Petition No. 3908 of 1990

5th March, 2002

Respondent Counsel: Shri. G. V. AIMAN

Cases Cited:
Haniraj L. Chulani Vs. Bar Council of Maharashtra and Goa, AIR 1996 SC 1708 [Para 17]

JUDGMENT

R. M. LODHA, J. :- Whether there is anything wrong in the decision dated 24th April, 1990 taken by the Institute of Company Secretaries of India not to allow the Advocates to practise as Company Secretaries is the principal question in these two Writ Petitions and, therefore, these Writ Petitions were heard together and are disposed of by this common judgment.

2. In Writ Petition No. 3908 of 1990 Shri. T.U.Khatri is the Petitioner. According to Shri. Khatri he was granted certificate to practise law by the Bar Council of Maharashtra on 30th June, 1973. Shri. Khatri claims to have passed final examination conducted by the Institute of Company Secretaries of India (for short the Institute) and was admitted as an Associate Member of the Institute w.e.f. 30th October, 1970. Subsequently Shri. Khatri was made Fellow Member of the Institute w.e.f. 23rd August, 1976. Upon application made by Shri. Khatri to the Institute and upon fulfilment of requisite conditions including the No Objection from the Bar Council of Maharashtra, Shri. Khatri was issued certificate of practice by the Institute in accordance with the Company Secretaries Act, 1980 (for short "the Act of 1980") and the Company Secretaries Regulations, 1982 (for short "the Regulations") for the period from 31st October, 1986 to 30th June, 1987. The certificate of practice issued to Shri. Khatri was renewed for subsequent years upto the year 1989-90. The application made to the Institute by Shri. Khatri for renewal of his certificate of practice for the period from 1990-91 was not accepted because on 24th April, 1990 the Institute had taken a decision not to allow Advocates to practise as Company Secretaries as well. It is this decision dated 24th April, 1990 taken by the Institute which is under challenge. By letter dated 27th September, 1990, Shri. Khatri was informed that his certificate of practice has not been renewed as he is enrolled as an Advocate on the Roll of the State Bar Council and that he has not submitted the requisite declaration / undertaking in terms of ICSI Notification Number 2 dated 11-8-1989 in respect of signing annual returns of not exceeding 30 listed Companies in a calender year. This communication dated 27th September, 1990 is also under challenge at the instance of Shri. Khatri.

On 4th December, 1990 Shri. Khatri was informed again that certificate of practice as issued to him cannot be renewed for the year 1990-91 in view of the decision dated 24th April, 1990 and if he gets the Sanad issued by Bar Council surrendered or suspended, he may apply to the Institute for restoration of certificate of practice as per procedure laid down in the existing Regulations. This communication dated 4th December, 1990 has also been challenged by Shri. Khatri in his Writ Petition.

3. Shri. Rajan Pandurang Joshi is the Petitioner in Writ Petition No. 1179 of 1991. Shri. Joshi claims to have passed the examination of Company Secretary in December, 1978 and according to him in or around 1979 he became Associate Member of the Institute. Shri. Joshi is also a Law Graduate and has also passed L.L.M. in the year 1982. He was enrolled as an Advocate with the Bar Council of Maharashtra and Goa on 4th May, 1988 and a Sanad was issued to him. Shri. Joshi was initially employed as Company Secretary with Belapur Sugar and Allied Industries Limited but he started his practice on whole time basis as Company Secretary from 1st March, 1988. The certificate of practice granted to him by the Institute was renewed upto the year 1989-90. For the subsequent period, however, the certificate of practice was not renewed in view of the decision taken by the Council of the Institute on 24th April, 1990 that no Company Secretary is allowed to practice as an Advocate and for non-compliance of the communication dated 20th August, 1990. Shri. Joshi in his Writ Petition has sought to challenge the decision taken by the Institute dated 24th April, 1990 and the communication dated 27th September, 1990 whereby he was informed that the certificate of practice issued to him cannot be renewed for the year 1991 for the reasons stated therein. He was further intimated that he may apply for restoration of certificate upon his cancellation or suspension of enrollment as an Advocate with the Maharashtra State Bar Council.

4. In response to the aforesaid two Writ Petitions, on behalf of the Institute, counter affidavits have been filed. The Institute has set up the defence that the decision that the Advocates should not be allowed to practise as Company Secretaries is bona fide with a view to ensure healthy growth, advancement and development of the profession of Company Secretaries. The said decision was taken in view of the changed circumstances after initial permission was granted by the Institute to the Advocates to practise simultaneously as Company Secretaries. According to Council the said reasons are :-

(a) Some of the powers which were previously with the High Court under the Companies Act, 1956 were transferred in pursuance to the Companies (Amendment) Act, 1988 to the Company Law Board where the appearance by the Advocates was not necessary and even ordinary member holding certificate of practice as Company Secretary could appear;

(b) To provide more opportunities to such members who wanted to practice as Company Secretaries exclusively and the members who were practising as Advocates should be excluded from obtaining certificate of practice as Company Secretaries like Chartered Accountants or Cost Accountants who had already been excluded earlier;

(c) After the amendments incorporated in the Companies Act, 1956 vide the Companies (Amendment) Act, 1988, some field of activities/areas had been carved out for a Company Secretary in whole time practice and as such the work and responsibility of a Company Secretary in practice had considerably increased and it requires exclusive devotion to the practice of a Company Secretary;

(d) The decision of the Bar Council of Maharashtra and Goa taken in its meeting held on 22nd April, 1989 resolving that an Advocate cannot be allowed to practise both in the capacity as an Advocate and also as a Company Secretary simultaneously; and

(e) The Bar Council while allowing a Company Secretary to practise as an Advocate had been imposing a condition upon them that they would not advertise themselves as Company Secretary.

Relying upon Regulation 168 and other relevant provisions contained in the Regulations, it is submitted by the Institute that normally a Company Secretary in practice cannot engage in any practice or occupation other than that of profession of Company Secretaries, unless it is permitted by general or specific Resolution of the Council and in case any such general or specific permission is granted by the Council, it necessarily implies that the said permission can be subsequently withdrawn by the Council if it so thinks fit. The Institute has, thus, set up a case that the policy decision dated 24th April, 1990 is in the interest of profession of Company Secretaries and was taken to carve out an exclusive area of practice for the Company Secretaries so that the Company Secretaries may specialise in a particular field and carry out their duties as Company Secretaries in a more professional manner exclusively. The Institute has reiterated that no illegality has been committed by them in refusing to renew the permission to practise as Company Secretary to Petitioners.

5. We have given our thoughtful consideration to the rival case set up by the parties and also considered the provisions of the Act of 1980 and the Regulations and some of the relevant provisions of the Companies Act, 1956.

6. The Company Secretaries Act, 1980 (Act of 1980) was made to provide for regulation and development of the profession of Company Secretaries. Section 2(1) defines various expressions, inter alia, "Company Secretary" means a person who is a member of the Institute; "Council" means the Council of the Institute constituted under Section 9: "Institute" means the Institute of Company Secretaries of India constituted under this Act and "prescribed" means prescribed by regulations made under this Act. Section 2(2) provides that a member of the Institute shall be deemed to be in practice when. individually or in partnership with one or more members of the Institute in practice or in partnership with members of such other recognised professions as may be prescribed, on consideration of remuneration: (a) engages himself in the practice of the profession of Company secretaries to or in relation to, any Company; or (b) offers to perform or performs services in relation to the promotion, forming, incorporation, amalgamation, reconstruction, reorganisation or winding up of Companies; or (c) offers to perform or performs such services as may be prescribed by various categories as provided therein; or (d) holds himself out to the public as a Company Secretary in practice; or (e) renders professional services or assistance with respect to matters of principle or detail relating to the practice of the profession of Company Secretaries; or (f) renders such other services as, in the opinion of the Council, are or may be rendered by a Company Secretary in practice. Under Section 3(1) all persons whose names were entered in the Register of the dissolved Company immediately before the commencement of the Act of 1980 ipso fact had their names entered into the Register to be maintained under the Act of 1980 so long as they continue to have their names borne on the Register to be maintained under the Act of 1980. Section 6 makes a provision for certificate of practice which reads thus :-

"6(1) No member of the Institute shall be entitled to practise, whether in India or elsewhere, unless he has obtained from the Council a Certificate of practice.

(2) A member who desires to be entitled to practise shall make an application in such form and pay such annual fee, for his certificate as may be prescribed which shall not exceed two hundred rupees in any case, and such fee shall be payable on or before the 1st day of April in each year."

7. Section 7 provides that members of the Institute shall be known as Company Secretaries and no member using such designation shall use any other description, whether in addition thereto or in substitution therefor. Section 7 reads thus :-

"7. Every member of the Institute in practice shall, and any other member may, use the designation of a Company Secretary and no member using such designation shall use, any other description, whether in addition thereto or in substitution therefor:

Provided that nothing in this section shall be deemed to prohibit any such member from adding any other description or letters to his name if entitled thereto, to indicate membership of such other institute whether in India or elsewhere as may be recognised in this behalf by the Council, or any other qualification that he may possess, or to prohibit a firm, all the partners of which are members of the Institute and in practice, from being known by its firm name as Company Secretaries."

8. Constitution of the Council of the Institute is provided in Section 9 which is thus:

"9.(1) There shall be a Council of the Institute for the management of the affairs of the Institute and for discharging the functions assigned to it by or under this Act.

(2) The Council shall be composed of

(a) not more than twelve persons elected by members of the Institute from amongst the Fellow chosen in such manner and from such regional Constituencies as may be notified in this behalf by the Central Government in the Official Gazette; and

(b) not more than four persons nominated by the Central Government".

9. Section 15 provides for the functions for the Council which, inter alia, includes, granting or refusal of certificates of practice under this Act. Section 15 to the extent it is relevant reads thus :-

"15.(1) The duty of carrying out the provisions of this Act shall be vested in the Council.

(2) In particular, and without prejudice to the generality of the foregoing power, the duties of the Council shall include -

(a) .. ... ..

(b) .. ... ..

(c) .. ... ..

(d) .. ... ..

(e) the granting or refusal of certificates of practice under this Act;

(f) .. ... ..

(g) .. ... ..

(h) the removal of names from the Register and restoration to the Register of names which have been removed;

(i) the regulation and maintenance of the status and the standards of professional qualifications of members of the Institute".

10. Section 39 empowers the Council of the Institute to make Regulations for the purposes of carrying out the provisions of this Act by notification in the Gazette of India and all Regulations made by the Council shall be subject to the condition of previous publication and to the approval of the Central Government. The first Schedule appended to the Act of 1980 has three parts in all. Part-I deals with professional misconduct in relation to members of the Institute in practice. Parts-II and III deal with professional misconduct in relation to members of the Institute in service and in relation to members of the Institute generally respectively. The second Schedule appended to the Act of 1980 has two parts. Part-I deals with professional misconduct in relation to members of the Institute in practice requiring action by the High Court and Part-II deals with professional misconduct in relation to members of the Institute generally requiring action by High Court.

11. In exercise of the powers conferred by sub-section (1) of Section 39 of the Act of 1980 read with sub-section (3) thereof, initially Company Secretaries Regulations, 1981 were framed which were superseded by the Company Secretaries Regulations, 1982 with effect from 16th September, 1982. The Regulations, 1982 are quite elaborate. Inter alia, it provides for qualification of members, application for membership, certificate of membership, certificate of practice, cancellation of certificate of practice, notification of removal of membership, restoration of membership and restoration of certificate of practice. Regulation 10 which provides for certificate of practice reads thus :-

"10. Certificate of practice.

(a) A member of the Institute may apply to the Council in the appropriate form for issue of a certificate of practice entitling him to practise as a Company Secretary anywhere in India.

(2) On acceptance of the application by the Council for issue of certificate of practice, the certificate shall be issued in the appropriate form and shall be valid until it is cancelled.

(3) In the case of renewal of the certificate of practice, the Secretary shall issue a letter extending the validity period of the certificate of practice for that year in the appropriate form.

(4) A member who ceases to be in practice shall not later than thirty days from the date he ceases to be in practice intimate the fact to the Council in writing.

(5) A member who ceases to be in practice or whose certificate of practice has been cancelled under regulation 11 shall surrender forthwith the certificate then held by him to the Secretary."

12. Regulation 168 debars Company Secretaries in practice to engage in any other business or occupation. Regulation 168 which is material and significantly relevant for the purposes of the controversy raised in these Writ Petitions makes a provision thus :-

"168. Company Secretaries in practice not to engage in any other business or occupation.

(1) A Company Secretary in practice shall not engage in any business or occupation other than the profession of Company Secretary unless it is permitted by a general or specific resolution of the Council.

Provided that a Company Secretary in practice who at the commencement of the Act was engaged in any business or occupation other than the profession of Company Secretary may continue to engage himself in such business or occupation for a period of six months from the commencement of these regulations.

(2) Without prejudice to the discretion vested in the Council in this behalf, a Company Secretary in practice may act as a Secretary, trustee, executor, administrator, arbitrator, receiver, appraiser, valuer, internal auditor, management auditor, management consultant or as a representative on financial matters including taxation and may take up an appointment that may be made by the Central or any State Government, Court of Law, Labour Tribunals, or any other statutory authority."

13. Survey of aforesaid provisions of the Act of 1980 and Regulations, 1982, no doubt, shows that the Institute or for that matter the Council of the Institute is competent to make suitable provisions regulating the Company Secretary in practice. While regulating the entry to the Company Secretaries in practice or their continuation as Company Secretaries, the Institute or the Council of the of the Institute may lay down the conditions which would be germane to the high standard and attainment of proficiency in the profession of Company Secretaries in practice. Such conditions and regulatory measures can be taken in the light of general scheme provided in Regulation 168 that a Company Secretary in practice shall not engage in any other business or occupation. The exception is that the Council of the Institute by its general or specific Resolution may permit a Company Secretary in practice to engage in any business or occupation. Tested from the touchstone of Regulation 168 can it be said that the decision taken by the Council of the Institute on 24 the April, 1990 that it shall not allow Advocates to practise as Company Secretaries suffers from any arbitrariness or illegality. Our plain answer is in the negative. A Company Secretary in practice is a serious profession which requires whole time devotion and focus. The standards of advocacy are high and exacting as well. So what is wrong if the Institute, which is the regulatory body of Company Secretaries, has taken the decision that a Company Secretary in practice shall not be allowed to practise law as by such permission the professional proficiency expected of a Company Secretary may clash with the exacting standards of advocacy. Both professions, Company Secretary in practice and law, assume certain responsibilities for the competence of its members; need whole time devotion and observance of certain standards, intellectual and ethical, and, therefore, it is but reasonable that a person eligible to practise law and as a company Secretary restricts himself to one profession and not carry on both professions simultaneously and such restriction imposed by Council of the Institute in conformity with Regulations and demand of profession of Company Secretary in practice cannot be faulted.

14. It would not be out of place to mention here that by Companies (Amendment) Act, 1988 w.e.f. 15-6-1988 Secretary in whole-time practice came to be defined in section 2 of the Companies Act, 1956 by inserting clause 45A, according to which, "Secretary in whole-time practice" means a Secretary who shall be deemed to be in practice within the meaning of sub-section (2) of Section 2 of the Companies Act, 1980 and who is not in full time employment. Section 149 of the Companies Act places restrictions on commencement of business. Section 149 (1)(d) reads thus :-

"149. (1) Where a Company having a share capital has issued a prospectus inviting the public to subscribe for its shares, the Company shall not commence any business or exercise any borrowing powers, unless-

(a) shares held subject to the payment of the whole amount thereof in cash have been allotted to an amount not less in the whole than the minimum subscription:

(b) every director of the company has paid to the company, on each of the shares taken or contracted to be taken by him and for which he is liable to pay in cash, a proportion equal to the proportion payable on application and allotment on the shares offered for public subscription.

(c) no money is, or may become, liable to be repaid to applicants for any shares or debentures which have been offered for public subscription by reason of any failure to apply for, or to obtain, permission for the shares or debentures to be dealt in on any recognised stock exchange; and

(d) There has been filed with the Registrar a duly verified declaration by one of the Directors or the Secretary or, where the Company has not appointed a Secretary, a Secretary in whole-time practice, in the prescribed form, that clauses (a),(b) and (c) of this sub-section have been complied with.

(2) Where a company having a share capital has not issued a prospectus inviting the public to subscribe for its shares, the company shall not commence any business or exercise any borrowing powers, unless-

(a) there has been filed with the Registrar a statement in lieu of prospectus;

(b) every director of the Company has paid to the company, on each of the shares taken or contracted to be taken by him and for which he is liable to pay in cash, a proportion equal to the proportion payable on application an allotment on the shares payable in cash; and

(c) there has been filed with the Registrar a duly verified declaration by one of the directors or the secretary or, where the company has not appointed a secretary, a secretary in whole-time practice, in the prescribed form, that clause (b) of this sub-section has been complied with.

(2A) Without prejudice to the provisions of sub-section (1) and sub-section (2) a company having a share capital, whether or not it has issued a prospectus inviting the public to subscribed for its shares, shall not at any time commence any business -

(a) if such company is a company in existence immediately before the commencement of the Companies (Amendment) Act, 1965, in relation to any of the objects stated in its memorandum in pursuance of clause (c) of sub-section (1) of section 13;

(b) if such company is a company formed after such commencement, in relation to any of the objects stated in its memorandum in pursuance of sub-clause (ii) of clause (d) of sub-section (1) of the said section, unless-

(i) the company has approved of the commencement of any such business by a special resolution passed in that behalf by it in general meeting; and

(ii) there has been filed with the Registrar a duly verified declaration by one of the directors or the secretary or, where the company has not appointed a secretary, a secretary in whole-time practice in the prescribed form, that clause (i) or as the case may be, sub-section (2B) has been complied with;

and if the company commences any such business in contravention of this sub-section, every person who is responsible for the contravention shall, without prejudice to any other liability, be punishable with fine which may extend to five thousand rupees for every day during which the contravention continues."

It would be seen from the aforesaid provision that where a Company having a share capital has issued a prospectus inviting the public to subscribe for its shares, the Company shall not commence any business or exercise any borrowing powers unless there has been filed with the Registrar a duly verified declaration by one of the Directors or the Secretary or where the Company has not appointed a Secretary, a Secretary in whole-time practice in the prescribed form that clauses(a), (b) and (c) of sub-section (1) of Section 149 have been complied with. It is further seen that a Company having a share capital, whether or not which has issued the prospectus, inviting the public to subscribe for its shares shall not commence any business subject to other conditions unless there has been filed with the Registrar a duly verified declaration by one of the Directors or the Secretary or where the Company has not appointed a Secretary, a Secretary in whole-time practice in the prescribed form that clause (i) or sub-section 2 (B) has been complied with. It would be seen therefrom that a Secretary in whole-time practice is empowered to verify declaration where a Company having the share capital has issued a prospectus inviting the public to subscribe for its shares intends to commence any business or exercise any borrowing powers. However for such declaration to be verified by the Company Secretary in whole-time practice, the exercise required to be done by him is elaborate and time consuming which may not be possible if a Secretary in whole-time practice is permitted to carry on other profession or occupation.

15. Section 383A of the Companies Act, 1956 makes a provision thus :-

"383A. (1) Every company having such paid-up share capital as may be prescribed shall have a whole-time Secretary, and where the Board of Directors of any such company comprises only two directors, neither of them shall be the Secretary of the Company :

Provided that every company not required to employ a whole-time Secretary under sub-Section (1) and having a paid-up share capital of ten lakh rupees or more shall file with the Registrar a certificate from a Secretary in whole-time practice in such form and within such time and subject to such conditions as may be prescribed, as to whether the Company has complied with all the provisions of this Act and a copy of such certificate shall be attached with Board's report referred to in Section 217."

16. It would be seen from the proviso to sub-section (1) of section 383-A that where a Company is not required to employ a whole-time Secretary under sub-section (1) and having a paid up share capital of ten lakh rupees or more is required to file a certificate from the Secretary in whole-time practice as to whether the Company has complied with all the provisions of the Companies Act with the Registrar. Before issuance of certificate, the Secretary in whole-time practice has to minutely see that the provisions of the Companies Act have been complied with by such Company. This exercise before issuance of certificate by the Secretary in whole-time practice is again time consuming and needing full attention which cannot be done if the Secretary in whole-time practice is permitted to indulge in other profession or occupation. The importance of such certificate can be seen from the provisions of Section 217 of the Companies Act. Non-compliance of which may lead to criminal prosecution and penalty. Besides the provisions contained in the Companies Act referred to by us hereinabove, there are certain acts which provide for certification of documents by practising Company Secretary. It would be too much in fact if Secretary in whole-time practice as defined in Section 2(45A) of the Companies Act is permitted to carry on any other profession or occupation. Permitting Secretary in whole-time practice to practise in profession other than Company Secretary shall be antithesis to the expression Secretary in whole-time practice. In our considered view, therefore, the decision of the Council of Institute taken on 24th April, 1990 that Advocates shall not be allowed to practise as Company Secretaries is not only reasonable but also highly justified. Merely because earlier permission was granted by the Council of the Institute to Company Secretaries in practice to practise as Advocates on the basis of No Objection obtained from the concerned Bar Council it cannot be said that while considering the case for renewal of the Certificate of practice for its members (Fellow or Associate), the Institute cannot prohibit such Company Secretaries to practise in law as an Advocate, if he desires certificate of practice under Act of 1980 to be renewed. Moreover, as we have already pointed out by inserting Clause 45A in Section 2 of Companies Act by the Companies (Amendment) Act, 1988 and the other relevant provisions which we have referred to hereinabove in the Companies Act, the role of Company Secretary in practice has changed drastically and the demand of the profession of Company Secretary in practice is far more exacting. There is more than justification in prohibiting the members of the Institute to practise as Company Secretary as well as Advocate simultaneously. Be it noted that Chartered Accountants and Cost Accountants have already been excluded in pursuing the profession of Company Secretary in practice simultaneously.

17. Not long time back, the Apex Court in (Dr.) Haniraj L. Chulani v. Bar Council of Maharashtra and Goa (AIR 1996 S.C. 1708) held that the Rules framed by Bar Council of Maharashtra and Goa restricting entry of a person already carrying on other profession cannot be said to suffer from any legal infirmity or constitutional vice. The question before the Apex Court in Haniraj was whether State Bar Council of Maharashtra and Goa was justified in refusing enrollment of Chulani as an Advocate under the Advocates Act, 1961 as he is a medical practitioner who does not want to give up his medical practice. The Apex Court after taking into consideration the various provisions of the Advocates Act, 1961, Rules framed by the Bar Council of Maharashtra and Goa and the Constitutional provisions of Articles 14, 19(1)(g) read with 19(6) and Article 21 held in paragraphs 16 and 17 thus :-

"16. The aforesaid well established connotations and contours of the requirements of legal profession themselves supply the necessary guideline for the concerned Bar Councils to frame rules for regulating the entries of persons to the profession. As noted earlier, the impugned rule has been framed by the Maharashtra State Bar Council in the exercise of its rule-making power under Section 24(1)(e) read with Section 28(2) of the Act. Section 24 deals with Persons who may be admitted as advocates on a State roll. Sub-section (1) thereof provides that subject to the provisions of this Act, and the rules made thereunder, a person shall be qualified to be admitted as an advocate on a State roll, if the fulfils the conditions laid down in the Section. Amongst other conditions are found conditions which the entrant has to fulfil as may be specified by the Rules made by the State Bar Council under Chapter III dealing with Section 28 sub-section (2) similarly gives power to the State Bar Council to make rules for carrying out the purposes of the Act and in particular such rules may provide the conditions subject to which a person may be admitted as an advocate. Such rule-making power flows from Section 28(2)(d). Even though the aforesaid rule making power is couched in wide terms the said power entrusted to the State Bar Council cannot be said to be unfettered or unhedged. The said rule-making power draws its sustinence from the guidelines laid down by the Act itself which entrusts the duty to the concerned State Bar Council to regulate entry to the legal profession which has the aforesaid well established connotations and attributes. The concerned Bar Councils are entrusted by the legislature itself with the aforesaid rule-making power enabling them to determine the requirements of the concerned State Courts whether the new entrants have to practise and to lay down appropriate conditions regulating such entries. As the power to make rules is entrusted by legislature to the chosen representatives of legal practitioners themselves who would be alive to the requirements of the concerned State where the Bar Council functions and the needs of the litigating public residing in the State in the light of the set-up of courts in the States concerned, it cannot be said that power is in any way unfettered or uncanalised so as to amount to total effacement of legislative control. Sufficient guidelines are laid down by the legislature itself while conferring such powers on the State Bar Councils. The guidelines flow from the nature of the profession to which admissions are to be given, the selection of the chosen representatives of the profession to the recipients of such power and the requirements of the Statute itself laying down the conditions for regulating the professional conduct of advocates as discernible from various provisions of the Act and the rules framed by a Central Bar Council itself for the guidance of all the State Bar Councils functioning in the country which are entrusted with the task of regulating the conduct of legal profession throughout the country under the supervision and guidance of Central Bar Council. The entire edifice of the Act in this connection has to be kept in view for finding out the relevant guidelines for enlightening the path of State Bar Councils entrusted with the task of framing rules regulating entries of new aspirants who are to be permitted to enter the fold of legal profession.

17. In this connection the learned senior counsel for the appellant invited our attention to the decision of this Court in A. N. Parasuraman v. State of Tamil Nadu, (1989) 4 SCC 683 : (AIR 1990 SC 40) and Ajoy Kumar Banerjee V. Union of India, (1984) 3 SCC 127 : (AIR 1984 1130) for buttressing her submission that legislature cannot delegate essential legislative functions to its delegate. There cannot be any dispute about the settled legal position on this aspect. However, as discussed by us earlier, in the set-up of the entire scheme of the Act and the rules framed by the Central Bar Council and in the light of the nature of the power entrusted to the elected body of advocates themselves it cannot be said that while regulating the entry to the legal profession the Bar Councils would find themselves without any yard-stick or guideline and would be trading an unchartered sea and consequently the rules of enrollment framed by them would fall foul on the altar of permissible delegation of legislative power. It is, therefore, not possible to agree with the contention of the learned senior counsel for the appellant that the impugned rule suffers from the vice of excessive delegation of legislative power or by providing rule-making power to the State Bar Councils for regulating entries of new advocates seeking to join the profession the legislature has effaced itself. The power conferred on the State Bar Councils to lay down further conditions for controlling the entries to the legal profession cannot be said to be an unguided power conferred on them. The conditions which the State Bar Councils can lay down by rules must be conditions which would be germane to the high and exacting standards of advocacy expected of the new entrants to the fold of the profession. Implicit in the conferment of such rule-making power is the guideline laid down by the legislature itself that the conditions must be commensurate with the fortification of the very purpose of the Act of putting the profession of advocates on a sound footing so that the concerned new entrant can well justify his role as an officer of the Court admitted to the fold of the noble profession to which he seeks his admission. Any conditions laid down by the State Bar Councils for fructifying this laudable object of legislature would remain germane to the exercise of this power and can well be said to be logically flowing from it. It cannot, therefore, be said that any unguided and unchartered power is handed over on a platter by the legislature to the concerned Bar Councils for regulating entry to the legal profession. Rule-making power conferred on the State Bar Councils is inherently hedged in with the obligation to frame only such rules regarding enrollment which would fructify the purpose of having efficient members of the Bar who can stand up to the expectation of the noble and learned profession to which they are to be given entry. Any rule which effectuates this purpose will be within the permissible field and will not fall foul on the altar of Article 14 and Article 19(1)(g) read with Article 19(6). Any rule framed for enrollment which does not meet this yardstick will be a taboo. Hence it cannot be said that the rule making power entrusted to the State Bar Councils suffers from absence of any guidelines or exhibits effacement of legislative power. The first point for determination, therefore, is answered in the negative by holding that the impugned rule does not suffer from vice of any excessive delegation of legislative power. That takes us to the consideration of Point No.2"

18. Considering the question whether the Rule framed by the Bar Council of Maharashtra and Goa restricting entry of person already carrying on other profession is violative of Article 19(1) (g) and 19(6), the Apex Court negativing the said contention, in Paragraph 18 ruled thus :

"18. It is no doubt true that under Article 19, Sub-Article (1)(g) all citizens have a right to practise any profession, or to carry on any occupation, trade of business and any profession may include even plurality of professions. However, this is not an absolute right. It is subject to sub-Article (6) of Article 19 which lays down that nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevents the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause. It cannot be gainsaid that litigants are also members of general public and if in their interest any rule imposes a restriction on the entry to the legal profession and if such restriction is found to be reasonable Article 19(1)(g) would not get stultified. It is true that the appellant as a citizen of India having obtained the qualification required for being enrolled as an advocate can legitimately aspire to be enrolled as an advocate but his aforesaid right is fettered by the impugned rule framed by the State Bar Council. We have to consider whether the said restriction imposed by the rule is in any way unreasonable. We have to keep in view the fact that the impugned rule restricts entry of a person who is otherwise qualified for being enrolled as an advocate if he is already carrying on any other profession. Question is whether such a person carrying on other profession can be validly told off the gates by the State Bar Council by resorting to the impugned rule. In our view looking to the nature of the legal profession to which we have made detailed reference earlier the State Bar Council would be justified in framing such a rule prohibiting the entry of a professional who insists on carrying on other profession simultaneously with the legal profession. As we have seen earlier legal profession requires full time attention and would not countenance an advocate riding two horses or more at a time. He has to be full time advocate or not at all. Learned senior counsel for the appellant submitted that even though the appellant is a practising surgeon, he undertakes, if given entry to the legal profession, not to practise medicine during the court hours. This is neither here nor there. It is obvious that even though medical profession also may be a dignified profession a person cannot insist that he will be a practising doctor as well as a practising advocate simultaneously. Such an insistence on his part itself would create an awkward situation not only for him but for his own clients as well as patients. It is easy to visualize that a practising surgeon like the appellant may be required to attend emergency operation even beyond court hours either in the morning or in the evening. On the other hand the dictates of his legal profession may require him to study the case for being argued the next day in the court. Under these circumstances his attention would be divided. He would naturally be in a dilemma as to whether to attend to his patient on the operation table in the evening or to attend to his legal profession and work for preparing cases for the next day and to take instructions from his clients for efficient conduct of the cases next day in the court. If he is an original side advocate he may be required to spend his evenings and even late nights for making witnesses ready for examination in the court next day. Under these circumstances as a practicising advocate if he gives attention to his clients in his chamber after court hours and if he is also required to attend an emergency operation at that very time, it would be very difficult for him to choose whether to leave his clients and go to attend his patient in the operation theatre or to refuse to attend to his patients. If he selects the first alternative his clients would clamour, his preparation as advocate would suffer and naturally it would reflect upon his performance in the court next day. If on the other hand he chooses to cater to the needs of his clients and his legal work, his patients may suffer and may in given contingency even stand to lose their lives without the aid of his expert hand as a surgeon. Thus he would be torn between two conflicting loyalties, loyalty to his clients on the one hand and loyalty to his patients on the other. In a way he will instead of having the best of both the worlds, have worst of both the worlds. Such a person aspiring to have simultaneous enrollment both as a lawyer and as a medical practitioner will thus be lie trishanku of yore who will neither be in heaven nor on earth. It is axiomatic that an advocate has to burn midnight oil for preparing his cases for being argued in the court next day. Advocates face examination every day when they appear in courts. It is not as if that after court hours advocate has not to put in hard work on his study table in his chamber with or without the presence of his clients who may be available for consultation. To put forward his best performance as an advocate he is required to give whole-hearted and full time attention to his profession. Any flinching from such unstinted attention to his legal profession would certainly have an impact on his professional ability and expertise. If he is permitted to simultaneously practise as a doctor then the requirement of his full time attention to the legal profession is bound to be adversely affected. Consequently however equally dignified may be the profession of a doctor he cannot simultaneously be permitted to practise law which is a full time occupation. It is for ensuring the full time attention of legal practitioners towards their profession and with a view to bringing out their best so that they can fulfill their role as an officer of the court and can give their best in the administration of justice, that the impugned rule has been enacted by the State legislature. It, therefore, cannot be said that it is in any way arbitrary or that it imposes an unreasonable restriction on the new entrant to the profession who is told not to practise simultaneously any other profession and if he does so to deny to him entry to the legal profession. It is true as submitted by learned senior counsel for their appellant that the rule of Central Bar. Council does not countenance an advocate simultaneously carrying on any business and it does not expressly frown upon any simultaneously profession. But these are general rules of professional conduct. So far as regulating enrollment to the profession is concerned it is the task entrusted solely to the State Bar Councils by the Legislature as seen earlier while considering the scheme of the Act. While carrying on that task if the entry to the profession is restricted by the State Bar Council by enacting the impugned rule for not allowing any other profession to enter the Bar when he does not want to give up the other profession but wants to carry on the same simultaneously with legal practice, it cannot be said that the Bar Council has by enacting such a rule imposed any unreasonable restriction on the fundamental right of the prospective practitioner who wants to enter the legal profession."

19. In the light of the challenge to the said Rule framed by the Bar Council of Maharashtra and Goa restricting entry of persons already carrying on other profession on the touchstone of Articles 14 and 21, the Apex Court in paras 20 and 21 observed thus:-

"20. So far as the challenge to the impugned rule on the touchstone of Art.14 is concerned it cannot be said that the rule is unreasonable, arbitrary or capricious from any angle. On the same ground on which the rule is found not to have fallen on the anvil of Art.19(1)(g) as the impugned rule has to be treated as imposing a reasonable restriction on the said fundamental right it also, therefore, has to be held not to be arbitrary or unreasonable from any viewpoint. The rule carves out a well defined class of professionals carrying on other professions and denies to members of this well defined class entry to the legal profession so long as they insist on carrying on any other profession simultaneously with the legal profession. The said classification has a reasonable nexus to the object sought to be achieved, namely, the efficiency of advocates belonging to the legal profession and the better administration of justice for which the legal profession is a partner with the judiciary. The challenge mounted on the rule in the light of Art.14, therefore has to fail.

21. That leaves out the challenge to the rule in the light of Art.21. It is difficult to appreciate this challenge. It is no doubt true that right to live includes right to livelihood. He is already a professional carrying on the profession of a medical practitioner. He wants to have a second string to his bow. He wants simultaneously to be permitted to practice law with a view to earn additional or more livelihood. So far as his aforesaid demand is concerned the impugned rule requires that unless he gives up that other practise and joins wholeheartedly the legal profession he cannot be permitted to enter the legal profession. That rule cannot be said to be laying down a procedure not established by law. On the contrary that procedure has been found to be well sustained under Art.19 (1)(g) read with Art.19(6). Once that conclusion is reached the absolute requirement of Art.21 would be out of the way. Appellant cannot be said to have been deprived of his right to livelihood by pursuing two professions, contrary to any established procedure of law. Consequently the impugned rule cannot be faulted on the touchstone of Art.21. The third point for determination also, therefore, is decided against the appellant."

20. In the light of the aforesaid legal position and Regulation 168 of Regulations, 1982, we have no hesitation in holding that the decision dated 24th April, 1990 taken by the Institute not to allow the Advocates as Company Secretaries in practice cannot be said to suffer from any vice nor can it be said to be arbitrary, unreasonable or irrational. It would not be out of place to mention here that even the Bar Council of Maharashtra and Goa in its meeting held on 22nd April, 1989 reconsidered the question about the permission to practise the profession of law as well as profession of Company Secretary and passed a Resolution that an Advocate cannot be allowed to practise both in the capacity as an Advocate and also as Company Secretary simultaneously. We called for the relevant Minute Book from the Secretary, Bar Council of Maharashtra and Goa and it appears from the Minutes of the Meeting held on 24th June, 1989 that vide Resolution No.254/1989 it was resolved that no action need be taken against those Advocates who have been granted permission to practise as Company Secretaries while practising as an Advocate but they were to be informed about the Resolution passed by the Bar Council on 22nd April, 1989. Though the said Resolution No.254/1989 seems to have been passed taking into consideration the case of five persons viz. Shri. Ashok K. Hingne, Shri. S. D. Limaye, Shri. Ramesh Chandra, Shri. Himanshu Pimpalkhude and Shri. S. V. Patwardhan who were permitted to practise as Company Secretary but as the Petitioners were also similarly situated, the Bar Council informed them as well about Resolution No.254/1989. Though in terms of Resolution No.254/1989 in so far as the Bar Council of Maharashtra and Goa is concerned, the Petitioners who were granted permission to practise as Company Secretaries while practising as Advocates, no action needed to be taken, yet in view of the decision taken by the Institute on 24th April, 1990 and the said decision being justified as already held by us, the Petitioners cannot pursue the profession of Company Secretaries in practice simultaneously with practice in law and, therefore, refusal by the Institute to renew the certificate of practice so long as the Petitioners do not surrender or get their sanad suspended from the Bar Council cannot be faulted.

21. Since the decision taken by the Institute on 24th April, 1990 not to permit Advocates to practise as Company Secretaries as well does not suffer from legal infirmity or constitutional vice, no infirmity can be found in the communication dated 27th September, 1990 and 4th December, 1990 addressed to Shri. T. U. Khatri and communication dated 27th September, 1990 addressed to Shri. R. P. Joshi.

22. The two Writ Petitions, accordingly, have no merit and deserve to be dismissed which we hereby order. Rule is discharged. No costs.

Petitions dismissed.