' FAZAL-E-MIRAN CHAUHAN, J.--- By filing the instant writ petition, the petitioner has challenged Rule 5.1 inserted by Punjab Bar Council in Chapter-V of the Punjab Legal Practitioners and Bar Councils Rules, 1974, vide Notification 23738-A/12-12-2006.
2. Brief facts of the case are that, the petitioner being law graduate applied for the enrolment to be enrolled as an Advocate, after properly undergoing the period of apprenticeship with Zia-ul- Mustafa, Advocate High Court thereafter, the intimation fee was deposited through bank Challan No,116187 dated 11-T2007 and the same was received in the office of Punjab Bar Council vide Diary No,2253, dated 11-7-2007. The petitioner waited for appearing in entry test, but neither any intimation nor any roll number slip was issued to him in this regard for appearance in the said entry test. Furthermore, the petitioner approached concerned authority, whereby the petitioner was told that, a letter dated 10-8-2007 was issued to him under the subject of intimation regarding joining the apprenticeship, wherein it was intimated that under rule 5.1 of the Punjab Legal Practitioners and Bar Councils Rules, 1974, a person is not entitled to seek enrolment as an Advocate beyond the age of 35 years; the petitioner is beyond the age of 35 years, thus, the intimation under reference being not entertainable, is returned. The petitioner approached the office of respondent No,1, but all in vain, hence, this writ petition.
3. It is argued by learned counsel for the petitioner that, section 26 Legal Practitioners and Bar Councils Act, (1973) prescribed qualifications for admission/enrolment as Advocate and there is no bar of age limiting the entry into legal practice after a certain age, prescribed in the said statute.
The Punjab Bar Council is not empowered to frame or amend the rules. Further argued that the newly inserted rule 5.1 is inconsistent with the Legal Practitioners and Bar Councils Act, 1973, hence, is liable to be set aside, being inconsistent with the Legal Practitioners and Bar Councils Act, 1973.
The amendment, so introduced is in derogation of fundamental rights of citizen of Pakistan. The impugned Rule .5.1 was framed in a hasty manner, which is totally against the interest of students as such, not sustainable in the eye of law and is liable to be declared violative of the fundamental rights.
4. Conversely, learned Assistant Advocate-General has opposed this writ petition by arguing that, under sub-clause (k) of section 56 of the Legal Practitioners and Bar Councils Act, 1973, empowers to frame its rules. The newly added rules were framed by the body exceeding its rule making authority given to the Punjab Bar Council under section 56 of the Legal Practitioners and Bar Councils Act, 1973. The said newly rules are not ultra vires to the provisions of the Legal Practitioners and Bar Councils Act, 1973. By adding the said rules, a restraint has been imposed by limiting the age to 35 years for enrolment of fresh Advocate. The act of Punjab Bar Council was not in excess of its power to frame rule or amend the same. The induction of newly framed rules is not without jurisdiction.
5. Learned counsel appearing on behalf of Punjab Bar Council argued that after deliberation, probe and discussion by the members to restrict uncontrolled influx of fresh law graduates, particularly, those who passed the examination, after their retirement, the said rules have been introduced, while framing the rules and imposing restriction of age limit, proper care was taken to give a proper notice to all those, who were likely to be affected by the newly added rule. The rule was framed on 12-12-2006. The proviso to the said rule was also added to give effect at once to all those, who are above the age of 35 years on 30-6-2007 and wanted to be enrolled as Advocate shall intimate his joining a senior for the purpose of apprenticeship and that intimation of senior is received before 30-6-2007. In the present case, the petitioner did not intimate the Punjab Bar Council before 30-6-2007 of his joining a senior Advocate as apprenticeship, knowingly that, he has crossed the age limit, so prescribed. His intimation was received on 11-7-2007, showing that he had joined the chamber of his senior for the purpose of apprenticeship on 1-6-2007. As per his own showing in the intimation letter, he crossed the age of 35 years on 30-6-2007 and his intimation, under reference, was not entertainable after 30-6-2007, thus, the same was returned vide letter dated 10-8-2007. Since, the petitioner of his own, has failed to avail the opportunity, provided by the Punjab Bar Council by not intimating before 30-6-2007, thus, is not eligible to appear in the examination, to be held on 15-3-2008. When arguing on legal side, it is argued that, the rule framed on 25-11-2006, to be given effect from 1-7-2007, provides sufficient time to those, who had crossed the age limit to avail the last opportunity. So far as the question, whether the Punjab Bar Council is vested with any power or authority to frame the rules, reference is made to section 56(k) of the Legal Practitioners and Bar Councils Act, 1973 which sub-clause duly empowers to the Punjab Bar Council to frame its new rules, thus, the letter issued refusing to accept the intimation after 30-6- 2007 was rightly issued. The rules are not ultra vires to the Act or the Constitution.
6. I have heard learned counsel for the parties, perused the relevant law and the documents, placed on the record. Admittedly, section 56 of the Legal Practitioners and Bar Councils Act, 1973 gives power to make rules. Section 56 and sub-clause (k) ibid reads as follows:-- "56. Power of Provincial Bar Council to make rule.---(A) Provincial Bar Council may, by notification in the office Gazette, make rules to provide for:--
(k) the conditions subject to which a person may be admitted as an Advocate or an Advocate of the High Court."
' Sub-clause (k) provides for conditions subject to which a person may be admitted as an Advocate or Advocate of the High Court. While exercising the power given in section 56 of the Legal Practitioners and Bar Councils Act, 1973, rules were framed and approved by the Punjab Bar Council in its meeting held on 7-7-1974. These rules are in order in the Legal Practitioners and Bar Councils Act, 1973 and as per clause 1.2, the same came into force at once. Chapter-V of the rules deals with enrolment of an Advocate rule 5.1 added and subsequently in its meeting on 25-11-2006, notified on 12-12-2006, reads as follows:-- "5.1. Any person qualified for admission as an Advocate under section 26 may make an application in Form "A" to the Bar Council if he proposes to practice generally within the jurisdiction of the Bar Council. All such applications shall be placed before an Enrolment Committee, but a person shall not be entitled for admission as an Advocate who is of 35 years of age on 30-6-2007 and thereafter when his application for admission is received in the office of the Bar Council: ' Provided that this shall not apply to the persons who intimations regarding joining the senior for the purpose of apprenticeship are received till 30-6-2007."
' This rule has been framed in addition to section 26 of the Legal Practitioners and Bar Council Act, 1973, which deals with qualification for admission as an Advocate section 26 reads as follows:--
26. Persons qualified for admission as Advocate.---(1) Subject to the provisions of this Act and the rules made thereunder, a person shall be qualified to be admitted as an Advocate if he fulfils the following conditions, namely:-
(a) he is citizen of Pakistan or a person deriving the nationality from the State of Jammu and Kashmir: ' Provided that, subject to the other provisions of this Act, a national of any other country [who has resided in Pakistan period of not less than one year immediately preceding the day on which he applies for admission] may be admitted as an Advocate if citizens of Pakistan duly qualified are permitted to practise law in that other country;
(b) he has completed the age of twenty-one years;
(c) he is a Barrister or is or was enrolled as an Advocate of a High Court in any area which before the fourteenth day of August, 1947, was comprised with India as defined by the Government of India Act, 1935 (26 Geo. 5, c 2) or has obtained;
(i) before the 7th day of February, 1966, a degree in law from any University of Pakistan; or
(ii) before the fourteenth day of August, 1947, a degree in law from any university in any area which was comprised befoie that date within India as defined by the Government of India Act, 1935 (26 Geo 5, c 2); or
(iii) a Bachelor's degree in any subject other than law from a university in Pakistan, or from a university outside Pakistan recognized by the Pakistan Bar Council, and a degree in law from a like university;
(d) he has undergone such course of training and passed such examination after the training as may be prescribed by the Pakistan Bar Council: ' Provided that this clause shall not apply to any class of persons who, by reason of their legal training or experience, are declared by the Pakistan Bar Council to be exempt from the provisions of this clause; and he has paid such enrolment fee and fulfils such other conditions as may be prescribed by the Pakistan Bar Council.
' A person shall be disqualified from being admitted as an Advocate:-- he was dismissed or removed from service of Government or of a public statutory corporation on a charge involving moral turpitude, unless a period of five years, or such less period as the Federal Government may, by notification in the official Gazette, specify in this behalf, has elapsed since his dismissal or removal; or
(ii) he has been convicted for an offence involving moral turpitude, unless a period of five years, or such less period as the Federal Government may, by notification in the official Gazette, specify in this behalf, has elapsed since the expiration of his sentence; or
(iii) he has been declared a tout and such declaration has not been withdrawn.
(3) Where any person has been admitted by a Bar Council [as an Advocate of the Supreme Court or] as an Advocate of High Court, [the Supreme Court or, as the case may be,] the High Court may, if it is of the opinion that it will not be in the interest of the legal profession for such person to continue on the roll of Advocates, refer the matter to the Bar Council for its reconsideration.
7. The word "Advocate" has been defined in sub-clause (a) of section 21 of the Legal Practitioners and Bar Councils Act, 1973, which reads as follows:-- "21. Classes of Advocate.----There shall be the following four classes of Advocates, namely:--
(a) Senior Advocates of the Supreme Court;
(b) Advocates of the Supreme Court
(c) Advocates of the High Court; and
(d) Other Advocates.
' The word "role" has also been defined in sub-clause (k) of.Section 2 of the Legal Practitioners and Bar Councils Act, 1973, which reads as under:-- "role" means the roll of advocates maintained by the Bar Council"
' Such-like Advocate of High Court or role of Advocate, prepared and maintained by the Punjab Bar Council, under this Act.
8. The newly added rule 5.1 of the Punjab Legal Practitioners and Bar Councils Rules, 1974 introduced and added on 12-12-2006, prescribed method of enrolment of Advocate with the Punjab Bar Council. Under this rule it is specifically mentioned that, any person qualified for admission as an Advocate under section 26 of the Legal Practitioners and Bar Councils Act, 1973 may make an application in Form "A" to the Bar Council if he proposes to practice generally within the jurisdiction of the Bar Council. All such applications shall be placed before an Enrolment Committee, but a person above the age of 35 years on 30-6-2007 shall not be entitled for admission as an Advocate.
The proviso to this section has been added in order to provide opportunity to those, who have cleared this examination before the induction of this section, to intimate regarding joining his senior for the purpose of apprenticeship till 30-6-2007 and no restriction of 35 years was imposed in this case. The petitioner, having cleared the examination after the induction of this Court was in the knowledge of the same, as he must have approached the office of the Punjab Bar Council to get information for enrolment. The petitioner has failed to intimate the Punjab Bar Council about joining his senior to complete his apprenticeship. No exception could be taken in the case of the petitioner, when there is a clear cut bar imposed by the Punjab Bar Council on all those, who crossed the age 35 years on 30-6-2007 except those, who have intimated prior to 30-6-2007 of their joining senior or to complete the apprenticeship. On merits, the petitioner has failed to make out any case to seek indulgence of this Court. So far as the argument advanced that the rule framed is ultra vires to the Act and the Constitution. Learned counsel for the petitioner except arguing that, the rule framed is ultra vires has failed to any other assistance.
9. The term "ultra vires" simply means beyond power or lack of power. The Act is said to be ultra vires, when it is in excess of the power of the person or authority doing. When it is argued that, the newly added rules 5.1 and 5.2 by the Punjab Bar Council is ultra vires of the Act or the Constitution. It means that, the Punjab Bar Council, which purported to enact exceeded the power conferred on it under the Legal Practitioners and Bar Councils Act, 1973. When it said that the rule is ultra vires to the Act, it means that the authority, which purported to make rules/Act in excess of its authority conferred on it under the Act. Section 56 of the Legal Practitioner and Bar Council Act, 1973. In fact, the said clause provides full authority/power to the Punjab Bar Council to make rules and to provide for the condition, subject to which a person may be admitted as an Advocate of High Court. The newly added rule 5.1 has been framed with lawful authority to regulate the administration and induction of Advocate to be enrolled as Advocate or Advocate of High Court.
The essence of the doctrine of ultra vires is that, the act is done in excess of the powers possessed by the person or body in law. This doctrine proceeds on the basis that the person or body has limited powers to frame rules, whereas, in the instant case, the Punjab Bar Council is fully empowered under sub-clause (k) of section 56 of the Legal Practitioners and Bar Councils Act, 1973, to make rules to provide for the conditions, subject to which, a person may be admitted as an Advocate or Advocate of High Court. Reference is made to Dr. H.S. Rikhy and others v. The New Delhi Municipal Committee AIR 1962 Supreme Court 554; Anand Prakash and another v. Assistant Registrar Cooperative Societies and others AIR 1986 All. 22 and P. Janardhana Shetty and another v.
The Union of India by Secretary to the Government of India, Ministry of Home Affairs, New Delhi and others AIR 1970 Mysore 171.
10. In this view of the matter, it is held that, the Punjab Bar Council has not acted in excess of its power while framing rules i,e, 5.1 and 5.2, in question. The imposing certain restriction of age limit in future to garage the huge influx of lawyer through proper care. There is no merit in this writ petition and the same is dismissed.