IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.7.2009 CORAM THE HON'BLE MR.JUSTICE P.JYOTHIMANI AND THE HON'BLE MRS.JUSTICE ARUNA JAGADEESAN W.A.Nos.823, 824, 826 and 829 to 832 of 2007 W.A.No.823 of 2007: 1. The Chairman Bar Council of Tamil Nadu High Court Campus Chennai – 600 104. 2. The Chairman Trustee Committee Tamil Nadu Advocates Welfare Fund Bar Council of Tamil Nadu Chennai – 600 104. .. Appellants in WA.823, 824,826/07/Respondents 2 & 4 3. The Government of Tamil Nadu, rep. by its Secretary, Law Department, Fort St. George,Chennai-9. .. Appellant in WA.Nos.829, 830,831,832/07/Respondent vs. 1. S.Seshachalam .. Ist Respondent in WA.823/07 /Petitioner 2. The Secretary to Government Law Department Fort St.George Chennai – 600 009. 3. The Tamil Nadu Advocates Association rep. by its President, M.H.A.A. High Court Buildings Chennai – 600 104. ..Respondents 2 & 3 in W.A.823/07, 7&8 in W.A.824/07, 6 & 7 in WA.826/07 /Respondents 1 & 3 https://hcservices.ecourts.gov.in/hcservices/ 1. A.L. Namasivayam 2. R. Nagarajan 3. I. Irulappan @ Ramanathan 4. P. Gangadharan 5. V. Srinivasan 6. R. Shankar ..Respondents 1 to 6 in WA.No.824/07/Petitioners 1. D. Govindarajulu 2. R. Isreal Amirtha Raj 3. R. Parthasarathy 4. M. Ramachandran 5. Gokul Anand ..Respondents 1 to 5 in WA.No.826/07/Petitioners R. Veeraragavan ..Respondent in WA.No.829/07/Petitioner 1. D. Govindarajulu 2. R. Isreal Amirtha Raj 3. R. Parthasarathy 4. M. Ramachandran 5. Gokul Anand 6. The Bar Council of Tamil Nadu rep. by its Chairman, High Court Campus, Chennai. 7. The Tamil Nadu Advocates Association, Rep. by its President High Court Campus, Chennai-104. 8. The Chairman, Trustee Committee, Tamil Nadu Advocates' Welfare Fund, Chennai-104. ..Respondents in WA.No.830/07 /Petitioners & Respondents 2 to 4 1. S. Seshachalam ..1st Respondent in WA.No.831/07/Petitioner 2. The Chairman, Bar Council of Tamil Nadu, High Court Campus, Chennai-104. 3. The Tamil Nadu Advocates Association, Rep. by its President, M.H.A.A. High Court Campus, Chennai-600 104. https://hcservices.ecourts.gov.in/hcservices/ 4. The Chairman, Trustee Committee, Tamil Nadu Advocates' Welfare Fund, Chennai-104. ..Respondents 2 to 4 in WA.No.831/07 7 to 9 in W.A.No.832/07 /Petitioner & Respondents 2 to 4 1. A.L. Namasivayam 2. R. Nagarajan 3. I. Irulappan @ Ramanathan 4. P. Gangadharan 5. V. Srinivasan 6. R. Shankar ..Respondents 1 to 6 in WA.No.832/2007/Petitioners and batch cases. PRAYER: Against the common order of the learned Single Judge dated 09.3.2007 made in W.P.Nos.1932/03, 4533/04, 11133 of 1998,1991/96, 11133/98, 1932 of 2003 and 4533 of 2004. WP.No.1932/2003: to issue a 'Writ of Certiorarified Mandamus' calling for the records relating to Family Welfare benefit under Act 49/1987 and quash the reply dated 18.12.2002 TNAWF No.2519/2002 dated 18.12.2002 of the 2nd respondent herein. WP.No.4533/2004: to issue a 'Writ of Declaration' declaring the proviso to Sub-sec(5) of Sec.15 of the Tamil Nadu Advocates' Welfare Fund (Amendment Act 43 of 1995) as null and void holding the said proviso as ultra vires of the Constitution of India. WP.No.11133/1998: to issue a Writ of Declaration declaring the proviso to sub(5) of Sec.16 of the Tamil Nadu Advocates' Welfare Fund (Amendment) Act 43 of 1995 as null and void holding the said proviso as ultra vires of the Constitution of India so far as the petitioner is concerned. WP.NO.1991/1996: This Writ Petition filed under Article 226 of the Constitution of India praying to issue a 'Writ of Declaration' declaring that the proviso to Explanation 11(5) Sec.16(1) of the Tamil Nadu Advocates' Welfare Fund (Amendment) Act 1995 where a member of the Fund dies, his nominee or legal heir, as the case may be, shall be paid an amount of one lakh rupees, one thousand rupees for each year of practice by the Member of the Fund provided that if such member who, before his death, was in receipt of pension, gratuity or other terminal benefits from any state Government or the Central Government or other authority or employer, his nominee or legal heir as the case may be, shall not be entitled, his nominee or legal heir, as the case may be, shall not be entitled for the payment https://hcservices.ecourts.gov.in/hcservices/ of the amount of one lakh rupees under the sub-section" as null and void being violative of Article 14 of the Constitution of India. For Appellants : Mr.R.Thiagarajan in W.A.Nos.823, Senior Counsel 824 and 826/2007 for Mr.K.Venkatakrishnan For respondents 6 and 8 in WA.No.830/07 For respondents 2 and 4 in WA.No.831/07 For respondents 7 and 9 in WA.No.832/07 For appellants : Mr.R.Thirugnanam in W.A.Nos.829 Spl. Govt. Pleader to 832/2007 For 2nd respondent in W.A.No.823/2007 For 7th respondent in W.A.No.824/2007 For 6th respondent in W.A.No.826/2007 For 1st respondent : Mr.Krishnan, in WA.No.823/2007 Senior Counsel For respondents 1 to 6 in WA.No.824/2007 For respondents 1 to 5 in WA.No.826/2007 For respondent in WA.No.829/2007 For respondents 1 to 5 in WA.No.830/2007 For 1st respondent in W.A.No.831/2007 For respondents 1 to 6 in W.A.No.832/2007 For 3rd respondent : Mr.R.C.Paul Kanagaraj in WA.No.823/2007 For 8th respondent in WA.No.824/2007 For 7th respondent in WA.No.826/2007 For 7th respondent in WA.No.830/2007 For 3rd respondent in WA.No.831/2007 For 8th respondent in WA.No.832/2007 https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT P.JYOTHIMANI,J. These appeals are filed by the Bar Council of Tamil Nadu and the Government of Tamil Nadu against the common order of the learned Judge dated 9.3.2007 made in W.P.Nos.1991 of 1996, 11133 of 1998, 1932 of 2003 and 4533 of 2004, by which the learned Judge has struck down a proviso to Explanation II(5) to Section 16 of the Tamil Nadu Advocates' Welfare Fund Act, 1987 (for brevity, "the Welfare Fund Act"). 2. The first respondent in W.A.No.823/2007, respondents 1 to 6 in W.A.No.824/2007, respondents 1 to 5 in W.A.No.826/2007, respondent in W.A.No.829/2007, respondents 1 to 5 in W.A.No.830/2007, first respondent in W.A.No.831/2007 and respondents 1 to 6 in W.A.No.832/2007 (for brevity, "the contesting respondents"), who are the advocates enrolled with the Bar Council of Tamil Nadu after having retired from Government and other services, have challenged the above said proviso by which the benefit of payment of Rs.2 Lakhs to a member of the Advocates Welfare Fund is denied to the legal heirs or nominees on the death of such advocates who were on receipt of pension, gratuity or other terminal benefits from any State Government or Central Government or other authority or employer. The contesting respondents, who are retired officials from various departments and are qualified with Law Degree, have enrolled as advocates after their retirement in various services and are practicing in various courts. 3. The Government of Tamil Nadu has passed the Welfare Fund Act in order to constitute a welfare fund for the benefit of advocates on cessation of their practice. Under Section 3(1) of the Welfare Fund Act, the Government has constituted "Tamil Nadu Advocates Welfare Fund", which consists of various amounts as contemplated under Section 3(2) of the Welfare Fund Act and the said fund is maintained by a "Trustee Committee" constituted under Section 4 of the Welfare Fund Act. Section 15 of the Welfare Fund Act enables an Advocate practicing in any court in the State and being a member of a Bar Association or an Advocates Association to become a member of the Advocates Welfare Fund on payment of subscriptions mentioned therein. Under Section 16 of the Welfare Fund Act, every advocate who has been a member of the fund for a period of not less than five years, on cessation of practice was eligible for payment of various amounts specified in the schedule to the Welfare Fund Act, which depends upon the number of years of practice. However, the Trustee Committee is empowered to make such schedule payment even to an advocate having less than five years experience, who ceases to practice, on being satisfied that there has been any permanent physical or mental disability of such advocate. It is also made clear that in cases where a member of the fund dies before receiving the amount as per the schedule, his nominees or legal heirs would be entitled for such https://hcservices.ecourts.gov.in/hcservices/ payment. 4. While so, the Government of Tamil Nadu has brought an amendment to the Welfare Fund Act, by way of an Amendment Act 43 of 1995, by which a new scheme was introduced that on the death of a member, his nominee or legal heir were to be paid an amount of Rs.1 Lakh and that was incorporated in Explanation II (5) to Section 16 of the Welfare Fund Act. In the proviso to the said provision, the said benefit of Rs.1 Lakh was denied to a member who was in receipt of a pension or gratuity or other terminal benefits from any State or Central Government, etc. However, the said amount has been increased with effect from 1.2.2001 to Rs.2 Lakhs. 5. The above said proviso was challenged by the contesting respondents on the grounds that the proviso is contrary to the very purpose of the Welfare Fund Act; that the classification among the advocates, who are the members of the Welfare Fund, and denial of benefits to the contesting respondents on the basis that they are in receipt of pension and other benefits, having served in the State or Central Government, etc., is arbitrary, unreasonable and violative of Article 14 of the Constitution of India. 6. On the other hand, it was the contention of the respondents in the writ petitions that the classification among the advocates, on the basis that the advocates who have devoted full time to the profession from the beginning and the advocates who after retirement from service have entered into the profession, for the purpose of conferring the lumpsum payment of Rs.2 Lakhs is reasonable and it was the case of the respondents in the writ petitions that the nexus between the object sought to be achieved and the denial of benefit to those who are retired officers is to recognize the persons who have devoted their whole life to the advocate profession and it is in that way the classification is reasonable and that the other benefits, as available in the schedule to the Welfare Fund Act based on the years of service, are given to the contesting respondents and what is denied is only the lumpsum payment. 7. Or otherwise, it was the case of the State Government as well as the Bar Council of Tamil Nadu that the persons who practiced as advocates after retirement from service not only have some financial base, since lumpsum amount of pension, gratuity, etc. have been received by them and on their death the legal heirs would get the family pension etc., which is not available to a person who has chosen the profession of advocate from the beginning and it was with that view of giving protection and monetary benefit to those who have devoted their entire life for the cause of the profession, the amendment was sought to be made. 8. It was the further case of the respondents in the writ petitions that the petitioners were well aware of those conditions https://hcservices.ecourts.gov.in/hcservices/ and only knowing the same they have become members of the Advocates Welfare Fund and it is not open to them to challenge the scheme. It was also stated that originally when the Advocates Welfare Fund Scheme was introduced in the year 1991, the amounts were paid to the deceased member's family based on the number of years standing as per the schedule and at that time, the welfare stamp affixed in the vakalat and memos was priced at Rs.2/-. The rate of the said Welfare Fund Stamp was increased from Rs.2/- to Rs.5/- and it was from 15.1.1996, the lumpsum amount of Rs.1 Lakh was directed to be paid to the Advocate's family on their death without regard to the standing in the bar and subsequently, the price of Advocates Welfare Fund Stamp was increased from Rs.5/- to Rs.10/- and the lumpsum payment was also increased to Rs.2 Lakhs. 9. It was also the case of the respondents in the writ petitions that due to paucity of funds it is not possible to extend the benefit of payment of lumpsum to the contesting respondents. 10. The learned Judge, having taken note of the fact that the object of the Welfare Fund Act is to provide for fund to the advocates on cessation of practice and that while defining the term "advocate" there is no distinction between the advocates who have enrolled immediately after completion of Law Degree and devoted the entire life for the profession, and the advocates who have enrolled after retirement, found that the amendment is discriminatory in character and set aside the said proviso. It is as against the said common order the Bar Council of Tamil Nadu and the State Government have filed the above appeals. 11. Mr.R.Thiagarajan, learned senior counsel appearing for the Bar Council of Tamil Nadu and Mr.R.Thirugnanam, learned Special Government Pleader appearing for the State Government have submitted that the impugned amendment is a reasonable classification, in the sense that the advocates who have become the members of the Welfare Fund having retired from their services have to their credit lumpsum payment of gratuity and other terminal benefits and are entitled to pension and their families are entitled to pension on their death, whereas an advocate who has entered into the profession immediately after his studies has no financial background and on his death the family would not have any base and it was in that view of the matter the amendment was sought to be included, which has got a rational nexus to the object sought to be achieved. 12. It is the submission of the learned counsel for the appellants that, while it is true that as advocates both the groups are same and the amount payable on cessation of practice, which includes the death of the person, as per the schedule to the Welfare Fund Act is not denied to the contesting respondents, what is denied to them is only the lumpsum payment on the death of a member of the Welfare Fund who has devoted his whole life for the profession https://hcservices.ecourts.gov.in/hcservices/ and in such event, when such lumpsum payment is made, the family of such advocate is certainly not entitled to the schedule payment in addition. 13. Mr.R.Thiagarajan, learned Senior Counsel would also submit that, in fact, in other States such persons who retired from services and enrolled themselves as advocates are not even allowed to become the members of the Welfare Fund, but in the State of Tamil Nadu the retired persons are allowed not only to enroll as advocates, but also to become members of the Welfare Fund so as to make them eligible to get the schedule payment based on the years of bar experience, on their demise. 14. Mr.R.Thiagarajan would rely upon the judgments of the Supreme Court in Ram Krishna Dalmia v. Justice S.R. Tendolkar, AIR 1958 SC 538, Western M.P. Electric Power & Supply Co. Ltd. v. State of U.P., AIR 1970 SC 21 and K. Thimmappa v. Chairman, Central Board of Directors, SBI, (2001) 2 SCC 259 to substantiate his contention that the unequal treatment is not arbitrary, but there has been a nexus between the basis of classification and the object under consideration. 15. He would also submit that mere hardship is not a ground to attack a provision of law, relying upon the judgment of the Supreme Court in Probhudas Morarjee Rajkotia v. Union of India, AIR 1966 SC 1044 and State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75. It is his submission that the legislature in its wisdom has enunciated this as a policy for the benefit of those who have wedded to the profession and in such circumstances, the mere hardship that may be caused to a group of individuals may not be a ground to strike down a law. 16. Mr.R.Thiagarajan would also rely on the judgments of the Supreme Court in Saraswat Coop. Bank Ltd. v. State of Maharashtra, (2006) 8 SCC 520, Prafulla Kumar Das v. State of Orissa,(2003) 11 SCC 614 and Sansar Chand Atri v. State of Punjab,(2002) 4 SCC 154 to substantiate his contention that the retired persons form a class by themselves. 17. Mr.R.Thiagarajan, learned Senior Counsel appearing for the Bar Council of Tamil Nadu would submit that the learned Judge has not taken note of the fact about the paucity of funds. 18. The above said contentions are also reiterated and supported by the Mr.R.C.Paul Kanagaraj, learned counsel for the Tamil Nadu Advocates Association. 19. On the other hand, it is the contention of Mr.Krishnan, learned senior counsel appearing for the contesting respondents, who are the original writ petitioners, that when the writ petitioners https://hcservices.ecourts.gov.in/hcservices/ were admitted as members of the Advocates Welfare Fund and when it is not denied that the amount contributed by them also forms part of the Advocates Welfare Fund under Section 3 of the Welfare Fund Act, there is no authority on the part of the respondents in the writ petitions to pass the impugned amendment, discriminating between the advocates while granting the lumpsum benefits. 20. It is his contention that the pension received by those retired employees are the statutory amounts paid to them as per law for the services rendered to the previous employer and that amount is an earned amount and that cannot be the basis to deny the lumpsum benefit payable to advocates as per the Welfare Fund Act. It is his submission that, if the financial criteria is taken as a ground for conferring the lumpsum payment, there are very many instances to show that the advocates, who entered into the profession immediately after their Law Degree have financial resources either earned by family inheritance or otherwise, and when, admittedly, the said lumpsum is paid to all such advocates, who enrolled themselves after completion of their Law Degree, even after their service as advocates for more than 30 or 40 years, there is no reason to presume that all the retired employees, who have become advocates, are financially sound and therefore, it is his submission that arbitrariness is writ large, since there is no yardstick to choose persons on financial basis to confer the lumpsum benefits. 21. He would rely upon the term "advocate" in Section 2(a) of the Welfare Fund Act to show that the term is exhaustive in nature and there cannot be a differentiation between the advocates. He also relied upon Section 2(i) of the Welfare Fund Act which defines the term "member of the fund" and when once, as advocates, the writ petitioners have been admitted as members of the fund, they should be treated equally with others. It is his submission that the impugned proviso is repugnant to Section 2(a) and 2(i) of the Welfare Fund Act. He would rely upon a judgment of the Supreme Court in Laxmi Devi v. Mukand Kanwar, AIR 1965 SC 834, which is a case relating to Transfer of Property Act in respect of a conflict between Sections 2 (d) and 5 of the Transfer of Property Act. 22. It is the further submission of Mr.Krishnan, learned senior counsel that under Section 3(2) of the Welfare Fund Act, while speaking about the source of Advocates Welfare Fund, various sources are explained, including the contributions and payment of subscriptions, which includes the payment by Bar Council from the enrollment fees and in such circumstances, and when the contribution of the contesting respondents is also forming part of the Advocates Welfare Fund, there is no authority on the State Government or the Bar Council to discriminate and distinguish between the advocates for the purpose of providing the lumpsum benefit from the Advocates Welfare Fund. https://hcservices.ecourts.gov.in/hcservices/ 23. We have heard the learned counsel on both sides, perused the records and given our anxious thought to the issue involved in these appeals. 24. At the outset, it should be understood that for a person to practice as an Advocate, he must enroll with the Bar Council as per Section 17 of the Advocates Act, 1961 (Act No.25 of 1961). Under the Advocates Act, 1961, which was enacted with the main feature of establishment of an All India Bar Council and a common roll of advocates, having a right to practice in any part of the country, prescribing uniform qualification for the admission as Advocates and creation of autonomous Bar Councils, one for the whole of India and one for each State, the term "advocate" is defined under Section 2(1) (a) as "an advocate entered in any roll under the provisions of this Act". The State Bar Councils are authorised to enroll advocates and maintain a roll of advocates in the order of their seniority as enshrined under Section 17 of the Advocates Act, 1961, which is as follows: "Section: 17. State Bar Councils to maintain roll of advocates.- (1) Every State Bar Council shall prepare and maintain a roll of advocates in which shall be entered the names and addresses of,- (a) all persons who were entered as advocates on the roll of any High Court under the Indian Bar Councils Act, 1926 (38 of 1926), immediately before the appointed day including persons, being citizens of India, who before the 15th day of August, 1947, were enrolled as advocates under the said Act in any area which before the said date was comprised within India as defined in the Government of India Act, 1935, and who at any time] express an intention in the prescribed manner to practice within the jurisdiction of the Bar Council; (b) all other persons who are admitted to be advocates on the roll of the State Bar Council under this Act on or after the appointed day. (2) Each such roll of advocates shall consist of two parts, the first part containing the names of senior advocates and the second part, the names of other advocates. (3) Entries in each part of the roll of advocates prepared and maintained by a State Bar Council under this section shall be in the order of seniority, and, subject to any rule that may be made by the Bar Council of India in this behalf, such seniority shall be determined] as follows: (a) the seniority of an advocate referred to in clause (a) of sub-section (1) shall be determined in accordance with his date of enrollment under the Indian Bar Councils Act, https://hcservices.ecourts.gov.in/hcservices/ 1926 (38 of 1926); (b) the seniority of any person who was a senior advocate of the Supreme Court immediately before the appointed day shall, for the purposes of the first part of the State roll, be determined in accordance with such principles as the Bar Council of India may specify; [* * * * * * * * * * ** ] (d) the seniority of any other person who, on or after the appointed day, is enrolled as a senior advocate or is admitted as an advocate shall be determined by the date of such enrolment or admission, as the case may be. (e) notwithstanding anything contained in clause (a), the seniority of an attorney enrolled [whether before or after the commencement of the Advocates (Amendment) Act, 1980 as an advocate shall be determined in accordance with the date of his enrollment as an attorney. (4) No person shall be enrolled as an advocate on the roll of more than one State Bar Council." 25. Section 6 of the Advocates Act, 1961, while narrating about the functions of the State Bar Councils also stipulates in Section 6 (dd) as "to promote the growth of Bar Associations for the purposes of effective implementation of the welfare schemes referred to in clause (a) of sub-section (2) of this section and clause (a) of sub- section (2) of section 7". The Section also enables the State Bar Councils to constitute funds for the welfare of indigent, disabled or other advocates. The said Section 6 of the Advocates Act, 1961 is as follows: "6. Functions of State Bar Councils.- (1) The functions of a State Bar Council shall be,- (a) to admit persons as advocates on its roll; (b)