P. Jyothimani, J.@mdashThese 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. u/s 3(1) of the Welfare Fund Act, the Government has constituted "Tamil Nadu Advocates Welfare Fund", which consists of various amounts as contemplated u/s 3(2) of the Welfare Fund Act and the said fund is maintained by a "Trustee Committee" constituted u/s 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. u/s 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 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 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 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
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
16. Mr. R. Thiagarajan would also rely on the judgments of the Supreme Court in
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 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 u/s 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
22. It is the further submission of Mr. Krishnan, learned senior counsel that u/s 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.
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 u/s 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 u/s 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, 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) to prepare and maintain such roll;
(c) to entertain and determine cases of misconduct against advocates on its roll;
(d) to safeguard the rights, privileges and interests of advocates on its roll;
(dd) 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;
(e) to promote and support law reform;
(ee) to conduct seminars and organize talks on legal topics by eminent jurists and publish journals and papers of legal interests;
(eee) to organize legal aid to the poor in the prescribed manner;
(f) to manage and invest the funds of the Bar Council;
(g) to provide for the election of its members;
(gg) to visit and inspect Universities in accordance with the directions given under Clause (i) of Sub-section (1) of Section 7;
(h) to perform all other functions conferred on it by or under this Act;
(i) to do all other things necessary for discharging the aforesaid functions.
(2) A State Bar Council may constitute one or more funds in the prescribed manner for the purpose of:
(a) giving financial assistance to organise welfare schemes for the indigent, disabled or other advocates;
(b) giving legal aid or advice in accordance with the rules made in this behalf;
(c) establishing law libraries.
(3) A State Bar Council may receive any grants, donations, gifts or benefactions for all or any of the purposes specified in Sub-section (2) which shall be credited to the appropriate fund or funds constituted under that Sub-section.
26. Inasmuch as the law making powers regarding legal, medical and other professions is included in List III (Concurrent List) of Schedule-VII of the Constitution of India, the Government of Tamil Nadu has passed the Tamil Nadu Advocates Welfare Fund Act, 1987 (Act No. 49 of 1987) with the purpose of constitution of a welfare fund for the benefit of advocates on cessation of practice.
27. Under the Welfare Fund Act, some of the provisions are relevant for our discussion. The definition of the term "advocate" as defined u/s 2(a) means "a person whose name has been entered in the roll of advocates prepared and maintained by the Bar Council u/s 17 of the Advocates Act, 1961 (Central Act 25 of 1961) and who is a member of a Bar Association or an Advocates Association".
28. The terms "Advocates Association" and "Bar Association" are defined as associations recognized by the Bar Council u/s 13 of the Welfare Fund Act. The term "cessation of practice" u/s 2(e) of the Welfare Fund Act means "removal of the name of an advocate from the State Roll u/s 26A of the Advocates Act, 1961 (Central Act 25 of 1961)".
29. At this juncture, it is relevant to extract Section 26-A of the Advocates Act, 1961, which is as follows:
26-A. Power to remove names from roll.- A State Bar Council may remove from the State roll the name of any advocate who is dead or from whom a request has been received to that effect.
30. The term "fund" is defined u/s 2(g) of the Welfare Fund Act as means "the Tamil Nadu Advocates Welfare Fund constituted u/s 3".
31. The term "member of the fund" is defined u/s 2(i) of the Welfare Fund Act as "an advocate admitted to the benefits of the Fund and continuing to be a member thereof under the provisions of this Act".
32. The term "stamp" u/s 2(j) of the Welfare Fund Act means "the Tamil Nadu Advocates Welfare Fund Stamp printed and distributed u/s 22".
33. Section 22 of the Act, which speaks about printing and distribution of Advocates welfare Fund stamps by the Bar Council states as follows:
Section:22. Printing and distribution of Advocates Welfare Fund Stamps by State Bar Council:
(1) The bar Council shall cause to be printed and distributed welfare fund stamps of the value of ten rupees inscribed "Tamil Nadu Advocates Welfare Fund Stamp" in such size, design and colour, as may be decided by the Bar Council.
(2)The custody of the stamps shall be with the Bar Council.
(3) The Bar Council shall control the distribution and sale of the stamps through the Bar Associations and the Advocates Associations.
(4) The Bar Council, the Bar Associations and the Advocates Associations shall keep proper accounts of the stamps in such form and in such manner as may be prescribed.
(5) The Bar Associations and Advocates Associations shall purchase the stamps from the Bar Council after paying in the value thereof less ten per cent of such value towards incidental expenses.
34. The term "Trustee Committee" is defined u/s 2(l) to mean "the Tamil Nadu Advocates Welfare Fund Trustee Committee established u/s 4".
35. Section 3 of the Welfare Fund Act states that the Government has constituted Tamil Nadu Advocates Welfare Fund to which various amounts are credited, including the amounts paid by the Bar Council u/s 12 of the Welfare Fund Act. Section 3 of the Welfare Fund Act is as follows:
3. Advocates'' Welfare Fund.:
(1) The Government shall constitute a fund called the Tamil Nadu Advocates Welfare Fund.
(2) There shall be credited to the Fund;
(a) all amounts paid by the Bar Council u/s 12;
(b) any other contribution made by a State 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 u/s 10;
(f) all sums collected u/s 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 divided or refund received from the Life Insurance Corporation 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 investment part of the Fund; and
(j) all sums collected by way of sale of stamps u/s 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.
36. u/s 12 of the Welfare Fund Act, the Bar Council of Tamil Nadu has to contribute from its enrollment fees annually an amount equal to 20% thereof. Section 12 reads as follows:
Section: 12. Transfer of certain monies to the Fund: The Bar Council shall pay to the Fund annually an amount equal to twenty percent of the enrollment fees realized by it.
37. Likewise, the Trustee Committee is entitled to borrow with the approval of the Government any sum required for carrying out the purposes of the Act u/s 10 of the Welfare Fund Act. The Advocates Welfare Fund includes the membership fees as contemplated u/s 15 of the Welfare Fund Act, which states that every advocate practicing in any Court in the State, being a member of the Bar Association or Advocates Association may apply to the Trustee Committee for admission as its member on payment of the annual subscription mentioned therein along with the application amount of Rs. 200/- and the subscription payable annually is Rs. 100/- in cases where the standing of the advocate is less than ten years and Rs. 200/- in other cases. The Advocates Welfare Fund also includes the sums collected by way of sale of stamps u/s 22 of the Welfare Fund Act.
38. The above said Advocates Welfare Fund is maintained by a Trustee Committee established u/s 4 of the Welfare Fund Act, which is as follows:
4. Establishment of Trustee Committee:
(1) With effect on and from such date as the Government may, by notification appoint in this behalf, there shall be established a Committee by the name the Tamil Nadu Advocates Welfare Fund Trustee Committee.
(2) The Trustee Committee shall be a body corporate having perpetual succession and a common seal with power to acquire, hold and dispose of property and shall, by the said name, sue and be sued.
(3) The Trustee Committee shall consist of:
(a) the Advocate General of the State of Tamil Nadu, who shall be the Chairman of the Trustee Committee, Ex-Officio;
(b) the Secretary to the Government in Law Department, Ex-Officio;
(c) the Secretary to the Government in Home Department, Ex-Officio;
(d) the Government Pleader or the Public Prosecutor, as may be nominated by the Government;
(e) three members of the Bar Council nominated by it for a period of three years, and
(f) the Secretary of the Bar Council who shall be the Secretary of the Trustee Committee, Ex-Officio.
The Secretary of the Bar Council of Tamil Nadu is the Ex-Officio Secretary of the Trustee Committee.
39. The functions of the Trustee Committee, on which the fund is vested u/s 8 of the Welfare Fund Act, is enumerated u/s 9 of the Welfare Fund Act, as follows:
9. Functions of Trustee Committee.-
(1) The Trustee Committee shall administer the Fund.
(2) In the administration of the Fund the Trustee Committee shall subject to the provisions of the Act and the rules made thereunder.
(a) hold the amounts and assets belonging to the Fund in trust;
(b) receive applications for admission or re-admission to the Fund and dispose of such applications within ninety days from the date of receipt thereof;
(c) receive applications from the members of the Fund, their nominees or legal heirs, as the case may be, for payment out of the Fund, conduct such enquiry as it deems necessary and dispose of the applications;
(d) record in the minutes book of the Trustee Committee, its decisions on the applications;
(e) pay to the application amounts at the rates specified in the Schedule;
(f) send such periodicals and annual reports as may be prescribed to the government and the Bar council;
(g) communicate to the applicants by registered post under certificate of posting the decisions of the Trustee Committee in respect of applications for admissions or re-admission to the Fund or claims to the benefit of the fund.
40. Section 16 of the Welfare Fund Act, which is crucial for the purpose of this case adumbrates payment of amount on cessation of practice. As already stated, the cessation of practice is defined u/s 2(e) of the Welfare Fund Act as to mean removal of the name of an advocate from the State Roll u/s 26A of the Advocates Act, 1961 (Central Act 25 of 1961), wherein on the death of an advocate or on request from him to remove, such removal can be effected. Section 16 states that on cessation of practice the amount as specified in the schedule is payable. Even though the condition contemplated is that such member should have been a member of the Welfare Fund for not less than five years to enable him to get the amount as per the schedule, the Trustee Committee is empowered to confer such benefits even to those persons who have ceased to practice within five years from the date of admission to the fund due to the reasons stated therein, namely permanent physical or mental disability. The said Section 16 of the Welfare Fund Act was originally as follows:
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 and amount at the rate specified in the Schedule:
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 member of Fund as a result of any permanent physical or mental disability, the Trustee Committee may pay the member of the Fund an amount at the rate specified in the Schedule.
Explanation I.- For the purposes of calculating the number of years'' standing of a member of the Fund for the purpose of this Sub-section every four years of practice as an advocate before the admission of a member to the Fund shall be counted as one year''s standing and every year of practice over and above four years before such admission shall be counted equivalent to three months standing and the total number of years of standing so counted shall be added to the number of years of practice after such admission.
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 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.
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.
41. Therefore, as originally stood, Section 16(1) of the Welfare Fund Act, Explanation II (5) contemplated that on the death of a member of the fund within five years from the date of admission, his nominee or legal heir was eligible for payment at the rate of Rs. 1000/- for each year of practice by the member of the fund, that was because u/s 16(1) of the Welfare Fund Act, the schedule payment is possible only if he has completed five years as a member of the fund. The said clause came to be amended by the impugned amendment with effect from 1.2.2001 and thereafter, as on today, it stands as follows:
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 and amount at the rate specified in the Schedule:
1-A) "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 lumpsum 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 practise within a period of five years from the date of his admission as member of Fund as a result of "any permanent physical or mental disability" the Trustee Committee may pay the member of the Fund an amount at the rate specified in the Schedule:
Explanation I:
For the purposes of calculating the number of years standing of a member of the Fund for the purpose of this Sub-section every four years of practice as an advocate before the admission of a member to the Fund shall be counted as one year''s standing and every year of practice over and, above four years before such admission shall be counted equivalent to three months standing and the total number of years of standing so counted shall be added to the number of years of practice.
Explanation- II:
1) The period during which a member of the Fund remained under suspension shall not be considered for the purpose of counting the years of standing.
2) Where a member of the Fund dies before receiving the amount payable under Sub-section (1), his nominees or legal heir, as the case may be shall be paid the amount payable to the deceased member of the Fund.
3) Any person removed from the membership in the Fund under Sub-section (5) of Section 15 and re-admitted to the Fund under Sub-section (6) of that section shall not be entitled to payment of any amount from the Fund under this Act during the period between the date of his removal from the membership in the Fund and the date of re-admission.
4) Any member who is suspended by the Bar Council for misconduct under the Advocates Act 1961 (Central Act 25 of 1961) shall not be entitled to payment of any amount from the Fund under this Act for the period of such suspension.
5) Where a member of the Fund dies, his nominee or legal heir, as the case may be, shall be paid an amount of two lakh rupees;
Provided that if such member who, before his death, was in receipt of pension, gratuity or other terminal benefits from any State Government or 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. (w.e.f. 1.2.2001)
6) Every member or his nominee or legal heir, as the case may be shall apply for payment out of the Fund to the Trustee Committee in such form, as may be prescribed.
7) Where a person who has been paid an amount under Sub-sections (1) or (1-A) has been admitted as an advance again u/s 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 percent per annum, be readmitted 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 readmission. w.e.f. 15.1.1996
42. Therefore, the change made for the first time is in respect of the payment of a lumpsum which was, of course, Rs. 1 Lakh in the initial stage and subsequently became Rs. 2 Lakhs on the death of a member of the fund irrespective of the years of membership of the fund and it was in those circumstances, the said benefit of lumpsum is denied to a member of the fund who has enrolled after retirement from Government or other services, who is in receipt of pension, gratuity and other terminal benefits. The object for such amendment is stated as follows:
The Tamil Nadu Advocates Welfare Fund Act, 1987 (Tamil Nadu Act 49 of 1987) has been enacted to provide for the constitution of a welfare fund for the benefit of advocates on cessation of practice and for matters connected therewith or incidental thereto in this State.
2. The Bar Council of Tamil Nadu has proposed to pay Rs. 1,00,000/- as death benefit to the legal heirs of the Advocates, who are members of the Fund irrespective of the period of practice and pay upto Rs. 50,000/- as a lumpsum benefit to the members of the Fund on cessation of practice. The lumpsum payment as death benefit is of a substantial amount, which would have to come out of the Fund. Persons with prescribed qualifications, who had been employed in any State Government or the Central Government or other authority or employer and received terminal benefits also, can get enrolled themselves as advocates and join as members of the Fund. Having regard to the purpose of giving relief to advocate members, who have put in a number of years of practice in the Bar and the limited resources of the Fund, it is considered necessary to exclude the nominees or legal heirs of such advocate members, who had been employed in any State Government or the Central Government or other authority or employer and received the terminal benefits, from the entitlement of the lumpsum payment of the death benefit of Rs. 1,00,000/-. It has also been proposed to add an Explanation in the Schedule so as to treat any fraction of a year of membership of the Fund as a full completed year. With a view to make the Advocate Welfare Fund self-sustaining, the Bar Council of Tamil Nadu has also proposed to increase the subscription from Rs. 50/- to Rs. 100/- where the standing of the advocate at the Bar is less than ten years, from Rs. 100/- to Rs. 200/- where the standing of the advocate at the Bar is ten years or more and a life time subscription of Rs. 10,000/- for the designated senior advocates and Rs. 2500/- for other advocates. It has further been proposed to increase the stamp value to be affixed in the Vakalathnama from Rs. 2/- to Rs. 5/- so as to augment the fund. The Government have decided to accept the above suggestions of the Bar Council of Tamil Nadu and to amend the said Act suitably for the purpose.
3. The Bill seeks to give effect to the above decision.
43. On facts, it is, therefore, clear that not every advocate who has enrolled with the State Bar Council as per the Advocates Act, 1961 would automatically become a member of the Advocates Welfare Fund and it is only those advocates who apply to the Trustee Committee, on their admission and subject to the payment of subscriptions stated above, become members of the Advocates Welfare Fund. It is also not in dispute that not only the advocates who have enrolled with the Bar Council immediately after the completion of their Law Degree, but also those who enrolled as advocates after retiring from Government or other services may become the members of the Advocates Welfare Fund. It is only those advocates who have become the members of the Advocates Welfare Fund are eligible for the benefits under the Advocates Welfare Fund, which may be either the payment of schedule amount on cessation of their practice, as stated above, or payment of the lumpsum amount as per the impugned proviso.
44. It is also not in dispute that any person who gets the benefit under the schedule payment, on cessation of practice, which may be due to his voluntary retirement, would not be eligible for the lumpsum payment on his death, obviously due to the reason that on cessation of practice due to voluntary retirement and on obtaining such schedule amount, he ceases to be a member of the fund and ultimately, he may cease to be an advocate also as per Section 26A of the Advocates Act, 1961. Again, even among the advocates who have joined in the profession immediately after completion of their Law Degree and devoted their whole life for the profession of law, if such an advocate gets the said lumpsum payment, of course to his family after his demise, he would not be entitled for the schedule payment in addition to the lumpsum. However, in respect of the members of the Welfare Fund, who have joined in the profession after the retirement, who are in receipt of pension, gratuity and other terminal benefits, even though they are denied the benefit of lumpsum payment under the impugned proviso, they are allowed to get the amount either on the cessation of practice, which includes on death, as prescribed under the schedule to the Welfare Fund Act. The Schedule stipulates the payment based on the years of experience of a member as a member of the Fund. The schedule is as follows:
25 Years and above as a member of the fund ... Rs. 100000 24 Years and above as a member of the fund ... Rs. 96000 23 Years and above as a member of the fund ... Rs. 92000 22 Years and above as a member of the fund ... Rs. 88000 21 Years and above as a member of the fund ... Rs. 84000 20 Years and above as a member of the fund ... Rs. 80000 19 Years and above as a member of the fund ... Rs. 76000 18 Years and above as a member of the fund ... Rs. 72000 17 Years and above as a member of the fund ... Rs. 68000 16 Years and above as a member of the fund ... Rs. 64000 15 Years and above as a member of the fund ... Rs. 60000 14 Years and above as a member of the fund ... Rs. 56000 13 Years and above as a member of the fund ... Rs. 52000 12 Years and above as a member of the fund ... Rs. 48000 11 Years and above as a member of the fund ... Rs. 44000 10 Years and above as a member of the fund ... Rs. 40000 9 Years and above as a member of the fund ... Rs. 36000 8 Years and above as a member of the fund ... Rs. 32000 7 Years and above as a member of the fund ... Rs. 28000 6 Years and above as a member of the fund ... Rs. 24000 5 Years and above as a member of the fund ... Rs. 20000 4 Years and above as a member of the fund ... Rs. 16000 3 Years and above as a member of the fund ... Rs. 12000 2 Years and above as a member of the fund ... Rs. 8000 1 Year and above as a member of the fund ... Rs. 4000
45. It is needless to state that membership of the Fund of a person continues as long as his enrollment as an advocate in the Bar Council continues.
46. On the above said factual undisputable facts, now, it is relevant to consider the merits of the submissions made by both sides.
47. The pivotal contention which is raised by the respective learned Counsel and the decision to be arrived at is as to whether the classification made under the impugned proviso amounts to a class legislation or a reasonable classification or, in other words, whether such proviso should be struck down as arbitrary, unreasonable and violative of Article 14 of the Constitution of India.
48. At the cost of repetition, it is to be insisted that as advocates enrolled under the Advocates Act, 1961, it is no doubt true that there is no distinction between the advocates. In fact, one of the basic objects of the Advocates Act, 1961 is to have the integration of the bar into a single class of legal practitioners known as advocates. On the facts of the present case, it is only among the members of the Fund a distinction is drawn between the members who are the advocates enrolled immediately after their Law Degree and continued to profess law, and the advocates who after completion of their Law Degree have joined in some services elsewhere, either in Government or otherwise, and after their retirement enrolled as Advocates, having possessed, at that time, the financial source of retirement benefits, pension, gratuity, etc., which have been conferred on them, which, no doubt, is earned by them, as correctly pointed out by the learned senior counsel for the writ petitioners, for the services rendered to their employer. As the members of the Fund, such category of persons, who have enrolled after retirement, have become the members entitled to the benefit of payment as per the schedule.
49. It is relevant to point out that when a member of the Fund, whether he becomes an advocate immediately after completing his Law Degree or after retirement from services, on his cessation of practice, if the same is by way of retirement before his demise, both classes of Advocates are entitled to the benefit under the schedule alone. In cases, where a member of the Fund has taken up the profession as his only way of avocation, if he dies, his nominee or legal heir is provided with the lumpsum of Rs. 2 Lakhs. In such event, as stated earlier, his family would not be entitled to the schedule payment in addition, since cessation of practice includes by death, as per Section 26-A of the Advocates Act, 1961. On the other hand, in respect of the members of the Fund, who have retired from services, they are denied the benefit of lumpsum payment, on the ground that they have sufficient financial background in the sense that, admittedly, they have got pensionary benefits, retirement benefits, gratuity as a lumpsum, etc., and in addition, on their demise, for the services rendered to the Government or elsewhere, their family continues to get pension. It is in that aspect, a classification is sought to be made. In such circumstances, taking into consideration the said precarious position, we are of the considered opinion that the distinction made between the member advocates who enrolled and professed law profession from the beginning, and the advocates who joined law profession after retirement, viz., after completion of nearly 58 years of their life, for the purpose of conferring lumpsum benefit is certainly based on a reasonable ground. This Court can only decide as to whether such classification is reasonable or not. When once it is prima facie satisfied that the basis of classification has a nexus to the object sought to be achieved, then it cannot be held to be either arbitrary or violative of Article 14 of the Constitution of India. When once such classification is reasonable, it is not open to any court to strike down such law only due to the reason that there are certain impediments caused to some persons.
50. While explaining about the purport and design of Article 14 of the Constitution of India, in the light of the legislative process, a Constitutional Bench of the Supreme Court presided over by Patanjali Sastri,C.J., in
17. Even from the point of view of reasonable classification, I can see no reason why the validity of the Act should not be sustained. As already pointed out, wide latitude must be allowed to a legislature in classifying persons and things to be brought under the operation of a special law, and such classification need not be based on an exact or scientific exclusion or inclusion. I cannot share the view of Das Gupta, J. that the expediency of speedier trial is ''too vague and indefinite'' to be the basis of a ''well de-fined'' classification. Legislative judgment in such matters should not be canvassed by courts applying doctrinaire ''definite objective tests''. The court should not insist in such cases on what Holmes, J. called ''delusive exactness'' (Truax v. Corrigan 1921-257 U.S. 312 supra). All that the court is expected to see, in dealing with equal protection claims, is whether the law impugned is ''palpably discriminatory'', and, in considering such a question great weight ought to be attached to the fact that a majority of the elected representatives of the people who made the law did not think so, though that is not, of course, conclusive. They alone know the local conditions and circumstances which demanded the enactment of such a law, and it must be remembered that ''legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the Courts'' (per Holmes, J. in Missouri K. & T. R. Co. v. May [1880] 101 U.S. 22).
The Supreme Court, in the said judgment, has made the following observation:
56. ...The difference brought about by a statute may be of such a trivial, unsubstantial and illusory nature that that circumstance alone may be regarded as cogent ground for holding that the statute has not discriminated at all and that no inequality has in fact been created. This aspect of the matter apart, if a statute brings about inequality in fact and in substance, it will be illogical and highly undesirable to make the constitutionality of such a statute depend on the degree of the inequality so brought about. The adoption of such a principle will run counter to the plain language of Article 14.
51. While deciding about the constitutionality of a statute in the light of Article 14 of the Constitution of India, a Constitutional Bench of the Supreme Court, after referring the earlier judgments regarding the intelligible differentia, in its landmark judgment in
14. The principle enunciated above has been consistently adopted and applied in subsequent cases. The decisions of this Court further establish
(a) that a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself;
(b) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles;
(c) that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds;
(d) that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest;
(e) that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; and
(f) that while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and un-known reasons for subjecting certain individuals or corporations to hostile or discriminating legislation.
52. In
8. ...It cannot be too strongly emphasized that to make out a case of denial of the equal protection of the laws under Article 14 of the Constitution, a plea of differential treatment is by itself not sufficient. An applicant pleading that Article 14 has been violated must make out that not only he had been treated differently from other but he has been so treated from persons similarly circumstanced without any reasonable basis, and such differential treatment is unjustifiably made.
53. In the subsequent judgment in
7. Article 14 of the Constitution ensures equality among equals; its aim is to protect persons similarly placed against discriminatory treatment. It does not, however, operate against rational classification. A person setting up a grievance of denial of equal treatment by law must establish that between persons similarly circumstanced, some were treated to their prejudice and the differential treatment had no reasonable relation to the object sought to be achieved by the law.
54. While discussing about the rights of pensioners to have equal right to receive the benefits of liberalised pension scheme in the light of fixing a cutoff date, a Constitutional Bench of the Supreme Court presided over by Y.V. Chandrachud,C.J., in
11. The decisions clearly lay down that though Article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. In order, however, to pass the test of permissible classification, two conditions must be fulfilled viz. (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group; and (ii) that that differentia must have a rational relation to the objects sought to be achieved by the statute in question (see
12. After an exhaustive review of almost all decisions bearing on the question of Article 14, this Court speaking through Chandrachud, C.J. in
* * *
(3) The constitutional command to the State to afford equal protection of its laws sets a goal not attainable by the invention and application of a precise formula. Therefore, classification need not be constituted by an exact or scientific exclusion or inclusion of persons or things. The courts should not insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case. Classification is justified if it is not palpably arbitrary.
(4) The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is substantially the same.
* * *
(6) The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognise even degree of evil, but the classification should never be arbitrary, artificial or evasive.
(7) The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the 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. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that that differentia must have a rational relation to the object sought to be achieved by the Act.
55. It was again asserted by the Supreme Court in K. Thimmappa v. Chairman, Central Board of Directors, SBI (2001) 2 SCC 259 that the classification under Article 14 of the Constitution of India need not be a scientifically perfect one and it is sufficient if the distinction is on just and reasonable relation to the object of the legislation. The relevant portion is as under:
3. ...Before we deal with the respective contentions of the parties it would be appropriate for us to notice that what Article 14 prohibits is class legislation and not reasonable classification for the purpose of legislation. If the rule-making authority takes care to reasonably classify persons for a particular purpose and if it deals equally with all persons belonging to a well-defined class then it would not be open to the charge of discrimination. But to pass the test of permissible classification two conditions must be fulfilled:
(a) that the classification must be founded on an intelligible differentia which distinguishes persons or things which are grouped together from others left out of the group; and
(b) that the differentia must have a rational relation to the object sought to be achieved by the statute in question.
The classification may be founded on different basis and what is necessary is that there must be a nexus between the basis of classification and the object under consideration. Article 14 of the Constitution does not insist that the classification should be scientifically perfect and a court would not interfere unless the alleged classification results in apparent inequality. When a law is challenged to be discriminatory essentially on the ground that it denies equal treatment or protection, the question for determination by court is not whether it has resulted in inequality but whether there is some difference which bears a just and reasonable relation to the object of legislation. Mere differentiation does not per se amount to discrimination within the inhibition of the equal protection clause. To attract the operation of the clause it is necessary to show that the selection or differentiation is unreasonable or arbitrary; that it does not rest on any rational basis having regard to the object which the legislature has in view. If a law deals with members of a well-defined class then it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons. It is for the rule-making authority to determine what categories of persons would embrace within the scope of the rule and merely because some categories which would stand on the same footing as those which are covered by the rule are left out would not render the rule or the law enacted in any manner discriminatory and violative of Article 14. It is not possible to exhaust the circumstances or criteria which may afford a reasonable basis for classification in all cases. It depends on the object of the legislation, and what it really seeks to achieve.
56. In
45. In this case, the petitioners seek benefit to which they are not otherwise entitled. The legislature, in our opinion, has the requisite jurisdiction to pass an appropriate legislation which would do justice to its employees. Even otherwise a presumption to that effect has to be drawn. If a balance is sought to be struck by reason of the impugned legislation, it would not be permissible for this Court to declare it ultra vires only because it may cause some hardship to the petitioners. A mere hardship cannot be a ground for striking down a valid legislation unless it is held to be suffering from the vice of discrimination or unreasonableness. A valid piece of legislation, thus, can be struck down only if it is found to be ultra vires Article 14 of the Constitution of India and not otherwise. We do not think that in this case, Article 14 of the Constitution is attracted.
57. In
26. It is difficult to accede to the argument on behalf of the employees that a decision of the Central Government/State Governments to limit the benefits only to employees, who retire or die on or after 1-4-1995, after calculating the financial implications thereon, was either irrational or arbitrary. Financial and economic implications are very relevant and germane for any policy decision touching the administration of the Government, at the Centre or at the State level.
58. In
30. Although, earlier a view had been taken by this Court that prescribing such a standard or differentiating between categories of tenancies was violative of Article 14 of the Constitution, the subsequent view taken by this Court is that so long as the classification sought to be made was based on an intelligible differentia and had a nexus with the object sought to be achieved by the statute, the same would not offend the equality clause contained in Article 14 of the Constitution.
31. Resultingly, it is quite clear that it is within the legislative competence of the State to enact laws for the protection of certain sections of society on the basis of economic criteria and so long as it does not result in unreasonable classification, it is for the legislature to decide whom it should include or exclude from the application of such laws.
59. While construing the provisions of UCO Bank (Employees'') Pension Regulations, 1995, the Supreme Court in
The words ''resignation'' and ''retirement'' carry different meanings in common parlance. An employee can resign at any point of time, even on the second day of his appointment but in the case of retirement he retires only after attaining the age of superannuation or in the case of voluntary retirement on completion of qualifying service. The effect of resignation and retirement to the extent that there is severance of employment (sic is the same) but in service jurisprudence both the expressions are understood differently. Under the Regulations, the expressions "resignation" and "retirement" have been employed for different purpose and carry different meanings. The Pension Scheme herein is based on actuarial calculation; it is a self-financing scheme, which does not depend upon budgetary support and consequently it constitutes a complete code by itself. The Scheme essentially covers retirees as the credit balance to their provident fund account is larger as compared to employees who resigned from service. Moreover, resignation brings about complete cessation of master-and-servant relationship whereas voluntary retirement maintains the relationship for the purposes of grant of retiral benefits, in view of the past service. Similarly, acceptance of resignation is dependent upon discretion of the employer whereas retirement is completion of service in terms of regulations/rules framed by the Bank. Resignation can be tendered irrespective of the length of service whereas in the case of voluntary retirement, the employee has to complete qualifying service for retiral benefits. Further, there are different yardsticks and criteria for submitting resignation vis-`-vis voluntary retirement and acceptance thereof. Since the Pension Regulations disqualify an employee, who has resigned, from claiming pension, the respondent cannot claim membership of the fund. In our view, Regulation 22 provides for disqualification of employees who have resigned from service and for those who have been dismissed or removed from service. Hence, we do not find any merit in the arguments advanced on behalf of the respondent that Regulation 22 makes an arbitrary and unreasonable classification repugnant to Article 14 of the Constitution by keeping out such class of employees.
60. At this juncture, it is relevant to point out that the Advocates Welfare Fund u/s 3 of the Welfare Fund Act also includes the sums collected by way of Advocates Welfare Fund Stamps u/s 22 of the Welfare Fund Act and as stated above, the value of the Stamp, which was Rs. 2/- was enhanced to Rs. 5/- and subsequently to Rs. 10/-. In case of advocates who practice from the date they enter into the profession after completion of Law Degree, they are expected to affix the Welfare Fund Stamp in all the Vakalathnama as well as memos of appearance and certainly, the amount that would have been contributed by these advocates would be much more than the advocates who have enrolled after their retirement. The fund, which is a self-financing fund, is created by way of a share from among the enrollment fees, namely 20% from the Bar Council, sale of the Welfare Fund stamps, grant made by the Government as well as other sources, apart from borrowing, investments, etc., in addition to the membership fund and therefore, this being a self-financing scheme, not dependent upon the regular income from Government or other sources, naturally, the financial source can be a ground of classification of the advocates for the purpose of conferring of the benefit of lumpsum payment.
61. The judgment of the Supreme Court relied on by the learned senior counsel for the contesting respondents in
62. Again, in
63. One another submission made by the learned senior counsel appearing for the contesting respondents is about the seeming contradiction between Sections 2(a) and 2(i) of the Welfare Fund Act and the impugned amendment. It is relevant to point out that Section 2(a) of the Welfare Fund Act, which defines "advocate" for the purpose of Welfare Fund Act, makes it clear that he must be an advocate as per Section 17 of the Advocates Act, 1961 and should be a member of the Bar Association or an Advocates Association so as to make him eligible to become a member of the fund. In fact, Sections 13 and 14 of the Welfare Fund Act provide the procedure for recognition and registration by Bar Council of any association of advocates, which includes bar association, and it is only those advocates practicing in any court, who are the members of the recognized Advocates Association or Bar Association as per Sections 13 and 14 of the Welfare Fund Act, who are entitled to be admitted as members of the fund, as it is stated in Section 15 of the Act, which is as follows:
15. Membership in Fund.-
(1) Every advocate practicing in any court in the State and being a member of a Bar Association or an Advocates Association may apply within to the Trustee Committee for admission as a member of the Fund, in such form as may be prescribed.
(2) On receipt of an application under Sub-section (1) the Trustee Committee shall make such enquiry as it deems fit and either admit the applicant to the Fund or, for reasons to be recorded in writing, reject the application.
Provided that no order rejecting an application shall be passed unless the applicant has given an opportunity of being heard.
(3) Every applicant shall pay an application fee of two hundred rupees along with the application to the account of Trustee Committee.
(4) Every member of the Fund shall pay an annual subscription to the Fund on or before the 30th June of every year or a life-time subscription, as the case may be, at the following rates, namely:
a) Where the standing of the advocate at the Bar is less than ten years One hundred rupees per annum
b) Where the standing of the advocates at the Bar is ten years or more
Two hundred rupees per annum
c) Life-time subscription where the advocate is designated as senior Advocate u/s 16 of the Advocates Act, 1961 (Central Act 25 of 1961)
Ten thousand rupees
d) Life-time subscription for other Advocates
Two thousand and five hundred rupees (w.e.f. 1-2-2001)
(5) Any member of the Fund who fails to remit the annual subscription for any year before the 30th June of that year shall be liable to be removed from the membership in the Fund. (w.e.f.1-2-2001)
(6) A person removed from the membership in the Fund under Sub-section (5) may be re-admitted to the Fund on payment of the arrears with the re-admission fee of fifty rupees within six months from the date of removal. (w.e.f. 1-2-2001)
(7) Every member of the Fund shall, at the time of admission to the membership in the Fund make nomination conferring on one or more of his dependents the right to receive in the event of his death, any amount payable to the member under this Act.
(8) If a member of the Fund nominates more than one person under Sub-section (7) he shall specify in the nomination the amount or share payable to each of the nominees.
(9) A member of the Fund, may, at any time cancel a nomination by sending a notice in writing to the Trustee Committee, provided that he sends along with such notice a fresh nomination together with a registration fee of fifty rupees. (w.e.f. 1-2-2001)
(10) Every member of the Fund who has requested the removal of his name from the State roll u/s 26A of the Advocates Act, 1961 (Central Act 25 of 1961), or who who voluntarily suspends practice shall within fifteen days of such request or suspension, intimate that fact to the Trustee Committee and if any member of the Fund fails to do so without sufficient reasons, the Trustee Committee may reduce, in accordance with such principles as may be prescribed, the amount payable to that member under this Act.
64. u/s 2(i) of the Welfare Fund Act, a "member of the Fund" is defined to mean "an advocate admitted to the benefits of the Fund and continuing to be a member thereof under the provisions of this Act".
65. It is true that under the impugned provision, viz., Explanation II(5) to Section 16 of the Welfare Fund Act, the words used are "where a member of the Fund dies" and in the proviso the words used are "such member". There is no conflict between the two provisions. Even though it is clear that among the advocates, who form a group, there is a sub-division for the purpose of conferring the benefit of lumpsum payment, as already discussed earlier, the classification of the advocates among the advocates is based on a reason which is acceptable, as explained above, and in such circumstances, there is no question of any harmonious construction or repugnancy between Sections 2(a) and 2(i) of the Welfare Fund Act and the impugned amendment. In such circumstances, the contention of the learned senior counsel for the contesting respondents that the definition provision alone should be given effect to, while the proviso has to be struck down, is also not acceptable.
66. The judgment relied upon by the learned senior counsel for the contesting respondents in
16. In our opinion, the positive provision contained in Section 2(d) must prevail over the definition of ''transfer of property'' prescribed by Section 5. No doubt, the purpose of the definition is to indicate the class of transfers to which the provisions of the Transfer of Property Act are intended to be applied; but a definition of this kind cannot over-ride the clear and positive direction contained in the specific words used by Section 2(d). As we have already seen. the result of the saving clause enacted by Section 2(d) is to emphasise the fact that the provisions of Section 57 and those contained in Chapter IV must apply to transfer by operation of law. Such a positive provision cannot be made to yield to what may appear to be the effect of the definition prescribed by Section 5; and so, we are inclined to hold that not-withstanding the definition prescribed by Section 5. the latter part of Section 100 must be deemed to include auction sales.
67. We do not see any reason to accept the said contention of the learned senior counsel for the contesting respondents on the legislative provisions of the present Act, wherein there is no conflict between the provisions, even though there is a classification among class of advocates, which, according to us, cannot be said to be unreasonable or discriminatory in its nature.
68. That apart, it is true that when compared to other States, wherein it is stated that the retired persons who enrolled as Advocates are not even permitted to be admitted in the Welfare Fund Scheme, in the State of Tamil Nadu there is no age restriction for admission as a Member of the Fund and even the retired employees, who received terminal benefits and pension are entitled to be admitted to the Welfare Fund for the purpose of getting benefits as per the schedule based on the standing in the bar.
69. The learned Judge proceeded on some of the possible factual aspects that some of the advocates, who entered into profession, may be flourishing and many of the pensioners, who became advocates after retiring as clerks, etc., may find it extremely difficult to cope up with the financial constraint and on the basis held that considering the financial constraint of the retired people, they should not be excluded from the purview of the benefit of the Welfare Fund Act.
70. In the circumstances of the case, since what is relevant is about the constitutionality of the impugned amendment, as to whether it is violative of Article 14 of the Constitution of India and to find out as to whether there is intelligible differentia between the object sought to be achieved and the impugned amendment, we are of the view that the impugned order does not lay down the correct legal position. In the absence of any legislative incompetency on the part of the State Government in making the impugned amendment and on the facts and circumstances of the case, finding that the object of conferring the benefit to one group of advocates is with a reason, which cannot be branded as unreasonable, we are of the view that the impugned amendment does not suffer from constitutional illegality or cannot be declared to be ultra vires to the Constitution.
71. What is forbidden by Article 14 of the Constitution of India is a class legislation and not a reasonable classification based on intelligible differentia between the object sought to be achieved and classification made. It is true that there are stray instances wherein, factually, on both sides a diametrically different situation may be in existence. It is also true that, while conferring the benefits to the advocates who have devoted their life from the date they have completed their law degree, there may be a number of advocates who have flourished in their lives financially and otherwise and they are also entitled to lumpsum payment, while among the retired employees who have become advocates, many of them may be living with financial constraint, but that alone is not a ground or criteria for the purpose of setting aside a law as ultra vires.
72. It is one thing to say that such of those advocates who have joined the profession immediately after Law Degree and have sufficient financial means, should not be conferred with the lumpsum payment in the interest of the large number of new entrants into the profession, who with fond hope have taken up the profession as their only source of avocation and ultimately, in the noble profession like that of advocates, which deals with the problems of others, it is more as a service and sacrifice, while incidentally earning livelihood also.
It is no doubt the duty of the statutory body like the Bar Council to find out the ways and means to distinguish among them so as to see that the fruits of the Welfare Fund reach the really deserving persons. Merely because the number of claims increased every year, it does not mean that it should thwart the noble object of continuation of the Advocates Welfare Fund. It is certainly the duty of the Trustee Committee, rather a statutory obligation, to see that the funds are created in accordance with Section 3(2) of the Welfare Fund Act. It is of utmost importance for an elected statutory body like that of the Bar Council to see that every amount of contribution received as per the said provision is genuinely used for the benefit of the members concerned in order to uphold the dignity and decorum of the profession, which depends by and large on the financial status, especially with respect to first generation lawyers, who form a large number of the profession as such. The Bar Council as well as the Trustee Committee have a statutory and sacred duty to maintain the said prestige and privilege in the interest of everyone by taking positive steps to augment the Welfare Fund.
73. In such view of the matter, we are of the view that the impugned order of the learned Judge has not laid down the correct law and the same is set aside and the proviso to Explanation II (5) to Section 16 of the Welfare Fund Act is held as valid and the writ appeals of the Bar Council of Tamil Nadu and the State Government stand allowed. No costs. Consequently, M.P.Nos.1 and 2 in each of the writ appeals are closed.
