WP(C) No. 15695 of 2020 (Public Interest Litigation)

``` WP(C) NO. 15695 OF 2020 ``` ``` -1- ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR ``` ## **`&`** ## **`THE HONOURABLE MR. JUSTICE SHAJI P.CHALY TUESDAY, THE 24[TH] DAY OF MAY 2022 / 3RD JYAISHTA, 1944 WP(C) NO. 15695 OF 2020`** ## **`PETITIONER/S:`** ``` ADV.JOS MECHERY AGED 57 YEARS S/O.VARGHESE, MECHERY HOUSE, MISSIONS QUARTERS, UNITY ROAD, EAST FORT P.O., THRISSUR - 680 005. BY ADVS.R.T.PRADEEP SMT.M.BINDUDAS SRI.K.C.HARISH ``` ## **`RESPONDENT/S:`** - `1 THE STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM - 695001.` - `2 BAR COUNCIL OF KERALA REPRESENTED BY ITS SECRETARY, CAMPUS ERNAKULAM, BAR COUNCIL BHAVAN, HIGH COURT ROAD, ERNAKULAM - 682031.` - `3 CHAIRMAN, BAR COUNCIL OF KERALA CAMPUS ERNAKULAM, BAR COUNCIL BHAVAN, HIGH COURT ROAD, ERNAKULAM - 682031.` - `4 THE BAR COUNCIL OF INDIA REPRESENTED BY ITS SECRETARY, 21-ROUSE AVENUE, INSTITUTIONAL AREA, NEW DELHI - 110 002.` - `5 ADDL. R5. THE SECRETARY TO THE GOVERNMENT, LAW DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.` - `6 ADDL. R6. SECRETARY TO THE GOVERNMENT, FINANCE DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.` ## **`WP(C) NO. 15695 OF 2020`** ``` -2- ``` ``` ADDL. R5 AND R6 ARE SUO MOTU IMPLEADED AS PER ORDER DATED 03/08/2020 IN WPC. BY ADVS SRI.PRANOY K.KOTTARAM SRI. RAJIT SRI. TEK CHAND, SR.GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`WP(C) NO. 15695 OF 2020`** ``` -3- ``` ## **JUDGMENT** ## **S.MANIKUMAR, CJ.** Instant Public Interest Litigation is filed seeking the following reliefs:- “I. To issue a writ of mandamus or any other appropriate writ order or direction to respondents to frame or amend rules to provide interim pay out upto 75% of the retirement benefit commensurating with the number of years of practice having on the credit of an advocate to mitigate the sufferings of practicing advocates on account of Covid-19 pandemic; II. To issue a writ of mandamus or any other appropriate writ order or direction to 1[st] respondent to pay the entire outstanding contribution from Legal Benefit Fund towards share of Welfare Fund or Bar Council of Kerala within such time fixed by this Hon’ble Court; III. Such other reliefs as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.” ## 2. When the matter came up on 03.08.2020, we passed the following order: The petitioner, an Advocate and member of Thrissur Bar Association, has filed the instant public interest litigation for a mandamus ``` WP(C) NO. 15695 OF 2020 ``` ``` -4- ``` directing the respondents to frame or amend rules to provide interim pay out upto 75% of the retirement benefit commensurating with the number of years of practice having on the credit of an advocate to mitigate the sufferings of practicing advocates on account of Covid-19 pandemic. 2. The petitioner has also sought for a mandamus directing the State of Kerala represented by the Chief Secretary, Thiruvananthapuram (respondent No.1) to pay the entire outstanding contribution from Legal Benefit Fund towards share of Welfare Fund of Bar Council of Kerala within such time fixed by this court. 3. Supporting the prayers sought for, the petitioner has contended that the State Government is bound to pay the portion of the Legal Benefit Fund to the Welfare Fund of Bar Council of Kerala to the tune of Rs.30 crores. According to the petitioner, need of the hour is that the members of the fund should be given interim pay out to the tune of 75% of the retirement benefit commensurating with the number of years of practice in the profession to meet the contingency. 4. The petitioner has further contended that the Bar Council of Tamil Nadu made an interim pay out of Rs.4,000/- to an Advocate to meet the contingency emerging out of Covid-19 pandemic. In a public interest litigation filed for a direction to the Bar Council of Tamil Nadu for interim pay out of Rs.50,000/- to an Advocate and Rs.25,000/- to an Advocate Clerk, vide order dated 16.6.2020 in W.P.No.7419 of 2020, a Division Bench of the Madras High Court directed the Bar Council of Tamil Nadu, not to ``` WP(C) NO. 15695 OF 2020 ``` ``` -5- ``` be contended with the paltry payment of Rs.4,000/- to each Advocate and directed to come out with more quantum of payment by making amendment to the provisions of the Act and Rules by being alive to the situation. In the above said circumstances, the petitioner has sought for the prayers stated supra. 5. Inviting the attention of this court to the order of the Hon'ble Division Bench of Madras High Court stated supra, Mr.R.T.Pradeep, learned counsel for the petitioner made submissions in support of the prayers sought for. 6. Per contra, inviting the attention of this court to the communication of the Bar Council of India dated 28.7.2020 addressed to the President/Secretaries of all the High Court Bar Associations, Mr.P.Narayanan, learned Senior Government Pleader submitted that Bar Council of India has filed a Writ Petition No.688 of 2020 under Article 32 of the Constitution of India before the Hon'ble Supreme Court, wherein Union of India, all States and Union Territories have been arrayed as respondents with a plea to issue a direction to provide financial assistance and that during the hearing of the writ petition, apart from staying all similar matters pending before various High Courts of the country, the Hon'ble Supreme Court has also taken suo motu Writ Petition (C)No.8 of 2020 in re : financial aid for members of Bar affected by pandemic and issued notices to the Union of India, State Governments/Union Territories, Bar Council of India and to all the State Bar Councils and to the Registrars General of all High Courts. 7. Letter of Bar Council of India dated ## **`WP(C) NO. 15695 OF 2020`** ``` -6- ``` 28.7.2020 addressed to the President/Secretaries of all High Court Bar Associations is reproduced: “BAR COUNCIL OF INDIA (Statutory Body Constituted under the Advocates Act, 1961) 21, Rouse Avenue Institutional Area, Near Bal Bhawan, New Delhi - 110002 ## BCI:D:1659:2020 28.07.2020 To, The President/Secretaries All High Court Bar Associations Subj: Conclusion of Virtual Meeting between Bar Council of India and the Hon'ble President/Secretaries of all High Court Bar Associations Request to furnish the views of the High Court Bar Associations along with Authorisation in favour of Bar Council of India and to send Vakalatnama to represent respective High Court Bar Associations, under the umbrella of the Bar Council of India, before the Hon'ble Supreme Court of India in the Suo Moto Writ Petition No. 8 of 2020 and in W.P. No. 686/2020 relating to financial assistance for needy Advocates. ## Sir/s, Ma'ams, This letter is being sent to all the Hon'ble President/Secretaries of High Court Bar Associations pursuant to the decision/resolution passed by the Joint Meeting of the Bar Council of India with High Court Bar Associations on 28.07.2020. ``` WP(C) NO. 15695 OF 2020 ``` ``` -7- ``` As you are aware, that the Bar Council of India had filed a writ petition no.686/2020 under Article 32 before the Hon'ble Supreme Court of India wherein the Union of India and all States and Union Territories have been arrayed as respondents with plea to issue a direction to provide financial assistance in the shape of disbursal of soft loans of at least 3 Lakhs to financially needy advocates enrolled with the various State Bar Councils in view of unprecedented crisis being faced by a large section of legal practitioners currently, payable immediately and repayable by the advocate concerned atleast 12 months after the normal functioning of the courts begins in reasonable installments. During the hearing of this writ petition apart from staying all similar matters pending before various High Courts of the country, until further orders, the Hon'ble Supreme Court of India, took SUO MOTO WRIT PETITION (C) NO 8 OF 2020 IN RE : FINANCIAL AID FOR MEMBERS OF BAR AFFECTED BY PANDEMIC and issued notice to the Union of India, State Governments/ Union Territories, Bar Council of India and to all the State Bar Councils and to the Registrars General of all the High Courts to be made returnable in two weeks. The Hon'ble Apex court also issued notice to the recognized Bar Associations of the Supreme Court and of all the High Court to show cause why a fund for relief to eligible and deserving advocates should not be set up and donations for the same be invited. In view of the above, the Bar Council of India had organized a joint meeting with the Hon'ble President/Secretaries/ ## **`WP(C) NO. 15695 OF 2020`** ``` -8- ``` Representatives of High Court Bar Associations of all States, today ie. 28 July, 2020 at 3 p.m through video conferencing and after detailed discussions for over 2 hours, it was unanimously resolved by all participating High Court Bar Associations, that since the aim and object of the Bar Council of India and the High Court Bar Associations are/is one and the same, ie. to procure financial assistance and help the needy Advocates, it was unanimously agreed by the High Court Bar Associations that in pursuance of this common goal and to strengthen the cause of the legal fraternity in this respect, to showcase our unity and solidarity and synchronization, High Court Bar Associations would authorise Bar Council of India to represent themselves before the Hon'ble Apex Court and that they would furnish Vakalatnama/s authorization to Bar Council of India. It was resolved that each High Court Bar Association would furnish short written submissions to the Bar Council of India at the earliest within a period of preferably two days, so that all submissions could be considered by the Bar Council of India, and compiled and placed before the Hon'ble Apex Court by way of a common Additional Affidavit which would comprise the stand of the Bar Council of India, the State Bar Councils (who have all unanimously already agreed to authorize Bar Council of India in this respect) and High Court Bar Associations. Therefore, all of you/each High Court Bar Association is/are requested to kindly issue a authorisation letter and two vakalatnamas with stamp/seal and sign to represent your respective High Court Bar Associations in both ``` WP(C) NO. 15695 OF 2020 ``` ## **`-9-`** writ petitions by submitting necessary applications/ affidavit, so that pleadings on behalf of all High Court Bar Associations can be uniform with Bar Council of India and towards the common aim and goal to procure financial assistance for needy advocates from the Union and State Governments. This is for your information and necessary action. The Vakalatnama format of Supreme Court is attached herewith. Kindly sign the same at the designated place with your stamp/seal and scan two Vaklatnamas (immediately) in respect of both Writ Petitions, so the needful legal steps can be taken and send it back to us at bci.scinfo@gmail.com. The short written submissions in word format too should be furnished on the above said email id preferably within a period of two days. Kindly courier two original Vakalatnama/s too addressed to Secretary, Bar Council of India, with "Vakalatnama S.C", written on the envelope. Kindly also find attached the form for transferring your honorarium into your account, which is also required to be filled in by all participants of the joint meeting. Yours sincerely, Sd/(Srimanto Sen) Secretary” 8. First prayer in the present writ petition ``` WP(C) NO. 15695 OF 2020 ``` ``` -10- ``` is for a direction against the respondents to frame or amend rules to provide interim pay out upto 75% of the retirement benefit commensurating with the number of years of practice having on the credit of an advocate to mitigate the sufferings of practicing advocates on account of Covid-19 pandemic. Whether a mandamus can be issued directing the Bar Council of Kerala to frame or amend the rules is the first question. Second prayer is for a direction to the State of Kerala represented by the Chief Secretary, Thiruvananthapuram (respondent No.1) to pay the entire outstanding contribution from Legal Benefit Fund towards share of Welfare Fund of Bar Council of Kerala within such time as may be fixed by this court. 9. As of now, we can only indicate that judicial precedents are to the effect that the courts do not have the power to issue any mandamus directing the Government/Legislature to frame or amend rules and it is purely in the legislative domain. However, pleadings indicate that respondent No.1 has not paid the sum of Rs.30 crores to the Advocates Welfare Fund and thus mandamus is sought for. 10. If the State Government, respondent No.1, is statutorily bound to pay their portion of the Legal Benefit Fund to the Advocate Welfare Fund out of which retirement benefits are being paid and if such payment is delayed, then court can issue orders for enforcement of the rights of the Advocates to get their share from the Advocates Welfare Fund and more appropriately, at this point of time, when the lawyer community is also affected due to Covid-19 pandemic. ``` WP(C) NO. 15695 OF 2020 ``` ``` -11- ``` 11. Though Mr.P.Narayanan, learned Senior Government Pleader submitted that similar issues are pending before the Hon'ble Supreme Court, going through the contents of the letter dated 28.7.2020 we find that there is a difference in the prayer sought for in the writ petition filed by the Bar Council of India before the Hon'ble Supreme Court and in the present writ petition. Former is to issue a direction to provide financial assistance as loan whereas the case on hand is for a direction regarding entitlement of contribution from the Legal Benefit Fund towards the share of the Welfare Fund of the Bar Council of Kerala. Therefore with due respect we are of the view that instant writ petition can be taken up and accordingly we admit the same. 12. Mr.P.Narayanan, learned Senior Government Pleader takes notice for respondent No.1. Mr.Rajit, learned counsel takes notice on behalf of the Bar Council of Kerala, Ernakulam. 13. Mr.P.Narayanan, learned Senior Government Pleader submitted that as regards the second prayer sought for, the Law and Finance Secretaries of the Government of Kerala are necessary and proper parties. As per rule 148 of the Kerala High Court Rules, all persons directly affected shall be made parties to the petition. Rule 148 reads thus: “148. Addition of parties.- All persons directly affected shall be made parties to the petition. Where such persons are numerous, one or more of them may with the permission of the court on application made of the purpose be impleaded on behalf of or for the benefit of all persons so affected; but notice of the Original Petition shall, ``` WP(C) NO. 15695 OF 2020 ``` ``` -12- ``` on admission, be given to all such persons either by personal service or by public advertisement as the Court in each case may direct. Provided that in cases where the State Government is a party the Secretary to the Government Department concerned shall be arrayed as party representing the Government. Provided further that if the subject matter of the petition relates to two or more Government Departments or, if the petition is of such a nature, the disposal of which warrants information from two or more Government Departments, the Chief Secretary to Government and the Secretaries to those Government Departments shall be made as party representing the Government.” 14. Placing on record the submission of the learned Senior Government Pleader and in exercise of the powers under Article 226 of the Constitution of India, we deem it fit to suo motu implead the Secretary to the Government, Law Department, Government of Kerala, Thiruvananthapuram and Secretary to the Government, Finance Department, Government of Kerala, Thiruvananthapuram as additional respondents 5 and 6 in the writ petition. Mr.P.Narayanan, learned Senior Government Pleader takes notice on their behalf. Learned counsel for the petitioner is also permitted to furnish the entire cause papers to the additional respondents. Registry is directed to make amendments wherever required. ## **`WP(C) NO. 15695 OF 2020`** ``` -13- ``` 3. On this day, when the matter came up for further hearing, on instructions from the Bar Council of Kerala, Sri. Tek Chand, learned Senior Government Pleader, made the following submissions: “There is a rule framed by the Bar Council of Kerala and approved by the Government of Kerala in which provision is made for payment of Rs.20,000/- interest free loan for all the members of the Kerala Advocates Welfare Fund for a period of 20 months repayable in installments. This amount is paid from the Kerala Advocates Welfare Fund. An amount of Rs.1,98,00,000/- was disbursed to 1980 Advocates in the year 2020. An amount of Rs.2,12,20,000/- was disbursed to 1061 Advocates in the year 2021. A total of Rs.4,10,20,000/- was paid. Another scheme for payment of Rs.1,00,000/each to those deceased advocates out of pandemic was also framed by the Bar Council of Kerala and Rs.31,00,000/- was paid to all deceased advocates during the year 2021. Rs.51,84,490/- was also paid to Advocates as financial help during covid pandemic in the year 2020. There was also another scheme framed by the Bar Council of Kerala in association with the Bar Council of India to pay Rs.50,000/- each to th0se advocates who are not members of the Kerala Advocates Welfare Fund. 12 advocates amounting to Rs.4,95,000/- were benefitted by the said scheme and Rs.45,00,000/- was also paid from the Bar Council of India Welfare Fund for the State of Kerala as financial help during covid pandemic in the year ``` WP(C) NO. 15695 OF 2020 ``` ``` -14- ``` 2020. Thus, a total of Rs.1,32,79,490/- was paid to ailing and deceased advocates from the funds of the Bar Council of Kerala, the Kerala Advocates Welfare Fund and the Bar Council of India Welfare Fund for the State of Kerala. As per the scheme of the Kerala Advocates Welfare Fund, it being a retirement benefit scheme, payment to retiring members as well as deceased members shall be done only in accordance with the provisions of the Act as per the schedule of payment provided in the Kerala Advocates Welfare Fund Act as per the schedule of payment provided in the said Act. There is no scheme for providing loan for exgratia payment to the members of the Kerala Advocates Welfare Fund in the statute. It was therefore, to help the Advocates that the above three schemes were framed to face the extraordinary situation due to pandemic. The Bar Council of Kerala is bound by the provisions of the Act and it cannot travel beyond the provisions in the Act. The Government of Kerala has not provided any special assistance to the Bar Council of Kerala in this regard. The Legal Benefit Fund constituted under Section 76 of the Kerala Court Fees & Suits Valuation Act is an income provided scheme to the Kerala Advocates Welfare Fund Act to the Advocates Clerks Welfare Fund. Disbursement of any amount directly from the Legal Benefit Fund is not possible as Section 76 of the Kerala Court Fees Act does not provide for the same. It is true that there are arrears of Rs.60 crores in the collected funds in the Kerala Legal Benefit Fund. 4. That apart, our attention is invited to the judgment of this ## **`WP(C) NO. 15695 OF 2020`** ``` -15- ``` Court in W.P.C.No.26037/2021 between **R.Rajendran v. Additional Chief Secretary-Finance** and others dated 22.11.2021, wherein, after considering the prayer for a direction to the respondent herein to disburse the pending amount of Kerala Advocate’s Welfare Fund with interest from the date of default and the material on record, writ court directed Ext.P1 representation filed therein to be disposed of by the Additional Chief Secretary – Finance, Government Secretariat, Thiruvananthapuram; respondent No.1 therein.” 5. As observed in our earlier order dated 3.8.2020, the relief sought for, for issuance of a direction in the nature of mandamus to the State Government/Legislature, to frame or amend a Government rule, is purely within the legislative domain, and therefore, no such direction, as prayed for by the petitioner, can be granted. 6. As regards the second prayer in the instant writ petition is concerned, there is already a direction in W.P.C No.26037/2021, dated 22.11.2021, to consider the representation. 7. As regards the financial assistance during Covid period, the Hon’ble Supreme Court has already taken cognizance of a writ petition ``` WP(C) NO. 15695 OF 2020 ``` and stayed all proceedings in the same. 8. Taking note of the above said order in W.P.C.No.26037/2021 dated 22.11.2021, there is no need to issue any further direction. However, the Additional Chief Secretary – Finance, Government Secretariat, Thiruvananthapuram; respondent No.1 therein, is directed to dispose of Exhibit.P1 representation submitted by the petitioner therein, if not done, as expeditiously as possible, so as to vindicate the grievance of the Advocates. The writ petition is disposed of as above. ``` Sd/- ``` ``` S.MANIKUMAR CHIEF JUSTICE ``` ``` Sd/- ``` ``` SHAJI P.CHALY JUDGE ``` uu 25.05.2022 ``` WP(C) NO. 15695 OF 2020 ``` ``` -17- ``` ## **`APPENDIX OF WP(C) 15695/2020`** ``` PETITIONER EXHIBITS EXHIBIT P1THE COPY OF NOTIFICATION DATED 8/4/2020 BY BAR COUNCIL OF KERALA. EXHIBIT P2THE COPY OF REPRESENTATION DATED 20/6/2020 BY PETITIONER BEFORE THE SECRETARY OF BAR COUNCIL OF KERALA WHICH HAS BEEN SENT BY REGISTERED POST. EXHIBIT P3TRUE COPY OF JUDGMENT DATED 16/6/2020 IN W.P.(C) NO.7419/2020 BY THE HIGH COURT OF MADRAS. ```