Dismissed

M.V.S. Nampoothiry v. the Bar Council of Kerala

Kerala HC10 Jan 2018WP(C)/363/2018

Case brief

AI extract

What is this about?

The Kerala High Court dismissed three writ petitions challenging non-inclusion of advocates in the voters' list for Bar Council elections. The Court held that petitioners were not entitled to relief as the Supreme Court's prescribed time periods for enrollment had expired.

What did the court decide?

The writ petitions were dismissed as the petitioners were not entitled to succeed due to the expiry of the time period prescribed by the apex court.

M.V.S. Nampoothiry Vs the Bar Council of Kerala — Service and Employment | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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WEDNESDAY, THE 10TH DAY OF JANUARY 2018 / 20TH POUSHA, 1939

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WP(C).No. 363 of 2018

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PETITIONER(S):

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M.V.S.NAMPOOTHIRY, ADVOCATE, S/O.LATE M.G.VISHNU NAMPOOTHIRY, PRASANTHI, LISSIE HOSPITAL ROAD, ERNAKULAM, KOCHI - 682 018.

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BY SRI.RAJU JOSEPH, SENIOR ADVOCATE ADV. SRI.C.JOSEPH ANTONY

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RESPONDENT(S):

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1. THE BAR COUNCIL OF KERALA, REPRESENTED BY THE SECRETARY, BAR COUNCIL BHAVAN, HIGH COURT CAMPUS, ERNAKULAM, KOCHI - 682 031.

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2. THE KERALA HIGH COURT ADVOCATES' ASSOCIATION, REPRESENTED BY THE SECRETARY, HIGH COURT BUILDING, ERNAKULAM, KOCHI - 682 031.

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R1 BY SRI.T.A.SHAJI, SENIOR ADVOCATE ADVS. SRI.ATHUL SHAJI SRI.S.ABHILASH VISHNU R2 BY ADVS. SRI.SANTHOSH MATHEW

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SRI.ARUN THOMAS SRI.JENNIS STEPHEN

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10-01-2018, ALONG WITH W.P.(C)NO. 756 OF 2018 AND W.P.(C)NO. 971 OF 2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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WP(C).No. 363 of 2018

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT-P1:	TRUE COPY OF THE DEGREE OF MASTER OF ARTS OF SAUGAR UNIVERSITY, M.P.
EXHIBIT-P2:	TRUE COPY OF THE DEGREE IN LAW ISSUED BY SAUGAR UNIVERSITY, M.P. AND ITS ENGLISH TRANSLATION.
EXHIBIT-P3:	TRUE COPY OF THE ENROLLMENT CERTIFICATE ALONG WITH THE LETTER FROM THE SECRETARY, BAR COUNCIL OF KERALA.
EXHIBIT-P4:	TRUE COPY OF THE COMPLAINT DATED 01.01.2018.
EXHIBIT-P5:	TRUE COPY OF THE NOTIFICATION NO.330/14 DATED 12.01.2015 ISSUED BY THE COUNCIL OF INDIA.
EXHIBIT-P6:	TRUE COPY OF THE ORDER OF THE HONOURABLE SUPREME COURT IN TRANSFERRED CASE (CIVIL) NO.126 OF 2015 DATED 23.08.2017.
EXHIBIT-P7: RESPONDENT(S)'	TRUE COPY OF THE ORDER OF THE HONOURABLE SUPREME COURT IN TRANSFERRED CASE (CIVIL) NO. 126 OF 2015 DATED 24.11.2017. EXHIBITS :
EXHIBIT R1(A):	TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT IN TR.CASE (CIVIL) NO. 126/2015.
EXHIBIT R1(B):	TRUE COPY OF THE COMMUNICATION DATED 05.11.2016 ISSUED TO ALL THE BAR ASSOCIATIONS IN THE STATE BY THE BAR COUNCIL OF KERALA.
EXHIBIT R1(C):	TRUE COPY OF THE COMMUNICATION RECEIVED BY THE BAR COUNCIL OF KERALA FROM THE BAR COUNCIL OF INDIA DATED 24.08.2017.
EXHIBIT R1(D):	TRUE COPY OF THE NOTICE PUBLISHED IN MATHRUBHUMI DAILY DATED 28.08.2017.

//TRUE COPY//

P.S.TO JUDGE

Msd.

SHAJI P. CHALY, J.

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W.P.(C) Nos.363, 756 & 971 of 2018

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----------------------------------------------Dated this the 10^th day of January, 2018

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JUDGMENT

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The captioned writ petitions are materially connected in respect of non-inclusion of the petitioners in the voters list for the ensuing Bar Council elections. Therefore, I heard them together and propose to deliver this common judgment.

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Apparently, the election to the Bar Council is now monitored by the Supreme Court in various cases pending before it, including Transfer Case (Civil) No.126/2015, and periodical orders are passed, and therefore, any order can be passed by this Court in compliance with the stipulations and directives issued by the apex court in the interim.

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W.P.(C) No.363 of 2018 is filed by a practising advocate in the High Court of Kerala on and with effect from 08.12.1973, having licence No.K-221/73. Petitioner therein was a member of the 11^th Bar Council. According to the petitioner, as required in Ext.P5 Bar Council of India Certificate and Place of Practice (Verification) Rules, 2015 [for short, 'the Verification Rules'], petitioner has submitted his application

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W.P.(C) Nos.363, 756 & 971 of 2018 2

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before the Kerala High Court Advocates' Association in the prescribed format on 15.06.2015, along with requisite fee, copies of certificates and other relevant documents. As his name is left out from the draft voters' list published on 30.12.2017, petitioner filed Ext.P4 complaint. On verification, it could be found that the 2^nd respondent viz., the Kerala High Court Advocates' Association has not forwarded the application

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submitted by the petitioner after verification. It is the contention of the petitioner that, since the petitioner is an aspirant to contest the ensuing election to the Kerala Bar Council, he will be put to irreparable injury, loss and hardship, if he is not included in the final voters' list.

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Petitioners in W.P.(C) No.756 of 2018 are practising lawyers in Ernakulam District, having licence Nos.K/493/1989 and 35/1988 respectively. According to the petitioners, verification of the certificates of the practising lawyers was contemplated before the preparation of the list and all the lawyers were intimated that they should submit the application along with the copies of the certificates pertaining to their qualification etc. to the 1^st respondent, through the respective Bar Associations in which they are members. Petitioners

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W.P.(C) Nos.363, 756 & 971 of 2018 3

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submitted their applications through the 2^nd respondent viz., the Ernakulam Bar Association during May, 2015, along with all requisite documents and prescribed fee. However, now they understand that their names are not included in the list, as the applications were not forwarded in time by the 2^nd respondent.

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Petitioner in W.P.(C) No.971 of 2018 is a Senior Advocate designated by the High Court of Kerala under Sec.16 of the Advocates' Act, 1961. According to the petitioner, the State Bar Council shall maintain an Electoral Roll which consists of two parts, the first part containing the names of Senior Advocates and the second part, the names of other Advocates under Sec.17(2) of the Advocates' Act, 1961.

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The 1^st respondent framed the Certificate and Place of Practice (Verification) Rules, 2015 on 12.01.2015 in exercise of powers conferred on Bar Council of India under Sections 49(1)(ag), 49(1)(ah) and 49(1)(i) of the Advocates Act, 1961. All lawyers enrolled between 01.01.1976 and 11.06.2010, except the Senior Advocates are duty bound to file an application for issuance of certificate of practice in Form-A under Rule 8 of the Verification Rules, 2015, within 6 months

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W.P.(C) Nos.363, 756 & 971 of 2018 4

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of the enforcement of Rules which was later extended till November, 2016. However, the Senior Advocates are exempted under Rule 5(a) of the Verification Rules, 2015 and only directed to send two passport size photographs along with with Form-E.

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According to the petitioner, petitioner signed FormE and submitted along with prescribed fee before the 4^th respondent, Kerala High Court Advocates' Association, and it is informed to the petitioner that the Form is forwarded to the 2^nd respondent. The 3^rd respondent issued Ext.P2 Preliminary Electoral Roll on 30.12.2017, in which, petitioner's name is not included. On enquiry with the 2^nd respondent, it is informed that the signed form is not seen in the office. Thereupon, petitioner filed an objection before the 3^rd respondent stating that his application along with the fee is already submitted before the 4^th respondent. Since the application under Rule 5(a) in Form-E for exempted category (Senior Advocates) is different from the application under Rule 8, the time stipulation is not applicable to the petitioner. It is the contention of the petitioner that, in spite of all these aspects, the 3^rd respondent is not prepared to include the name of the petitioner in the

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W.P.(C) Nos.363, 756 & 971 of 2018 5

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Electoral Roll.

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As I have pointed out earlier, the subject issue revolves around the interim orders passed by the apex court in Transfer Case (Civil) No.126/2015 along with other connected cases, dated 20.10.2016, 23.08.2017, 24.11.2017 and 14.12.2017. The order passed by the apex court on 24.11.2017 produced as Ext.P7 along with W.P.(C) No.363 of 2018 is relevant to the context. Paragraphs 6, 7 and 8 of the said order read thus:

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“6. An affidavit has been filed on behalf of the Bar Council of India (BCI) on 15.11.2017 wherein the report of the Minutes of the Fourth Meeting of the Central Verification Committee of the Bar Council of India held on 12.11.2017 has been enclosed. From a perusal of the said Minutes, we find that a total number of 15,34,531 advocates have been enrolled with various State Bar Councils, out of which, only 6,44,768 advocates have submitted their forms for verification. The State Bar Councils have sent 5,23,706 LL.B Degrees for verification, out of which, the Universities have sent the reports with regard to only 1,65,339 degrees.

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7. The Committee has further found that the progress cannot be said to be very good but at least it is satisfactory. From the aforesaid, we find that the State Bar Councils have not sent 1,21,062 LL.B Degrees for verification to the various Universities. Further, the Universities have not yet sent the reports regarding verification of the Law Degrees in respect of 3,58,367 advocates. Thus, about 4,79,429 advocates who have already submitted their forms and Law Degrees for verification would be adversely affected for no fault of theirs. Taking into consideration the aforesaid facts, we deem it fit and proper to modify our

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W.P.(C) Nos.363, 756 & 971 of 2018 6

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order dated 23.08.2017 and direct that all those 6,44,768 advocates, who have submitted their application forms along with Law Degrees for verification be enrolled and be shown in the electoral list. Of course, those advocates whose Law Degrees have been found false or fake as per the reports of the Universities shall be excluded from the electoral list. The electoral list be published by 30.11.2017 and the time schedule mentioned in para 7 of the order dated 23.08.2017 will start from 01.12.2017. The State Bar Councils shall conclude all proceedings by 15.02.2018.

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8. We make it clear that we have provisionally permitted those advocates, who have submitted their forms with Law Degrees but their cases are still pending for verification to participate in the election by including their names in the electoral roll. However, if on verification, the Law Degrees of such advocates are found false or fake as per the report of the concerned University then appropriate orders, in relation to their enrolment an also in relation to the elections in which they were allowed to participate, would accordingly be passed by this Court on receipt of the report of the Committee.”

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In paragraph 10 of the said order, it is held that the order dated 23.08.2017 is modified with a further direction to the Universities to expedite the process of verification of Law Degrees and complete the same by 31.03.2018. In my considered opinion, the stipulations contained under paragraphs 7 and 8 makes it clear that, all those persons included in 6,44,768 advocates who have submitted their application forms along with Law Degrees for verification are to be enrolled and to be shown in the Electoral list. The only liberty that is granted to the Bar Council is with respect to

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W.P.(C) Nos.363, 756 & 971 of 2018 7

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those advocates whose Law Degrees are found false or fake as per the reports of the Universities, to be excluded from the Electoral list. The electoral list is directed to be published on 30.11.2017, and the time schedule mentioned in para 7 of the order dated 23.08.2017 is directed to be started from 01.12.2017 and the State Bar Councils are directed to complete the proceedings by 15.02.2018.

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Now the sole question remains to be considered is, whether the petitioners are included in the 6,44,768 advocates directed by the Supreme Court to be included in the electoral roll.

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I have heard learned Senior Counsel appearing for the petitioner in W.P.(C) Nos.363 of 2018 and 971 of 2018 and the advocates appearing on either side in the writ petitions. Perused the documents on record and the pleadings put forth by the respective parties.

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Respective counsels appearing for the writ petitioners reiterated their contentions in the writ petitions with respect to the illegality in the action of the Bar Council and the respective Bar Associations in not forwarding the applications/forms submitted by the petitioners. However, in

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W.P.(C) Nos.363, 756 & 971 of 2018 8

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my considered opinion, there is no scope for considering such issues and the legal aspects raised by the petitioners in view of the peremptory directions contained in the orders passed by the apex court.

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Learned Senior Counsel appearing for the Bar Council has invited my attention to the interim order passed by the apex court on 14.12.2017 in Transfer Case (Civil) No.126/2015, wherein the extension of time sought for by the petitioners in the Interlocutory Applications was declined by the apex court. However, the date of 30.11.2017 mentioned in the order dated 24.11.2017 as the date to publish Electoral list, is extended to 15.01.2018 and the elections were directed to be started from 15.02.2018 and should be completed within a period of six weeks. It is also submitted by the learned Senior Counsel that the names of the petitioners are not included in the 6,44,768 advocates denoted by the apex court in its order dated 24.11.2017. The stand adopted by the Bar Associations is that, the applications/forms submitted by the petitioners were defective and they were not rectified, and therefore, the applications were not forwarded to the Bar Council.

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W.P.(C) Nos.363, 756 & 971 of 2018 9

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Evaluating the situation on the basis of the arguments advanced by the counsel on either side and perusing the pleadings and the orders passed by the apex court, I am of the considered opinion that, the petitioners are not entitled to secure the reliefs sought for in the writ petitions, since the time period prescribed by the apex court in the orders referred to above are already over. Therefore, I have no hesitation to hold that petitioners are not entitled to succeed in these writ petitions.

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Accordingly, the writ petitions are dismissed.

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Sd/- SHAJI P. CHALY JUDGE

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St/11.01.2018

M.V.S. Nampoothiry v. the Bar Council of Kerala

Case brief

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M.V.S. Nampoothiry v. the Bar Council of Kerala

Case brief

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