Right to practice as an advocate does not come within the purview of fundamental right.

Raju, J.

This batch of writ petitions involve the constitutional validity of Rule 9 in Chapter III of Part VI of the Bar Council of India Rules introduced by the Resolution of the Bar Council of India Ms.64 of 1993 dated 28. 1993 and published in the Gazette of India dated 29. 1993 disentitling a person who has completed the age of 45 years on the date on which he submits his application for his enrolment as Advocate to the State Bar Council.

2. Common submission have been made by some of the learned counsel, which have been adopted by the others, to which detailed reference will be made at the appropriate stage hereinafter. To have an understanding of the problem, the factual position in some of the writ petitions may be adverted to.

3. W.P.No.4116 of 1994 has been filed for a writ of declaration declaring the Resolution (No.64 of 1993) dated 28. 1993 of the Bar Council of India as ultra vires the Advocates Act, 1961 (Central Act 25 of 1961) (hereinafter referred to as ‘the Act’). The petitioner therein claims that he is working as a graduate teacher in a recognised private school and put in 19 years of service, that his father is a practising advocate before this Court with thirty years of standing in the Bar, that he could not do law in the beginning of his career due to family conditions which necessitated him to take employment after college education, that he was employed to enable him to complete law so that he can join his father’s office not only to be of assistance to him but also to takeover his work with the advantage of the establishment office, clientele and the liberty built up by him after his retirement from the profession. It is also stated by this petitioner that after completing his degree in law he has completed the Post Graduate Course M.L. in law though he is yet to pass the said examination. He claims to be helping even now his father to keep in touch with the march of law. The Rule in question is challenged on the ground of being arbitrary and violative of Art.14 of the Constitution of India apart from being ultra vires the powers of the Bar Council of India. It is also stated that any restriction of the nature based on age by fixing the upper-limit has to be done if at all, only by the Parliament through the amendment of the Act itself and neither the Bar Council of India has been empowered to frame a rule similar to the one under challenge nor does the Bar Council spell-out any justifying reasons to exclude the category of persons who have crossed the age 45 years from being enrolled as Advocates. It is also stated that the upper-age limit fixed has no rational nexus with the object sought to be achieved and being so arbitrary cannot stand the scrutiny of law. It is also claimed to affect the right to carry on the profession secured under Art.19(1)(g) of the Constitution of India and the restriction sought to be imposed cannot be said to be a reasonable restriction. Reliance is also placed on Art.21 of the Constitution of India to contend that a citizen with due qualification must be allowed to practice a profession that he chooses subject only to fair and reasonable restrictions and that the reasons which weighed with the Bar Council are motivated and are not justifiable in law. It is contended that when one can merely enroll after study and immediately suspend for a long time and can resume practice even at the age of 60/70 years, there is no justification to have a Rule of the nature in question and the pollution theory is invented. The respondents do not guarantee any income in the profession which ultimately depends upon one’s own capacity, skill, knowledge and the clientele one may create and therefore, there is no rationale behind the fixation of an upper age for enrolment. It is stated that the move in question has the consequence of denying the prospectus of professors in law colleges and Universities leaching the subject of law to revert to the profession. While contending that