Harish Chandra, J. - (1.) These are two criminal miscellaneous cases arising out of Criminal Appeal No. 404 of 1948 in which the applicants in Criminal Misc. case No. 941 of 1949 have appealed against their convictions and the sentences of transportation for life that have been passed upon them. In their application they say that they have engaged Sir Iqbal Ahmad to argue their appeal and pray that permission be accorded to him to appear on their behalf in this Court. The other case--criminal Misc. case No. 940 of 1949--arises out of an application by Sir Iqbal Ahmad himself praying for the permission of this Court to argue the said appeal on behalf of the appellants.
(2.) Sir Iqbal Ahmad was an advocate of the Allahabad High Court and was later appointed a Puisne Judge of that Court. In or about the year 1933, on his appointment as a Puisne Judge of that Court he gave an undertaking not to practice in the Court or in the Courts subordinate thereto after his retirement. He continued to work as a Puisne Judge of this Court for many years and was, a few years before his retirement, elevated to the office of the Chief Justice of that Court. Some time after his retirement he was entered on the roll of advocates of the Chief Court of Avadh and was thereafter entitled to practise in that Court as also in all Courts subordinate thereto. The High Court at Allahabad and the Chief Court at Avadh were amalgamated with effect from 26th July 1948 by the United Province High Courts Amalgamation Order, 1948, promulgated by the Governor. General under Section 229, Government of India Act. Article 8 of the Order runs as follows : "(1) The New High Court shall have the like powers to approve, admit, enrol, remove and suspend advocates and attorneys, and to make rules with respect to advocates and attorneys, in the whole of the United Provinces as are, under the law in force immediately before the appointed day exercisable by either of the existing High Courts. (2) The right of audience in the new High Court 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 exercise of the powers conferred by this Article, any person who, immediately , before the appointed day, is an advocate entitled to practise or ah 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." By virtue of the provisions contained in the proviso to this article, Sir Iqbal Ahmad who was already an advocate on the roll of advocates of the Chief Court of Avadh and entitled to practise in that Court became entitled to practise in the new High Court. The Governor-General, however, on 4th November 1948 promulgated the United Provinces High Courts (Amalgamation) Amendment) Order, 1948 by which was added a further proviso to Art. 8 as follows : "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 practice as advocates such persona to such extent as may be appropriate having regard to the terms of their undertakings, and for this purpose the said undertakings shall be construed as applicable to the new High Court." Thereafter on or about 25th November 1948, the Chief Justice of the New High Court issued an order which directed that ex-Judges of the Allahabad High Court before its amalgamation with the Chief Court of Avadh who had given an undertaking not to practise within the jurisdiction of this Court were not to appear before the Benches of the High Court sitting at Allahabad or in Courts subordinate thereto in the thirty-seven districts which were under the jurisdiction of the Allahabad High Court before 26th July 1948.
(3.) By this order Sir Iqbal Ahmad was prevented from practising in the new High Court at Allahabad or in any one of the thirty-seven districts which had been subordinate to the Allahabad High Court before the amalgamation which took place on 26th July 1948, The applicants' contention is that Article 8 of the Amalgamation Order, the new proviso added thereto on 4th November 1948 and the direction issued by the Chief Justice of this Court are ultra vires and that Sir Iqbal Ahmad is entitled to practise in the new High Court without any restriction. His contention is that the undertaking which he had given lapsed with the amalgamation of the Allahabad High Court with the Avadh Chief Court to form what has been described in the amalgamation order as the new High Court. The applications are opposed by the Advocate General.;