FAQIR MUHAMMAD KHOKHAR, CHAIRMAN -The appellants have retired from service of Government or, as the case may be of other organizations. They are law graduates. After completion of period of apprenticeship, they made applications for enrolment as Advocates under N.W.F.P. Legal Practitioners and Bar Council Rules, 1974, which were turned down by the N.W.F.P. Bar Council, vide impugned (sic) age of superannuation. Therefore, they have preferred these appeals under Section 32 of the Pakistan Legal Practitioners and Bar Council Act, 1973 (herein-after called the Act) and Rule 112 of the Pakistan Legal Practitioners and Bar Council Rules, 1976.
2. Mr. Zahoor Qureshi, ASC, learned counsel for the appellant in Appeal No. 16 of 2005, submitted that the intimation of apprenticeship of the appellant had already been sent on 21.12.2002 and that the application was kept pending when the N.W.F.P. Legal Practitioners Rules, 2005, were published in Extraordinary Gazette on 8th March, 2005. " The application for enrolment as an Advocate of the appellant was required to be dealt with under the existing N.W.F.P. Legal Practitioners and Bar Council Rules, 1974, which did not provide for a qualification as to the upper age limit of an applicant. He had a reference to Section 26 of the Legal Practitioners and Bar Council Act, 1973 (Act No. XXXV of 1973) in that no such qualification as to upper age limit had been laid down for enrolment as an Advocate. He also pressed into service the principle of promissory estoppel and relied on the cases of Messrs M.Y. Electronics Industries (Pvt.) Ltd- v. Government of Pakistan through Secretary Finance (1998 SCMR 1404), Messrs Gadoon Textile Mills v. WAPDA and others (1997 SCMR 641) and Messrs Army Welfare Sugar Mills Ltd. And others v. Federation, of Pakistan (1992 SCMR 1622). It was further argued that retrospective effect could not be given to the Rules of 2005. The other appellants adopted similar arguments. However, the appellant Riaz Muhammad (appellant in Appeal No. 20 of 2007) further submitted that he had got hiirfeelf relieved under the Golden Shake Hand Scheme in the year 1997 from the Habib Bank Ltd. Therefore, he could not be said to have retired from service on attaining the age of superannuation.
3. The Secretary, N.W.F.P., Bar Council argued that the N.W.F.P. Bar Council Rules, 2005, were valid which did not violate or go beyond the scope of the Act.
4. We have heard the learned counsel, the appellants and the Secretary N.W.F.P. Bar Council at length. Section 26 of the Act- lays down the qualifications for admissions of Advocates as under:- "26. Persons qualified for admission as Advocates subject to the provisions of this Act and the rules made there-under, a person shall be qualified to be admitted as an Advocate if he fulfills the following conditions, namely:-
(a) he is a citizen of Pakistan or a person deriving his 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 for a 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 practice lay 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 within 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 in Pakistan; or
(ii) before the fourteenth day of August, 1947 a degree 'in law from any university in any area which was comprised before that due within India as defined by the Government of India Act, 1935 (26 Geo 5, c.2); or
(iii) a degree in law from a university in Pakistan or abroad recognized by the Pakistan Bar Council."
Rules 5.5 and Rule 5.11 of the N.W.F.P. Rules, 2005 at;e also reproduced below:- "5.5 The Secretary shall before forwarding the application to the Enrolment Committee ensure that the applicant is qualified and not disqualified in terms of Sections 26 and 27 of the Act and Enrolment Committee (sic) ensure that the applicant has undergone such training and passed such examination as may be prescribed.
5.11 The Enrolment Committee may refuse to enroll or re-enroll a person otherwise qualified on the grounds of his removal from the Roll of Advocates or legal practitioners anywhere, or pendency of criminal proceedings or proceedings for profession misconduct against him anywhere or on any other sufficient and reasonable ground or on the ground of having retired from any service after attaining superannuation age, excepting the persons who have held a judicial office or the persons having held the office of Public of Prosecutors Government pleaders or the persons who were pleading conducting cases before the Courts as Prosecutors/Legal Advisors of teaching law subjects."
5. It would appear that Section 26 of the Act prescribes only a qualification of minimum age of 21 years for enrolment as an Advocate. Even the Pakistan Legal Parameters and Bar Council Rules, 1976, do not disqualify a person to be enrolled as an Advocate on the basis of his having retired from service on attaining the age of superannuation, in Appeal No. 20 of 2007, the appellant Riaz Mehmood had not retired from service On attaining the age of superannuation but was relieved under the Golden Shake Hand Scheme such deprive the appellants from being intertilled as Advocates and deny from right to enter upon the noble profession of law as guaranteed by Article 18 of. The Constitution, it would be unreasonable and unfair to make in invidious distinction on the basis of upper-age of applicants. It the absence of any reasonable classification, Rule 5.11 of the Rules, 12005, would offend the fundamental right of a citizens to have the equal protection of law and to be treated alike as guaranteed by Article 25 of the Constitution of Islamic Republic of Pakistan. The upper-age limit of the applicants for enrolment has no nexus with the object of the Act. The said rule is ex facie discriminatory and arbitrary.
6. A somewhat similar question was examined by the Supreme Court of India in the case of Indian Council of Legal Aid and Advice, etc. v. Bar Council of India and another (AIR 1995 SC 691), wherein Rule 9 of Bar Council of India Rules debarring a person above 45 years of age from enrolment as an Advocate was struck down as being ultra vires Section 24 of Advocates Act, 1961. It was observed by Mr. Justice A.M. Ahmadi, former Chief Justice of India, that such like disqualification for enrolment of a person as an Advocate if above 45 years of age was discriminatory, arbitrary and unreasonable. The Madras High Court has also taken the view in the case of M. Rakhakrishana v.
The Secretary, Bar Council of India (AIR 2007 Madras 108) that the Parliament had fixed to upper age limit for pursuing law ensure after taking note of various relevant features covering the area.
Hence the State Bar Council could not between two similarly placed persons. We understand that quite recently the Delhi High Court has also taken the same view. Reference may also usefully made to the case of Rehmatullah v. University of the Punjab (PLD 1982 Lahore 411) and University of the Punjab and two others v. Rehmatullah (PLD 1982 Lahore 729) where a regulation made by the University of the Punjab debarring admission in law colleges to persons on the ground of upper age and year of graduation was struck down as being unconstitutional.
7. In our opinion, the N.W.F.P. Bar Council has gone beyond the scope of the Constitution and the Act in introducing disqualification for enrolment as an Advocate on. The ground of retirement from service after attaining the age of superannuation but at the same time making an exception for the persons who had held a judicial ^office or person having held the office of Public Prosecutors, Government Pleaders or the person who were pleading conducting cases before the Courts as Prosecutors/Legal Advisors or teaching law subjects. Therefore, Rule 5.11 of the Rules, 2005, is held to be invalid, ultra vires Section 26 of the Act of 1973 and a void being repugnant to Articles 4, 18 and 25 of the Constitution of Islamic Republic of Pakistan. The impugned orders passed by the N.W.F.P.
Bar Council. Sustainable at law.
8. For the foregoing reasons, these appeals are accepted and the impugned orders are set aside.
The N.W.F.P. Bat Council is directed to proceed with the applications of the appellants afresh on their merits and in accordance with law.