# Asok Pande [PIL] v. Union of India & Ors

- **Citation:** (2015) 3 ILRA 1234
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-10-08
- **Case number:** Misc. Bench No. 9441 of 2015
- **Bench:** Dinesh Maheshwari, Rakesh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/asok-pande-pil-v-union-of-india-ors-43379
- **Pages:** 7

## Headnote

Bar Council of India, Rules 1975-Chapter I
Part VI-Advocates Act 1961-Section 16Restriction
on
appearance
pleading,
consolidation with clients directory-without
assistance of roll advocate-as such a senior
advocate can not be appointed as Solicitor
General of India or Advocate General-heldmisconceived-in
absence
of
specific
prohibition-can
not
be
disturbed
from
functioning.
Held: Para-14
This being the position of a Senior Advocate,
in our view, the Union Government and the
State Government are clearly entitled to
consider and offer them appointment as Law
Officers
so
as
to
ensure
effective
representation
before
the
Courts.
The
suggestions as made by the petitioner, if
accepted,
would
lead
to
an
entirely
unacceptable
position
that
the
State
Government and the Union Government can
never take the services of the Advocates of
eminence for their purposes once they get
designated
as
Senior
Advocates.
The
suggestions, as made by the petitioner, are
required to be and are rejected.

## Text

1234
 INDIAN LAW REPORTS ALLAHABAD SERIES
taking a case, otherwise, the order of
promotion was admittedly passed and issued
by the Director who being an higher officer
than the appointing authority Regional
Employment Officer, the impugned order of
removal could not have been passed by the
Regional Employment Officer nor it could
have been cured in appeal by the Director.
30. Therefore, the appellate authority
while passing the impugned order dated 24
July 2010 misread the Government Order
dated 19 February 1988, further the
Directorate by Circular dated 31 August
1989 addressed to all the Regional
Employment
Officer/District
Officer
clarified that upon enforcement of the new
staff proposed promotion, absorption and
appointment of all senior clerks would,
henceforth be made at the Directorate level.
The circular in irrevocable terms would
provide that promotion from the LDC to
Senior Assistant shall not be made at the
Regional level, in the eventuality of any
such promotion being made it shall be
treated to be void, consequently the
employee shall not receive any benefit
pursuant to such promotion. It is relevant to
note that the initiation for promotion to the
post of Senior Assistant was undertaken by
the Directorate vide letter dated 02
November 2006, the name of the petitioner
finds place at Serial No. 8. Petitioner in
appeal before the second respondent,
Director, raised the issue that the Regional
Employment Officer was not competent to
have initiated disciplinary proceedings or
removed him from service. The relevant
documents were placed before the Director
who inspite of being aware that the
Regional Employment Officer was not
competent to initiate or promote an officer
to the post of Senior Assistant/UDC
deliberately had taken recourse to the
unamended Rules 1981 to justify the illegal
order passed by the Regional Employment
Officer.
31. The counter affidavits filed by
the respondents are prima facie false
affidavits, the averments made therein do
not correspond to the circulars/letters
issued by the Director.
32.
For the reasons and law stated
herein above, the writ petition succeeds and
is accordingly allowed. The impugned
orders dated 24 July 2010 passed by the
third respondent, Regional Employment
Officer, Agra Division, Agra and order
dated 13 December 2010 passed by the
second respondent, Director, Training and
Employment, Lucknow, respectively are
quashed. The petitioner shall be entitled to
all consequential benefits including lost
wages from the due date.
33. I would like to record my
appreciation for Sri Aishwarya Krishna,
Law Clerk for research work undertaken
by him in the assistance of this case.
34. The cost of litigation assessed at
Rs. 50,000/-, to be paid to the petitioner by
the second respondent, Director, Training
and Employment, Lucknow within six
weeks.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.10.2015
BEFORE
THE HON'BLE DINESH MAHESHWARI, J.
THE HON'BLE RAKESH SRIVASTAVA, J.
Misc. Bench No. 9441 of 2015
Asok Pande [PIL]
...Petitioner
Versus
Union of India & Ors.
..Respondents
3 All] Asok Pande [PIL] Vs. Union of India & Ors.
1235
Counsel for the Petitioner:
Asok Pande (In person)
Counsel for the Respondents:
C.S.C., A.S.G., U.N. Mishra
Bar Council of India, Rules 1975-Chapter I
Part VI-Advocates Act 1961-Section 16Restriction
on
appearance
pleading,
consolidation with clients directory-without
assistance of roll advocate-as such a senior
advocate can not be appointed as Solicitor
General of India or Advocate General-heldmisconceived-in
absence
of
specific
prohibition-can
not
be
disturbed
from
functioning.
Held: Para-14
This being the position of a Senior Advocate,
in our view, the Union Government and the
State Government are clearly entitled to
consider and offer them appointment as Law
Officers
so
as
to
ensure
effective
representation
before
the
Courts.
The
suggestions as made by the petitioner, if
accepted,
would
lead
to
an
entirely
unacceptable
position
that
the
State
Government and the Union Government can
never take the services of the Advocates of
eminence for their purposes once they get
designated
as
Senior
Advocates.
The
suggestions, as made by the petitioner, are
required to be and are rejected.
(Delivered by Hon'ble Dinesh Maheshwari, J.)
1. By way of this petition, framed and
styled as Public InterestLitigation, the
petitioner, a practicing Advocate in this Court,
hasattempted to raise the question as to
whether a designated SeniorAdvocate could
function as a Law Officer of the Union or of
the State. Besides the others, the petitioner has
arrayed the present AttorneyGeneral for India
as respondent no. 3; the present Solicitor
General ofIndia as respondent no. 4; and
present Advocate General and two Additional
Advocate Generals for the State of Uttar
Pradesh as respondent nos. 5 to 7 respectively.
2. The petitioner would submit in
paragraph no. 4 of the petition that he is
bringing
the
following
substantial
question of law for consideration of this
Court :
"Whether a senior advocate can
function as a state law officer or the law
officer of the Union of India by whatever
name/designation their called?" (sic.)
3. The petitioner has submitted in this
petition that Section 16 of the Advocates
Act, 1961 ('the Act of 1961') provides for
two classes of Advocates i.e., Senior
Advocate and other Advocates; and the
Supreme Court and the High Courts are
authorized to designate the Senior Advocates
with their consent and to frame the rules in
that regard. The petitioner has further
referred to Sections 16 (3) and 49 (1) (g) of
the Act of 1961 authorising the Bar Council
of India to frame the rules governing the
Advocates as well as Senior Advocates and
then, has referred to the Bar Council of India
Rules, 1975, particularly Chapter 1 of PartVI thereof, laying down restrictions on
Senior Advocates. With reference to these
Rules of the Bar Council of India, the
contention of the petitioner is that when a
Senior Advocate cannot appear directly,
cannot accept instructions to draft pleading
or affidavits, cannot give advice on evidence,
cannot do any drafting work of analogous
kind, cannot be approached by a client
directly and cannot be briefed or instructed
by the client to appear directly in the Court,
and is to pay reasonable fee to his assisting
counsel, he cannot function as a Law Officer
of the State because these restrictions cannot
be adhered to by the Senior Advocate, if
appointed
by
the
Government.
With
reference to the above Rules and particularly
clauses (b) (i), (c), (d) and (f) thereof, the
petitioner would argue that in view of such
1236
 INDIAN LAW REPORTS ALLAHABAD SERIES
specific
prohibitions
against
drafting,
advising and accepting briefs directly, a
Senior Advocate cannot function as a Law
Officer of the State; and he cannot function
as Attorney-General, Advocate-General or
Additional Advocate-General. It is further
submitted that when a Senior Advocate
cannot appear without an Advocate on
Record in the Supreme Court or without an
Advocate in Part II of the State Roll in any
Court or Tribunal, appointment of a Senior
Advocate as Advocate-General or Additional
Advocate-General entails extra liability on
the State to engage an assisting counsel who
is to be paid fees by the Senior Advocate as
required by clause (f) of the Rules aforesaid.
The petitioner has also referred to the names
of two Advocates, who were earlier holding
the office of Chief Standing Counsel, but
they resigned after being designated as
Senior
Advocate.
The
petitioner
has
submitted that the question of appearance of
one of the Senior Advocates as Additional
Advocate General in the Court on behalf of
the State was raised in Writ Petition No.
4618 (M/B) of 2015 and as he was asked to
file a proper application, hence is filing the
present petition. The petitioner has prayed for
the following reliefs :
a) To issue a writ of mandamus
directing the respondent no. 1 Union of India
to remove the respondent no. 3 and 4 from
the office of attorney General for India and
Solicitor General of India respectively and to
direct the respondent no. 2 State of Uttar
Pradesh to remove the respondent no. 5,6
and 7 from the post of Advocate General and
Additional Advocate Generals as being a
senior advocate, these persons cannot
function as law officer of the Union or the
State.
b) To issue a writ of certiorari for
quashing
the
appointment
of
the
respondent no. 3 to 7 after summoning the
same from the concerned respondents.
c) Issue any other writ, order or
direction which this Hon'ble Court deem
fit, proper and reasonable regarding this
matter."
4. On taking up this matter and
having gone through the record, we have
posed a query to the petitioner appearing in
person as to the specific prohibition
whereby and wherefor a Senior Advocate
cannot hold the office of the Attorney
General, the Advocate General or any
other office so as to represent the
Government concerned before the Court?
In
response,
the
petitioner
frankly
submitted that such a prohibition is not
stated in specific words in the concerned
Rules but contended that a conjoint reading
of various clauses appearing in Chapter 1
of Part-VI of Bar Council of India Rules
leads to the deduction that a Senior
Advocate cannot be a Law Officer of the
State. The petitioner has submitted that
only for the want of specific words of
prohibition that this writ petition is
necessitated
and
by
appropriate
interpretation, the deduction would be that
the Senior Advocate cannot be appointed
as Law Officer of the State. The petitioner
has also referred to certain privileges and
facilities as extended and allowances as
paid to the Law Officers of the State.
According to the petitioner, in the present
set up of Rules, the Senior Advocate
designated by the Court cannot function as
Law Officer of the State and, therefore,
this writ petition deserves consideration.
5.

Having
given
thoughtful
consideration to the submissions made
and having examined the record, we are
not persuaded to entertain this petition.
3 All] Asok Pande [PIL] Vs. Union of India & Ors.
1237
6. Article 76 of the Constitution of
India provides for an Attorney General of
India in the following terms:
"76. Attorney-Geneal for India.-(1)
The President shall appoint a person who
is qualified to be appointed a Judge of the
Supreme Court to be Attorney-General
for India.
(2) It shall be the duty of the
Attorney-General to giveadvice to the
Government of India upon such legal
maters, and to perform such other duties
of a legal character, as may from time to
time be referred or assigned to him by the
President, and to discharge the functions
conferred on him by or under this
Constitution or any other law for the time
being in force.
(3) In the performance of his duties
the Attorney-General shall have right of
audience in all courts in the territory of
India.
(4) The Attorney-General shall hold
office
during
the
pleasure
of
the
President,
and
shall
receive
such
remuneration as the President may
determine."
7. Article 165 of the Constitution of
India provides for Advocate General for
the State in the following terms :
"165. Advocate-General for the
State. -(1) The Governor of each State
shall appoint a person who is qualified to
be appointed a Judge of a High Court to
be Advocate-General for the State.
(2) It shall be the duty of the
Advocate-General to give advice to the
Government of the State upon such legal
matters, and to perform such other duties
of a legal character, as may from time to
time be referred or assigned to him by the
Governor, and to discharge the functions
conferred on him by or under this
Constitution or any other law for the time
being in force.
(3) The Advocate-General shall hold
office
during
the
pleasure
of
the
Governor,
and
shall
receive
such
remuneration as the Governor may
determine."
8. The relevant part of Section 16 of
the Act of 1961 providing for Senior and
other Advocates could also be taken note
of as under:-
"16. Senior and other advocates .-
(1) There shall be two classes of
advocates, namely, senior advocates and
other advocates.
(2) An advocate may, with his
consent, be designated as senior advocate
if the Supreme Court or a High Court is
of opinion that by virtue of his ability
standing at the Bar or special knowledge
or experience in law he is deserving of
such distinction.
(3) Senior advocates shall, in the
matter of their practice, be subject to such
restrictions as the Bar Council of India
may, in the interest of the legal
profession, prescribe.
--- --- ---- --- "
9. Bar Council of India Rules as
referred by the petitioner read as under :
"Senior Advocates shall, in the
matter of their practice of the profession
of law mentioned in Section 30 of the Act,
be subject to the following restrictions:
(a) A Senior Advocate shall not file a
vakalatnama or act in any Court, or
Tribunal, or before any person or other
authority mentioned in Section 30 of the
Act.
1238
 INDIAN LAW REPORTS ALLAHABAD SERIES
Explanation : "To act" means to file
an appearance or any pleading or
application in any court or Tribunal or
before any person or other authority
mentioned in Section 30 of the Act, or to
do any act other than pleading required
or authorised by law to be done by a
party in such Court or Tribunal or before
any person or other authorities mentioned
in the said Section either in person or by
his recognised agent or by an advocate or
an attorney on his behalf.
(b)(i) A Senior Advocate shall not
appear without an Advocate on Record in
the Supreme Court or without an
Advocate in Part II of the State Roll in
any court or Tribunal or before any
person or other authorities mentioned in
Section 30 of the Act.
(ii) Where a Senior Advocate has
been engaged prior to the coming into
force of the rules in this Chapter, he shall
not
continue
thereafter
unless
an
advocate in Part II of the State Roll is
engaged along with him. Provided that a
Senior Advocate may continue to appear
without an advocate in Part II of the Sate
Roll in cases in which he had been briefed
to appear for the prosecution or the
defence in a criminal case, if he was so
briefed before he is designated as a senior
advocate or before coming into operation
of the rules in this Chapter as the case
may be.
(c) He shall not accept instructions
to draft pleading or affidavits, advice on
evidence or to do any drafting work of an
analogous kind in any Court or Tribunal
or before any person or other authorities
mentioned in Section 30 of the Act or
undertake conveyancing work of any kind
whatsoever. This restriction however
shall not extend to settling any such
matter as aforesaid in consultation with
an advocate in Part II of the State Roll.
(cc)A
Senior
Advocate
shall,
however, be free to make concessions or
give undertaking in the course of
arguments on behalf of his clients on
instructions from the junior advocate.
(d) He shall not accept directly from
a client any brief or instructions to
appear in any Court or Tribunal or before
any person or other authorities in India.
(e) A Senior Advocate who had acted
as an Advocate (Junior) in a case, shall
not after he has been designated as a
Senior Advocate advise on grounds of
appeal in a Court of Appeal or in the
Supreme Court, except with an Advocate
as aforesaid.
(f) A Senior Advocate may in
recognition of the services rendered by an
Advocate in Part-II of the State Roll
appearing in any matter pay him a fee
which he considers reasonable."
10. It is not in dispute that so far this
Court is concerned, the Senior Advocates
are designated under the Rules framed
under Designation of Senior Advocate
Rules, 1999 which provide, inter alia, that
a Senior Advocate shall be subject to such
restriction as the High Court or Bar
Council of India or the Bar Council of
State may prescribe. It has not been stated
that the High Court or the Bar Council of
the State has placed any such prohibition
on any Senior Advocate against his
accepting engagement as a Law Officer of
the State or the Union.
11. We are unable to accept the
interpretation, as sought to be put and
deduction as sought to be drawn by the
petitioner on the Rules aforesaid. True it
is that a Senior Advocate cannot appear in
the Court without an assisting counsel as
per the requirement of the Rules but that
by itself cannot be considered prohibitive
3 All] Asok Pande [PIL] Vs. Union of India & Ors.
1239
on the Union or the State against
appointing a Senior Advocate as its Law
Officer. As to how the appearance of such
a Senior Advocate as Law Officer of the
Union or State in the Court is to be
ensured is again a matter for consideration
of
the
Government
and
Advocate
concerned but it is too far-stretched to
suggest that the Senior Advocate cannot
be a Law Officer of the State.
12. So far the restrictions in clause
(c) aforesaid are concerned, it is but clear
that the restrictions are put on Senior
Advocate that he would not accept
instructions
to
draft
pleadings
or
affidavits and he cannot do any drafting
work of analogous kind in any Court or
Tribunal or authorities mentioned in
Section 30 of the Advocates Act or
conveyancing
work
of
any
kind
whatsoever.
The
Senior
Advocate,
however, is still entitled to settle any
matter in consultation with an Advocate
in Part II of the State Roll. Senior
Advocate is not to advice on evidence but
it is difficult to accept that the Senior
Advocate is otherwise prohibited from
giving the necessary advice on legal
matters.
So
far
the
pleadings
are
concerned, it is for the Union or the State
to arrange its affairs as to the manner in
which the pleadings are drafted and
placed in the Court; and, even in that
regard, a Senior Advocate is entitled to
settle the pleadings.
13. So far clause (d) is concerned,
the Senior Advocate has been put under
restriction against accepting directly any
brief or instructions to appear in any
Court or Tribunal or before any person or
authority. However, it is again too farstretched to suggest that the prohibition
against accepting directly any brief or
instructions to appear in a Court on behalf
of client could prohibit a Senior Advocate
from taking any instructions whatsoever
from the client.
14. We need not to dilate much
further for the simple reason that under the
Rules aforesaid, no such prohibition of
accepting engagement by the Senior
Advocate as a Law Officer of the State is
seen. It is noteworthy that under Section 16
of the Act of 1961, an Advocate with his
consent is designated as a Senior Advocate
only when the Supreme Court or the High
Court is of the opinion that by virtue of his
ability,
standing
at
Bar,
or
special
knowledge or experience in the law he is
deserving of such distinction. In the Rules
of 1999, as framed by this Court, the
standing at Bar has been defined as the
position of eminence attained by an
Advocate at Bar by virtue of his seniority,
legal acumen and high ethical standards
maintained by him both inside and outside
the Court. It is, thus, clear that an Advocate
gets designation as Senior Advocate by the
Court in recognition of his ability, acumen
and standard. This being the position of a
Senior Advocate, in our view, the Union
Government and the State Government are
clearly entitled to consider and offer them
appointment as Law Officers so as to ensure
effective representation before the Courts.
The suggestions as made by the petitioner,
if accepted, would lead to an entirely
unacceptable
position
that
the
State
Government and the Union Government
can never take the services of the Advocates
of eminence for their purposes once they get
designated as Senior Advocates. The
suggestions, as made by the petitioner, are
required to be and are rejected.
15. So far the suggestion of any
particular resignation by any particular
1240
 INDIAN LAW REPORTS ALLAHABAD SERIES
Advocate or any particular officer from any
office is concerned, that by itself cannot be
considered binding on any other Senior
Advocate
or
the
Government.
The
privileges and concessions, as given to the
Law Officers by virtue of their office
concerned, is again a matter between the
Government and Law Officer and that
hardly correlates with the issue sought to be
raised in this petition. Such submissions
seem to be entirely irrelevant.
16. In view of the above, the petition
fails and stands dismissed.
17. The petitioner has prayed for
certificate under Article 132 of the
Constitution of India.
18. The prayer stands rejected.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.10.2015
BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE ATTAU RAHMAN MASOODI, J.
Misc. Bench No. 9835 of 2015
Prem Singh
 ...Petitioner
Versus
The State Consumer Dispute Redressal
Commission Lko & Ors.
...Respondents
Counsel for the Petitioner:
Lalji Prasad Shukla
Counsel for the Respondents:
----
Constitution of India, Art.-226-Petitionseeking
direction
for
expeditious
disposal
of
Appeal-argument
under
section 13(4) and (A) District Consumer
Forum-shall be deemed to Civil courtdirection
can
be
issued-held-such
direction can be issued under Art.-227before Single Judge-petition consigned
to
record-with
liberty
to
invoke
appropriate jurisdiction.
Held: Para-6
This being the position and the manner in
which the State Commission is to function,
we are clearly of the opinion that if a
direction is required to be given for
expeditious disposal of an appeal then the
State
Consumer
Dispute
Redressal
Commission would also fall within the
superintendence of the High Court under
Article 227 of the Constitution of India.
Consequently, a writ petition ought to be
filed under Article 227 of the Constitution
of
India,
which
shall
obviously
be
entertainable by a learned Single Judge.
(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)
1. Heard learned counsel for the
petitioner.
2.
 The petitioner prays for a
mandamus for an early disposal of the
appeal filed before the State Consumer
Forum. The petitioner has relied on a
Division Bench order in Writ Petition No.
511 (MB) of 2014: Bala Devi versus The
State
Consumer
Dispute
Redressal
Commission, U.P. and others. dated
22.1.2014 to contend that such a direction
for expeditious disposal of the appeal can be
issued by this Court.
3. The status of a District Consumer
Forum and a State Consumer Dispute
Redressal Commission which is hearing
an appeal is to be gathered from the
nature of the composition of such forum
and the jurisdiction exercised by it. The
District Consumer Forum is chaired by a
person who has held the rank of a District
Judge, whereas the State Consumer
Dispute Redressal Commission is chaired