ASHWINI KUMAR UPADHYAY versus UNION OF INDIA & ANR.

Citation: [2018] 12 S.C.R. 92 · Decided: 25-09-2018 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Dismissed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2018] 12 S.C.R.
ASHWINI KUMAR UPADHYAY
v.
UNION OF INDIA & ANR.
(Writ Petition (Civil) No.95 of 2018)
SEPTEMBER  25, 2018
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR. D.Y. CHANDRACHUD, JJ.]
Constitution of India – Art.32 – Writ petition for issuing writ/
direction to debar the legislators (MPs/MLAs/MLCs) from practising
as an Advocate, during the period when they are Members of
Parliament or of State Assembly/Council – Plea of petitioner that
u/r. 49, Bar Council of India Rules there is an express restriction on
advocates to take up other employment – Held: Rule 49 applies
where an advocate is a full-time salaried employee of any person,
government, firm, corporation or concern – Legislators cannot be
styled as full-time salaried employees as such, much less of the
specified entities – Status of legislators is of a member of the House
(Parliament/State Assembly) – Mere fact that they draw salary or
different allowances does not result in creation of a relationship of
employer and employee between the Government and the legislators,
despite the description of payment received by them in the name of
salary – Indeed, the legislators are deemed to be public servants,
but their status is sui generis and certainly not one of a full-time
salaried employee of any person, government, firm, corporation or
concern as such– Therefore, Rule 49 can not be applied to the
legislators– There is no other express provision in the 1961 Act or
the Rules framed thereunder to even remotely suggest that any
restriction has been imposed on MPs/MLAs/MLCs to continue to
practise as advocates – In absence of an express restriction in that
behalf, it is not open for Supreme Court to debar them from
practising during the period when they are MPs/MLAs/MLCs –
Further, it is for the Bar Council of India to frame Rules to impose
restrictions as may be found appropriate – As of today, no rule has
been framed to restrict the elected people’s representatives from
practising as advocates – On the other hand, an unambiguous stand
is taken by the Bar Council that being legislators per se is not a
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disqualification to practice law – Reliefs claimed in the writ petition
devoid of merit – Salary, Allowances and Pension of Members of
Parliament Act, 1954 – Advocates Act, 1961 –ss.16 and 49 – Bar
Council of India Rules – Part VI – Chapter II – Section VII – r. 49.
Dismissing the writ petition, the Court
HELD: 1.1  Rule 49, Bar Council of India Rules applies
where an advocate is a full-time salaried employee of any person,
government, firm, corporation or concern. Indubitably,
legislators cannot be styled or characterized as full-time salaried
employees as such, much less of the specified entities. For, there
is no relationship of employer and employee. The status of
legislators (MPs/MLAs/MLCs) is of a member of the House
(Parliament/State Assembly). The mere fact that they draw salary
under the Salary, Allowances and Pension of Members of
Parliament Act, 1954 or different allowances under the relevant
Rules framed under the said Act does not result in creation of a
relationship of employer and employee between the Government
and the legislators, despite the description of payment received
by them in the name of salary. Indeed, the legislators are deemed
to be public servants, but their status is sui generis and certainly
not one of a full-time salaried employee of any person,
government, firm, corporation or concern as such. Even the
expansive definition of term “person” in the General Clauses
Act will be of no avail. The term “Employment” may be an
expansive expression but considering the Constitutional scheme,
the legislators being elected people’s representatives occupy a
seat in the Parliament/Legislative Assembly or Council as its
members but are not in the employment of or for that matter
full-time salaried employees as such. They occupy a special
position so long as the House is not dissolved. The fact that
disciplinary or privilege action can be initiated against them by
the Speaker of the House does not mean that they can be treated
as full-time salaried employees. Similarly, the participation of the
legislators in the House for the conduct of its business, by no
standards can be considered as service rendered to an employer.
One ceases to be a legislator, only when the House is dissolved
or if he/she resigns or vacates the seat upon incurring
disqualification to continu

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