IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.8713 of 2008 =========================================== KEDAR NATH TIWARI - Petitioner(s) Versus THE STATE OF BIHAR & ORS- Respondent(s) =========================================== with CIVIL WRIT JURISDICTION CASE No.3123 of 2009 =========================================== BASUDEO SHARAN - Petitioner(s) Versus THE STATE OF BIHAR & ORS- Respondent(s) =========================================== Appearance: (In CWJC No.8713 of 2008) For the Petitioner: Mr. K.B. Verma Mr. Shyam Narayan Sinha Mr. Syed Khalil Hasan Mr. Mangal Pandit Mr. Fulman Singh Mr. Yogendra Pd. Azad For the Respondent: Mr. Harendra Pd. Singh, G.A. VIII Mr. Rajiv Kumar Singh, A.C. to G.A. VIII (In CWJC No.3123 of 2009) For the Petitioner: Mr. Dr. Alok Kumar Sinha For the Respondent: Mr. Pushkar Narain Shahi, A.A.G.-14 Mr. Atul Kumar A.C. to A.A.G.-14 ========================================== CORAM:HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 04. 11.01.2011 These two petitions under Article 226 of the Constitution are filed by the Advocates enrolled by the Bar Council of Bihar. The common issue raised in both these writ petitions is the validity of Sub-Section (3) of Section 1 of the 2 Bihar State Advocates Welfare Act, 1983 in so far as it debars a class of Advocates from being members of the Welfare Fund. The petitioner in C.W.J.C. No. 8713 of 2008 was one Kedar Nath Tiwari, an advocate practising in the Patna High Court. Pending the petition the petitioner has passed away. He has been substituted by his heirs and legal representatives, the wife and the sons. The writ petitioner Shri Kedar Nath Tiwari claimed that he had joined the legal profession in the month of April 1991 after retirement from the Indian Air Force and that he was practising as an advocate in the High Court of Patna. We assume that as a retired officer of the Indian Air Force he had received the terminal benefits and was in receipt of pension from the Central Government. The petitioner Basudeo Sharan is a retired Judicial Officer in receipt of pension from the State of Bihar. After taking voluntary retirement from the judicial service in the year 1997, he has enrolled himself as a member of the Bar Council of the State of Bihar and has started practice in the Civil Court at Chapra. Both the petitioners are aggrieved because they are not allowed to enjoy the benefit of the Welfare Fund established under the Bihar State Advocates Welfare Fund Act, 1983 (hereinafter referred to as the Act of 1983). Though the petitions are filed for the benefit of a class of advocates who are debarred from joining the Fund, the petitions are filed by 3 individual advocates not in a representative capacity; nor the procedure envisaged for filing a petition in a representative capacity has been followed. The Act of 1983 has been enacted to provide for the Constitution of a Welfare Fund for the benefit of Advocates in the State of Bihar and for connected or incidental matters. Sub-Section 2 of Section 1 of the Act of 1983 makes it applicable over the whole of the State of Bihar. Sub- Section (3) thereof specifically excludes the persons who have retired from service and are in receipt of retirement benefits from their employers. Sub-Section (3) reads as under; “It shall not apply to persons who have retired from service and have been paid or are entitled to payment of retirement benefits from his employer.” It is the aforesaid Sub-Section (3) of Section 1 of the Act of 1983 which is subject matter of challenge before us as being discriminatory and violative of Article 14 of the Constitution of India. It is submitted that once a person is enrolled as an advocate he joins a class of persons namely advocates. There cannot be further distinction between an advocate and an advocate. The above referred Sub-Section (3) makes out an artificial distinction amongst the advocates who joined the profession right after completing the education and those who joined the profession after rendering certain service under some employer. Amongst the second category of 4 advocates it makes a further distinction between those who are in receipt of retiral benefits from their erstwhile employer and those who are not in receipt of retirement benefits. The learned Advocates have submitted that the artificial classification made amongst one homogenous group of advocates, that too without reference to their financial position, is discriminatory and unconstitutional and requires to be struck off as ultra vires Article 14 of the Constitution. In support of their submissions learned Advocates have relied upon the judgment of the Madras High Court in the matter of R. Veeraragavan Vs. State of Tamil Nadu (A.I.R. 2007 Madras 205) and the judgment of Hon‟ble Supreme Court in the matter of L.I.C. of India and another vs. Consumer Education and Research Centre and others (A.I.R. 1995 SC 1811). In the case before the Madras High Court, a similar challenge was made against proviso to explanation II (5) to Section 16(1) of the Tamil Nadu Advocates‟ Welfare Fund (Amendment) Act, 1995. The salient feature of the rules under challenge before the Madras High Court was that the provisions contained in the Tamil Nadu Advocates‟ Welfare Fund Act, 1987 permitted every Advocate to join the fund established under the said Act. Having become member, the impugned proviso to explanation II (5) introduced under the Amendment Act of 1995 made a distinction between a member and a member of the fund on the basis of the receipt of the retiral benefits by 5 the deceased member. The impugned explanation II (5) reads as under; “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 the 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.” In other words, an advocate having been granted membership of the fund, on his death his nominee or his heirs were denied the benefit of the welfare fund on the ground that the deceased member was in receipt of pension, gratuity or other terminal benefits from his erstwhile employer. The Hon‟ble Madras High court struck off the proviso to Explanation II (5) on the ground that it was discriminatory. The Court held; “……. The object of the Act is to lend succour to the legal heirs of such Advocates after their demise. The impugned proviso does not classify the group of Advocates based on the financial soundness. There may be a case where a person who had put in two or three years of service in an Organisation would have opted out of such Organisation with a bare minimum contribution he had made towards Provident Fund and set up his practice. Such persons who had plunged 6 headlong in the legal profession with all devotion have also been excluded from the purview of the benefits of the Act. ..….” In the matter of L.I.C. of India and another (supra), the matter arose from the term policy introduced by the Life Insurance Corporation (hereinafter referred to as „the L.I.C.‟), specifically for salaried class from government, Semi- government or reputed commercial firms. The Hon‟ble Supreme Court held it to be discriminatory offending Article 14. The Court observed; “We have, therefore, no hesitation to hold that in issuing a general life insurance policy of any type, public element is inherent in prescription of terms and conditions therein. The appellants or any person or authority in the field of insurance owe a public duty to evolve their policies subject to such reasonable, just and fair terms and conditions accessible to all the segments of the society for insuring the lives of eligible persons. The eligibility conditions must be comformable to the Preamble, fundamental rights and the directive principles of the Constitution. The term policy under Table 58 is declared to be accessible and beneficial to the large segments of the Indian society. The rates of premium must also be reasonable and accessible. Accordingly, we hold that the declaration given by the High Court is not vitiated by any manifest error of law warranting interference. It may be made clear that with a view to make the policy viable and 7 easily available to the general public, it may be open to the appellants to revise the premium in the light of the law declared in this judgment but it must not be arbitrary, unjust, excessive and oppressive. ” Section 3 of the Act of 1983 enjoins the State of Bihar to constitute a fund called „Advocates‟ Welfare Fund‟ (hereinafter referred to as “the Fund”). Sub-Section (2) thereof provides for resources for the Fund. Section 5 of the Act of 1983 envisages establishment of the Trustee Committee. Under Section 9 of the Act of 1983, the Fund is vested in the Trustee Committee. Section 10 of the Act of 1983 provides for the functions of the Trustee Committee. Section 16 of the Act of 1983 provides for membership of the Fund. Sub-Section (2) thereof confers a discretion upon the Trustee Committee either or not to allow any advocate from being a member of the Fund. 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. Section 28 of the said Act of 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. 8 Thus the Central Act as well as the State Act does make distinction amongst the advocates on the premise that a group of advocates do 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. We are unable to agree with the learned Advocates that the distinction amongst the advocates is unreasonable or irrational. Considering the object with which the Fund is established, we do hold that the aforesaid distinction made under Sub-Section (3) of Section 1 of the Act of 1983 does have a nexus with the object and reasons of the establishment of the Fund and has a rationale in excluding a class of advocates from the benefit under the Act of 1983 as it is apparent that such class of advocates is already provided for their retirement years. Besides, unlike the Madras Act, it does not discriminate amongst the advocates who are already accepted as the members of the Fund. We may also note that the class of advocates who are deprived of the benefit of the Fund are those who had a long service and are in receipt of retirement benefits from their employers. Moreover, the other group of advocates also are not entitled to membership of the Fund as a matter of course. Section 16 of the Act of 1983 confers a discretion upon the Trustee Committee to refuse such membership for the reasons to be recorded. Thus, it is not an absolute right of an advocate to seek membership of the Fund. The impugned Section 1(3) of 9 the Act of 1983 does not abridge or abrogate the fundamental or absolute right of any advocate or of the petitioners. For the aforesaid reasons, the petitions are dismissed. The parties will bear their own cost. S.Sb/- (R.M. Doshit, CJ.) (Jyoti Saran, J.)