S.SESHACHALAM & ORS.ETC. Vs S.SESHACHALAM .ETC.
Bench: M.Y. EQBAL,R. BANUMATHI
Case number: C.A. No.-011454-011459 / 2014
Diary number: 34527 / 2009
Advocates: NISHE RAJEN SHONKER Vs
SATYA MITRA GARG
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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
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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
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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
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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
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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
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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
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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
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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
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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
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(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.
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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
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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.
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(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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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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