed the source from where they had obtained the recommendations made by the Screening Committee, which was not a public document within the meaning of Sec. 76 of the Evidence Act. No one has made any application nor any copy of the resolution of the Screening Committee was supplied in terms of Chapter 40 Rules 1 and 12 of the Rules of the Court to any one. Non disclosure of the information withholding of the information is reprehensible and improper as laid down in R.C Jain v. High Court of Patna, (1996) 10 SCC 5 : (1996 AIR SCW 3714) hence the petitioners are not entitled to any relief. This question was raised at the time of hearing of the writ petition. Learned counsel for the respondents objected that resolution of the screening committee, Annexure IV to the writ petition, could not be possessed by the petitioners and they must disclose its source from where they had obtained it. Learned counsel for the petitioners, on the other hand, submitted that it would not be proper to disclose the source as it may result in embarrassment to the Court. Considering the delicacy we did not insist learned counsel for the petitioner to disclose the source. In the case of R.C Jain (supra) in spite of the order of the Court petitioner refused to disclose the source. In the present case we did not insist for the same. Hence it cannot be said that petitioners have rendered themselves disqualified for the relief claimed in the writ petition. However, we do not otherwise, find any substance in this submission which is more of technical in nature than substantial. Existence of the document namely, resolution of the screening committee has not been disputed, on the other hand, along with the counter affidavit, respondents have also filed copy of resolution. The document is not confidential. The Act and the rules do not provide that such documents, shall be confidential document. It cannot be disputed that the resolution of the screening committee passed through several hands in the process of preparing its copies for the purposes of distribution to all the Hon'ble Judges of this Court, along with agenda of the Full Court. Thus, it was not difficult for any body to obtain 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 some what 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 recuse 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 has been made for some reason or the other that we should not decide the writ petition. What learned counsel could not submit during his arguments in open Court, has been sought to be advanced for our consideration through written submissions. We do not find any substance in this objection. Hon'ble Judges of this Court are not supposed to have any personal interest in any advocate, even if they recommend his name for being considered to be designated as senior advocate. Hon'ble Judges while recommending the name of an advocate of this Court only discharge their statutory duty under Sec. 16 of the Act and the Rules framed thereunder by this Court, their personal involvement in the matter is out of question. While rejecting this objection we only wish to observe that such arguments are not expected from a learned counsel representing this Court in a litigation in which Court itself is the party. We do not find any foundation for this submission in the counter affidavit filed by the respondents. We also cannot expect that registry of the Court could have instructed the learned counsel to raise such objection. We hope that learned counsel shall desist himself in future from raising such baseless submission, which has no relevance to the controversy, which is subject matter of consideration before the Court.
16. So far as the merit of the writ petition is concerned the submissions were made by Shri A.D Giri, Shri L.P Naithani, learned Senior Advocates, Shri Rajeshwar Singh and Shri Yogesh Agarwal for the petitioners and Shri Sunil Ambwani learned counsel appearing for the respondents.
17. After hearing learned counsel for the parties at length and on perusal of written submissions made by them, in our opinion, following questions require determination by this Court:—
1. Whether the High Court can delegate its statutory function under Sec. 16(2) of the Act, to designate an advocate as senior advocate in favour of a committee consisting of Hon'ble Judges of the Court?
2. Whether Rule 3(B) of the Rules, or in the form it stands in the Rules, is in contravention of the provisions contained in Sec. 16(2) of the Act and is ultra vires?
3. Whether the High Court has authority to frame the Rules known as ‘Designation of Senior Advocate Rules, 1999’; under Sec. 34(1) of the Act or under any other provision of the Act or the Constitution, for the purposes of evolving the procedure to be allowed 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 Advocates Rules, 1999’, under Sec. 34(1) of the Act has been seriously questioned. Shri Rajeshwar Singh, petitioner No. 2, who appeared in person submitted that Sec. 16 of the Act is part of Chapter 3 of the Act. The power to make rules rest with the State Bar Council as provided under Sec. 28 of the Act. It is submitted that Sec. 34 which is part of Chapter 4 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 subordinate thereto. It is submitted that designation of an Advocate as senior Advocate cannot be termed as condition to practice in the High Court or the Courts subordinate thereto. To our astonishment Shri Sunil Ambwani, learned counsel appearing for the respondents also submitted that Sec. 34(1) does not authorise High Court to frame impugned rules. It has been submitted that rules have been framed by the High Court as an in-house procedure developed for the purposes of designation of Senior Advocates.
19. Shri A.D Giri, learned counsel appearing for the petitioners, on the other hand, submitted that the High Court has authority under S. 34(1) to make rules for evolving effective procedure for the purposes of designating advocates as senior advocates under Sec. 16(2) of the Act. It has also been submitted that right of practice before the High Court is regulated by the High Court under Sec. 34(1) of the Act and function of High Court under Sec. 16(2) to designate an advocate as senior advocate necessarily effects the right to practice of the advocate after being designated as senior advocate and he becomes subject to certain conditions and limitations provided in Rules framed by the Bar Council of India.
20. We have thoroughly considered the submissions of the learned counsel for the parties on the question. Much emphasis has been laid down by Shri Rajeshwar Singh on Sec. 28 of the Act, which is being reproduced hereunder:—
“Power to make rules. - (1) A State Bar Council may make rules to carry out the purposes of this Chapter.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for—
(a) the time within which and form in which an advocate shall express his intention for the entry of his name in the roll of a State Bar Council under Sec. 20;)
(b) (*****)
(c) the form in which an application shall be made to the Bar Council for admission as an advocate on its roll and the manner in which such application shall be disposed of by the enrolment committee of the Bar Council.
(d) the conditions subject to which a person may be admitted as an advocate on any such roll:
(e) the instalments in which the enrolment fee may be paid.
(3) No rules made under this Chapter shall have effect unless they have been approved by the Bar Council of India.”
21. Chapter 3 contains provisions regarding admission and enrolment of advocates, as Sec. 16 has been placed in this Chapter it has been submitted that rules for the purposes of Sec. 16 also can be made under Sec. 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 the admission and enrolment of Advocates. From a close perusal of Secs. 17 to 27 it is clear that provisions have been made for various purposes relating to admission and enrolment of Advocates. Sec. 17 of the Act is very material and a close scrutiny of this Section shall demonstrate the real intention of the legislature for placing Sec. 16 in Chapter 3. Sec. 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. Sec. 17(2) provides that each such roll of Advocates shall consists of two parts, the first part containing the names of senior advocates and the second part, names of other advocates. Sub-sec. (3) of Sec. 17 further provides that entries in each part of the roll of advocates prepared and maintained by a State Bar Council under this Section shall be in the order of seniority. Sub-section (3) further contains provisions for determination of such seniority. Thus, from perusal of Sec. 17(2) and (3) it is clear that an advocate on being designated as senior Advocate by the Hon'ble Supreme Court and by the High Court shall be admitted in the first part of the roll of advocates maintained by the State Bar Council and for this purpose State Bar Council may frame rule under Sec. 28 of the Act.
22. Sub-section (3) of Sec. 16 provides that Senior advocates 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. In view of the provisions contained in sub-sec. (3) of Sec. 16 it cannot be said that designation of advocate as senior advocate under sub-sec. (2) of Sec. 16 has no connection with their right to practice. Thus, merely from plain language of Sec. 28 of the Act it shall not be proper to infer that State Bar Council can make rules for carrying out the purposes of Sec. 16 also. In other words delegation of power to make rules in general terms under Sec. 28 is subject to certain conditions. Such general power to make rules or regulation for carrying out or giving effect to the purposes of the Act, is strictly ancillary in nature and cannot enable the authority on whom the power is conferred to extend the scope of general operation of the provisions. From close reading of Sec. 28 it is clear that legislature has conferred power on State Bar Council to make rules for the purposes of the admission and enrolment of advocates and for inclusion of their names according to their category in the roll of advocates maintained by it. The State Bar Council, thus, can only make rules for the purposes of carrying out the provisions of Secs. 17 to 27 and only part of Sec. 16 that too only after an advocate is designated as senior advocate. Fallacy of this contention can be judged from another angle also, that the Parliament while conferring power on High Court to designate senior advocate under Sec. 16(2) of the Act could not and have not intended that this function of High Court shall be controlled or regulated by the Rules framed by the State Bar Council, under Sec. 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 Shri Sunil Ambwani that designation as senior advocate under Sec. 16(2) has no connection with the right to practice, can also not be accepted. Under Sec. 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. Sec. 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 Sec. 34(1) is fully competent to make rules. Submission that High Court is not competent to make impugned rules has no substance. This Court framed rules under Sec. 34(1) read with Sec. 16(2) of the Advocates Act, 1961 on 28-2-1992 which were published in U.P Gazette dated 9-5-1992. The authority of this Court to make rules under the aforesaid provisions has never been questioned. It is settled principle that normally the opinion of the authority concerned that the rule made by it is necessary to carry out the purposes mentioned in the Act and when this opinion is recited in the preamble to the Rules, it should be greatly respected. In the preamble of the rules it is being mentioned from very beginning that they are being made under Sec. 34(1) read with Sec. 16(2) of the Act. We do not find any justification to doubt the authority of this Court to frame rules.
24. Questions No. 1 and 2 can be taken together for consideration. By and large the submission of the learned counsel for the petitioners was that under Sec. 16(2) of the Act only High Court can designate an Advocate as Senior Advocate and this statutory function cannot be delegated to any smaller body of the Judges of this court. It was submitted that High Court means the Chief Justice and all other Judges of the Court. For this submission reference was made to Article 216 of the Constitution, which reads as under:—
“Every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deemed it necessary to appoint.
25. It is submitted that important statutory function of designation of Senior Advocates cannot be delegated by the High Court as it requires forming of opinion about the advocate on the basis of the observation by the Judges of the Court from their performance before them. Advocates' ability, standing at the Bar, special knowledge or experience of law can only be judged on basis of his performance on which basis alone an Advocate may deserve the designation as Senior Advocate. It has been submitted that this process of forming opinion is at the core of discharge of the statutory function. Opinion forming process is time taking and requires sustained watch, which cannot be performed by any body else. In this connection it has also been submitted that the High Court under Sec. 16(2) of the Act while designating an Advocate as Senior Advocate expresses collective opinion of all 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 assertaining whether the recommendations are in proper form and in compliance of the Rules and for any such other purpose which may help the Full Council in forming its opinion for designation as Senior Advocates, conveniently and expeditiously. Their objection was against conferring power on the Screening Committee to finalise the consideration of the names of some Advocates at that stage by marking them as disapproved, which is essentially the function of Full Court.
26. As a corollary to the aforesaid submissions it has also been submitted that under the Act Advocates practising in this Court and district Courts form one class and different procedure cannot be adopted for their desgination as Senior Advocates by way of excluding certain names of the screening stage as disapproved and for others who are approved before the Full Court. It is submitted that such a procedure if permitted shall be discriminatory and violative of Article 14 of the Constitution and shall also be in contravention of the provisions contained in Sec. 16(2) of the Act.
27. Shri Sunil Ambwani, learned counsel appearing for the respondents, on the other hand, submitted that the Rules have been framed by the Full Court and no objection can be raised against the authority of Full Court, which delegated the power of screening to the Committee by framing Rule 3(B). It is also submitted that purpose behind framing Rule 3(B) is screening and not performing the ministerial act as suggested. The object is to screen those, who are undeserving for being designated as Senior Advocate and such a procedure has approval of the Court. It has further been submitted that Full Court considered that all the Judges of the Court may not be knowing all the Advocates practising in this Court. It is not a case of selection where reasons are required to be given. It is an in-house procedure developed by the Court for convenient and smooth discharge of its function under Sec. 16(2) of the Act. Learned counsel has submitted that Screening Committee has been authorised by the Full Court and it exercises the power of Full Court while screening the recommendations. It has been submitted that under Sec. 16(2) of the Act the High Court exercises administrative powers and the High Court in discharge of that function could delegate its authority. In the present case the delegatee is the committee consisting of the senior-most Judges of this Hon'ble Court, which is sufficient safeguard against arbitrariness in procedure and for which sufficient guidelines are provided in Sec. 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 will 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 senior-most 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 Court it is necessary to ascertain the exact nature of function of the High Court, while designating senior advocates under Sec. 16(2) of the Act. For convenience Sec. 16 is being reproduced below:—
“16. Senior and other advocates. - (1) There shall be two classes of advocates, namely, senior advocates and other advocates.
(2) An advocate may, with his consent, be designated as senior advocate if the Supreme Court, or High Court is of opinion that by virtue of his ability, (standing at the Bar or special knowledge or experience in law) he is deserving of such distinction.
(3) Senior advocates shall, in the matter of their practice, be subject to such restrictions as the Bar Council of India may, in the interest of the legal profession, prescribe.
(4) An advocate of the Supreme Court who was a senior Advocate of that Court immediately before the appointed day shall, for the purposes of this section, be deemed to be a senior advocate:
(Provided that where any such senior advocate makes an application before the 31st December, 1965, to the Bar Council maintaining the roll in which his name has been entered that he does not desire to continue as a senior advocate, the Bar Council may grant the application and the roll shall be altered accordingly.)”
30. From perusal for Sec. 16(2) of the Act it is clear that High Court has to form an opinion about the ability, standing at the Bar or special knowledge or experience in law of an advocate and when he is found deserving, he is designated as senior advocate. Process of forming opinion by Hon'ble Judges of this Court is a continuous process based on the observation of the performance of the advocate in arguing cases before the Judge concerned. Such kind of opinion cannot be formed except by long and sustained observation for years. Opinion forming process is thus, objective, However, it is expressed in subjective manner by designating an advocate as senior advocate or by refusing to confer this distinction. The expression is subjective as Hon'ble Judges are not required to assign any reasons for such refusal. Opinion forming is objective as the concerned advocate appears, argues his cases and his performance regarding ability, standing at the Bar and his knowledge and experience of law is judged frequently by Hon'ble Judges. It cannot be 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 co-ordinate 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 Sec. 16(2) of the Act. Learned counsel could also not place before us any provision contained in the Act from perusal of which it may be said that by necessary implications power of delegation vests in High Court. Learned counsel for the respondents, however, relied on certain judgments of Hon'ble Supreme Court wherein it has been held that High Court may delegate its function in favour of Committee of Hon'ble Judges and if the power is exercised by such Committee it shall be deemed to have been performed by the High Court or in other words, by the Full Court. Leading judgment of Hon'ble Supreme Court, cited in this connection by the learned counsel for the respondents, is of the Constitution Bench in the case of State of U.P v. Batuk Deo Tripathi, 1978 (2) SCC 102 : (1978 Lab. IC 839). The question of delegation of power by High Court for consideration before Hon'ble Supreme Court cropped up as administrative committee of High Court resolved that district judges should be retired compulsorily from service. This decision of administrative Committee was communicated to the State Government. The Governor accepted the recommendation of the administrative committee and retired the district Judge compulsorily. The order of compulsorily retirement was challenged before this Court, the matter was ultimately referred to a larger Bench of five Judges to consider the following question:—
“Whether a district judge can be compulsorily retired from service on the opinion recorded by the administrative committee under Rule 1 of Chapter 3 of the Rules of the Court?”
31. Full Bench answered the question in negative, which was challenged before Hon'ble Supreme Court by the State of U.P Hon'ble Supreme Court held in the facts and circumstances of that case that power of High Court may be exercised by the administrative committee on the basis of the delegation under the Rules. Para 18 of the judgment, which is very relevant for the present case is being reproduced below:—
“28. Since a Judge of the High Court or an Administrative Committee consisting of High Court Judges is, for the purposes of matters falling within Article 235, nor a delegate of the High Court, the principle enunciated by S.A de Smith in his famous work on Judicial Review of Administrative Action (3rd edn., 1973, p. 263) that a discretionary power must, in general, be exercised only by the authority to which it has been committed has no application. The various cases discussed by the learned 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:
32. The maxim delegatus non potest delegare does not enunciate a rule that knows to 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.
33. 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, led to the conclusion that by rules framed under Article 235 of the Constitution the High Court ought to be conceded the power to authorise an Administrative Judge or an Administrative Committee of Judges to act on behalf of the Court. Accordingly, we uphold the minority judgment of the Full Bench that Rule 1 of Chapter III of the 1952 Rules framed by the Allahabad High Court is within the framework of Article 235. The reecommendation made by the Administrative Committee that the respondent should be compulsorily retired cannot therefore be said to suffer from any legal or constitutional infirmity.”
34. Other judgments cited by learned counsel for the respondents in this connection are in the case of Yogi Nath Bagde v. State of Maharashtra, 1999 (7) SCC 739 : (AIR 1999 SC 3734) and High Court of Judicature at Bombay v. Shashikant S. Patil, 2000 (1) SCC 416 : (AIR 2000 SC 22). In these judgments also Hon'ble Supreme Court held that as Full Court of all the Judges of High Court of Bombay can authorise a committee of five Judges of High Court to exercise the function of High Court in respect of punishment of judicial officers, such function involved exercise of all powers envisaged under Article 235 of the Constitution. In both the aforesaid judgments subject matter of consideration before Hon'ble Supreme Court was control of High Court over subordinate judiciary under Article 235 of the Constitution of India. Hon'ble Supreme Court held that for convenient exercise of power of control over the subordinate judiciary it is necessary that Full Court may act through its instrumentality like administrative committee or other committee authorised for the purpose. Now the question for consideration before us is whether the function of the Full Court relating to control over the subordinate judiciary provided under Article 235 of the Constitution and function of the High Court under Sec. 16(2) of the Act, which provides for designation of senior advocate is similar, and for the same reasons function of High Court provided under Sec. 16(2) of the Act may be exercised through a committee.
35. We have no doubt that two functions have no similarity at all. While exercising control over the subordinate judiciary occasion for personal observation or personal knowledge is rare and generally action is taken on the basis of record. Whereas in order to designate a senior advocate each Hon'ble Judge has to form opinion on the basis of the guidelines provided under Sec. 16(2) of the Act and express it through secret ballot as provided in the Rules. Thus, provisions contained in Sec. 16(2) of the Act by necessary implication rule out the delegation of function of Court to any body else.
36. 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 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 member of the Screening Committee may act arbitrarily. The submissions made were purely legal that function of the Full Court under Sec. 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 9-4-2000 refused to recognise five advocates as senior advocates, who were approved by the Screening Committee. From the list of disapproved advocates, three advocates were designated as senior advocates. The submission of the learned counsel for the petitioners appears to have force.
37. Learned counsel for the respondents also submitted that Hon'ble Judges sitting at Lucknow cannot form opinion in respect of the advocates practising at Allahabad and vice versa. Hon'ble Judges sitting at Allahabad cannot have knowledge to form opinion about the advocates practising at Lucknow. It has also been submitted that some of the Hon'ble Judges of this Court have come from other High Courts on transfer and such Judges may have difficulty in forming opinion about the advocates practising at Lucknow as well as Allahabad. In the above circumstances, it is submitted that, rules have rightly provided that Full Court may discharge its' function through Screening Committee. The submission made by the learned counsel for the respondent though appears attractive but is not convincing and cannot be accepted. Sec. 16(2) of the Act has conferred this statutory function on the High Court, which means Hon'ble Chief Justice and all his companion Judges. While enacting Sec. 16(2) of the Act it cannot be said that legislature was not aware of such eventualities but it has given responsibility only to High Court to designate senior advocates. The legislature could provide that this function may be exercised by the Chief Justice in Consultation with his puisne Judges or the legislature may have provided by specific words that High Court may act through a Committee but on the contrary the legislature has not left open any such course for exercise of function under Sec. 16(2) of the Act; as the plain language of Sec. 16(2) of the Act suggests that High Court cannot exercise this statutory administrative function through a Committee.
38. The other important aspect for consideration before us is whether Rule 3(B) as a whole should be declared ultra vires or it may be retained deleting the objectionable part. Learned counsel for the petitioners submitted that Rule 3(B) may be retained and the objectionable part ‘if it is not disapproved by the Committee’ only may be deleted. It is settled principle that the Court should lean in favour of retaining the 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 Sec. 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 this minor modification in the functioning of Screening Committee shall defeat the purpose of its existence. We do not find any force in the submissions of the learned counsel for the respondent. In our opinion, Rule 3(B) can be retained in Rules in the form suggested above.
39. The last question for consideration before us is as to whether the impugned Rule excludes the advocates practising in the district Courts or in tribunals from consideration to be designated as senior advocate? We do not find any substance in this submission. Under Rule 2(a) of the Rules ‘advocate’ has been defined, which means an advocate entered in the roll under the provisions of Advocate Act, 1961. In our opinion, this definition includes all the advocates whose names find place in the roll prepared by the State Bar Council irrespective of their practice in any Court. Rule 3(A) which provides for mode of recommendation also does not suggest that advocates practising in district Courts cannot be recommended. However, at this place we would like to observe that Hon'ble the Chief Justice and all Hon'ble Judges of this Court may consider this aspect of the matter and prescribe in the Rules a suitable procedure by way of amendment through which the names of learned advocates practising in district Courts and tribunals may also come for consideration before the Full Court for being desginated as senior advocates. Providing for such procedure in Rules is necessary as majority of the advocates practice in District Courts.
40. Now the consideration before us is what relief can be granted in the present writ petition. In pursuance of the interim order dated 7th April, 2000, Full Court has already considered the names recommended by the Hon'ble Judges for consideration of being designated as senior advocates. The Full Courts has taken decision on through secret ballot and the result has also been declared. In these circumstances, the grievance of petitioner stands vindicated and the only order which is required now, is that result declared may be given effect to. For future discharge of functions under Sec. 16(2) of the Act it is also necessary that offending part of Rule 3(B) namely, if it is not disapproved by the Committee may be declared ultra vires and may be directed to be deleted from Rule 3(B).
41. For the reasons stated above, this petition 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 Sec. 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.
42. There will be no order as to costs.
S.R Singh, J.:—
43. Present petition has been filed canvassing the validity of the ‘Designation of Senior Advocates Rules, 1999’ (In short the ‘Rules’), as amended vide Notification No. 70.VIII-C-168 dated Feb 4, 2000 published by the Government in Extra-ordinary 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.
44. Sri A.D Giri, Senior Advocate, initially retained and instructed by the petitioners to argue for them, reclused himself from the case on 8-5-2000 when the matter was taken up but in deference to our request addressed the Court with his incomparable lucidity, persuasiveness and eloquent style of argument on various questions of law involved in the case. Sri Rajeshwar Singh Advocate, the Founder President of the Democratice Bar Association Allahabad, himself being petitioner No. 2, argued in person and the third petitioner has been heard through his counsel-Sri Yogesh Agarwal. Sri L.P Naithani, Senior Advocate, also articulated his submissions before the Court on the questions involved in the case. The respondents have been heard through learned counsel Sri Sunil Ambwani who voiced his view points with vehemence.
45. The cardinal questions that rotate round the controversy and surface for consideration are three fold: First, Whether the petition is maintainable at the behest of the petitioners?; Second, Whether the Rules are beyond the rule making power conferred on the High Court under the Advocates Act, 1961 (In short the ‘Act’)?; and third, Whether the procedure visualised by Rule 3(B) of the Rules for designation of an advocate as senior advocate suffers from the vice of unauthorised sub-delegation of essential statutory power of administrative nature confided in the Court under Sec. 16(2) of the Act and is violative of Arts. 14 and 19 of the Constitution besides being ultra-vires Sec. 16(2) of the Act?
46. I have had the privilege of reading the judgment prepared by esteemed brother Trivedi, J. On the question of locus standi of the petitioner, I express myself in concurring with the view taken by brother Trivedi, J. and the reasons assigned by him to buttress his conclusions on the issue and I have nothing to flesh out. So far as questions (ii) and (iii) are concerned, I concur in the propriety of the view taken by brother Trivedi J., that Rule 3(B) of the Rules in so far as it imparts absolute power to the Committee to disapprove the names of advocates commended by a Judge, is ultra vires the Act but I would prefer to state my own reasons on the question of vires of the rules.
Re question No. (ii)
47. In order to appraise the question of law bearing on the vires of the rules, particularly Rule 3(B) of the Rules, it is needful to delve into as to what is the nature of function of the Court under Sec. 16(2) of the Act. Sec. 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 is indubitably a legislative function. In fact, the function of the Court under Sec. 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 legislative power and the rule is a legislative rule; while a power to give order in specific cases is an executive power and the order is an executive action. De Smith also says that a legislative act is the creation and promulgation of a general rule of conduct without reference to particular case while an administrative act is the application of a general rule of a particular case albeit the difference between what is ‘general’ and what is ‘specific’ or ‘particular’, is only a matter of degree. In Union of India v. Cynamide India Ltd. (1987) 2 SCC 720 : AIR 1987 SC 1802, price fixation was held to be legislative action, while in State of Haryana v. Ram Kishan, (1988) 3 SCC 416 : AIR 1988 SC 1301 an action of premature termination of a mining lease was held to be administrative.
48. The Rules purport to have been framed by the Court in exercise of power under Sec. 34(1) read with Sec. 16(2) of the Act. It may be pointed out that sub-sec. (1) of Sec. 16 of the Act envisages that there shall be two classes of advocates namely, senior advocates and other advocates and sub-sec. (2) provides for designation of an advocate as senior advocate. Sub-sec. (2) being relevant is excerpted below.
“(2) An advocate may, with his consent, be designated as senior advocate if the Supreme Court or a High Court is of opinion that by virtue of his ability, standing at the bar or special knowledge or experience in law he is deserving of such distinction.”
49. Sub-section (3) of Sec. 16 envisages that senior advocates shall, in the matter of their practice, be subject to such restrictions as the Bar Council of India may, in the interest of the legal profession, prescribe. The contention of Sri Rajeshwar weaves round the argument that Sec. 34 which cedes power to the High Court to make rules laying down the conditions subject to which an advocate can be permitted to practise in the High Court and the Courts subordinate thereto is not available to be pressed into service for purposes of Sec. 16(2) of the Act. It brooks no dispute that Section 34(1) which invests the High Court with power to make Rules laying down the conditions subject to which an advocate shall be permitted to practise in the High Court and the Courts subordinate thereto, does not lend itself to be taken aid of for purposes of regulating the exercise of powers of designation of advocates as senior advocates under Sec. 16(2) of the Act. Sec. 16(2) has the characteristics of a substantive provision, which vests power 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 : (1978 Lab. IC 839), 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 Sec. 16(2) by virtue of the substantive provision itself independently of Sec. 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 committee of Judges. Rules in so far as they are concerned with the conduct of an advocate after being designated as senior advocate, i.e rule 5 of the Rules, do come within the purview of Sec. 34(1) of the Act but in so far as the Rules envisage procedure pivoting on the designation of an advocate as senior advocate, they fall within the ambit of Sec. 16(2) itself. Making of rules for the purpose of Section 16(2) is, by necessary implication, excluded from the purview of Sec. 28 of the Act. The Rules are thus referable for their source to Secs. 16(2) and 34 of the Act and the submission to the contrary made by Sri Rajeshwar Singh, does not appeal to us and is, therefore, discountenanced.
Re-question No. (iii)
50. The rule 3 of the Rules reads thus:
“3. (A) Mode of recommendation-(i) proposal for designation of an advocate as a Senior Advocate shall be considered on the recommendation of a Judge of the Court. Only an advocate having at least 20 years of practice can be recommended.
Provided that a retired Judge of any High Court who is qualified to practice in the Allahabad High Court may also be commended for being designated as Senior Advocate;
Provided further that it shall be open to the Court to relax the qualification in an exceptional case.
(ii) The recommendation shall be accompanied by a written consent and bio-data of the person recommended to be designated as Senior Advocate.
(iii) While recommending the name for the designation as “Senior Advocate” regard shall be had to his standing at the bar.
(iv) No Judge shall make more than two recommendations for consideration at a meeting.
(B) Procedure for designation:
*(i) The recommendation shall be screened by a Committee comprising five senior-most Judges of the Court at Allahabad and two senior-most Judges of the Court at Lucknow, and if it is not disapproved by the Committee, it shall be placed by the Chief Justice before the Full Court for consideration and approval through Secret ballot.
51. The validity of Rule 3(B) in so far as it confers implied power to the committee to disapprove the recommendation of a Judge for designation of an advocate as senior advocate, has been assailed on the premises that it amounts to sub-delegation of statutory function. The term ‘High Court’ in sub-sec. (2) of Sec. 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-sec. (2) of Sec. 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 Sec. 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 Sec. 16(2) of the Act. The Committee in our opinion, may work within a certain periphery as a fact finding Committee with respect to the eligibility of any advocate recommended by a Judge for being designated as senior advocate and such other facts as may be germane to screening the ability and suitability of the advocate recommended by a Judge for being designated as senior advocate ‘by virtue of his ability; standing at the bar and his special knowledge or experience in law’ so as to enable the Court in forming its opinion as to whether or not, the advocate concerned is deserving of the distinction of being designated as a senior advocate. In the absence of any provision, sub-delegation of the discretionary administrative power entrusted by the Act to the Supreme Court and High Courts, cannot be sub-delegated. The principle against sub-delegation is reasoned from the maxim “delegatus non potest delegare”
52. The purport of the maxim “delegatus non potest delegare” has been succinctly expatiated upon in Halbsbury Laws of England, 4th Ed. Vol. 1 Para 32 in these words:
“In accordance with the maxim delegatus non potest delegare, the statutory power must be exercised only by the body or officer in whom it has been confided unless such delegation of the power is authorised by express words or necessary implication. There is a strong presumption against construing a grant of legislative, judicial or disciplinary power as impliedly authorising sub-delegation and the same may be said of any power to the exercise of which the designated body should express its own mind.”
53. As would be evident from the language employed by the Parliament in Sec. 16(2), the opinion as to whether or not, an advocate is deserving of the distinction of a senior advocate “by virtue of his ability, standing at the bar or special knowledge or experience in law” has to be formed by the Court itself. The Court, by framing rules, cannot abdicate its power and delegate it to a committee of Judges. In Barium Chemicals Ltd. v. Company Law Board AIR 1967 SC 295, challenge was made to an order passed by the Chairman of the Company Law Board basically on the ground that the order could have been passed by the Company Law Board under Sec. 237 of the Companies Act. The Board had no authority to authorise the Chairman to sub-delegate this function to himself under the Company Law Board (Procedure) Rules, 1964. Both the orders passed by the Chairman under 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 consittute 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 power so conferred could assign the business to himself under Sec. 237 of the Act. The maxim ‘delegatus non potest delegare’ has been explained by Bachawat J., as under: (at Page 311-312)
“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 redelegated, delegatus non potest delegare. The naming of a delegate to do an act involving a discretion indicates that the delegate was selected because of his peculiar skill and the confidence reposed in him, and there is a presumption that he is required to do the act himself and cannot redelegate his authority. As a general rule, “if the statute directs that certain acts shall be done in a specified manner or by certain persons their performance in any other manner than that specified or by any other person than one of those named is impliedly prohibited”. See Crawford on Statutory Construction, 1940 Edn. Art. 195, P. 335. Normally, a discretion entrusted by Parliament to an administrative organ must be exercised by that organ itself”. If a statute entrusts an administrative function involving the exercise of a discretion to a Board consisting of two or more persons it is to be presumed that each member of the Board should exercise his individual judgment on the matter and all the members of the Board should act together and arrive at a joint decision; Prima facie, the Board must act as a whole and cannot delegate its function to one of its members.”
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“But the maxim “delegatus non potest delegare” must not be pushed too far. The maxim does not embody a rule of law. It indicates a rule of construction of a statute or other instrument conferring an authority. Prima facie, a discretion conferred by a statute on any authority is intended to be exercised by that authority and by no other. But the intention may be negatived by any contrary indications in the language, scope or object of the Statute. The construction that would best achieve the purpose and object of the statute should be adopted.”
54. The opinion as to whether an advocate is deserving of the distinction of being designated as senior advocate though subjective in nature, has to be formed collectively by the Court by secret ballot with due regard being had to his ability, standing at the bar or special knowledge or experience in law. The opinion of the Committee cannot exalt itself to be the opinion of the Court nor can it be treated at par with the opinion of the Court sans any provision in the Act empowering the High Court to sub-delegate its power under Sec. 16(2) of the Act. The rules of business of the Court as contained in the High Court Rules also do not permit the Full Court to delegate its function of designating an advocate as senior advocate to a component of its own i.e a committee of seven Judges. The 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.
55. 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 Deopati Tripathi (supra) to enforce his contention that the Committee constituted under Rule 3(B) “is 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 the mind the nature of power conferred in the High Court under Art. 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 authority of the Court to consider the manifold matters falling within the purview of Art. 235. Bearing in mind, therefore, the nature of power which the article confers on the High Court, we are of the opinion that it is wrong to characterise as delegation the process whereby the entire High Court authorised a Judge or some of the Judges of the Court to act on behalf of the whole High Court. Such authorisation effectuates the principles of Art. 235 and indeed without it the control vested in the High Court over the subordinate Courts will tend gradually to become lax and ineffective.”
56. Reliance was placed by the Supreme Court on the following exposition laid down in De Smith's Judicial Review of Administrative Action (3rd Edn. 1973 p. 265).
“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.”
57. Unlike judicial or quasi judicial functions, a statutory function of an administrative nature can, no doubt, be delegated and sub-delegated but where a statute confers a power on a collective body, the latter cannot delegate that power to be exercised by one or more than one of its own members in the absence of statutory provision authorising such sub-delegation. Since the decision in respect of designation of an advocate as senior advocate is under the Rules, required to be taken by secret ballot by majority of judges present and voting, sub-delegation is impliedly barred. The High Court by giving authority to the Committee under Rule 3(B) to disapprove the recommendation of a Judge for an advocate being designated as senior advocate, has completely denuded itself of its statutory power under Sec. 16(2) of the Act in respect of such advocates as are disapproved by the Committee in that the Court has not retained any power to review the decision of the Committee in respect of advocates disapproved by the Committee. In general, when a discretionary power is vested by the statute in a named authority, such authority cannot delegate to another unless the statute expressly authorises so to do or there is compelling necessity. Unlike Art. 235, the language used in Sec. 16(2) is not evincive of any contrary indication. Sec. 16(2) of the Act is not in pari materia with Art. 235 of the Constitution. And since the nature and content of power that is exercised by the High Court under Art. 235 of Constitution is quite different both in letter and spirit from the one under Sec. 16(2) of the Act, the decision of the Supreme Court in Batuk Deopati Tripathi, is unavailing in construing the provisions of Sec. 16(2) of the Act. In such view of the matter, I am of the firm view that the rule in so far as it empowers the Committee to finally disapprove the recommendation of the 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 Sec. 16(2) of the Act. But challenge to the validity of the Rules as being violative of Art. 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 the concerned advocate. It is expected of an advocate desirous of being designated as senior advocate, that he is aware of the restrictions, under the rules framed by the High Court, the Bar Council of India or the Bar Council of the State, he will be subject to, on being designated as senior advocate. In the circumstances, the question of violation of Art. 19 of the Constitution does not arise. The District Court lawyers are equally eligible for consideration for the purpose of conferment of the distinction of being senior advocates subject to their fulfilling the pre-requisite conditions laid down in the Rules. The question of discrimination therefore, does not arise.
58. No delegation will, however, be involved if the Committee is left simply to scrutinise the recommendations made by the Judges and submit its report to the Court retaining the decision and responsibility for it in its own hands. The invalid part of rule 3-(B) i.e “if it is not disapproved by the Committee” is severable and maybe read down. The rule sans the invalid part would be quite workable. The decision making power would stand restored to and retained by the Full Court and the rule as it will so remain sans the objectionable part, could reasonably be construed to mean that ‘it’, i.e the ‘recommendation’, after it is screened by the committee “shall be placed by the Chief Justice ‘along with the report of the Committee’ before the Full Court for consideration and approval through secret ballot.” The words “along with the report of the Committee” would be read in Rule 3(B) of the Rules and it is indeed implicit therein.
59. Before parting with the case, I feel called to observe that Sri Sunil Ambwani, the learned counsel for the respondents, should have better advised his clients to have refrained themselves from making a veiled suggestion, for the first time in the written submissions filed after the judgment was reserved that we should recuse ourselves from deciding the case merely because we had recommended certain advocates for being declared as senior advocates particularly when the case of any individual recommendee is not before us and what is under challenge herein is the validity of the Rules, particularly Rule 3(B) of the Rules. It leaves us with a painful and unhappy feeling. Can it be said that since the Full Court has made the Rules, Judges of this Court are disqualified and stymied by the rule of ‘personal bias’ from deciding the writ petition? Certainly not. There is no question of any personal bias coming into play in the matter of adjudication of questions re-validity of the Rules. The veiled suggestion that our judgment would be warped by the personal bias is ill-advised and totally uncalled for.
60. In the result, the petition succeeds and is allowed. The expression “if it is not disapproved by the Committee” occurring in Rule 3(B) of the Rules is struck down. The rule shall be construed and read in the manner indicated in the body of judgment.
M. Katju, J.:—
61. I have perused the judgment of my esteemed brothers Hon'ble R.R.K Trivedi, J. and Hon'ble S.R Singh, J.
62. I agree with the views of both my learned brothers in their respective judgments. I have nothing further to add.
63. Petition allowed.