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CASE NO.: Appeal (civil)  6835 of 2000

PETITIONER: Institute of Chartered Financial Analysts of India & Ors

RESPONDENT: Council of the Institute of Chartered Accountants of India & Ors

DATE OF JUDGMENT: 16/05/2007

BENCH: S.B. Sinha

JUDGMENT: J U D G M E N T

S.B. SINHA, J :                            

1.      Appellant No.1 herein is a Society registered under the Andhra  Pradesh (Telangana Area) Public Societies Act, 1350F.  At the time of its  registration it was known as ’Institute of Certified Financial Analysts’,  which was changed to ’The Institute of Chartered Financial Analysts of  India’.  Appellants contend that it offers the Chartered Financial Analyst  Course/Programme, which is entirely different from that offered by   Respondent No.1  It has sought for opinion from the Director General of  Investigation and Registration in terms of Sections 11 and 36 of the  Monopolies and Restrictive Trade Practices Act, 1969 on 11.02.1988,  whereto a reply was sent by the appellants on 24.02.1988.  A notice,  however, was published in the journal of Respondent No.1 herein, wherein a  purported caution to members about the appellant-Institute was published in  the following terms :

       "It has come to the notice of the Institute that the  Institute of Chartered Financial Analysts of India,  Hyderabad is conferring the designation of "Chartered  Financial Analyst" and permitting its members to use the  letters ’C.F.A.’ after their names.  The Additional  Solicitor General of India has opined that the designation  "Chartered Financial Analyst", would seem to be similar  to the designation Chartered Accountant especially when  the letters ’C.F.A.’ are added to the name, which is very  close to the letters ’F.C.A.’ conferred by the Institute of  Chartered Accountants of India.  He has further opined  that the activities of the Institute of Chartered Financial  Analysts of India are violative of Section 24A of the  Chartered Accountants Act, 1949.  The Institute has  already filed an application under Section 36 of the  MRTP Act, 1969  with the Director General, MRTP  Commission, New Delhi against the activities of the said  Institute and the matter is under investigation by the  Commission."

2.      It is, however, not in dispute that  no investigation was initiated by the  MRTP Commission in that behalf.  A notice was sent by Appellant No.1  to  Respondent No.1, asking for a copy of the opinion of the Additional  Solicitor General so as to enable it to know the facts placed before him for  his opinion.  But no response was received thereto.  A reminder thereto was  sent on 15.06.1989 and by a letter dated 11.07.1989, the Secretary of  Respondent No.1  refused to send the copies of the case and the opinion of  the Additional Solicitor General.  On or about 03.08.1989, a notification was  issued by Respondent No.1 herein prescribing that if any member of the  Respondent-Institute i.e. any Chartered Accountant, who obtained the

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qualification of the Chartered Financial Analyst on or after 01.01.1990; or  having obtained the said qualification earlier did not surrender the same  before the said date, would be held to be guilty of professional misconduct  in term of the provisions of the Chartered Accountants Act, 1949 (for short,  ’the Act’).   

3.      A writ petition was filed before the Andhra Pradesh High Court by  Appellant No.1 herein on or about 16.11.1989. The said writ petition was  dismissed by a learned Single Judge by a judgment and order dated  21.11.1990, inter alia, opining :

       "The proviso to a section cannot be expected to  nullify the effect of the main Section.  The proviso must  be treated as an exception and subservient to the object  sought to be achieved by the main Section.  Under  Appendix No. (8) it was agreed that the Institutes  previously recognized under the Auditor’s Certificate  Rules, 1932, be recognized for the purposes of Section 7  for the use of letters, F.S.A.A.   Further the Council  decided that letters or description in respect of  membership  of bodies other than Accountancy Institutes  can be used provided such use does not amount to the use  of designation and in the case of Accountancy Institutes  prior recognition of the Council in this behalf is  necessary.  It was also decided that in respect of  Accountancy Institutes prior recognition of the Council  in this behalf is necessary.  It was also decided that in  respect of Accountancy Institutes, which are recognized  and in respect of Institutes other than Accountancy  Institutes the word ’London’ in brackets may be allowed  to be added provided that in each case the respective  Institutes had permitted such addition.  The Council also  decided that the Institute of Costs and Works  Accountants is not an Accountancy Institute within the  meaning of Section 7 and therefore there was no bar to  the use of these letters by the members of that Institute, if  they happen to be their members.

       A combined reading of Section 7 and the  Appendix (8) makes it clear that Chartered Accountants  who have been registered as members of the 1st  respondent-Institute alone are permitted to use the letters  or  description which are recognized by it.  Therefore it is  clear that the designation of ’Chartered Financial  Analyst’ is not recognized by the 1st respondent-Institute  or for that matter by the Central Government or by any  Statute.  Therefore, under Section 24A of the Act the 1st  respondent-Institute can impose restrictions on all the  members of the 1st petitioner-Institute not to use the  unrecognized diploma or designation that has been  awarded by the 1st petitioner-Institute.  Section 24A  clearly provides penalty for using the name of the  Council, awarding degree of Chartered Accountancy etc.   Section 24A of the Act reads as follows :

"24A.-Penalty for using name of the Council  awarding degree of chartered accountancy, etc. :                            "(1)    Save as otherwise provided in this Act, no  person shall \026

       (i) use a name or the common seal which is  identical with the name or the common seal of the  Institute or so nearly resembles it as to deceive or  as is likely to deceive the public;

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       (ii)    award any degree, diploma or  certificate or bestow any designation which  indicates or purports to indicate the position or  attainment of any qualification or competence  similar to that of a member of the Institute; or  

       (iii)   seek to regulate in any manner  whatsoever the profession of chartered  accountants."

       Sub-section (2) of Section 24A deals with the  penalty to be imposed in case of contravention of the  provisions of sub-section (1).  Under sub-section (3) it is  stated that nothing contained in this section shall apply to  any University established by law or to any body  affiliated to the Institute.  The 1st respondent-Institute can  also impose restrictions on its own members and also  impose penalty for using the name of the Council,  awarding degree of chartered accountancy.  Section 24  deals with the penalty for falsely claiming to be a  member of the Institute (R-1)

       According to the petitioners, the course of study  that is being taught at the Institute is different.  But the 1st  respondent Institute contends that the course of study is  similar.  The respondents filed an Annexure-X to the  counter giving a comparative table of syllabi of ICFAI  and ICAI.  But one should not forget the fact that the 1st  respondent-Institute  has got authority to change the  syllabus from time to time depending upon the changes  in the economic environment in the national and  international sphere and the Chartered Accountants can  function not only as Accountants, Auditors, Financial  Advisors, but also as Financial Analysts.  The Chartered  Accountancy course is fairly exhaustive and includes  areas in financial and investment management, micro  economics and security evaluation, project appraisal and  Indian financial system.     

       Section 2(b) of the Act defines ’Chartered  Accountant’ as to mean a person who is a member of the  Institute and the persons who have passed such  examination and complete such training as may be  prescribed for members of the Institute shall be entitled  to have their names entered in the Register of the  Institute and no member of the Institute shall be entitled  to practice whether in India or elsewhere unless he has  obtained from the Council a Certificate of practice.   According to Section 7, every member of the Institute  in  practice shall, any other member may, use the  designation of a chartered accountant and no member  using such designation shall use any other description,  whether in addition thereto or in substitution therefor.   The members of the Institute are divided into two classes  viz., associates and fellows.  Any person whose name is  entered in the Register is deemed to have become an  associate member of the Institute and is entitled to use  the letters "A.C.A." after his name to indicate that he is  an associate member of the Institute of Chartered  Accountants.  A member, being an associate, who has  been in continuous practice in India for at least five years  as a Chartered Accountant is entitled to use the letters  F.C.A. after his name to indicate that he is a fellow of the  Institute of Chartered Accountants and his name will be

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entered in the Register as a fellow of the Institute."     

       It was further held :                  "There are many Analysts in different fields such as  Food Analyst and Chemical Analyst.  But when the 1st  petitioner-Institute is dealing with the accountancy  profession and training people in one form or the other, the  1st respondent-Institute which is a statutory body is  perfectly justified in restraining their own members in  using some other designation which is akin or which  resembles the designation along with the designation that  is being conferred by the 1st respondent-Institute, which  will give rise an impression in the minds of the general  public or the persons connected with the accountancy  profession that the designation ’C.F.A.’ is an additional  qualification to the persons that were already holding  ’C.A.’ or ’F.C.A.’.  Such preference cannot be taken  advantage of by the members of the 1st respondent-Institute  and Section 24A of the Act gives ample power to the 1st  respondent-Institute to issue the impugned Notification as  well as the ’caution’.       

4.      A writ appeal filed thereagainst was dismissed by a Division Bench of  the High Court relying on or on the basis of a decision of this Court in Dr.  Haniraj L. Chulani v. Bar Council of Maharashtra & Goa [JT 1996 (4)  SC  162 : (1996) 3 SCC 342], holding :          "\005In the instant case too what is sought to be prevented  is membership of a Chartered Accountant, who is  governed by the Chartered Accountants Act, 1949 from  being a member of the 1st appellant-institution and should  a Chartered Accountant not like this imposition, he may  be free to resign from being a Chartered Accountant and  then can be free to choose to be a member of any other  institution including that of the 1st respondent.  But, so  long as he continues to be the Chartered Accountant  under the Act, his degree and practice can be regulated  only under the provisions of the said Act.  The authorities  under the Act also found that the degree of C.F.A. affixed  is causing confusion and gullible public may be  misguided and in order to streer clear off such confusion  and in larger public interest, the authorities  thought that  the Chartered Accountants registered under the Act and  governed by the Council of the Institute of Chartered  Accountants of India not to acquire the C.F.A. and if  already acquired, shed the said membership.  Having  regard to the reasons stated in the impugned notification  as also the reasoning given by the learned single Judge, it  cannot be said that there is no nexus for the object to be  achieved and that the impugned notification is irrational.   Fundamental right to practice a profession guaranteed  under Article 19(1)(g) of the Indian Constitution can  always be hedged with restrictions; but the said  restrictions should be reasonable restrictions and in the  instant case, having regard to the facts and circumstances  discussed and legal it cannot be said that the restrictions  imposed are unreasonable so as to negate the  fundamental rights of the Chartered Accountants to  practice their profession."

5.      Mr. K.K. Venugopal, the learned Senior Counsel appearing on behalf  of the appellants, would submit :

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i.)     The High Court committed a manifest error in passing the impugned  judgment insofar as it failed to take into consideration that in terms of  Section 7 of the Act any Chartered Accountant whether in profession  or not is entitled to use any degree and in that view of the matter, the  prohibition purported to have been imposed by reason of the  impugned notification dated 03.08.1989 must be held to be arbitrary.

ii)     The said notification is violative of a person’s fundamental right          guaranteed under Article 19(1)(g) of the Constitution of India.   iii)    The power to issue such a notification being hedged with excessive          delegattion, the same would otherwise be ultra vires Article 14 of the          Constitution of India.

6.      Mr. S. Ganesh, the learned Senior Counsel appearing on behalf of the  respondents, on the other hand, would submit :

i)      Section 7 of the Act prohibits a Chartered Accountant from using any  other description, whether in addition thereto or in substitution  thereof.  A Chartered Accountant is, therefore, prohibited from using  the description ’Chartered Financial Analyst’ or its abbreviation  ’CFA’. ii)     Proviso to Section 7 permits a Chartered Accountant to add a  description or letters to his name to indicate membership of another  Institute of Accountancy, only if that other Institute, has been  recognized by the Council and not otherwise.  Consequently, addition  of a description or letters to indicate membership of a non-recognized  Institute of Accountancy is prohibited, even by the proviso to Section  7 of the Act.  The ’other qualification’ occurring to in the latter part of  the proviso to Section 7 refers to the qualification other than  membership of an Institute of Accountancy such as LL.B., Ph.D,  MBA, MBBS etc.  The proviso cannot possibly be so construed as to  nullify completely the prohibition in the opening part of Section 7.   iii)    The appellant Institute is an Institute of Accountancy because :         (a)     There is a very substantial overlapping of the curriculum of the                         ICFII and that of ICAI.         (b)     A Chartered Accountant is exempted from giving 3 out of the 6                    examination papers of the ICFAI.         (c)     Strictly financial  analysis  is   only  study  and  analysis of                         accounts.         (d)     A Chartered Accountant is trained to do financial analysis and                   ordinarily does it as part of  his practice of accountancy. iv)     In any event, the considered view of the ICAI that ICFAI is an  institute of accountancy should not be interfered with by the Court,  having regard to the materials on record and expertise of the Institute  in the field of accountancy in general. v)      The ICAI is also of the considered view that the diploma/certificate  bestowed by ICFAI does indicate ’the position or attainment of any  qualification or competence similar to that of a member of the  Institute’ which attracts the prohibition in Section 24A(1)(ii) of the  Act. vi)     Further, the letters ’CFA’ closely resemble ’FCA’ and are capable of  misleading the lay public and also conveying the entirely erroneous  impression that a FCA with a CFA is superior to a mere ’FCA’.  This  will directly result in the dilution and debasement of the value of the  membership of the Institute.  vii)   Item No. (i) of Part II of the Second Schedule makes it clear that  contravention of any provision of the Act or of the regulations made  thereunder would amount to a misconduct.  Section 22 defines  ’professional misconduct’ in the widest possible terms.  This Hon’ble  Court has also read and construed Section 22 and clause (ii) of Part II  of the Second Schedule in the broadest manner.  viii)   The impugned notification seeks to make effective the prohibition  contained in Sections 7 and 24A of the Act, the constitutional validity  of which has not been challenged by the appellant before the High  Court.  The notification is, therefore, not unreasonable or arbitrary.

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        7.      The Act  was enacted to make provision for the regulation of the  profession Chartered Accountants.  Section 2 thereof provides for definition  clause.  ’Institute’ has been defined in Section 2(e) of the Act to mean the  Institute of Chartered Accountants of India constituted under thereunder.   Sub-section (2) of Section 2 creates a legal fiction to define a member of the  Institute to be in practice, when individually or in partnership with Chartered  Accountants (in practice) as a person in consideration of remuneration  received or to be received .  Sub-Section (2) of Section 2 of the Act reads as  under :

       "A member of the Institute shall be deemed "to be  in practice", when individually or in partnership with  chartered accountants (in practice), he, in consideration  of remuneration received or to be received \026

(i) engages himself in the practice of accountancy;  or

(ii)    offers to perform or performs services  involving the auditing or verification of financial  transactions, books, accounts or records, or the  preparation, verification or certification of  financial accounting and related statements or  holds himself out to the public as an accountant; or

(iii)   renders professional services or assistance in  or about matters of principle or detail relating to  accounting procedure or the recording,  presentation or certification of financial facts or  data; or

(iv)    renders such other services as, in the opinion  of the Council, are or may be rendered by a  chartered accountant (in practice) and the words  "to be in practice" with their grammatical  variations and cognate expressions shall be  construed accordingly.

Explanation.- An associate or a fellow of the Institute  who is a salaried employee of a chartered accountant (in  practice) or (a firm of such chartered accountants) shall,  notwithstanding such employment, be deemed to be in  practice for the limited purpose of the training of articled  clerks."

8.      Section 3 of the Act provides for incorporation of the Institute.   Section 7 of the Act, which is relevant for determination of the case, reads  under :

"7.     Members to be known as Chartered Accountants          Every  member of the Institute in practice shall,  and any other member may, use the designation of a  chartered accountant and no member using such  designation shall use any other description, whether in  addition thereto in substitution therefor :

       Provided that nothing contained in this section  shall be deemed to prohibit any such person from adding  any other description or letters to his name, if entitled  thereto, to indicate membership of such other Institute of  accountancy, whether in India or elsewhere, as may be  recognized in this behalf by the Council, or any other  qualification that he may possess, or to prohibit a firm,

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all the partners of which are members of the Institute and  in practice, from being known by its firm name as  Chartered Accountants.

       Sub-section (1) of Section 21, inter alia, lays down the manner in  which an  inquiry relating to misconduct of members of the Institute shall be  instituted.  

       Section 22 of the Act defines professional misconduct to mean :

"22.    Professional misconduct defined  

       For the purpose of this Act, the expression  "professional misconduct" shall be deemed to include  any act or omission specified in any of the Schedules, but  nothing in this section shall be construed to limit or  abridge in any way the power conferred or duty cast on  the Council under sub-section (1) of Section 21 to inquire  into the conduct of any member of the Institute under any  other circumstances."                    Section 22A of the Act provides for a statutory appeal to a High Court  against the order the disciplinary committee.  Section 24A was introduced in  the year 1949 containing a penal provision for using the name of the  Council, awarding degree of chartered accountancy, etc.   The said provision  reads as under :

"(1)    Save as otherwise provided in this Act, no person  shall \026

       (i)     use a name or the common seal which is  identical with the name or the common seal of the Institute  or so nearly resembles it as to deceive or as is likely to  deceive the public;

       (ii)    award any degree, diploma or certificate or  bestow any designation which indicates or purports to  indicate the position or attainment of any qualification or  competence similar to that of a member of the Institute; or  

       (iii)   seek to regulate in any manner whatsoever the  profession of chartered accountants."

       Sub-section (2) of Section 24A provides for punishment for violation  of the provisions of sub-section (1) thereof.   

9.      Part I of the First Schedule appended to the Act lists the professional  misconducts in relation to Chartered Accountants in practice; whereas Part II  deals with professional misconduct in relation to members of the Institute in  service.  Part III deals with professional misconduct in relation to members  of the Institute generally.  Part I of the Second Schedule appended to the Act  deals with professional misconduct in relation to Chartered Accountants in  practice requiring action by a High Court; whereas Part II provides for  professional misconduct in relation to members of the Institute generally  requiring action by a High Court, whether in practice or not.    

10.     A resolution has been passed by the Council under Section 2(2)(iv) of  the Act exempting a member who is holding a Certificate of Practice from  the Institute of Cost & Works Accountants of India or the Institute of  Company Secretaries of India or from the Bar Council or such other bodies,  as may be specified in that behalf, by the Council, from the purview of  clause (3) thereof which reads as under :

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       "(3) "Pursuant" to Section 2(2)(iv) of the  Chartered Accounts Act, 1949, the Council herein  reiterates its opinion that a member shall be deemed to be  in practice if he, in his professional capacity and neither  in his personal capacity nor in his capacity as an  employee, acts as a liquidator, trustee, executor,  administrator, arbitrator, receiver, adviser or  representative for costing, financial or taxation matters or  takes up an appointment made by the Central  Government or a State Government or a Court or law or  any other legal authority or acts as a Secretary unless his  employment is on a salary-cum-full-time basis;"

       Clauses (2) and (3) of  Appendix No. (8) read as under :

                        "The Council decided that letters or description in  respect of  membership of bodies other than Accountancy  Institutes can be used provided such use does not amount  to the use of designation and in the case of Accountancy  Institutes prior recognition of the Council in this behalf is  necessary.  It was also decided that in respect of  Accountancy Institutes which are recognized and in  respect of Institutes other than Accountancy Institutes the  word London in brackets may be allowed to be added  provided that in each case the respective Institutes had  permitted such addition.

       xxx                     xxx             xxx     

       (3)     The Council also decided that the Institute  of Cost and Works Accountants is not an Accountancy  Institute within the meaning of Section 7 and therefore  there was no bar to the use of these letters by the  members of that Institute, if they happen to be our  members."

11.     The High Court proceeded on the basis that the notification is covered  under Sections 7 and 24A of the Act.          12.     Before proceeding to consider the respective contentions raised by the  learned counsel for the parties, we may notice that the constitutionality of  the provisions of the Act are not in question.  What was in question before  the High Court was merely the validity of the said notification dated  03.08.1989.   

13.    Section 7 of the Act prohibits any member using the designation of a  Chartered Accountant from using any other description, whether in addition  thereto or in substitution therefor.  Proviso appended thereto, however, inter  alia, permits the member of the Institute to describe any other qualification  that he may possess.  The proviso is in three parts.  The first part lifts the  embargo provided under the main provision in respect of membership of  such other Institute of Accountancy, whether in India or elsewhere may be  recognized in that behalf by the Council.  The Second parts enables the  member of the Institute to add any other qualification that he may possess;  and third part prohibits a firm, all the partners of which are members of the  Institute and in practice, from being known by its firm name as Chartered  Accountants.  We are not herein concerned with the third part.   

14.    Whereas submission of Mr. Venugopal is that the second part of the  proviso appended to Section 7 of the Act enables the member of the Institute  to use any qualification and in that view of the matter the qualification  acquired by any member from the appellant Institute being a matter of

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statutory right cannot be taken away by reason of a delegated notification;  the submission of Mr. Ganesh is that the second part of the proviso must be  given a contextual meaning in the light of the first part thereof.   

15.     The role of a proviso is well-known.  A proviso may restrict the  operation of the main provision, but by reason thereof the rights and  liabilities contained in the main provision cannot altogether be taken away.

16.     The main provision contains the prohibition, but the proviso appended  thereto only lifts such prohibition to the extent mentioned therein, in respect  of the other Institutes of Accountancy, the degrees granted in respect thereof  are six in number, as would appear from Appendix No. (8) of the said Act.   The expression ’any other qualification that he may possess’, therefore, must  be read as qualification other than conferred upon the member by other  Institutes of Accountancy.  Such qualification of accountancy may be  conferred even by other Institutes.  But as noticed hereinbefore, an  exemption had been granted by reason of a resolution of the Institute in  relation to the Institute of Cost and Works Accountants.  Furthermore, a  degree conferred by any university also is subject to an exemption from the  rigour of the provisions of Section 7 of the Act.  

17.     There cannot, therefore, be any doubt whatsoever that ’the other  qualification’ would mean a qualification other than granted by an Institute  of Accountancy, subject of course to recognition thereof by the Institute.  

18.    The questions, however, which is required to be posed and answered  inter alia is whether by reason of a notification, acquisition of a qualification  itself can be prohibited.  The Institute is constituted under a parliamentary  act.  It is governed by the provisions thereof as also the rules and regulations  framed thereunder.  It being a statutory authority must confine its activities  within the four-corners of the statute.  Section 7 of the Act debars a person  from using a qualification; it does not prohibit him from acquiring a  qualification.  If, therefore, any member of the Institute intends to acquire a  qualification, the same being an inherent and human right cannot be a  subject-matter of prohibition until and unless there exists any statutory  interdict therefor.   

19.     The explanatory statement appended to the notification does not state  that the same had been issued for the purposes sought to be achieved by  Section 7 of the Act.  Even otherwise it is impermissible.  What is a  professional misconduct has been defined.  The statutory authority,  therefore, cannot transgress its authority that acquisition of a qualification by  a member of the Institute shall itself constitute a misconduct.  We have no  doubt in our mind that the provision of Section 22 of the Act must be  construed widely.  It must take within its sweep the misconduct of a member  of the Institute, which would disentitle him from pursuing a noble  profession.   

20.     Our attention, in this behalf, has been drawn to two decisions of this  Court in The Council of the Institute of Chartered Accountants of India &  Another v. B. Mukherjea [(1958) SCR 371 : AIR 1958 SC 72]  and H.A.K.  Rao v. Council of Institute of Chartered Accountants of India, New Delhi  [AIR 1967 SC 1257].  They were, however, rendered in different fact  situation.   

21.     In B. Mukherjea (supra), the question which arose for consideration  before this Court was as to whether a Chartered Accountant while acting in  the capacity of a liquidator appointed by the High Court could refuse to  furnish any information to this Court and, thus, committed a misconduct.   

22.    In H.A.K. Rao (supra), the question which arose was as to whether  canvassing for the purpose of contesting an election to the post of an  Institute is permissible in law.   

23.    We are herein concerned with the term ’misconduct’.  The word

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’misconduct’ which in generic sense would mean, as held in Probodh Kumar  Bhowmick v. University of Calcutta and Ors. 1994 (2) C.L.J. 456 is as  under: "Misconduct, inter alia, envisages breach of discipline,  although it would not be possible to lay down  exhaustively as to what would constitute conduct and  indiscipline, which, however, wide enough to include  wrongful omission or commission whether done or  omitted to be done intentionally or unintentionally. It  means, ’improper behaviour; intentional wrong doing on  deliberate violation of a rule of standard or behaviour’:

Misconduct is a transgression of some established and  definite rule of action, where no discretion is left except  what necessity may demand; it is a violation of definite  law a forbidden act. It differs from carelessness.  Misconduct even if it is an offence under the Indian  Penal Code is equally a misconduct."

[See also State of Punjab and Others v. Ram Singh Ex. Constable  - AIR  1992 SC 2188 :  (1992) 4 SCC 54 and  B.C. Chaturvedi v. Union of India  (1995) 6 SCC 749].  24.    In ’M’ an Advocate Re [AIR 1957 SC 149], this court dealt with  professional misconduct in the following terms : "As has been laid down by this Court in the matter of ’G’,  a Senior Advocate of the Supreme Court (A) (supra) the  Court, in dealing with cases of professional misconduct is  "not concerned with ordinary legal rights, but with the  special and rigid rules of professional conduct expected  of and applied to a specially privileged class of persons  who, because of their privileged status, are subject to  certain disabilities which do not attach to their men and  which do not attach even to them in a non-professional  character ...he ( a legal practitioner) is bound to conduct  himself in a manner befitting the high and honourable  professional to whose privileges he has so long been  admitted; and if he departs from the high standards which  that professional has set for itself and demands of him in  professional matters, he is liable to disciplinary action."

25.    Whether misconduct has been conducted or not would depend upon  the statute in question and the nature of misconduct said to have been  committed.  A misconduct must be definite or precise but subject to its  generic meaning in absence of any statutory definition.  When a person is  otherwise entitled to acquire any additional qualification, such qualification  per se, in our opinion, cannot be termed to be a misconduct in its generic  sense.

26.    There is another aspect of the matter.  A distinction must be drawn  between a misconduct committed by an employee and a professional  misconduct.  In the case of the latter, the person in the profession precisely  knows what is expected of him.  It may not be possible to lay down all such  misconducts but, in our opinion, it would be too much to contend that even  an acquisition of an additional qualification would come within the purview  thereof.  Such a broad meaning in our opinion defy all norms.

27.    In B.P. Sharma v. Union of India and Others [(2003) 7 SCC 309], this  Court held:

"14. The right which is guaranteed to all citizens under  Article 19(1)( g) of the Constitution of India is to practise  any profession or to carry on any calling, trade or  business. Clause (6) of Article 19, however, places a  restriction that nothing would prevent the State from  making any law imposing reasonable restrictions in

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exercise of the right in the interest of the general public.  Sub-clauses ( i ) and ( ii ) further provide that  professional and technical qualifications, as may be  thought necessary for practising the profession, can  always be prescribed and exclusion of carrying on of any  calling, trade or business etc. is also envisaged which is  also carried on by a State or by a corporation owned and  controlled by the State. Subject to the abovenoted  restrictions the valuable right as provided under Article  19(1)( g ) is available to all the citizens who are free to  choose any trade, business, calling or profession etc. It  obviously, also includes the manner and terms in which  they will carry on their profession, but again subject to  reasonable restrictions which may be thought necessary  by the State in the interest of the general public. On the  other hand, once a citizen voluntarily chooses to join  government service or any other service, he would  obviously be free to do so but he would be bound by the  terms and conditions of the service as may be provided  under the law or by contract of service."

28.    Submission of Mr. Ganesh that Section 7 should be read with Section  24A of the Act, in our opinion, cannot be accepted.  An institute may  commit an offence for awarding a degree in respect of attainment of any  qualification or competence similar to that of a member of institute.  But  answer to such a question must be rendered as and when the same is raised.   It is not for us to proceed on the presumption that the appellant has  committed an offence.  It is also not possible to hold that the appellant has  committed an offence.  It is also not possible to hold that in the event such  an offence has been committed, awarding of any degree in violation of  Clause (ii) of Sub-section (1) of Section 24A of the Act would be a nullity.   In any event, so long awarding of any degree is not held to be illegal or a  nullity, using the same as permitted in terms of Section 7 of the Act would  not per se be illegal.  If it is not per se held to be illegal, the concept of  misconduct arising as a result thereof, in our opinion, would not arise.   Reasonableness is the soul of law.  A law is said to be the perfection of  reason.  Even otherwise, Section 24A of the Act is a penal provision.  It  must receive a strict construction.  What is, therefore, not contemplated is a  misconduct under the Act, in our opinion, cannot be termed to be a  misconduct by reason of an administrative order.  A statutory authority, as is  well-known, must  not only act within the four-corners of the statute, it also  must act fairly and reasonably.

29.     Our attention has been drawn to certain subsequent events.  We do not  think that we should go thereinto.  It would be for the appropriate authority  to take a decision on the basis of the said subsequent events.  Submission of  Mr. Ganesh that the decision taken by Respondent No. 1 having been taken  by an expert decision and, thus, the same does not deserve any interference  at the hands of the court, in our opinion, is misconceived.   

30.    Interpretation of law is the job of the superior court. An opinion of an  expert is not beyond the pale of judicial review.  It would certainly not be so  when the statutory authority transgresses its jurisdiction.  A decision taken in  excess of jurisdiction would render the same a nullity.  [See Vasu Dev Singh  & Ors. v. Union of India & Ors. 2006 (11) SCALE 108]

31.    In any event, similarity in the designation on the premise that three of  the papers taught by the appellant institute are also taught by Respondent  No. 1 cannot be a ground to uphold the contention of Mr. Ganesh.

32.    If a notification issued under a statute is a law within the meaning of  Article 13(3)(a) of the Constitution, the same is liable to be struck down if it  is contrary to any of the fundamental rights guaranteed under the  Constitution of India. [See Indian Express Newspapers (Bombay) Private  Ltd. and Others v. Union of India and Others, (1985) 1 SCC 641].  In our

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opinion the notification dated 03.08.1989 issued by respondent No.1 violates  Articles 14 and 19 (1) (g) of the Constitution and is hereby quashed.

33.    For the reasons aforementioned, the impugned judgment cannot be  sustained which is set aside accordingly.  The appeal is allowed.  No costs.