High Court Division – Moyeenul Islam Chowdhury – Judgment copy of W.P.No.2874 of 2008

IN THE SUPREME COURT OFBANGLADESH

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

 

 

Writ Petition No. 2874 of 2008

 

IN THE MATTER OF:

 

An application under Article 102 of the Constitution of the People’s Republic ofBangladesh.

-AND-

IN THE MATTER OF:

 

A.K.M. Fazlul Karim

……. Petitioner

 

-Versus-

Bangladeshrepresented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs and another.

……Respondents

Mr. Abdur Rab Chaudhury with

Mr.Md.Habibullah and

Mr.Md.Zulfiqur Ali, Advocates

…..For the petitioner.

Mr. A.Y. Masihuzzaman, Advocate

….For the respondent no. 2.

 

Heard on 10.05.2010, 11.05.2010 & 07.06.2010.

Judgment on 12.07.2010.

 

Present:

Mr. Justice Moyeenul Islam Chowdhury

-And-

Mr. Justice A.K.M. Abdul Hakim

 

 

MOYEENUL ISLAM CHOWDHURY, J: 

 

1.       A Rule Nisi was issued calling upon the respondents to show cause as to why the impugned Proviso to Rule 65A (ii) of the Bangladesh Legal Practitioners and Bar Council Rules, 1972 as quoted in paragraph 3 of the Writ Petition should not be declared to be without lawful authority and of no legal effect as it is ultra vires the Bangladesh Legal Practitioners and Bar Council Order, 1972 and/or such other or further order or orders passed as to this Court may seem fit and proper.

2.       The case of the petitioner, as set out in the Writ Petition, in short, is as follows:

The petitioner having obtained graduation degree in law from theChittagongUniversityjoined the Judicial Service in 1975 on the basis of the result of the competitive examination conducted by the Bangladesh Public Service Commission. By virtue of his spotless and unblemished service record, he was eventually promoted as District and Sessions Judge in 1991. On attaining the age of superannuation, he went on Leave Preparatory to Retirement (LPR) on 27.03.2004 and finally retired on 27.03.2005. Thereafter he was enrolled as an Advocate in the same year by the Bangladesh Bar Council. However, as per the Proviso to Rule 65A (ii) of the Bangladesh Legal Practitioners and Bar Council Rules, 1972 (hereinafter referred to as the Rules of 1972), a retired Judicial Officer is debarred from  practising before anySubordinate Court. He is only permitted to practise before the High Court Division of the Bangladesh Supreme Court. There are over 1000 Judicial Officers in the country. A large number of them retire annually. There are around 100 retired Judicial Officers who have been enrolled as Advocates. But most of them live in their own district headquarters as they do not have and can not afford any residential accommodation inDhaka. They are thus constrained to practise in district Courts. But according to the impugned Proviso to Rule 65A(ii) of the Rules of 1972, they are debarred from practising and/or accepting any brief for practice before any subordinate Court. Due to this unreasonable and unnecessary restraint on their practice, the petitioner and other superannuated Judicial Officers are in great financial straits affecting their livelihood. Prior to the insertion of the impugned Proviso in 1998, many retired Judicial Officers regularly practised in district Courts. Presumably the restrictive embargo imposed on the practice of ex-Judicial Officers was inspired by the provisions in Article 99 of the Constitution. There are vast differences in the service conditions, remunerations, age of retirement and amount of pension between ex-Judicial Officers and ex-Supreme Court Judges. In such view of the matter, they can not be bracketed together. Consequentially, the restriction imposed on the practice of the former Judicial Officers by parity of reasoning having regard to Article 99 of the Constitution is unwarranted, unreasonable and arbitrary. Due to improvement of life-style and health facilities, life expectancy of the people has increased all over the world.  The average life expectancy of the people ofBangladeshhas risen over 61 years and there are repeated demands for increasing the age of superannuation of Civil Servants and Judicial Officers.  Because of meagre pensionary benefits, the retired Judicial Officers have to earn additional money by honest and diligent efforts to make both ends meet; but the impugned restriction on their practice before the Subordinate Courts is working to their prejudice. There are 64 districts in the country having Subordinate Courts, both civil and criminal. On the other hand, there is only one Supreme Court located inDhakaCity. This being the position, it is well-nigh impossible for many superannuated Judicial Officers to come over toDhakafor practice in the High Court Division of the Bangladesh Supreme Court. In the Bangladesh Legal Practitioners and Bar Council Order, 1972 (hereinafter mentioned as the P. O. No. 46 of 1972), there is no bar or restriction to practice by the retired Judicial Officers. As such, the impugned Proviso to Rule 65A (ii) of the Rules of1972 inultra vires the P.O. No. 46 of 1972. The underlying philosophy behind debarring the ex-Judicial Officers from practising in the Subordinate Judiciary is based on distrust in the judicial integrity of the incumbent Judicial Officers; but this apprehension is fully and wholly unfounded.

3.       In the Supplementary Affidavit dated 04.05.2010 filed on behalf of the petitioner, it has been stated that the impugned Proviso to Rule 65A(ii) of the  Rules of 1972 is not only violative  of the P.O. No. 46 of 1972, but also violative of Articles  27, 31 and 40 of the Constitution.

4.       The respondent no.2 has contested the Rule by filing an Affidavit-in-Opposition. Its case, as set out in the Affidavit-in-Opposition, in short, runs as follows:

The purpose behind insertion of the impugned Proviso to Rule 65A(ii) of the Rules of 1972 by way of amendment in 1998 is to protect the position and dignity of former Judicial Officers. In order to facilitate their practice in the High Court Division, Rule 65A (ii) was inserted in the Rules of 1972. The Government officers and employees retire at the age of 57; but the petitioner may have recourse to law for increase of the age of superannuation of the Judicial Officers. He may also take necessary steps for increase of the pensionary benefits of retired Judicial Officers, if he is so advised. The other professions like business, teaching etc. are open to them. It is not intelligible as to why the ex-Judicial Officers are so eager to get permission to practise in the Subordinate Courts. Anyway, the Bar Council has the power to lay down the standard of professional conduct and etiquette for Advocates, to safeguard their rights, privileges and interests on its roll and to perform all other functions conferred on it by or under the P.O. No. 46 of 1972. The Bar Council has been authorized by the P.O. No. 46 of 1972 to frame necessary Rules in order to carry out the purposes of the said Order. The impugned Proviso has been inserted in the Rules of 1972 with a view to preserving the self-dignity and self-prestige of the former Judicial Officers. The restrictive embargo imposed by the impugned Proviso is neither unreasonable nor arbitrary nor irrational nor illogical.

5.       At the outset, Mr. Abdur Rab Chaudhury, the learned Advocate appearing on behalf of the petitioner, submits that the impugned Proviso to Rule 65A (ii) of the Rules of 1972 is ultra vires Article 40(2)(o) of the parent law, namely, the P.O. No. 46 of 1972 and in this view of the matter, the impugned Proviso is liable to be struck down.

6.       Mr. Abdur Rab Chaudhury further submits that as per the P.O. No. 46 of 1972, the Bar Council is empowered to perform the functions enumerated therein and nowhere the Bar Council has been authorized to debar an enrolled Advocate from practising before any Court of law.

7.       Mr. Abdur Rab Chaudhury also submits that in view of Article 10(e) of the P.O. No. 46 of 1972, the Bar Council has to safeguard the rights, privileges and interest of the Advocates on its roll; but the impugned Proviso restricting the practice of the ex-Judicial Officers is beyond the scope and ambit of the said Article.

8.       Mr. Abdur Rab Chaudhury next submits that the impugned Proviso to Rule 65A (ii) of the Rules of 1972 is unreasonable and arbitrary, there being no rational basis therefor.

9.       Mr. Md. Habibullah, another learned Advocate appearing on behalf of the petitioner, submits that the impugned Proviso is virtually a penalty to the retired Judicial Officers and this penalty has been imposed upon them in an unreasonable and arbitrary manner and what is more, the said Proviso does not refer to the preservation of their self-dignity and self-prestige.

10.     Mr. Md. Habibullah further submits that the former Judicial Officers and the former Judges of the Supreme Court can not be equated  together  and they are distinct and separate classes in view of the admitted position that the Judges of the Supreme Court are Constitutional Office-holders and those of the Subordinate Courts are Government Officers  and such being the state of affairs, it will be quite  illogical  and irrational  to bracket    them together in respect of post-superannuation legal practice.

11.     Mr. Md. Habibullah also submits that the right to practise law is an intellectual property and this intellectual property can not be taken away by the State either whimsically or irrationally or arbitrarily by way of insertion of the impugned Proviso to Rule65 A(ii) of the Rules of 1972.

12.     Mr. Md. Zulfiqur Ali, another learned Advocate appearing on behalf of the petitioner, submits that in the absence of any ‘intelligible differentia’ or ‘permissible criteria’ as spelt out by the Appellate Division in the case of Sheikh Abdus Sabur….Vs… Returning Officer, District Education Officer-in-Charge, Gopalganj & others reported in 41 DLR(AD)30, the Judicial Officers turned Advocates can not be regarded as distinct and separate from other Advocates  and given this scenario,  as Advocates, they should have the self-same rights and privileges; but the impugned Proviso has taken away the right of the ex-Judicial Officers to practise in the Subordinate Courts and this Proviso does not fit in with the scheme of the P.O. No. 46 of 1972.

13.     The petitioner Mr. A.K.M. Fazlul Karim appears in person and submits that in Pakistan, there is no embargo on  practice by the ex-Judicial Officers and Section 22 of the Legal Practitioners and Bar Council Act of 1973 is very much clear on this point; but Rule 7 of the Bar Council of India Rules framed under the Advocates Act of 1961  contemplates that an officer after his retirement or otherwise ceasing to be in service shall not practise for a  period of 2(two) years in the area in which he exercised  jurisdiction for a period of 3(three) years before his retirement or otherwise  ceasing to be  in service. In India, this restriction on practice for a period of 2(two) years by an ex-Judicial Officer in the area in which he exercised jurisdiction for a period of 3(three) years before his superannuation or otherwise  ceasing to be in service is a very qualified restriction; but curiously enough, in our country, the impugned Proviso to Rule 65A(ii) of the Rules of 1972 provides for a blanket  restriction  on the practice of all ex-Judicial Officers in the Subordinate Courts of Bangladesh and from this point of view, the impugned Proviso can not stand the test of reasonableness  and validity and as such, it is liable to be knocked down.

14.     On the other hand, Mr. A.Y. Masihuzzaman, the learned Advocate appearing on behalf of the respondent no. 2, submits that previously there was no such Proviso to Rule 65A(ii)  of the Rules of 1972; but subsequently by way of an amendment  dated 28th February, 1998, the impugned Proviso was inserted in order to uphold  the self-dignity and self-prestige of the ex-Judicial Officers and to protect them from any unwarranted whispering campaign by any quarter and in this view of the matter, the petitioner should have no grievance thereagainst.

15.     Mr. A.Y. Masihuzzaman further submits that as per the impugned Proviso, the former Judicial Officers will be permitted  to practise only before the High Court Division of the Supreme Court of Bangladesh  and the ex-Judicial Officers having held Judicial Offices for a total period of at least  10(ten) years  have been debarred from practising in any Subordinate Court; but the ex-Judicial Officers having less than 10(ten) years’ experience in service may practise before any Subordinate Court and the impugned Proviso  will not stand as a stumbling-block in their way and that being so, the restrictive embargo imposed by the impugned Proviso is not absolute, but qualified.

16.     Mr. A.Y. Masihuzzaman next submits that Article 40(1)(2)(o) of the P.O. No. 46 of 1972 provides that the Bar Council may frame Rules to carry out the purpose of the Order and such Rules may provide for the conditions subject to which a person may be admitted as an Advocate and the impugned Proviso was inserted by way of an amendment dated 28th February, 1998, regard being had to Article 40(1)(2)(o) and as such, it can not be said  that the impugned Proviso is ultra vires the P.O. No. 46 of 1972 .

17.     Mr. A.Y. Masihuzzaman further submits that Article 10(c) of the P.O. No. 46 of 1972 provides that subject to the provisions of the Order and Rules made  thereunder, the functions of the Bar Council shall be  to lay down the standard of professional conduct and etiquette for Advocates and by framing the Rules of 1972,  the Bar Council has laid down the same and this is why, the impugned Proviso can not be assailed.

 

18.     We have heard the submissions of Mr. Abdur Rab Chaudhury, Mr. Md. Habibullah, Mr. Md. Zulfiqur Ali and Mr. A.K.M. Fazlul Karim and the counter-submissions of Mr. A.Y. Masihuzzaman and perused the Writ Petition, Supplementary Affidavit, Affidavit-in-Opposition and relevant Annexures annexed thereto.

19.     There is a presumption of constitutionality in favour of the impugned Proviso to Rule 65A(ii) of the Rules of 1972. Of course, that presumption is rebuttable. Now let us see whether the petitioner has succeeded in reversing the said presumption of constitutionality.

20.     Article 40 of the Constitution provides that subject to any restriction imposed by law, every citizen possessing such qualification, if any, as may be prescribed by law in relation to his profession, occupation, trade or business shall have the right to enter upon any lawful profession or occupation and to conduct any lawful trade or business. There are three important aspects in Article 40 of the Constitution– (i) the right guaranteed is in respect of a trade, business or occupation which is lawful, (ii) qualifications can be prescribed by law for entry in such trade, business or occupation and (iii) Parliament may by law put restrictions on the exercise of the right. Under Article 40 of the Constitution in order to claim a fundamental right to carry on a trade or occupation, it must be a lawful trade or occupation. It does not mean that Parliament may without any limitation make any trade or occupation unlawful. In the case of the Progress of Pakistan Co, Ltd. Vs. Registrar, Joint Stock Companies reported in PLD 1958 Lah 887, Kaikaus J elaborately dealt with the meaning ‘lawful’ in Article 12 of the Pakistan Constitution of 1956. He observed-

“I have not the slightest hesitation in rejecting the suggestion that the Legislature can declare the carrying on of any business or profession unlawful. A fundamental right is a limitation on the power of the Legislature and is a guarantee to a person or citizen, that such right shall not be taken away by legislation. To say that the Legislature can pronounce a business to be unlawful would mean that there is no fundamental right inPakistanwith respect to trade, business etc. then why enact Article 12 at all ?…. For my part, I have never had any doubt as regards the effect of the word ‘lawful’ in Article 12 and the extent of the guarantee granted by this Article. The Article entitles the citizens ofPakistanto carry on any business, trade or profession with this condition only that the individual acts involved in it are not unlawful. If an act involved in a business, trade, profession or occupation, is such that if performed otherwise than as a part of a business, trade, profession or occupation, it is unlawful, then it can not become lawful just because it is performed as a part of a business, trade or profession, that is, as a part of activity indulged in for the purpose of profit or income. That is the only limitation placed on the right to carry on a business, etc. The object of the Article was to grant the citizen the fullest right to carry on any business etc., but the word ‘lawful’ had to be put in because if it did not exist, the citizens may have claimed to make a business of an act that is an offence or is prohibited… I would hold that Article 12 guarantees to the citizen the right to carry on any business, occupation, trade or profession (subject to a licensing system and a monopoly of the State) with this limitation only that the citizen is not entitled by virtue of the Article to do an act which, when done otherwise than as part of a business, etc., was unlawful. There is no other limitation of this fundamental right.”

21.     The expression ‘restriction’ in Article 40 of the Constitution must mean restriction as distinguished from ‘prohibition’. Otherwise, Article 40 will cease to be a fundamental right inasmuch as there will be no limitation on the power of Parliament in legislating in respect of trades and callings. To prevent the executive from infringing the right of the citizens, no fundamental right is necessary because in the absence of any law the executive can not interfere with the liberty of the citizens which includes their right to choose and carry on a trade or calling. Furthermore, there is no compulsion to treat ‘restriction’ as including ‘prohibition’ because if the act involved in any trade or calling appears to be pernicious, Parliament can pass a law prohibiting such trade or calling. When Parliament makes a law prohibiting a trade or calling, it can be challenged under Article 40 read with Article 31 as being unreasonable. Unless any legitimate governmental interest demands it, Parliament can not make any individual act unlawful and a fortiori can not make any profession, trade, business or occupation involving such act unlawful without infringing the provisions of Articles 31 and 40 of the Constitution. When a trade, business or calling is lawful, Parliament can impose reasonable restrictions in respect of such trade, business or calling in the public interest. If a restriction imposed by law is found to be unreasonable or arbitrary, it will be void under Article 40 read with Article 31of the Constitution.

22.     Article 40 of the Constitution empowers Parliament to prescribe qualifications for particular professions and occupations. Though no restriction is put on the power of prescribing qualifications, all State  institutions are required to act essentially in the interest of the public and prescription of qualifications for a particular profession or  occupation must be in the public interest. Thus such a prescription must have a reasonable nexus with efficiency in such profession or occupation and other public interest. Otherwise such a prescription will be arbitrary and will amount to impermissible infringement of the freedom of occupation and business.

23.     If the Legislature, on the pretext of prescribing qualifications, imposes conditions which have no relation to the fitness or suitability of the person seeking to enter a profession, those will be void.  (Jones …Vs…Portland, 245US217).

24.     It is the case of the petitioner  that he and other ex-Judicial Officers have been subjected to discrimination and inequality  by the insertion of the impugned Proviso to Rule 65A(ii) of the Rules of 1972  and as such, he has invoked the provisions  of Articles 27,31 and 40 of the Constitution. It is also the case of the petitioner that the impugned Proviso is violative of the P.O. No. 46 of 1972.

25.     Article 27 of our Constitution provides that all citizens are equal before law and are entitled to equal protection of law. Sir Ivor Jennings in his “The Law and the Constitution” stated:

“Equality before the law means that among equals, the law should be equal and should be equally administered, that like should be treated alike”.

A.V. Dicey in his “Law of the Constitution” mentioned:

“Equality before the law does not mean absolute equality of men which is a physical impossibility, but the denial of any special privileges by reason of birth, creed or the like, in favour of any individual and also the equal subjection of all individuals and classes to the ordinary law of the land administered by the ordinary law Courts.”

26.     In the “Limitations of Government Power” by Rotundy and others, the phrase “equal protection of the law” was described in the following manner:

“The equal protection clause guarantees that similar individuals will be dealt with in a similar manner by the Government. It does not reject the Government’s ability to classify persons or draw lines in creation and application of laws, but it does guarantee that those classifications will not be based upon impermissible criteria or be arbitrarily used to burden a group of individuals. Such a classification does not violate the guarantee when it distinguishes persons as ‘dissimilar’ upon some permissible basis in order to advance the legitimate interest of society.”

27.     In the case of Southern Rly Co. V. Greane, 216U. S.400, Day-J observed:

“Equal protection of the law means subjection to equal laws, applying alike to all in the same situation.”

28.     Chandrachud-J, in the case of Smt. Indira Gandhi V. Raj Narayan, AIR 1975 SC 2279 described his idea of equality in the following words:

“All who are equal are equal in the eye of law, meaning thereby that it will not accord favoured treatment to persons within the same class.”

29.     On consideration of the views expressed by these distinguished Judges and Authors as to the meaning of the phrase “equality before law and equal protection of the law”, we do not think that we will be able to define this term in a better way. “Equality before law” is not to be interpreted in its absolute sense to hold that all persons are equal in all respects disregarding different conditions and circumstances in which they are placed or special qualities and characteristics which some of them may possess but which are lacking in others. The term “equal protection of law” is used to mean that all persons or things are not equal in all cases and that persons similarly situated should be treated alike. Equal protection is the guarantee that similar people will be dealt with in a similar way and that people of different circumstances will not be treated as if they were the same.

30.     The Indian Supreme Court gave a new dimension to the equality clause when it delivered the judgment in E.P. Royappa Vs. T. N. (A.I.R 1974 SC 555). In that judgment, Bhagwati J observed:

“The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is the founding faith, to use the words of Bose J, ‘a way of life’, and it must not be subjected to a narrow pedantic or lexicographic approach. We can not countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it can not be ‘cribbed, cabined and confined’ within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a Republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to the political logic and constitutional law and is therefore violative of Article 14….”

31.     This principle of equating discrimination with arbitrariness was affirmed by the Indian Supreme Court in a number of subsequent decisions such as Maneka Gandhi V. India, AIR 1978 SC 597; Romana Shetly V. International Airport Authority, AIR 1979 SC 1628, Ajay Hashia V. Khalid Mujib, AIR 1981 SC 487; D.S. Nakara V. India, AIR 1983 SC 130; A.L. Kalra V. Pand E Corporation of India, AIR 1984 SC 1361 etc.

32.     In the case of Aftabuddin Vs. Bangladesh reported in 48 DLR (HCD) 1, the High Court Division held,

“If an executive or a legislative act is found to be arbitrary and if such arbitrary act adversely affects a person, it must be held that such arbitrary act adversely affecting a person hits at the very root of the …. equality clause.”

33.     Reverting to the case in hand, it will be profitable for us if we quote the relevant portion of Rule 65A verbatim:

“65A. The Bar Council, if satisfied, for the reasons as may be disclosed by the applicant, grant exemption under Article 21(1)(c) of the Bar Council Order requiring practice for a period of 2 years before seeking permission to practice in the High Court Division of the Supreme Court of Bangladesh on the basis of the following criteria:-

(i) Advocates who were called to the Bar in U.K. or who have obtained higher 2nd class in LL.M. (at least 50% marks in aggregate) from any recognised University and further worked with a Senior Advocate of the Supreme Court in his Chamber for at least one year [since his enrolment as Advocate under Rule 62(1)]; and

(ii) Persons holding a degree in law who have held a judicial office (i.e. office of a Civil Judge) for a total period of at least 10 years. Such Judicial Officers shall not be required to appear for written test as per sub-rule (2) of this rule, but they shall have to appear before the Board for an interview.

Provided that such Advocates (former Judicial Officers) shall not be eligible for appearing and/or accepting any brief or maintaining any practice before anySubordinate Court. They will be permitted to practise only before the High Court Division of the Supreme Court of Bangladesh.”

It is an admitted fact that the impugned Proviso was inserted in Rule 65A (ii) of the Rules of 1972 by way of an amendment dated 28th February, 1998. From a bare reading of the relevant provisions of Rule 65A, it transpires that the former Judicial Officers having less than 10 years’ experience may practise before any Subordinate Court, but the former Judicial Officers having more than 10 years’ experience are debarred from practising before any Subordinate Court and they may practise only before the High Court Division of Bangladesh Supreme Court. So we find a dividing line among the Judicial Officers turned Advocates. But we do not see any rationale behind the said dividing line.

34.     After being enrolled as Advocates, all ex-Judicial Officers, as we see it, stand on the same footing with other Advocates. All Advocates, whether they are ex-Judicial Officers or not, form a class by themselves. Since they are a class by themselves, there can not be any discrimination amongst themselves in the absence of any ‘intelligible differentia’ or ‘permissible criteria’ as enunciated by the Appellate Division in the case of Sheikh Abdus Sabur  ….Vs… Returning Officer, District Education Officer-in-Charge, Gopalganj & others reported in 41 DLR (AD) 30.  It is true that equality does not mean absolute equality and there may be classifications. But the classifications must be predicated upon some reasonable bases or criteria or yardsticks. But no such yardsticks or criteria are discernible in the impugned Proviso to Rule 65A(ii) of the Rules of 1972.

35.     Mr. A.Y. Masihuzzaman has laid stress on the power of the Bar Council to frame Rules to carry out the purpose of the P.O. No. 46 of 1972   and such Rules may provide for the conditions subject to which a person may be admitted as an Advocate. According to him, the impugned Proviso is in no way inconsistent with Article 40(2) (o) of the P.O. No. 46 of 1972. The Bar Council is a statutory regulatory body. It is undoubtedly authorized under Article 40(2) (o) of the P.O. No. 46 of 1972 to make Rules to provide for the conditions of enrolment of a person as an Advocate. To our mind, these conditions are to be fulfilled prior to enrolment of a person as an Advocate; but after his enrolment as an Advocate, no question of application of the same arises. What we are driving at boils down to this:  those conditions are pre-enrolment and not post-enrolment conditions. After enrolment of a person as an Advocate, he belongs to the community of Advocates, no matter whether he has worked for some time as a Judicial Officer. No unreasonable or arbitrary restriction should be imposed in order to debar a group of Advocates (ex-Judicial Officers) from practising in the Subordinate Courts.

36.     Now a pertinent question arises: what is meant by ‘Subordinate Courts’? It may be recalled that the Supreme Court is a creature of the Constitution, but the Subordinate Courts are creatures of ordinary legislations. In the context, Article 114 of the Constitution may be adverted to. Article 114 of the Constitution mandates that there shall be in addition to the Supreme Court such Courts subordinate thereto as may be established by law. So it goes without saying that the Supreme Court is the apex Court of the country and there are Courts subordinate thereto which may be established by law. By the way, Subordinate Courts have been established by Section 3 of the Code of Civil Procedure, 1908, Section 3 of the Civil Courts Act, 1887, Section 6 of the Code of Criminal Procedure, 1898 and so on and so forth.

Article 99 of the Constitution runs as follows:

“99. (1) Except as provided in clause (2), a person who has held office as a Judge otherwise than as an Additional Judge shall not, after his retirement or removal therefrom, plead or act before any court or authority or hold any office of profit in the service of the Republic not being a judicial or quasi-judicial office [or the office of Chief Adviser or Adviser].

(2) A person who has held office as a Judge of the High Court Division may, after his retirement or removal therefrom, plead or act before the Appellate Division.”

37.     From the above provisions of Article 99 of the Constitution, it transpires that an ex-Additional Judge may plead or act before any Court or authority or hold any office of profit in the service of the Republic, but a confirmed Judge can not do so not being a judicial or quasi-judicial office or the office of Chief Adviser or Adviser. It further appears that an ex-confirmed Judge of the High Court Division may practice before the Appellate Division. But he can not practice before any other Court. This is, no doubt, a constitutional embargo. It has been put in place presumably on the ground that he held a constitutional office. But the ex-Judicial Officers did never hold any constitutional offices. They held offices in the service of the Republic. They were public functionaries and not constitutional officer-holders. Against this backdrop, it will be a high feat of unreasonableness, whimsicality, irrationality and arbitrariness to place the ex-Judicial Officers on a par with the ex-Judges of the High Court Division.

38.     However, there is no restriction in the relevant service rules of the Judicial Officers that they will not be permitted to practise law in anySubordinate Courtafter their superannuation or otherwise ceasing to be in service.  Since no such restriction is a term and condition of their service, it can not be imposed by way of insertion of the Proviso to Rule 65A(ii) of the Rules of 1972 by way of amendment particularly when it is violative of  Article 40(2)(o) of the P.O. No. 46 of 1972.

39.     In the facts and circumstances of the case, we feel at one with the argument of Mr. Abdur Rab Chaudhury that the Bar Council has not been authorized by any of the provisions of the P.O. No. 46 of 1972 to debar an enrolled Advocate from practising before any Court of law.

40.     It is true that the Judges of both the Divisions of the Supreme Court retire at the age of 67 as per Article 96 of the Constitution, but the Judicial Officers retire at the age of 57 under the relevant provisions of the Public Servants (Retirement) Act, 1974. It is also true that the pensionary benefits of the retired Judges of the Supreme Court far outweigh those of the retired Judicial Officers. From this standpoint too, the ex-Judicial Officers and the ex-Judges of the Supreme Court can not be placed on the same plane.

41.     It is a truism that the life expectancy of the people of the country has increased exponentially due to singular advancement of medical science. Judicial Officers retiring at the age of 57 usually remain mentally and physically fit for work. Often it is seen that they either practise law or engage themselves in some sort of work after their superannuation.  Needless to say, financial stringency compels them to post-superannuation legal practice or other work.  Former Judicial Officers hailing from various districtsBangladeshare not in a position to practise only before the High Court Division because of acute lack of residential accommodations in the mega city ofDhaka. Prior to the insertion of the impugned Proviso, the former Judicial Officers used to practise in the districts Courts of their respective home districts and very  few of them  practised in the High Court Division. But in view of the impugned Proviso, the retired Judicial Officers are presently left with no option but to practise in the High Court Division  in the face of many odds and adversities. We fail to understand the logical basis, if any, in the matter of insertion of the impugned Proviso especially when the retired Judicial Officers are in a position to help the Subordinate Courts ably by their vast wealth of experience in coming to right decisions. In such a situation, we feel constrained to hold that the Bar Council inserted the impugned Proviso to Rule 65A(ii) of the Rules of 1972 arbitrarily, unreasonably, irrationally and  illogically. Precisely speaking, we do not find any rationale behind insertion of the impugned Proviso in Rule 65A(ii) of the Rules of 1972.

42.     We are in complete agreement with  the contention of Mr. Md. Habibullah that the right to practise law is an intellectual property and this intellectual property can not be taken away either whimsically or irrationally or arbitrarily by way of insertion of the impugned Proviso to Rule 65A(ii) of the Rules of 1972.

43.     As to the submission of Mr. A.Y. Masihuzzaman that the Bar Council has inserted the impugned Proviso in order to protect the self-dignity and self-prestige and the ex-Judicial Officers, in our opinion, this question should be left to their conscience.

44.     As regards the contention of Mr. A.Y. Masihuzzaman that the impugned Proviso is very much in consonance with Article 10 (c) of the P.O. No. 46 of 1972, we find that the impugned Proviso is not in conformity therewith. As such, this contention of Mr. A.Y. Masihuzzaman stands negatived.

45.     As per Article 10(c) of the P.O. No. 46 of 1972, it is the duty of the Bar Council to safeguard the rights, privileges and interest of Advocates on its roll. But instead of so doing, the Bar Council has chosen to curtail the right of practice of the former Judicial Officers in the Subordinate Courts affecting their privilege and interest by way of insertion of the impugned Proviso to Rule 65A(ii) of the Rules of 1972 by way of an amendment  dated 28th February, 1998. Consequently we are of the opinion that the impugned Proviso has offended Article 10(e) of the P.O. No. 46 of 1972.

46.     It is abundantly clear that the impugned Proviso has meted out discriminatory treatment to the Judicial Officers turned Advocates vis-a`-vis their practice in the Subordinate Courts. This discriminatory treatment undoubtedly offends the equality clause of Article 27 of the Constitution. As we have found the impugned Proviso unreasonable, arbitrary, irrational and illogical, the petitioner has not been treated in accordance with law and as such, the impugned Proviso is also violative of Article 31 of the Constitution. As adverted to earlier, if the Legislature, on the pretext of prescribing qualifications, imposes conditions which have no relation to or nexus with the fitness or suitability of the person seeking to enter a profession,  those conditions  will be void, having regard to the ‘ratio’ enunciated in the case of Jones…Vs…Portland(245US217).

47.     The impugned Proviso to Rule 65A(ii) of the Rules of 1972 imposes a condition that the Judicial Officers turned Advocates having held judicial offices for a total period of at least 10(ten) years will not be eligible for practice before any Subordinate Court. This restrictive condition, to our way of thinking, has no relation to or nexus with the fitness or suitability of the former Judicial Officers seeking to enter the legal profession. From this point of view, that condition is ex-facie void. Rather they should have been welcome to practise before the Subordinate Courts due to their previous experience as Judges thereof. Because of their rendition of able assistance to the Subordinate Courts, the quality of justice administered by them will impose significantly. It is simply inexplicable as to why the Judicial Officers turned Advocates have been debarred from practising before the Subordinate Courts to their prejudice and to the prejudice of public interest.       Section 22 of the Legal Practitioners and Bar Councils Act, 1972 does not contemplate any embargo or restriction on practice by the ex-Judicial Officers of Pakistan. But Rule 7 of the Bar Council of India Rules framed under the Advocates Act, 1961 provides for a time-bound embargo on the practice of Judicial Officer for 2(two) years in the area in which he exercised jurisdiction for a period of 3 years before his retirement or otherwise ceasing to be in service. In India, this restriction appears to be a very limited and qualified restriction. We have already observed that prior to 28th February, 1998, there was no restriction or embargo on the practice of the ex-Judicial Officers before the Subordinate Courts. The impugned Proviso inserted by way of an amendment dated 28th  February, 1998  in Rule 65A(ii) of the Rules of 1972,  we have held earlier, is unreasonable, arbitrary, irrational, whimsical and violative of Article 40(2)(o) of the P.O. No. 42 of 1972 and Articles 27,31 and 40 of the Constitution.

48.     Mr.Md.Habibullah, it transpires, has rightly submitted that the impugned Proviso is a penalty to the Judicial Officers turned Advocates for all practical purposes. Furthermore, the said Proviso does not  refer to their self-dignity and self-prestige for the preservation of which it was purportedly inserted in Rule 65A(ii) of the Rules of 1972.

49.     From the foregoing discussions and in view of the facts and circumstances of the case, we find merit in the Rule. The Rule, therefore, succeeds.

Accordingly, the Rule is made absolute without any order as to costs. The impugned Proviso to Rule 65A (ii) of the Rules of 1972 is hereby struck down as being without lawful authority and of no legal effect.

A.K.M.ABDUL HAKIM, J:

I agree.

 

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