PLJ 2008
Present: Fazal-e-Miran Chauhan, J.
ABDUL HAMEED--Petitioner
versus
PUNJAB BAR COUNCIL, etc.--Respondents
W.P. No. 990 of 2008, decided on 14.3.2008.
Words and Phrases--
----The word "advocate" has been defined in S. 21(a) of Legal Practitioners and Bar Councils Act, 1973. [P. 485] A
Words and Phrases--
----The word "role" has been defined in S. 2(k) of the Legal Practitioners and Bar Councils Act. [P. 486] B
----R. 5.1--Chapter V--Legal Practitioners and Bar
Councils Act, 1973--Ss. 26 & 56--Constitution of
Legal Practitioners and Bar Councils Act, 1973--
----S. 26--Punjab Legal Practitioners and Bar Council Rules 1974--R. 5.1--Scope of--No restriction of 35 years was imposed--Opportunity was provided to those who have cleared the examination before induction of S. 26 to intimate regarding joining senior for the purpose of apprenticeship till 30.6.2007--Not entitlement of enrolement as an Advocate beyond the age of 35 years--Petitioner has failed to intimate the Punjab Bar Council about joining his senior to complete his apprenticeship--No exception could be taken in the case of the petitioner, when there is a clear cut bar imposed by Punjab Bar Council on all those, who crossed the age of 35 years on 30.6.2007 except those who have intimated prior to 30.6.2007 of their joining senior or to complete the apprenticeship. [P. 486] D
(v) Constitution
of
----Art. 199--Punjab Legal Practitioners and Bar Councils Rules, 1974--Rr.5.1 & 5.2--Legal Practitioners and Bar Councils Act, 1973--S. 56--Constitutional petition--Challenged Rule 5.1 inserted by Punjab Bar Council in Chapter V of Power Punjab Legal Practitioners and Bar Councils Rules, 1974--Ultra vires--Not entitled seek enrolement as an Advocate beyond the age of 35 years--Petitioner being law graduate applied for enrolement to be enrolled as an Advocate--Neither any intimation nor any role number slip was issued for appearance in expiry test--Validity--Punjab Bar Council which purported to enact exceeded the power conferred on it under Legal Practitioners and Bar Councils Act that the authority which purported to make rules act in excess of its authority conferred on it under the Act--Section 56 of Act, 1973 provides full authority power to Punjab Bar Council to make rules and to provide for the condition subject to which a person may be admitted as on advocate or advocate of High Court--Held: Essence of the doctrine of ultra vires is that the act is done in excess of the powers possessed by person or body in law--Doctrine proceeds on the basis that this person or body has limited power to from rules--Punjab Bar Council is fully empowered to make rules to provided for condition--Petition dismissed. [P. 486] E
NOTE: In above headnote of [C & F] for the words and please read the words "Punjab Legal Practitioners and Bar Council Rules, 1974" and the age of 35 years on 30.6.2007 instead of 30.6.2009.
Dr. Ehsan-ul-Haque Khan, Advocate for Petitioner.
Mr. Faisal Ali Qazi, Assistant Advocate-General.
M/s Muhammad Iqbal Mohal and Ch. Imran Masood, Advocates on behalf of Punjab Bar Council.
Date of hearing: 14.3.2007.
Order
By filing the instant writ petition, the petitioner has challenged Rule 5.1 inserted by Punjab Bar Council in Chapter-V of the Punjab Legal Practitioners and Bar Councils Rules, 1974, vide Notification 23738-A/12-12-2006.
2. Brief facts of the case are that, the petitioner being law graduate applied for the enrollment to be enrolled as an Advocate, after proper undergoing the period of apprenticeship with Zia-ul-Mustafa, Advocate High Court, thereafter, the intimation fee was deposited through Bank Challan No. 116187, dated 11.7.2007 and the same was received in the office of Punjab Bar Council vide Diary No. 2253, dated 11.7.2007. The petitioner waited for appearing in entry test, but neither any intimation nor any role number slip was issued to him in this regard for appearance in the said entry test. Furthermore, the petitioner approached the concerned authority, whereby the petitioner was told that, a letter dated 10.8.2007 was issued to him under the subject of intimation regarding joining the apprenticeship, wherein it was intimated that, under Rule 5.1 of the Punjab Legal Practitioners and Bar Council Rules, 1974, a person is not entitled to seek enrollment as an Advocate beyond the age of 35 years; that petitioner is beyond the age of 35 years, thus, the intimation under reference, being not entertainable, is returned. The petitioner approached the office of Respondent No. 1, but all in vain, hence, this writ petition.
3. It is argued by
learned counsel for the petitioner that, Section 26 of Legal Practitioners and
Bar Councils Act, 1973, prescribed
qualifications for admission/enrollment as Advocate and there is no bar of age
limiting the entry into legal practice after a certain age, prescribed in the
said statute. The Punjab Bar Council is not empowered to frame or amend the
rules. Further argued that, the newly inserted Rule 5.1 is inconsistent with
the Legal Practitioners and Bar Councils Act, 1973, hence, is liable to be set
aside, being inconsistent with the Legal Practitioners and Bar Councils Act,
1973. The amendment, so introduced is in derogation of fundamental rights in
citizen of
4. Conversely, learned Assistant Advocate-General has opposed this writ petition by arguing that, under sub-clause (k) of Section 56 of the Legal Practitioners and Bar Councils Act, 1973, empowers to frame its rules. The newly added rules were framed by the body exceeding its rule making authority given to the Punjab Bar Council under Section 56 of the Legal Practitioners and Bar Councils Act, 1973. The said newly rules are not ultra vires to the provision of the Legal Practitioners and Bar Councils Act, 1973. By adding the said rules, a restraint has been imposed by limiting the age to 35 years for enrollment of fresh advocate. The act of Punjab Bar Council was not in excess of its power to frame rule or amend the same. The induction of newly framed rules is not without jurisdiction.
5. Learned counsel appearing on behalf of Punjab Bar Council argued that, after due deliberation, probe and discussion by the members to restrict uncontrolled influx of fresh law graduates, particularly, those who passed the exams, after their retirement, the said rules have been introduced, while framing the rules and imposing restriction of age limit, proper care was taken to give a proper notice to all those, who were likely to be effected by the newly added rule. The rule was framed on 12.12.2006. The proviso to the said rule was also added to give effect at once to all those, who are above the age of 35 years on 30.6.2007 and wanted to be enrolled as advocate shall intimate his joining a senior for the purpose of apprenticeship and that intimation of senior is received before 30.6.2007. In the present case, the petitioner did not intimate the Punjab Bar Council before 30.6.2007 of his joining a senior Advocate as apprenticeship, knowingly that, he has crossed the age limit, so prescribed. His intimation was received on 11.7.2007, showing that he had joined the chamber of his senior for the purpose of apprenticeship on 1.6.2007. As per his own showing in the intimation letter, he crossed the age of 55 years on 30.6.2007 and his intimation, under reference, was not entertainable after 30.6.2007, thus, the same was returned vide letter dated 10.8.2007. Since, the petitioner of his own, has failed to avail the opportunity, provided by the Punjab Bar Council by not intimating before 30.6.2007, thus, is not eligible to appear in the examination, to be held on 15.3.2008. When arguing on legal side, it is argued that, the rule framed on 25.11.2006, to be given effect from 1.7.2007, provides sufficient time to those, who had crossed the age limit to avail the last opportunity. So far as the question, whether the Punjab Bar Council is vested with any power or authority to frame the rules. Reference is made to Section 56(k) of the Legal Practitioners and Bar Councils Act, 1973, which sub-clause duly powers to the Punjab Bar Council to frame its new rules, thus, the letter issued refusing to accept the intimation after 30.6.2007 was rightly issued. The rules are not ultra vires to the act or the Constitution.
6. I have heard learned counsel for the parties, perused the relevant law and the documents, placed on the record. Admittedly, Section 56 of the Legal Practitioners and Bar Councils Act, 1973 gives power to make rules. Section 56 and sub-clause (k) ibid, reads as follow:
"56. Power of Provincial Bar Council to make rules.--[A] Provincial Bar Council may, by notification in the office Gazette, make rules to provide for--
(k) the conditions subject to which a person may be admitted as an Advocate or an advocate of the High Court."
Sub-clause (k) provides for conditions subject to which a person may be admitted as an advocate or advocate of the High Court. While exercising the power given in Section 56 of the Legal Practitioners and Bar Councils Act, 1973, rules were framed and approved by the Punjab Bar Council in its meeting held on 7.7.1974. These rules are in order in the Legal Practitioners and Bar Councils Act, 1973 and as per clause 1.2, the same came into force at once. Chapter-V of the rules deals with enrollment of an advocate. Rule 5.1 added and subsequently in its meeting on 25.11.2006, notified on 12.12.2006, reads as follows:--
"5.1 Any person qualified for admission as an Advocate under Section 26 may make an application in Form `A' to the Bar Council if he proposes to practice generally within the jurisdiction of the Bar Council. All such applications shall be placed before an Enrollment Committee, but a person shall not be entitled for admission as an advocate who is of 35 years of age on 30.6.2007 and thereafter when his application for admission is received in the office of the Bar Council:
Provided that this shall not apply to the persons whose intimations regarding joining the seniors for the purpose of apprenticeship are received till 30.6.2007.
This rule has been farmed in addition to Section 26 of the Legal Practitioners and Bar Councils Act, 1973, which deals with qualification for admission as an advocate. Section 26 reads as follows:--
"26. Persons qualified for admission as advocates.--(1) Subject to the provisions of this Act and the rules made thereunder, a person shall be qualified to be admitted as an advocate if he fulfills the following conditions, namely:--
(a) he is citizen
of
Provided that, subject to the other provisions of this Act, a national of any other country [who has resided in Pakistan for a period of not less than one year immediately preceding the day on which he applies for admission] may be admitted as an advocate if citizens of Pakistan duly qualified are permitted to practice law in that other country:
(b) he has completed the age of twenty-one years;
(c) he is a Barrister or is or was enrolled as an advocate of a High Court in any area which before the fourteenth day of August 1947, was comprised within India as defined by the Government of India Act, 1935 [26 Geo. 5, o 2) or has obtained--
(i) before the 7th
day of February 1966, a degree in law from any University in
(ii) before the
fourteenth day of August, 1947, a degree in law from any University in any area
which was comprised before the date within
(iii) a Bachelor's degree in any subject other than law from a University in Pakistan, or from a University outside Pakistan recognized by the Pakistan Bar Council, and a degree in law from a like University;
(d) he has undergone such course of training and passed such examination after the training as may be prescribed by the Pakistan Bar Council:
Provided that this clause shall not apply to any class of persons who, by reason of their legal training or experience, are declared by the Pakistan Bar Council to be exempt from the provisions of this clause; and
(e) he has paid such enrollment fee and fulfills such other conditions as may be prescribed by the Pakistan Bar Council.
(2) A person shall be disqualified from begin admitted as an advocate--
(i) he was dismissed or removed from service of Government or of a public statutory corporation on a charge involving moral turpitude, unless a period of five years, or such less period as the Federal Government may, by notification in the official Gazette, specify in this behalf has elapsed since his dismissal or removal; or
(ii) he has been convicted for an offence involving moral turpitude, unless a period of five years, or such less period as the Federal Government may, by notification in the official Gazette, specify in this behalf, has elapsed since the expiration of his sentence; or
(iii) he has been declared a tout and such declaration has not been withdrawn.
(3) Where any person has been admitted by a Bar Council [as an advocate of the Supreme Court or) as an advocate of High Court,[the Supreme Court or, as the case may be,] the High Court may, if it is of the opinion that it will not be in the interest of the legal profession for such person to continue on the roll of advocates, refer the matter to the Bar Council for its reconsideration.
7. The word "advocate" has been defined in sub-clause (A) of Section 21 of the Legal Practitioners and Bar Councils Act, 1973, which reads as follows:
"21. Classes of advocates.--There shall be the following four classes of advocates, namely--
(a) senior advocates of the Supreme Court;
(b) advocates of the Supreme Court;
(c) advocates of the High Court; and
(d) other advocates.
The word "role" has also been defined in sub-clause (k) of Section 2 of the Legal Practitioners and Bar Councils Act, 1973, which reads as under:--
"role" means, the roll of advocates maintained by the Bar Council."
Such like advocate of High Court or role of advocate, prepared and maintained by the Punjab Bar Council, under this Act.
8. The newly added Rule 5.1 of the Punjab Legal Practitioners and Bar Council Rules, 1974, introduced and added on 12.12.2006, prescribed method of enrollment of advocate with the Punjab Bar Council. Under this rule, it is specifically mentioned that, any person qualified for admission as an advocate under Section 26 of the Legal Practitioners and Bar Councils Act, 1973 may make an application in form `A' to the Bar Council if he proposes to practice generally within the jurisdiction of the Bar Council. All such applications shall be placed before an Enrollment Committee, but a person above the age of 35 years on 30.6.2007 shall not be entitled for admission as an advocate. The proviso to this Section has been added in order to provide opportunity to those, who have cleared this examination before the induction of this Section, to intimate regarding joining his senior for the purpose of apprenticeship till 30.6.2007 and no restriction of 35 years was imposed in this case. The petitioner, having cleared the examination after the induction of this Court was in the knowledge of the same, as he must have approached the office of the Punjab Bar Council to get information for enrollment. The petitioner has failed to intimate the Punjab Bar Council about joining his senior to complete his apprenticeship. No exception could be taken in the case of the petitioner, when there is a clear cut bar imposed by the Punjab Bar Council on all those, who crossed the age of 35 years on 30.6.2007 except those, who have intimated prior to 30.6.2007 of their joining senior or to complete the apprenticeship. On merits, the petitioner has failed to make out any case to seek indulgence of this Court. So far as the argument advanced that the rule framed is ultra vires to the Act and the Constitution. Learned counsel for the petitioner except arguing that, the rule framed is ultra vires has failed to any other assistance.
9. The term "ultra vires" simply means beyond power or lack of power. The Act is said to be ultra vires, when it is in excess of the power of the person or authority doing so. When it is argued that, the newly added Rules 5.1 and 5.2 by the Punjab Bar Council is ultra vires of the Act or the Constitution. It means that, the Punjab Bar Council, which purported to enact exceeded the power conferred on it under the Legal Practitioners and Bar Councils Act, 1973. When it said that the rule is ultra vires to the Act, it means that the authority, which purported to make rules/act in excess of its authority conferred on it under the Act. Section 56 of the Legal Practitioners and Bar Councils Act, 1973. In fact, the said clause provides full authority/power to the Punjab Bar Council to make rules and to provide for the condition, subject to which a person may be admitted as an advocate or advocate of High Court. The newly added Rule 5.1 has been framed with lawful authority to regulate the admission and induction of advocate to be enrolled as advocate or advocate of High Court. The essence of the doctrine of ultra vires is that, the act is done in excess of the powers possessed by the person or body in law. This doctrine proceeds on the basis that the person or body has limited powers to frame rules, whereas, in the instant case, the Punjab Bar Council is fully empowered under sub-clause (k) of Section 56 of the