S.SESHACHALAM & ORS.ETC. Vs. CHAIRMAN BAR COUNCIL OF TAMILNADU & ORS.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 11454-11459 of 2014, Judgment Date: Dec 16, 2014
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLALTE JURISDICTION
CIVIL APPEAL NOS. 11454-11459 OF 2014
(Arising out of S.L.P. (C) Nos.9068-73/2010)
S.SESHACHALAM & ORS. ETC. ..Appellants
Versus
CHAIRMAN, BAR COUNCIL OF
TAMIL NADU & ORS. ..Respondents
WITH
CIVIL APPEAL NO.11460 OF 2014
(Arising out of S.L.P. (C) No.34326/2012)
THE ELDER LAWYERS' ASSOCIATION & ORS. ..Appellants
Versus
STATE OF BIHAR & ANR. ..Respondents
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
2. Whether proviso to Section 16 Explanation II (5) of Tamil Nadu
Advocates' Welfare Fund Act, 1987 denying the payment of two lakh rupees to
the kin of advocates receiving pension or gratuity or other terminal
benefits would be violative of Article 14 of the Constitution of India and
whether distinguishing this class of advocates from other law graduates
enrolling in the Bar straight after their law degree did not have any
rational basis are the points falling for consideration in these appeals.
3. Similar challenge is made to Section 1(3) of the Bihar State
Advocates' Welfare Fund Act 1983 which excludes the persons who have
retired from service and are in receipt of retiral benefits from their
employers from the purview of the Bihar State Advocates' Welfare Fund Act.
For convenience, appeals challenging the provisions of Tamil Nadu
Advocates' Welfare Fund Act are taken as lead case.
4. The appellants are retired employees either from government
service or other organisations qualified with law degree who have enrolled
themselves as advocates after retiring from their respective services and
now are said to be practising in courts. Challenging the impugned
provision and Explanation II (5) of Section 16 of the Tamil Nadu Advocates'
Welfare Fund Act, the appellants filed writ petitions contending that the
benefit of Welfare Fund Act is denied to the kin of advocates who are in
receipt of pension or gratuity or other terminal benefits from any State or
Central Government or organization is arbitrary, unreasonable and violative
of Article 14 of the Constitution of India.
5. Learned single Judge of the Madras High Court allowed the batch
of writ petitions filed by the retired officials who had enrolled
themselves as advocates after their retirement. Learned single Judge struck
down impugned proviso to Explanation II (5) of Section 16 holding that the
same is violative of Article 14 of the Constitution of India. Aggrieved,
Bar Council of Tamil Nadu and the Government preferred appeals before the
Division Bench which allowed the appeals and set aside the order of the
learned single Judge. The Division Bench held ".....that the distinction
made between the member advocates who enrolled and professed law profession
from the beginning, and the advocates who joined law profession after
retirement, viz., after completion of nearly 58 years of their life, for
the purpose of conferring lump sum benefit...." is a reasonable
classification and the said classification has a nexus to the objects
sought to be achieved and it cannot be held to be arbitrary or violative of
Article 14 of the Constitution of India. Challenging the same, the
appellants have preferred these appeals by way of special leave.
6. Learned counsel for the appellants Mr. Harish Beeran contended
that the denial of lump sum benefit based on a classification of advocates
is violative of Article 14 of the Constitution of India. It was submitted
that the differentiation between persons who enrolled as advocates after
demitting office from the govt. service/organization and who enrolled as
advocates and set up practice straight from the law college, is
discriminatory as there is no such distinction made in the Act while
defining the term 'advocate' under Section 2(a) of the Act. It was further
submitted that the pension and other benefits received are the statutory
amounts paid to them for the services rendered to the previous employer and
it is an earned benefit, and that cannot form the basis for denial of lump
sum benefits. The appellants argued that the impugned proviso is repugnant
and contradictory to Section 2(i) of the Act, which defines the term
'member of Fund' and is liable to be struck down as ultra vires Article 14
of the Constitution of India.
7. Mr. Pramod Swarup learned Senior Counsel for the appellants
(Civil Appeal arising out of SLP (C) No.34326/2012) submitted that as per
Section 1(3) of the Bihar State Advocates' Welfare Fund Act, the persons
who enrol themselves as advocates after retirement and are in receipt of
retiral benefits are not permitted to take membership under the Act. It
was contended that the artificial classification made amongst homogeneous
group of advocates and disentitling retired employees - advocates from
becoming member of the welfare fund is discriminatory and unconstitutional.
8. Mr. L. Nageshwara Rao, learned ASG appearing for the State of
Tamil Nadu contended that the object of Welfare Fund Act is to provide
welfare or social security benefits to the advocates who are fully
committed to the profession of law and in the event of their death, their
legal heirs will be entitled to receive the lump sum welfare amount. The
learned senior counsel contended that the distinction made between the
advocates amounts to a reasonable classification and is founded on an
intelligible differentia which is having a rational nexus with the objects
sought to be achieved by the Act in question.
9. Mr. Rudreshwar Singh, learned counsel appearing for the State
of Bihar submitted that the Welfare Fund Scheme is intended only for those
young advocates who struggle from inception of their profession and not
intended for the retired employees enrolled as advocates who receive
pension and other terminal benefits from their previous employers. Taking
us through the Central legislation-Advocates' Welfare Fund Act 2001 and the
provisions of the Welfare Fund Act of other States, learned counsel
submitted that those legislations do make a distinction amongst the
advocates receiving pensionary benefits from their employers and those who
set up the practice straight after completing the law degree.
10. We have carefully considered the submissions and gone through
the impugned judgments and perused the materials on record.
11. STATEMENT OF OBJECTS AND REASONS - THE ADVOCATES' WELFARE FUND ACT,
2001: The Advocates' Welfare Fund Act, 2001 enacted by the Parliament
enjoins the appropriate Government to constitute a fund to be called the
"Advocates' Welfare Fund" with the object of providing social security in
the form of financial assistance to junior lawyers and welfare scheme for
indigent or disabled advocates. The statement and objects read as under:-
"Social security in the form of financial assistance to junior lawyers and
welfare schemes for indigent or disabled advocates, has long been a matter
of concern for the legal fraternity. Clause (a) of sub-section (2) of
section 6 and clause (a) of sub-section (2) of section 7 of the Advocates
Act, 1961, confer powers on State Bar Councils as well as the Bar Council
of India, inter alia, to constitute through their rules one or more funds
for the purpose of "giving financial assistance to organise welfare schemes
for the indigent, disabled or other advocates". Sub-section (3) of
Section 6 and sub-section (3) of section 7 of the Advocates Act further
provide that a State Bar Council may receive grants, donations, gifts or
benefactions for the said purpose which shall be credited to the
appropriate fund or funds constituted under sub-section (2). Welfare
schemes have accordingly been introduced in some States. Most of the
States have enacted legislations on the subject. However, there is
neither any uniformity nor the said provisions are considered adequate.
Moreover, the Advocates Act does not authorise levy of any welfare fund
stamp on vakalatnama. There has, therefore, been felt a need for a Central
legislation applicable to the Union territories and the States which do not
have their own enactments on the subject, for constitution of "Advocates'
Welfare Fund" by the appropriate Government. The Fund will, inter alia,
be composed of contributions made by a State Bar Council, any voluntary
donation or contribution by the Bar Council of India, advocates'
associations, other associations or institutions or persons, any grant
made by the appropriate Government, sums collected by way of sale of
"Advocates' Welfare Fund Stamps".
2. All practicing advocates shall become members of the Fund on payment
of an application fee and annual subscription. The Fund shall vest in and
be held and applied by the Trustee Committee established by the appropriate
Government. The Fund will, inter alia, be used for making ex gratia grant
to a member of the Fund in case of a serious health problem, payment to a
fixed amount on cessation of practice and in case of death of a member, to
his nominee or legal heir, medical and educational facilities for the
members and their dependents, purchase of books and for common facilities
for advocates. The income accrued to the Fund, profits and gains shall be
exempted from income tax.
3. The Bill seeks to achieve the above object."
12. It is with the same objects and purpose Tamil Nadu Advocates'
Welfare Fund Act 1987 (for short 'Welfare Fund Act') was also enacted.
Some of the provisions of the Welfare Fund Act are relevant to be noted.
Section 2(a) defines "Advocate" as under:-
"2(a) "Advocate" means a person whose name has been entered in the roll of
advocates prepared and maintained by the Bar Council under section 17 of
the Advocates Act, 1961 (Central Act 25 of 1961) and who is a member of a
Bar Association or an Advocates Association."
Section 2(i) defines member of the Fund as under:-
"2(i) "member of the Fund" means an advocate admitted to the benefits of
the Fund and continuing to be a member thereof under the provisions of this
Act."
Cessation of practice is defined in Section 2(e) which reads as under:-
"2(e) "cessation of practice" means removal of the name of an advocate from
the State roll under section 26-A of the Advocates Act, 1961 (Central Act
25 of 1961)."
13. Section 3 of the Welfare Fund Act states that the Government
shall constitute a fund called the Tamil Nadu Advocates' Welfare Fund.
Section 3 reads as under:-
"3. Advocates Welfare Fund
(1) The Government shall constitute a fund called the Tamil Nadu
Advocates Welfare Fund.
(2) There shall be credited to the Fund-
(a) all amounts paid by the Bar Council under section 12;
(b) any other contribution made by the Bar Council;
(c) any voluntary donation or contribution made to the Fund by the Bar
Council of India, any Bar Association, any Advocates Association; or other
association or institution, or any advocate or other person;
(d) any grant made by the Government to the Fund;
(e) any sum borrowed under Section 10;
(f) all sums collected under Section 15;
(g) all sums received from the Life Insurance Corporation of India on the
death of an advocate under a Group Insurance Policy;
(h) any profit or dividend or refund received from the Life Insurance
Corporation of India in respect of policies of Group Insurance of the
members of the Fund;
(i) any interest or dividend or other return on any investment made of
any part of the Fund; and
(j) all sums collected by way of sale of stamps under Section 22.
(3) The sums specified in sub-section (2) shall be paid to, or collected
by, such agencies, at such intervals and in such manner, and the accounts
of the Fund shall be maintained in such manner, as may be prescribed."
Advocates' Welfare Fund is administered by a Trustee Committee. As per the
provisions of the Welfare Fund Act, the fund shall vest in and be held and
administered by the Trustee Committee established under Section 4 of the
Act. The functions of the Trustee Committee is enumerated in Section 9 of
the Welfare Fund Act.
14. Section 16 of the Welfare Fund Act which is relevant for these
appeals deals with the payment of amount on cessation of practice. After
2001 amendment, Section 16 reads as under:-
"16. Payment of amount on cessation of practice
(1) Every advocate who has been a member of the Fund for a period of
not less than five years shall, on his cessation of practice, be paid an
amount at the rate specified in the Schedule:
(IA) "Notwithstanding anything contained in sub-section (1), every member
of the Fund who has completed or completes twenty five years of practice
as an advocate on the date coming into force of the Tamil Nadu Advocates
Welfare Fund (Amendment) Act, 2000 shall, on completion of five years as a
member of the Fund and on his cessation of practice, be paid a lump sum
amount of one lakh rupees. (w.e.f. 1.2.2001)
Provided that where the Trustee Committee is satisfied that a member of the
Fund ceases to practice within a period of five years from the date of his
admission as a member of Fund as a result of "any permanent physical or
mental disability", the Trustee Committee may pay the member of the Fund an
amount at the rate specified in the Schedule:
Explanation I: For the purposes of calculating the number of years
standing of a member of the Fund for the purpose of this sub-section, every
four years of practice as an advocate before the admission of a member to
the Fund shall be counted as one year's standing and every year of practice
over and above four years before such admission shall be counted equivalent
to three months' standing and the total number of years of standing so
counted shall be added to the number of years of practice.
Explanation II- (1) The period during which a member of the Fund remained
under suspension shall not be considered for the purpose of counting the
years of standing.
(2) Where a member of the Fund dies before receiving the amount payable
under sub-section (1), his nominees or legal heir, as the case may be,
shall be paid the amount payable to the deceased member of the Fund.
(3) Any person removed from the membership in the Fund under sub-section
(5) of Section 15 and re-admitted to the Fund under sub-section (6) of that
section shall not be entitled to payment of any amount from the Fund under
this Act during the period between the date of his removal from the
membership in the Fund and the date of re-admission.
(4) Any member who is suspended by the Bar Council for misconduct under
the Advocates Act 1961 (Central Act 25 of 1961) shall not be entitled to
payment of any amount from the Fund under this Act, for the period of such
suspension.
(5) Where a member of the Fund dies, his nominee or legal heir, as the
case may be, shall be paid an amount of two lakh rupees;
Provided that if such member who, before his death, was in receipt of
pension, gratuity or other terminal benefits from any State Government or
Central Government or other authority or employer, his nominee or legal
heir, as the case may be, shall not be entitled for the payment of the
amount of two lakh rupees under this sub-section. (w.e.f. 1.2.2001)
(6) Every member or his nominee or legal heir, as the case may be, shall
apply, for payment out of the Fund, to the Trustee Committee, in such form,
as may be prescribed.
(7) Where a person, who has been paid an amount under sub-section (1) or
(1-A) has been admitted as an advocate again under section 24 of the
Advocates Act, 1961 (Central Act 25 of 1961), desires to be re-admitted to
the Fund shall, on an application made in the same manner as specified in
sections (1) or (1-A) as the case may be with interest calculated at the
rate of twelve per cent per annum, be re-admitted to the Fund. He shall
not be entitled to payment of any amount from the Fund under this Act,
during the period between the date of his cessation of practice and the
date of re-admission w.e.f. 15.1.1996."
15. Explanation II (5) of Section 16 prior to Amendment 2001 stood
as under:-
Explanation II (5) "Where a member of the Fund dies within five years of
his admission to the Fund, his nominee or legal heir, as the case may be,
shall be paid an amount at the rate of one thousand rupees for each year of
practice by the member of the Fund."
16. By a careful reading of Section 16, it is evident that prior to
2001 amendment, Explanation II (5) of Section 16 of the Welfare Fund Act
contemplated that on the death of a member of the Fund within five years
from the date of his admission to the Fund, his nominee or legal heirs
was/were eligible for payment at the rate of one thousand rupees for each
year of his practice. That was because under Section 16(1) of the Welfare
Fund Act, the schedule payment is possible only if as an advocate he has
completed five years as a member of the Fund. Explanation II (5) to
Section 16 of the Welfare Fund Act stood amended with effect from 1.2.2001
as extracted above, as per which lump sum amount of two lakh rupees is
payable on the death of a member of the Fund irrespective of the years of
membership of the Fund. After GO. Ms. 688 dated 19.9.2012, the above
financial assistance of two lakh rupees payable to the nominee/legal heirs
of the deceased advocates in terms of Section 16 Explanation II (5) has
been enhanced to five lakh and twenty five thousand rupees. This lump sum
of two lakh rupees (as per Amendment 2001) is denied to a member of a Fund
who has enrolled himself after retirement from government service or any
other organization who was in receipt of pension or other terminal
benefits.
17. Contention of the appellants is that as per definition of
"advocate" in Section 2 (a) of the Welfare Fund Act, there cannot be a
differentiation between the advocates. Reliance was placed upon Section
2(i) of the Welfare Fund Act which defines the term "member of the Fund"
and it was submitted that when once the retired employees like the
appellants have been admitted as members of the Fund, they should be
treated equally with others and there cannot be an artificial
classification made amongst one homogeneous group of advocates and such
classification is violative of Article 14 of the Constitution of India.
18. As per the scheme of the Welfare Fund Act, every advocate who
has enrolled with the State Bar Council as per the Advocates Act 1961
would not automatically become a member of the Advocates' Welfare Fund and
it is only those advocates who applied to the Trustee Committee, can
become member of the Advocates' Welfare Fund. As per Section 15 of the
Welfare Fund Act, only those who applied on payment of membership of
Rs.200/- towards application shall be admitted as a member of the Fund. It
is thus not in dispute, not only the advocates who have enrolled with the
Bar Council immediately after completion of their law degree, but also
those who enrolled as advocates after their retirement from other
employment may become the members of the Advocates' Welfare Fund. It is
only those advocates who have become the members of the Advocates' Welfare
Fund, are eligible for the benefits under the Welfare Fund Act which may be
the payment of schedule amount on cessation of practice in terms of Section
16 (1) and payment of lump sum amount as per the impugned proviso. As
per Section 16 (1) of the Act, every advocate who has been a member of the
Fund for a period of not less than five years, on his cessation of
practice, be paid an amount at the rate specified in the schedule. The
proviso to sub-section (1) of Section 16 enables the Trustee Committee to
pay an amount to a member of the Fund who ceases to practice within a
period of five years from the date of his admission as a member. Thus,
the persons who enrolled as advocates after their retirement even though
they are denied the benefit of lump sum payment under the impugned proviso,
on cessation of their practice, they shall be entitled to the Welfare Fund
at the rate specified in the schedule. The differentiation of the retired
employee-advocates who have set up practice as advocates after demitting
their office, who are in receipt of pension or other terminal benefits and
the advocates who set up practice straight from the law college, in our
considered view, appears to be rational and reasonable. The said
classification, in our view, has a nexus with the object sought to be
achieved.
19. Statement of Objects and Reasons of the Tamil Nadu Welfare
Fund Act clearly states that the Welfare Fund is intended to provide
welfare to the advocates and to provide them retirement benefits. The
Objects and Reasons of Tamil Nadu Advocates' Welfare fund Act reads as
under:-
STATEMENT OF OBJECTS AND REASONS
Tamil Nadu Advocates Welfare Fund Act, 1987 (Tamil Nadu Act 49 of 1987)
"The constitution of a Welfare Fund for the payment of retirement
benefits to the advocates in the State of Tamil Nadu and for conferring on
them the benefits connected therewith or incidental thereto has been
engaging the attention of this Government for quite some time. The
Government have decided to constitute a Fund called the Tamil Nadu
Advocates Welfare Fund in the State to provide for payment of
retirement benefits to the advocates in the State and for conferring on
them the benefits connected therewith or incidental thereto."
(Underlining added)
20. The main point falling for consideration is whether there is
nexus between the object of the Act and denial of benefits of lump sum
welfare fund to retired employees enrolled as advocates after their
retirement under explanation II (5) of Section 16 of the Act. As noticed
earlier, on cessation of practice, the members of the Welfare Fund are
entitled to the benefits as available in the schedule to the Welfare Fund
Act based on the years of service and what is denied is just a lump sum
amount. It is an established principle that mere hardship caused to a
group should not be a ground to strike down a law.
21. Article 14 of the Constitution of India states that "The State
shall not deny to any person equality before the law of the equal
protection of the laws within the territory of India". Article 14 forbids
class-legislation but it does not forbid reasonable classification. The
classification however must not be "arbitrary, artificial or evasive" but
must be based on some real and substantial bearing, a just and reasonable
relation to the object sought to be achieved by the legislation. Article
14 applies where equals are treated differently without any reasonable
basis. But where equals and unequals are treated differently, Article 14
does not apply. Class legislation is that which makes an improper
discrimination by conferring particular privileges upon a class of persons
arbitrarily selected from a large number of persons all of whom stand in
the same relation to the privilege granted and between those on whom the
privilege is conferred whom and the persons not so favoured, no reasonable
distinction or substantial difference can be found justifying the inclusion
of one and the exclusion of the other from such privilege.
22. While Article 14 forbids class legislation, it does not forbid
reasonable classification of persons, objects, and transactions by the
legislature for the purpose of achieving specific ends. But classification
must not be "arbitrary, artificial or evasive". It must always rest upon
some real and substantial distinction bearing a just and reasonable
relation to the object sought to be achieved by the legislation.
Classification to be reasonable must fulfil the following two conditions:-
Firstly, the classification must be founded on the intelligible
differentia which distinguishes persons or things that are grouped together
from others left out of the group. Secondly, the differentia must have a
rational relation to the object sought to be achieved by the Act. The
differentia which is the basis of the classification and the object of the
Act are two distinct things. What is necessary is that there must be nexus
between the basis of classification and the object of the Act. It is only
when there is no reasonable basis for a classification that legislation
making such classification may be declared discriminatory.
23. In Special Courts Bill, 1978 (1979) 1 SCC 380, this Court
referred to large number of decisions involving interpretation of Article
14 of the Constitution of India and summarized the principles. In the
case of National Council for Teacher Education vs. Shri Shyam Shiksha
Prashikshan Sansthan, (2011) 3 SCC 238, Justice Singhvi has elaborated the
concept of ' Right to Equality' by referring to chain of judgments
delivered by this Court and established principles viz. Union of India &
Anr. vs. Parameswaran Match Works & Ors., (1975) 1 SCC 305, Dr. Sushma
Sharma & Ors. vs. State of Rajasthan & Ors., (1985) Supp. SCC 45,
University Grants Commission vs. Sadhana Chaudhary & Ors., (1996) 10 SCC
536, Ramrao & Ors. vs. All India Backward Class Bank Employees Welfare
Association & Ors., (2004) 2 SCC 76 and State of Punjab & Ors. vs. Amar
Nath Goyal & Ors., (2005) 6 SCC 754 etc.
24. Recently, in the case of Dr. Subramanian Swamy vs. Director,
CBI & Anr., (2014) 8 SCC 682, this Court considered the process of
classification and what should be regarded as a class for purposes of
legislation held in paras (58) and (70) as under:-
"58. The Constitution permits the State to determine, by the process
of classification, what should be regarded as a class for purposes of
legislation and in relation to law enacted on a particular subject. There
is bound to be some degree of inequality when there is segregation of one
class from the other. However, such segregation must be rational and not
artificial or evasive. In other words, the classification must not only be
based on some qualities or characteristics, which are to be found in all
persons grouped together and not in others who are left out but those
qualities or characteristics must have a reasonable relation to the object
of the legislation. Differentia which is the basis of classification must
be sound and must have reasonable relation to the object of the
legislation. If the object itself is discriminatory, then explanation that
classification is reasonable having rational relation to the object sought
to be achieved is immaterial.
70. Undoubtedly, every differentiation is not a discrimination but at the
same time, differentiation must be founded on pertinent and real
differences as distinguished from irrelevant and artificial ones. A simple
physical grouping which separates one category from the other without any
rational basis is not a sound or intelligible differentia. The separation
or segregation must have a systematic relation and rational basis and the
object of such segregation must not be discriminatory. Every public
servant against whom there is reasonable suspicion of commission of crime
or there are allegations of an offence under the PC Act, 1988 has to be
treated equally and similarly under the law. Any distinction made between
them on the basis of their status or position in service for the purposes
of inquiry/investigation is nothing but an artificial one and offends
Article 14."
25. In the light of the well-settled principles of interpretation
of Article 14, it is to be seen whether there is intelligible differentia
between the classification of advocates who had set up practice straight
after enrolment and other advocates who start their practice after
demitting the office and are in receipt of pension and other benefits and
whether the differentia has a nexus with the object of the Act.
26. The profession of law is a noble calling. The legal fraternity
toils day and night to be successful in the profession. Although it is
true that slowly working one's way up is the norm in any profession,
including law, but initially young advocates have to remain in the queue
for a prolonged period of time and struggle through greater hardships.
Despite being extremely talented, a number of young lawyers hardly get
proper opportunity or exposure in their profession. New entrants to the
profession in the initial stages of the profession suffer with the meagre
stipend which young lawyers may receive during their initial years,
coupled with the absence of a legislation concerning this, they struggle to
manage their food, lodging, transportation and other needs. Despite their
valiant efforts, they are unable to march ahead in their profession. It is
only after years of hard work and slogging that some of the fortunate
lawyers are able to make a name for themselves and achieve success in the
profession. For the majority of the legal fraternity, everyday is a
challenge. Despite the difficult times, the lawyer who sets up practice
straight after enrolment, struggles to settle down himself in the
profession. Some of the lawyers remain struggling throughout their
lives yet choose to remain in the profession. It is something like "riding
a bicycle uphill with the wind against one".
27. Contrariwise, the retired employees like the appellants who are
law graduates did not withstand the difficult times in the profession.
They opted for some other lucrative job during their prime time of their
life and lived a secured life. Others found some job and positioned
themselves in a comfortable place of employment, chose to join evening
college or attended part time classes and obtained law degree and having
retired with comfortable retiral benefits, further securing their future,
they enrol themselves as an advocate to practice. The retired employees
have the substantial retiral benefits, gratuity apart from receiving
pension. The availability of lump sum retiral benefits with pension makes
a retired employee better placed than their counter part lawyers who
struggle through difficult times.
28. The various welfare fund schemes are in actuality intended
for the benefit of those who are in the greatest need of them. The
lawyers, straight after their enrolment, who join the legal profession with
high hopes and expectations and dedicate their whole lives to the
professions are the real deservers. Lawyers who enrol themselves after
their retirement from government services and continue to receive pension
and other terminal benefits, who basically join this field in search of
greener pastures in the evening of their lives cannot and should not be
equated with those who have devoted their whole lives to the profession.
For these retired persons, some amount of financial stability is ensured in
view of the pension and terminal benefits and making them eligible for lump
sum welfare fund under the Act would actually amount to double benefits.
Therefore, in our considered view, the classification of lawyers into these
two categories is a reasonable classification having a nexus with the
object of the Act.
29. Furthermore, it is also to be noted that in view of their being
placed differently than the class of lawyers who chose this profession as
the sole means of their livelihood, it can reasonably be discerned that
the retired persons form a separate class. As noticed earlier, the object
of the Act is to provide for the constitution of a Welfare Fund for the
benefit of advocates on cessation of practice. As per Section 3 (2) (d)
any grant made by the Government to the welfare fund is one of the source
of the Advocates' Welfare Fund. The retired employees are already in
receipt of pension from the Government or other employer and to make them
get another retiral benefit from the Advocates' Welfare Fund would amount
to double benefit and they are rightly excluded from the benefit of the
lump sum amount of welfare fund.
30. Section 28 of the Central legislation-Advocates' Welfare Fund
Act 2001 provides that no senior advocate or a person in receipt of pension
from the Central Government or State Government shall be entitled to ex-
gratia grant under Sections 19, 21 and 24 of the said Act. Thus, the
Central Act as well as the State Act does make a distinction amongst the
advocates on the premise that a group of advocates receive certain
financial assistance from the State Government or the Central Government or
some other employer in the form of terminal benefits and pension etc.
Corresponding Acts of various States namely Kerala Advocates Welfare Fund
Act (Section 15), Orissa Advocates Welfare Fund Act (Section 15) and
Rajasthan Advocates Welfare Fund Act (Section 16) contain similar
provisions making differentiation between advocates who enrolled themselves
as advocates after demitting their office and the other class of advocates
who enrolled as advocates straight from the law college and set up the
practice. We are unable to agree with the learned counsel that the
distinction amongst the two class of advocates is unreasonable or
irrational.
31. The Division Bench of the Madras High Court made meticulous
analysis of various provisions of the Welfare Fund Act and referred to
various decisions of this Court dealing with interpretation of Article 14
of the Constitution of India and rightly concluded that there is reasonable
classification between the advocates who had set up practice after
demitting their office from the Central/State government/Organization and
advocates who have set up practice straight from the law college. It
would be right to say that the retired officials who joined legal
profession constitute a separate class and the disentitlement of the
benefit of lump sum welfare fund to this group of advocates cannot be said
to be unreasonable. We do not find any infirmity in the impugned judgment
of the Madras High Court and the appeals are liable to be dismissed
accordingly.
32. Civil Appeal arising out of Special Leave Petition No. 34326/2012:
Sub-section (2) of Section 1 of the Bihar State Advocates' Welfare Fund Act
makes it applicable over the whole of the State of Bihar. Sub-section (3)
of Section 1 of the Bihar State Advocates' Welfare Fund Act excludes the
persons who have enrolled themselves as advocates after their retirement
and are in receipt of retiral benefits from the government or their
employers from the purview of the Welfare Fund Act. Advocates Welfare
Fund is enacted with the object of providing social security in the form of
financial assistance to juniors and the welfare scheme for indigent or
disabled advocates. As the appellants are already in receipt of pension
from their employers, in our view, there is no arbitrariness in excluding
them from the applicability of Bihar State Advocates' Welfare Fund Act
1983. The Division Bench of the Patna High Court applying its own decision
in Kedar Nath Tiwari v. State of Bihar, 2011 (2) PLJR 401, rightly
dismissed the writ petition and we do not find any infirmity in the
impugned order and the appeal is liable to be dismissed.
33. In the result, all the appeals are dismissed.
.............................J.
(M.Y. Eqbal)
.............................J.
(R. Banumathi)
New Delhi;
December 16, 2014
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