WP/34163/2011 of Smt.S.Jayasree, Vs The Secretary A.P.Bar Council, on 29 December 2011

ORDER:

This writ petition is filed under Article 226 of the Constitution ofIndia to declare the Election Notification dated 5.11.2011 issued bythe Secretary for conducting election to the Bar Council of State ofAndhra Pradesh, without competency or authorization as per theprovisos of Bar Council Rules of Advocates Act, 1961, is illegal andarbitrary and consequently granting injunction restraining theSecretary from proceeding to hold elections in accordance with law.

2. Heard.

3. It is stated in the affidavit filed in support of the petition that thepetitioner has participated as a candidate in the elections held on28.4.2006 for the membership of the Bar Council of Andhra Pradeshandshe had to file a WP.No.13378 of 2006 on the malpractices andgrave irregularitiescommitted by the present Secretary of the BarCouncil of A.P; that the credence of the Bar Council of AndhraPradeshis under the control of the Secretary forquite some time;thatthe said Secretary is playing fraud in almost all the matters as akey person of the Bar Council ever sinceshe was fraudulentlyinducted as Secretary without fulfilling requisites for holding the postof Secretary; that the question of appointment dehors the rules hasbeen considered by the Supreme Court from time to time; thatas per Section 8 of the Advocates Act, 1961, the term of office of membersof State Bar Council shall be five years from the date of publication ofthe result of election held on 28.4.2006 and Section 8 of theAdvocates Act limits the term of office bearers of a Council to fiveyears and no more, during which it should complete the process ofelection for next term; that the council for the Bar Council of AndhraPradesh has become defunct by the end of April, 2011 and electionprocess during its term of office has not been attended and as suchthe Secretary being only an executive without authorization cannotexercise arbitrarily any sort of official action such as the notificationof the election process suo-motu.Hence, the present writ petition isfiled.

4. The learned counsel for the petitioner raised two groundsviz.,

(i) that the Secretary of Bar Council of Andhra Pradesh is not aqualified person to hold the postand (ii) that the term of the office ofthe earlier Bar Council was ended by April, 2011 and the Secretaryhas to act in pursuance ofthe directionsthat may be given by theBar Council and hence he prays to allow the writ petition.

5. On the other hand, the learned standing counsel appearing forthe 1strespondent contended that since the term of the office of theBar Council was expired by 2.6.2011, the Bar Council of India hasextended the term of the office of the Bar Council of Andhra Pradeshtill 2.12.2011 and the present notification issued on 5.11.2011 andtherefore, he prays to dismiss the writ petition.

6. The present writ petition is filed on the ground that the presentSecretaryof the Bar Council of Andhra Pradeshisnoteligible andqualified to be appointed as the Secretary.The grievance of thepetitioner is that the present Secretary was fraudulently inducted as aSecretary without fulfilling the requisite qualification for holding of thepost of the Secretary.In the year 2003, the present Secretary wasappointed.As on today the appointment of Secretary of the BarCouncil of Andhra Pradeshhasnot been challenged.Simplybecause a notice has been issued on 20.7.2009 to the Chairman, BarCouncil of the State of A.P., and no reply has been issued to the saidnotice, that does not mean that the contents of the notice are to beadmitted. There is no prima facie material at this stage to show thatshe is not qualified and eligible person to hold the post of Secretaryand the contention of council on this aspect is devoid of merits.

7. With regard to the second contention that the term of the officeof the present council was expired by the end of the month of April,2011, the learned standing counsel appearing for the 1strespondentstated that the term of the office of the Bar Council of Andhra Pradeshhas been extended by another six months by virtue of Section 8 of theAdvocates Act, 1961 (for short, the Act).Section 8 of the Act readsthus:

“8.Term of office of members of Bar Council.- The term ofoffice of the elected members of a Bar Council shall be sixyears, but as nearly as possible one-third of the members firstelected to each such Council shall retire on the expiration ofevery second year in the prescribed manner, and the vacanciesso caused shall be filed by the election of new members in theprescribed manner.”

On perusal of the above provision, it is clear that the term ofthe office of the State Bar Council of A.P, shall be five years from thedate of publication of the results of its election.Provisoto Section 8of the Act reads that the Bar Council of India may, by order forreasons to be recorded in writing, extend the said term, for a periodnot exceeding six months.

8. According to the Standing Counsel for the 1strespondent, theterm of the office of the Bar Council of A.P has beenextended byanother six months.Whether the extension of term of the electedmembers of the office of the State Bar Council of Andhra Pradesh, isin accordance with law or not cannot be decided in this Writ Petitionas it was not challenged.Even prior to the expiry of the term of theoffice of the State Bar Council of A.P. as extended, the notification isissued.The writ petition is devoid of merits.

9. Accordingly, the Writ Petition is dismissed at the stage ofadmission.No order as to costs.

29.12.2011,Gk.

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K.C.BHANU,J.

HON’BLE SRI JUSTICE K.C. BHANU

Gk.

WRIT PETITION No.34163 OF 2011

Date:29.12.2011