V. Bhargava, J. - (1.) Sri Iqbal Ahmad, who has filed this petition under Article 226 of the Constitution, was practising as an Advocate in the High Court of Judicature at Allahabad when, in the year 1932 he was appointed as an Additional Judge of the High Court. Later on he was appointed a Puisne Judge of the High Court in 1933 and at the time of his appointment he gave an undertaking to the following effect : "I undertake also that I will not, after retirement assume practice in the High Court to which I am appointed or to which I may be transferred, or in any of the courts subordinate thereto, provided that neither my salary nor right to leave and pension is varied to my disadvantage nor a further cut imposed during my tenure of office." He remained on the Bench of the Allahabad High Court for a number of years and during that period he was appointed Chief Justice from which post he retired in the year 1946. In the year 1947 he go", himself enrolled an Advocate of the Chief Court in Oudh. on the 26th of July, 1948, while he was on the roll of Advocates of the Chief Court in Oudh the U. P. High Courts (Amalgamation) Order (hereinafter referred to as the Order) came into force and by the said Order the erstwhile High Court of Judicature at Allahabad and the Chief Court in Oudh were amalgamated; and a new High Court was constituted, though the name given to the new High Court was the High Court of Judicature at Allahabad, which was also the name of the erstwhile High Court at Allahabad. Sub-clause (2) of Clause (8) of the Order provided as follows : "The right of audience shall be regulated in accordance with the like principles, as, immediately before the appointed day, are in force with respect to the right of audience in the High Court in Allahabad : Provided that subject to any rule made or direction given by the new High Court in the exercisc of the powers conferred by this Article, any person who, immediately before the appointed day, is an Advocate entitled to practise or an attorney entitled to act in either of the existing High Courts, shall be recognised as an Advocate or an attorney entitled to practise or to act, as the case may be, in the new High Court." A second proviso was added to this sub-clause on 4th November, 1948, to the following effect : ''Provided further that notwithstanding the amalgamation of the existing High Courts all undertakings given by persons who have held office as Judges of either of the existing High Courts or of the new High Court not to practise as Advocates within the jurisdiction of either of the existing High Courts, shall be deemed to continue in force and the Chief Justice shall issue directions prohibiting from practise as Advocates such persons to such extent as may be appropriate having regard to the terms of the undertaking and for this purpose the said undertaking shall be construed as applicable to the new High Court."
(2.) In exercise of the powers contained in the second proviso the Chief Justice of the new High Court issued a direction on the 25th November, 1948, to the following effect : "The Chief Justice is pleased to direct that ex-Judges of the High Court of Judicature at Allahabad before its amalgamation with the Chief Court who gave an undertaking not to practise within the jurisdiction of that Court shall not appear before the Benches of the High Court sitting at Allahabad and in the subordinate courts in the 37 districts which were under the jurisdiction of "he High Court of Judicature at Allahabad before the 26th July, 1948 and the ex-Judges of the Oudh Chief Court who gave an undertaking not to practise within the jurisdiction of that Court, shall not appear before the Benches of the High Court sitting at Lucknow and in the subordinate courts in the 12 districts which were under the jurisdiction of the Oudh Chief Court hefore 26th July, 1948." In the year 1949 the petitioner applied for permission to appear and argue a criminal appeal pending before a Bench of the new High Court at Allahabad arising from a case coming from the district of Budaun. In that application the petitioner contended that the direction of the Chief Justice dated the 25th November, 1948, was ultra vires and incompetent inasmuch as the second proviso to Sub-clause (2) of Clause (8) of the Order was itself ultra vires Section 229 of the Government of India Act, 1935. That application was rejected by the Court on the 13th of September, 1949. The petitioner went up in appeal before the Federal Court, which upheld the decision of this Court. The decision of the Federal Court in this case is reported as Sir Iqbal Ahmad v. The Allahabad. Bench, AIR 1950 FC 71.
(3.) In the ease before the Federal Court, amongst other points, which cams up for consider ration, was one raising the question whether the Indian Bar Councils Act did or did not apply to the new High Court. The Federal Court left the question undecided on the ground that the claim of the petitioner of bis right to practise as an Advocate before the Allahabad Bench of the new High Court could not succeed as, even if the Indian Bar Councils Act did apply, no roll of Advocates had been prepared for the new High Court by that time, so that the petitioner's name was not on the roll of the Advocates of the new High Court and it had already ceased to be on the roll of the erstwhile High Court of Judicature at Allahabad. The right of an advocate to practise in the new High Court was covered by Clause (8) of the Order, which did not entitle the petitioner to practise before the Benches of the new High Court at Allahabad. Thereafter the Indian Bar Councils Act was amended by the Indian Bar Councils (Uttar Pradesh Amendment) Act (U. P. Act. No. XXIV of 1950). By this amendment Act, the Bar Council of the Chief Court in Oudh was dissolved and provision was made for the constitution of one Bar Council for the new High Court by nomination of an ad hoc Bar Council. That Act was held to be ultra vires the Constitution by a Bench of the new High Court in the case of D. D. Seth v. Secretary., Bar Council, AIR 1954 All 728. It was held in that case that a new High Court had been created by the Order and this new High Court could not be looked upon as a continuation of the erstwhile High Court of Judicature at Allahabad with extended territorial jurisdiction. Subsequently, the Parliament passed the Bar Councils (Validation of State Laws) Act No. IV of 1956, in which it was laid down that the Jaws specified in the Schedule (including the Indian Bar Councils (Uttar Pradesh Amendment) Act No. XXIV of 1950) shall, and shall be deemed always to have been, as valid as if the provisions contained therein had been enacted by Parliament. Before this Validation Act was passed by the Parliament, the Government of Uttar Pradesh on 24th May, 1952, published a notification in exercise of the powers vested in it under Sub-section (3) of Section 1 of the Indian Bar Councils Act applying Sections 7 to 16 of the Indian Bar Councils Act to the new High Court. The result of the Validation Act passed by the Parliament was that this notification issued by the State Government was also validated retrospectively so that the Indian Bar Councils Act, as amended by the U. P. Amendment Act, became applicable to the new High Court with effect from 24th May, 1952. After the 24th May, 1952, when the Indian Bar Councils Act had been made applicable to the new High Court, a roll of Advocates was prepared by the new High Court under Section 8 of the Indian Bar Councils Act and the name of the petitioner was entered in that roll. Further, in the year 1951 the Parliament in exercise of its legislative powers vested in it under the Constitution enacted the Supreme Court Advocates (Practice in High Courts) Act No. XVIII of 1951, in which it was laid down that notwithstanding anything contained in the Indian Bar Councils Act, 1926 or in any other law regulating the conditions subject to which a person not entered in the roll of Advocates of a High Court may be permitted to practise in that High Court, every Advocate of the Supreme Court shall be entitled as of right to practise in any High Court whether or not he is an Advocate of that High Court. This provision was qualified by a proviso to the following effect : "Provided that nothing in this section shall be deemed to entitle any person, merely by reason of his being an Advocate of the Supreme Court to practise in a High Court of which he was at any time a Judge, if he had given an undertaking not to practise therein after ceasing to hold office as such Judge.";