ORDER
D. Reddeppa Reddy, J.
1. The constitutional validity of the rules called “the Andhra Pradesh Institutions of Law (Regulation of Admissions into Courses in Law through Common Entrance Test) Rules, 1989, framed by the Government of Andhra Pradesh in G.O.Ms. No. 172, Education (Rules), dated 11th May, 1989 (hereinafter referred to as ‘The LAWCET Rules’), made in exercise of the powers conferred by sub- section (1) of Section 3 read with Section 15 of the Andhra Pradesh Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983, which was upheld by a Division Bench of this Court in P. Venkateswara Rao v. Osmania University, 1990 (2) ALT 140. is again questioned in this batch of writ petitions. Incidentally, some other questions of law are raised. Also, some petitioners tried to highlight their difficulties in running the colleges.
2. In the present batch of writ petitions, we are concerned with admissions for the academic year 1991-92 to first year law course in the private Law Colleges, affiliated to different Universities in the State.
3. The petitioners in Writ Petition Nos. 3895, 3456, 2678, 3847, 3823, 3889, 4278, 3748, 5799 and 4971 of 1992 are law colleges and they seek a writ of Mandamus declaring that they shall be entitled to select the candidates to the first year law course on the basis of the marks obtained by them in the qualifying examination and without reference to the LAWCET Examination held in the month of July, 1991. The petitioners in Writ Petition Nos. 5782,7300,7304 and 8081 of 1992 are the candidates who claim to have joined the first year law course without passing LAWCET and without obtaining any interim directions from this Court. Their plea is also the same. Writ Petition No. 7617 of 1992 is also for the same relief and the same is filed by Sankara’s Law College, Kurnool and seventy-nine students who claim to have joined the first year law course in the said college. There was no interim direction in this case also.
4. Relief sought for in this batch of writ petitions is the same. Questions of law involved are common. Therefore, we propose to dispose of them by a common order.
5. Considerable number of counsel have advanced arguments. Points urged by them relate to legal and factual aspects. We summarise and formulate them as under:
(i) Provisions of Section 7(1)(h) and Section 49(1)(af) and (d) of the Advocates Act, 1961, enacted by the Parliament under Entries 77 and 78 of List I of Seventh Schedule of the Constitution of India occupy the entire field of legal education including admission to law courses and therefore the LAWCET Rules are unconstitutional, invalid and inoperative.
(ii) The LAWCET Rules are contrary to the provisions of Section 12-A of the University Grants Commission Act and as such they are invalid and unenforceable.
(iii) Neither the State Government nor the Universities have power to prescribe additional or higher qualifications than those prescribed by the bar Council of India from time to time by way of rules made under Section 49 of the Advocates Act, 1961.
(iv) The LAWCET Rules are repugnant to the rules made under the Bar Council of India and therefore, they are void.
(v) The Bar Council of India has no power to sub-delegate its power either to the Universities or the State Government and as such its Resolution No. 35/ 88 dated ll/12th July, 1988 is bad.
(vi) The right to run the colleges is frustrated for the reason that the Convenor failed to allot sufficient number of candidates to each college, and
(vii) The LAWCET Rules have become superfluous at the present stage when the seats are more and the candidates are less.
6. To appreciate the above points, it would be useful to refer to the relevant constitutional and statutory provisions and the rules made there under.
7. Chapter I of Part XI of the Constitution of India deals with distribution of legislative powers. We are concerned with Articles 245,246 and 254, which read as follows:-
“245. Extent of Laws made by Parliament and by the Legislatures of States – (1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State.
(2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation.”
“246. Subject-matter of laws made by Parliament and by the Legislatures of States-(1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the “Union List”).
(2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the “Concurrent List”).
(3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the “State List”).
(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a state notwithstanding that such matter is a matter enumerated in the State List.”
“254. Inconsistency between laws made by Parliament and laws made by the Legislature of States – (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in the State:
Provided mat nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.”
8. At this stage, it would be useful to refer to the relevant entries of List I and List III of Seventh Schedule of the Constitution of India. Entries 66, 77 and 78 of List I relate to:
“66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.”
“77. Constitution, organisation, jurisdiction and powers of the Supreme Court (including contempt of such Court), and the fees taken therein; persons entitled to practise before the Supreme Court.”
“78. Constitution and organisation (including vacations) of the High Courts except provisions as to officers and servants of High Courts; persons entitled to practise before the High Courts.”
Entries 25, 26 of List III relate to:-
“25. Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 of List I; vocational and technical training of labour”.
“26. Legal, medical and other professions.”
9. The main weapon of attack of the petitioners is the Advocates Act, 1961. The relevant provisions pressed into service are Section 7(1)(h) and (i) and Section 49(1) (af) and (d) and the rules contained in Part IV of the Bar Council of India Rules. They read as follows :-
“7. Functions of Bar Council of India – (1) The functions of the Bar Council of India shall be –
(h) to promote legal education and to lay down standards of such education in consultation with the Universities in India imparting such education and the State Bar Councils;
(i) to recognise Universities whose degree in law shall be a qualification for enrolment as an advocate and for that purpose to visit and inspect Universities.”
“49. General power of the Bar Council of India to make rules – (1) The Bar Council of India may make rules for discharging its functions under this Act, and, in particular, such rules may prescribe-
(af.) the minimum qualifications required for admission to a course of degree in law in any recognised university;
(d) the standards of legal education to be observed by Universities in India and the inspection of Universities for that purpose;”
Rules contained in Part IV of the Bar Council of India Rules:-
“1. There shall be a five years course of law after 10+2 or 11+1 comprising of two parts viz., Part I which will be a two-year core programme of a pre-law study and Part II which will be a three-year programme for professional training in law.
2. (1) Save as provided in Rules 7,23, 24 and 25 of the rules hereunder, a degree in law obtained from any University in the territory of India shall not be recognised for purpose for enrolment as advocate under the Advocates Act, 1961 from June 1, 1982 unless the following conditions are fulfilled:
(a) That at the time of joining the course of instruction in law for a degree in law, the person concerned has passed an examination in 10+2 course of schooling recognised by the educational authority of the Central or the State Governments or possesses such academic qualifications which are considered equivalent to 10+2 courses by the Bar Council of India;
(b) The law degree has been obtained after undergoing a regular course of study in a duly recognised law college under these rules for a minimum period of five years, out of which the first two years shall be devoted to study of pre-law courses as necessary qualification for admission to three-year course of study in law to be commenced thereafter. The last six months of the three years of the law course shall include a regular course of practical training;
(c) That the course of study in law has been by regular attendance for the requisite number of lectures, tutorials, moot courts and practical training given by a college affiliated to a University recognised by the Bar Council of India;
(d) That the law degree has been obtained without undergoing any other course of instruction simultaneously during the period of five years of study in law.
3. (1) That the law education shall only be through whole time Law Colleges or University Departments:
Provided such of the Universities which cannot implement the new rules from June 1,1982 may continue the old system under intimation to the bar Council of India for a term not exceeding two years from 1982-83. After such intimation the said Universities shall comply with requirement of Rule 23:
Provided further that the students who have been admitted to the 1st year LL.B., before 1st June, 1982 can continue to receive their education through part-time morning/evening colleges as the case may be.
(2) A College will be deemed to be whole-time college for the purpose of sub-rule 3(1) if the working time of the college or University Department extends to at least thirty hours per week including contactand correspondence programme, tutorials, home assignments, library, clinical work, etc., with the further provision that the actual time for class-room lectures is not less than 20 hours per week.
4. The present three-year law course after graduation may continue up to 1986-87 but from the session 1987-88, all Universities will be required to offer the five-year law course. Students admitted to the three-year course during 1986-87 would be eligible to be enrolled as Advocates.
5. Admission of students to the course of instruction in law shall ordinarily be on the basis of merit, no student shall be admitted to the course of instruction in law unless he has inter alia, obtained 45 per cent marks in the aggregate in the qualifying examination for admission:
Provided that in the case of students of Scheduled Castes and Scheduled Tribes a relaxation of marks up to 5 per cent in the qualifying examination may be given:
Provided further that in case of physically/ orthopaedically handicapped relaxation of marks up to 5 per cent in the qualifying examination may be given on production of a certificate of disability from the Medical Officer, to the satisfaction of the authority concerned.
Explanation-Physically handicapped means and includes the following categories of physically handicapped persons –
(A) Blind – Blind is that who is suffering from either of the following conditions-
(i) total absence of sight; and
(ii) visual acuity in existing 6/16 or 20/200 (snellam) in better eye with correcting lenses.
(B) Deaf/Mute-
(i) deaf are those in whom the sense of hearing is non-functional for ordinary purpose of life;
(ii) mute are those who cannot speak.
(C) Orthopaedically handicapped- “Orthopaedically handicapped are those who have a major physical defect or deformity which causes an interference with normal functioning of bones, muscles and joints.”
6. The Students shall be required to put in a minimum attendance of 66 per cent of the lectures on each of the subject as also at tutorials, moot courts and practical training course:
Provided that in exceptional cases for reasons to be recorded and communicated to the Bar Council of India, the Dean of the Faculty of Law and the Principals of the Law Colleges may condone attendance short of those required by the Rule, if the student had attended 66 per cent of the lectures in the aggregate for the semester or examination as the case may be.
7. Lateral entry will be permitted to Part II of the five-year law course at the discretion of the concerned university in respect of the following:
(i) Candidates who have a post-graduate degree in Arts, Science or Commerce;
(ii) Candidates who have done a three-year degree course (pass or honours) in Arts, Science or Commerce with at least 50 per cent marks in the Bachelor’s Degree examination or B grade in the 7 point scale;
(iii) Candidates who have done a three-year degree course in any faculty other than those in 7(ii) above or those who have done abridge course of one year after a degree course in any faculty, provided they qualify in a test to be conducted by the Law Department of the University concerned. Such candidates must have obtained 50 per cent marks in the qualifying examination before they are allowed to participate in the test:
Provided that the relaxation of marks provided under Rule 5 shall also apply to the candidates seeking admission under Rule
7:
Provided that the introduction of the five-year law course is a condition precedent for such lateral entry.
8. (1) The Part I examination should be so conducted as to be called a university examination. A student who has passed Part I of the law course shall be eligible for enrolment in the final year of the three-year degree course in Arts, Social Science, etc., to supplicate for the B.A. degree.
(2) Papers listed in Rule 12(1) of the Bar Council of India Rules (Part IV) for the two-year pre-law study under the scheme of five-year law course maybe adopted by the universities with such modifications to make it possible for students to enter the B.A. programme after passing Part I with a view to supplicating for B.A. degree in one year. Modification of the listed papers must also keep in view the requirement of legal education for those who enter Part II of the course from other faculties. (The subject relating to legal language including legal writing may have to be shifted to Part II of the course).
9. The medium of instruction shall ordinarily be English. Where the medium of instruction is not English, or where pupil has in fact answered the papers for the law examination in a language other than English, he shall as a condition of his enrolment be required to pass a written test in ‘proficiency in English’ to be conducted by a State Bar Council except when he has passed such a test as a part of his course of instruction in law.”
10. Section 12-A of the Universities Grants Commission Act, 1956 is also referred to and the same reads as follows:- “12-A. Regulation of fees and prohibition of donations in certain cases-
(1) In this Section, –
(a) “affiliation”, together with its grammatical variations, includes in relation to a college, recognition of such college by, association of such college with, and admission of such college to the privileges of, a university;
(b) “college” means any institution, whether known as such or by any other name which provides for a course of study for obtaining any qualification from a university and which, in accordance with the rules and regulations of such university, is recognised as competent to provide for such course of study and present students undergoing such course of study for the examination for the award of such qualification;
(c) “prosecution”, in relation to a course of study, includes promotion from one part or stage of the course of study to another part or stage of the course of study;
(d) “qualification” means a degree or any other qualification awarded by a university;
(e) “regulations” means regulations made under this Act;
(f) “specified course of study” means a course of study in respect of which regulations of the nature mentioned in Sub-section (2) have been made;
(g) “student” includes a person seeking admission as a student;
(h) “university” means a university or institution referred to in sub- sec.(1) of Section 22.
(2) Without prejudice to the generality of the provisions of Section 12 if, having regard to-
(a) the nature of any course of study for obtaining any qualification from any university;
(b) the types of activities in which persons obtaining such qualification are likely to be engaged on the basis of such qualification;
(c) the minimum standards which a person possessing such qualification should be able to maintain in his work relating to such activities and the consequent need for ensuring, so far as may be, that no candidate secures admission to such course of study by reason of economic power and thereby prevents a more meritorious candidate from securing admission to such course of study; and
(d) all other relevant factors, the Commission is satisfied that it is necessary so to do in the public interest, it may, after consultation with the university or universities concerned, specify by regulations the matters in respect of which fees may be charged, and the scale of fees in accordance with which fees shall be charged in respect of those matters on and from such date as may be specified in the regulations in this behalf, by any college providing for such course of study from, or in relation to, any student in connection with his admission to, and prosecution of, such course of study:
Provided that different matters and different scales of fees may be so specified in relation to different universities or different classes of colleges or different areas.
(3) Where regulations of the nature referred to in Sub-section (2) have been made in relation to any course of study, no college providing for such course of study shall-
(a) levy or charge fees in respect of any matter other than a matter specified in such regulations;
(b) levy or charge any fees in excess of the scale of fees specified in such regulations, or
(c) accept, either directly or indirectly, any payment (otherwise than by way of fees) or any donation or gift (whether in cash or kind), from, or in relation to, any student in connection with his admission to, and prosecution of, such course of study.
(4) If, after making, in relation to a college providing for a specified course of study, an inquiry in the manner provided by regulations, and after giving such college a reasonable opportunity of being heard, the Commission is satisfied that such college has contravened the provisions of Sub-section (3), the Commission may, with the previous approval of the Central Government, pass an order prohibiting such college from prescribing any students then undergoing such course of study therein to any university for the award of the qualification concerned.
(5) The Commission shall forward a copy of the order made by it under Sub-section (4) to the university concerned, and on and from the date of receipt by the university of a copy of such order, the affiliation of such college to such university shall, in so far as it relates to the course of study specified in such order, stand terminated and on and from the date of termination of such affiliation and for a period of three years thereafter affiliation shall not be granted to such college in relation to such or similar course of study by that or any other university.
(6) On the termination of the affiliation of any college under sub-section
(5) the Commission shall take all such steps as it may consider appropriate for safeguarding the interests of the students concerned.
(7) The provisions of this section and the regulations made for the purposes of this section shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.”
11. The LAWCET rules are made in exercise of the powers conferred under Sub-section (1) of Section 3 and Section 15 of the Andhra Pradesh Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983. These rules deal with admissions into first year of under-graduate courses in law through Common Entrance Test.
12. Rule 3 provides as follows:-
“3. Method of Admission: The Under-graduate Courses in Law, namely, LL.B., and B.L., will be of 3 years duration for the candidates possessing Degree Qualification in any faculty and 5 years duration for the candidates possessing Intermediate Qualification. The general guidelines for admission into these courses shall be as laid down below:
(1) The admissions shall be made in the order of merit on the basis of the ranking assigned to the students in the Common Entrance Test conducted for the purpose called the “Law Common Entrance Test (LAWCET)”.
(2) The Principals of all the Private Colleges, including those administered by the Minority Communities, shall also admit candidates on the basis of the ranking assigned to them in the Common Entrance Test as allotted to them by the Entrance Test Committee.
(3) The total number of candidates to be admitted in each Course, in each of the Institutions shall not exceed the strength sanctioned by the concerned competent authorities.
(4) The admission of students made in various Private Institutions, shall be subject to scrutiny by the inspecting authority appointed for the purpose.
(5) In respect of State-wide Institutions 85% of the seats in each Course in each Institution shall be allocated among the three Regions of the State, namely, Andhra University Area (Andhra), Osmania University Area (Telangana) and Sri Venkateswara University Area (Rayalaseema) in the ratio 42:36:22 respectively and the balance of 15% seats shall be left for open competition. If any seats are unfilled in any region they may be filled up with other candidates in the order of merit ranking assigned in State-wide merit list.”
13. Rule 4 which prescribes eligibility criteria for admission, reads as follows:-
“4. Eligibility Criteria for Admission: Admission into Law Courses shall be governed by the rules of admission of respective Universities, in addition to the rules and regulations prescribed herein. The eligibility criteria for admission into Law Courses shall be as follows:
(1) Nationality and Domicile: The candidates should be Indian nationals and should satisfy local/non-local status requirement as laid down in the Andhra Pradesh Educational Institutions (Regulation of Admission) Order 1974 and the amendments made thereon.
(2) Educational qualifications for admission to Common Entrance Test:
(a) 3 year Law Course: Candidates seeking admission to Common Entrance Test for 3 year law course should have obtained degree qualification in any faculty awarded by the Universities in the State of Andhra Pradesh (or) should have appeared for the final year Degree Examination at the time of making application for the Common Entrance Test (or) any other examination recognised by any of the Universities in the State as equivalent to 3 years Degree (10+2+3);
(b) 5 year Law Course: Candidates seeking admission to Common Entrance Test for 5 year law course should have acquired any one of the following educational qualifications or should have appeared for the qualifying examination at the time of making the application for the Common Entrance Test.
(i) 2 year Intermediate Examination (10 plus 2 pattern);
(OR)
(ii) Any other examination recognised by any of the Universities in this State or the Board of Intermediate Education, Andhra Pradesh, as equivalent to the Intermediati Course (10 plus 2 pattern).”
14. Rule 5 deals with common entrance test and it reads as follaws:-
“5. The Common Entrance Test: (1) The Common Entrance Test shall be conducted by the Convener, appointed by the State Council, on such dates and at such centres as may be decided by the Entrance Test Committee.
(2) (a) The Convener shall make advertisement in the popular daily News Papers calling for applications, in the form prescribed by the Entrance Test Committee, from the candidates satisfying the eligibility criteria laid down under Rule 4. The advertisement, among other things, shall indicate the application fee payable, entrance test fee payable, the last date for the receipt of the filled in applications and the date of conduct of the Entrance Test.
(b) The date for conduct of the entrance test as notified by the Entrance Test Committee shall not be revised without the prior approval of the Government.
(3) The media of Entrance Test shall be English and Telugu.
(4) The qualifying marks in the Entrance Test for general category of candidates shall be 35%. However, there shall be no minimum qualifying marks in respect of candidates belonging to the Scheduled Castes and the Scheduled Tribes.
(5) The subjects for the Entrance Test and the syllabus for the Entrance Test shall be as prescribed by the Entrance Test Committee, from time to time.
(6) No requests for re-totalling or revaluation or personal identification of the answer scripts of the Entrance Test shall be entertained.
(7) Mere appearance at the Entrance Test does not entitle a candidate to be considered for admission into any course automatically unless the candidate-
(a) Applies to the University concerned/Convener as the case may be, and
(b) Satisfies all the conditions of admission stipulated by the concerned University/Authority/Government.
(8) If any ambiguity or doubt arises in interpretation or implementation of these rules, the decision of the Chairman of the Committee shall be final.
(9) The Entrance Test fee, i.e., the fee to be collected from the students desirous of appearing for the Entrance Test shall be as prescribed by the Entrance Test Committee, from time to time.”
15. Rule 8 dealing with procedure for admissions into private institutions, reads as under:-
“8. Procedure for admission into private institutions:- (1) The Convener of the Common Entrance Test shall make advertisement in the popular daily News Papers calling for applications in the prescribed form from the qualified candidates who have been assigned ranking in the Common Entrance Test, desirous of seeking admission into the Private institutions including Minority Educational Institutions imparting 3 years Degree Course and 5 years Degree Course.
(a) The advertisement, among other things, shall indicate various documents to be enclosed along with the application, and various fees payable in favour of the concerned institution;
(b) The advertisement shall also make it clear that the candidates belonging to the concerned community alone will be admitted into the Minority Educational Institutions basing on the ranking assigned to them in the Common Entrance Test and that the candidates belonging to the other Communities shall be admitted only against the left over seats, in the order of ranking assigned to them in the Common Entrance Test and further that, while admitting these candidates, the rule of reservation as laid down under Rule 10 shall be followed.
(2) The candidates who are qualified to seek admission as a consequence of obtaining ranking in the Common Entrance Test and desirous of seeking admission into the private Institutions, including Minority Educational Institutions shall make application to the Convener either in person or by “Registered Post Acknowledgement Due” enclosing all the relevant documents including a copy of the Rank Card issued to him. The application shall be acknowledged.
(3) The Convener shall scrutinise all the applications received from the candidates desirous of seeking admission into the Private institutions, including the Minority Educational Institutions. After scrutiny, the Convener shall prepare two categories of merit lists, namely:-
(a) Common Merit List:- Containing the names of all the candidates, including those belonging to the Minority Community, arranged in the order of merit ranking assigned to them in the Common Entrance Test;
(b) Community-wise Merit List:- containing the names of the candidates belonging to the concerned community arranged in the order of merit ranking assigned to them in the Common Entrance Test, prepared separately for each of the concerned community taking into account the community to which the Minority institution claims to belong. The candidates belonging to Minority Communities other than the concerned minority Community, shall be treated as of belonging to other non-minority communities for the purposes of admission into the Minority Institution.
(4) The seats in each of the private colleges shall be pooled up course- wise and distributed among the three regions of the State as provided under sub-rule (1)(c) of Rule 10.”
16. It may not be necessary to refer to other rules for the purpose of the present cases.
17. Before dealing with various submissions made, it is necessary to state few relevant facts which necessitated the filing of the present batch of writ petitions: Professor of Law in Sri Krishnadevaraya University, Anantapur, was appointed as the Convener, LAWCET, 1991-92 by the Andhra Pradesh Council of Higher Education by proceedings dated 2nd March, 1991 for the purpose of conducting LAWCET and discharge the other functions contemplated under the LAWCET Rules. The examination was conducted in July, 1991. 16974 candidates appeared for the said test out of whom 11426 have been declared to have passed the test. It is stated in the counter-affidavit filed by the Convener, who is one of the respondents in all the writ petitions, that the total number of seats available in the University Colleges and private colleges including Minority Colleges is 9900. The total number of seats put together in all private colleges including minority colleges and excluding University colleges is about 8400. The colleges which have been granted permission subsequent to the holding of LAWCET have also been considered for allotment of qualified candidates on receipt of admission applications for allotment. But, the candidates who have qualified themselves by passing LAWCET had no interest to join private law colleges and as such they did not appear for the interview held by the Convener for the purpose of allotting candidates to various law colleges, as per the rules. With the result, the Convener could not allot sufficient number of candidates to the private law colleges. In these circumstances, he addressed a letter to all the private law colleges expressing his inability to allot further candidates and specifying his decision to close the admissions throughout the State by 31st December, 1991. The said letter reads as follows:-
“SRI KRISHNADEVARAYA UNIVERSITY, ANANTAPUR – 515 003.
Prof. T.P. Sudarsana Rao,
Convener, LAWCET -1991,
Department of Law.
Date 16-12-91.
Sub: LAWCET ’91 – Admissions – Closer – Regarding.
I am to inform you that the LAWCET ’91 First Phase of Admissions were carried on strictly according to the option exercised by the candidates and I have also submitted a list of alloted candidates to your college.
During the Second Phase, Admission of absentee candidates and candidates exercising change of option were made by authorising you to admit such candidates and obtain my approval on or before the stipulated period which differs for the law colleges affiliated to a particular University.
I am to inform you that I have exhausted all the possible ways of procuring candidates who have registered their applications and desirous of securing Admission.
Now that I do not have any candidates registered and interested to join law course, I do not have any other option except to close down admissions uniformly throughout the State by 31-12-91.
In this regard I am to inform you to make yourself convenient to come down to Anantapur and settle any pending matters relating to admission within my limits, on or after 27-12-91 but before 31-12-91, as LAWCET ’91 admissions shall be closed during the year 1991 itself.
I also request you to send me 4 lists with full particulars of candidates admitted in your college, so that I will approve all the lists and send the same to the A.P.S.C.H.E., Registrar of the concerned University, concerned college and retain one list with me. This is intended to avoid any discrepancy between the list you prepare and the one with me.
I hope you can understand the spirit with which I am carrying on the admission work and request you to extend your full co-operation to help me and yourself in making LAWCET ’91 unquestionable and successful.
I cannot forget your kind co-operation and help during the time of admissions and convey my heartful thanks.
With regards,
Yours sincerely,
Sd/-
(Prof. T.P. Sudarsana Rao)”
Thus, admissions to first year law course for the academic year 1991-92 should be treated to have been closed by 31st December, 1991. However, ten law colleges affiliated to different universities filed W.P. No. 2678 of 1992 on 24th February, 1992. It looks obvious that neither the counsel for the petitioners nor the concerned Government Pleader brought the decision of the Division Bench of this Court in P. Venkateswara Rao (1 supra) to the notice of Justice A. Venkatarami Reddy, when it came up for admission on 27th February, 1992. The writ petition was admitted and interim directions were granted permitting the petitioners therein to admit candidates for the vacant seats in the first year of three year or five year LL.B. Course straight away on the basis of the merit in the qualifying examination i.e., B. A., B.Sc, B.Com., and Intermediate as the case may be, duly complying with the requirement regarding reservation of S.Cs., S.Ts. and B.Cs., and without reference to the LAWCET for the year 1991-92. Later some more writ petitions were filed and similar directions were given. It is stated that in pursuance of the said interim directions given by this Court, candidates were admitted sometime in the month of March 1992. However, W.P.MP.Nos. 4647,4735 and 4823 of 1992 in Writ Petition Nos. 3748,3823 and 3889 of 1992 respectively were dismissed by Justice Y. Bhaskar Rao. Those orders were questioned in Writ Appeal Nos. 304, 380 and 381 of 1992, which were heard by a Division Bench comprising Justice A. Lakshmana Rao (as he then was) and one of us (Justice D. Reddeppa Reddi) and the same were dismissed by a common order dated 28th April, 1992. Following the said order, interim directions given in other writ petitions were also vacated on 29th April, 1992. Thus, it could be seen that the candidates who have not passed the LAWCET; but claim to have joined the first year law course for the academic year 1991-92 in pursuance of the interim directions of this Court have pursued their studies only for a period of seven weeks.
18. In the light of the constitutional and statutory provisions, the rules and the facts stated above, we now deal with the points urged in this batch of writ petitions.
19. Sri Y. Suryanarayana, Senior Advocate, in his usual style, emphatically submits that the Advocates Act, 1961 occupies the entire field of legal education including admissions to law colleges and as such Sections 3 and 15 of the Andhra Pradesh Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983 (Act5 of 1983) and the LAWCET Rules, 1989 made as per G.O.Ms. No. 172, Education (Rules) 11th May, 1989, are unconstitutional, invalid and inoperative. Sri K. Pratap Reddy, Senior Advocate, maintains the same line of argument. Their plea is that it is beyond the legislative competence of the State to make any law relatable to Entries 66,77 and 78 of List I of Seventh Schedule of the Constitution of India. They also press into service the rules made by the Bar Council of India, with regard to the minimum qualifications for admission to law colleges, to sustain the plea that the State Legislature has no jurisdiction to prescribe additional or higher qualifications than those prescribed by the Bar Council of India. We find it difficult to accept these contentions in the light of the various decisions of the Supreme Court dealing with Entries 66,77 and 78 of List I vis-a-vis Entries 25 and 26 of List III of Seventh Schedule.
20. Prior to the Constitution (42nd Amendment) Act, 1976 Education was a State subject. Entry-11 of List II of Seventh Schedule, as it stood then, read as follows:-
“Education including universities, subject to the provisions of Entries 63,64,65 and 66 of List I and Entry 25 of List III.”
21. Entry 25 of List III, as it stood then, read as follows:- “Vocational and technical training of labour”.
22. By Section 57 of the Constitution (42nd Amendment) Act, 1976 which came into force on 3rd January, 1977, Entry 11 of List II of the Seventh Schedule was omitted from the State list and the following entry was substituted as Entry 25 of List III of the Seventh Schedule.
“Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour.”
23. Thus, by the Constitution (42nd Amendment) Act, 1976, education became a concurrent subject.
24. In Chitralekha v. State of Mysore, ., the Supreme Court dealing with the provisions of Article 246 of the Constitution of India, Entry 66 of List I and Entry 11 of List II of Seventh Schedule, rejected the plea that the State Government has no power to prescribe machinery and criteria for admission to the medical and engineering colleges. The point involved in the said case and the majority decision of the Supreme Court are stated in Paragraphs 6 and 7 of the judgment, which read as follows:-
“(6) It is then contended that the Government has no power to appoint a selection committee for admitting students to colleges on the basis of higher or different qualifications than those prescribed by the University and, therefore, the orders made by the government in respect of admissions were illegal. The first argument is that co- ordination and determination of standards of a university is a Union subject and, therefore, the State Legislature has no constitutional competency to make a law for maintaining the standards of university education. As the State Government’s executive power extends to matters with respect to which the Legislature of the State has power to make laws, the argument proceeds, the Government of the State cannot make an order or issue directions for maintaining the standards of the University. The further argument is that prescribing higher marks for admission to a College is for the purpose of maintaining the standards of University education and therefore the State Government is not empowered to do so. In support of this contention reliance is placed upon the judgment of this Court in Gujarat University v. Shri Krishna, . There, one of the questions raised related to alleged conflicts between Entry 11 of List II and Entry 66 of List I of the Seventh Schedule to the Constitution. By item No. 11 of List II of the Seventh Schedule to the Constitution, the State Legislature has no power to legislate in respect of “education including Universities subject to the provisions of Items 63,64,65 and 66 of List I and 25 of List III. By item 66 power is entrusted to Parliament to legislate on “co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.
(7) The question was whether medium of instruction was comprehended by either of those entries or whether it fell under both. In that context it was observed at p. 715-716:
“The State has the power to prescribe the syllabi and courses of study in the institutions named in Entry 66 (but not falling within entries 63 to 65) and as an incident thereof it has the power to indicate the medium in which instruction should be imparted. But the Union Parliament has an overriding legislative power to ensure that the syllabi and courses of Study prescribed and the medium selected do not impair standards of education or render the co-ordination of such standards either on an All India or other basis impossible or even difficult.” This and similar other passages indicate that if the law made by the State by virtue of Entry 11 of List II of the Seventh Schedule to the Constitution makes impossible or difficult the exercise of the legislative power of the Parliament under the entry “Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions” reserved to the Union, the State Law may be bad. This cannot obviously be decided on speculative and hypothetical reasoning. If the impact of the State law providing for such standards on Entry 66 of List I is so heavy or devastating as to wipe out or appreciably abridge the central field, it may be struck down. But that is a question of fact to be ascertained in each case. It is not possible to hold that if a State legislature made a law prescribing a higher percentage of marks for extra-curricular activities in the matter of admission to colleges, it would be directly encroaching on the field covered by Entry 66 of List I of the Seventh Schedule to the Constitution. If so, it is not disputed that the State Government would be within its rights to prescribe qualifications for admission to colleges so long as its action does not contravene any other law.”
25. In State of Andhra Pradesh v. L. Narendranath, dealing with prescription of written entrance test by the Government of Andhra Pradesh for admission to medical colleges for successful candidates in the public examination, with reference to Entry 66 of List I of Seventh Schedule, the Supreme Court observed as under:
“7. We have therefore to examine whether the Government had a right to prescribe a test for making a selection of a number of candidates from out of the large body of applicants for admission into the first year M.B.B.S course and whether such action of the Government contravened any provision already made by the legislature in that respect. Under Article 162 of the Constitution the executive power of the State extends to matters with respect to which the legislature of a State has power to make laws but this is subject to the provisions of the Constitution. As the Government runs these colleges, it undoubtedly has a right and a duty to make a selection from the number of applicants applying for admission if all could not be admitted. If there was no legislation covering this field Government would undoubtedly be competent to prescribe a test itself to screen the best candidates. We have next to scrutinise the provisions of the Andhra University Act relied on by the High Court to see whether the action of the Government ran counter to any of those provisions. Under Section 23 of the Act it was a body known as the Academic Council of the University which had the power by regulations of prescribing all courses of study and of determining curricula and the general control of teaching within the university and was responsible for the maintenance of the standards thereof. Under Sub-section (2)(h) of the Act these powers include the power to make regulations regarding the admission of students to the university or prescribing examinations to be recognised as equivalent to university examinations or the further qualifications mentioned in Sub-section (1) of Section 33 for admission to the degree courses of the university. Under Section 33 no student was to be eligible for admission to a course of study qualifying for admission to a post- matriculation university examination unless he had passed the examination prescribed as qualifying for admission to such course or an examination recognised by the Academic Council with the previous sanction of the State Government as equivalent thereto and possessed such further qualifications, if any, as might be prescribed. Sri Venkateswara University, the only other University functioning in this area, was constituted under a similar statute and had almost identical provisions as those mentioned above.
8. The above provisions of law do not make it incumbent upon the Government to make their selection in accordance with the marks obtained by the applicant-candidates at the qualifying examination. Obtaining 50% of the marks at the qualifying examinations was the first hurdle to be crossed by any candidate before he could submit an application for admission into a medical college. The Government which ran the colleges had the right to make a selection out of a large number of candidates and for this purpose they could prescribe a test of their own which was not against any law. Merely because they tried to supplement the eligibility rule by a written test in subjects with which the candidates were already familiar their action cannot be impeached nor was there anything unfair in the test prescribed. The test prescribed by the Government must be considered in the light of a second hurdle for the purpose of a screening to find out who of all the candidates applying should be admitted and who should be rejected. Merely because the University had made regulations regarding the admission of students to its degree courses, it did not mean that any one who had passed the qualifying examination such as the P.U.C. or H.S.C. was ipso facto to be entitled to admission to such courses of study. If the number of candidates applying for such admission far exceeds the number of seats available the University can have to make its choice out of the applicants to find out who should be admitted and if instead of judging the candidates by the number of marks obtained by them in the qualifying examination the university thinks fit to prescribe another test for admission no objection can be taken thereto. What the University can do in the matter of admissions to the degree courses can certainly be done by the Government in the matter of admission to the M.B.B.S. course.
9. In our view the test prescribed by the Government in no way militates against the power of Parliament under Entry 66 of List I of the Seventh Schedule to the Constitution. The said entry provides:
“Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.”
The above entry gives Parliament power to make laws for laying down how standards in an institution for higher education are to be determined and how they can be co-ordinated. It has no relation to a test prescribed by a Government or by a University for selection of a number of students from out of a large number applying for admission to a particular course of study even if it be for higher education in any particular subject,”
26. In Bar Council, U.P. v. State of U.P., ., the Supreme Court, while holding that the powers to legislate with regard to the persons entitled to practice before the Supreme Court and High Court is altogether excluded from Entry 26 of List III and is made the exclusive field for Parliament, recognised the right of the State Legislature to prescribe stamp duty for the purpose of getting a certificate of enrolmentas provided under Section 22 of the Advocates Act, 1961. It would be instructive to refer to the relevant passage in the said judgment, which read as under:
“11. Now Entries 77 and 78 in List I in the Seventh Schedule to the Constitution are as follows:-
“77. Constitution, organisation jurisdiction and powers of the Supreme Court (including contempt of such court), and the fees taken therein; persons entitled to practise before the Supreme Court.
78. Constitution and organisation (including vacations) of the High Courts except provisions as to officers and servants of High Courts; persons entitled to practise before High Courts.” Entry 91 relates to rates of stamp duty in respect of certain instruments which do not cover an instrument or a document with which we are concerned, namely, certificate of enrolment issued under Section 22 of the Act. Entry 96 in the same list relates to fees in respect of any of the matters in the List but not including the fee taken in any Court. Entry 63 in List II relates to rates of stamp duty in respect of documents other than those specified in List I i.e., Entry 91. In the same List Entry 66 relates to fees in respect of any of the matters in that List but not including fee taken in any court. The following Entries in List III may be reproduced:
“26. Legal, medical and other professions.”
“44. Stamp duties other than duties or fees collected by means of judicial stamps, but not including rates of stampduty.”
There is no dispute that the Act was enacted under Entries 77 and 78 in List I. It is equally clear that the words “persons entitled to practise” would include determining or prescribing the qualifications and conditions that a person should possess and satisfy before becoming entitled to practise as an advocate before the Supreme Court or the High Courts. So far as persons entitled to practise before these courts are concerned “the power to legislate in regard to them is carved out from the general power relating to the provision in Entry 26 in List III and is made the exclusive field for Parliament”. In other words, the power to legislate in regard to persons entitled to practise before the Supreme Court and the High Courts is altogether excluded from Entry 26 in List III. (See O.N. Mohindroo v. The Bar Council of Delhi . From the entries the following scheme with regard to persons entitled to practise will appear to emerge; (1) The Parliament has the exclusive power under Entry 77 and Entry 78 in List I to prescribe, inter alia, the qualifications and conditions on the fulfilment of which persons would be entitled to practise before the Supreme Court or the High Courts. Any fee which may be payable by such persons before they can claim to be entitled to practise would fall under Entry 96 of that List; (2) Entry 44 of List III enables legislation with regard to its levy but the rates of the stamp duty can be prescribed by the Parliament only with regard to instruments falling within Entry 96 of List I and by the State Legislature under Entry 63 of List II.”
27. In Ambesh Kumar v. Principal, LLRM Medical College, Meerut, , while rejecting the plea that the order of the State Government laying down the eligibility qualifications, that is, obtaining of 55% of marks or 52% of marks for being eligible for consideration for admission to post-graduate degree in M.D. or M.S., and diploma course in M.D. or M.S., etc,. respectively on the basis of the merit in accordance with the regulations made under the Indian Medical Council Act, contravenes or encroaches upon the power of the Central Legislature to make laws or the Central Government to make orders in regard to matters provided in Entry 66 of List I of Seventh Schedule to the Constitution, it was held by the Supreme Court:
“On a consideration of the aforesaid decisions we are unable to hold that the impugned order dated 15-12-1982 has in any way contravened or encroached upon the power of the Central legislature to make laws or the Central Government to make orders in regard to matters provided in Entry 66 of List I of Seventh Schedule to the Constitution, There is no conflict between the Regulations and also the order in question. The State Government by laying down the eligibility qualification namely the obtaining of certain minimum marks in the MBBS examination by the candidates has not in any way encroached upon the regulations made under the Indian Medical Council Act nor does it infringe the central power provided in the Entry 66 of List I of the Seventh Schedule to the Constitution. The order merely provides an additional eligibility qualification. We are in full agreement with the reasoning and conclusion of the High Court in this respect. This contention, therefore, in our considered opinion, is without any merit.” (para 22)
28. It is clear from the principles laid down in the above cited decisions that the power of the State Legislature to make laws under Entries 25 and 26 of List III is not totally ousted even in respect of the subjects mentioned in Entry 66 in List I of Seventh Schedule. The only restriction is that such laws should not have devastating effect of wiping out the laws made by Parliament. On close scrutiny of the rules made by the bar Council of India and LAWCET Rules, we find it difficult to hold that the latter have devastating effect of wiping out the former.
29. Sri K. Pratap Reddy, Senior Advocate, submits that in view of the provisions of Section 12-A of the University Grants Commission Act, 1956 which deal with regulation of fees and prohibition of donations in certain cases, the State has no jurisdiction to make any law with regard to legal education. He urges that legal education falls under the category of higher education and as such Parliament alone is competent to make any law under Entry 66 of List I of Seventh Schedule. Section 12-A of the University Grants Commission Act which was inserted by way of an amendment in 1984 no doubt covers the field of higher education; but its object is to ensure that merit is not disregarded by the academic institutions and no capitation fee is collected. The LAWCET Rules do not contemplate a situation leading to any conflict with what is envisaged by Section 12-A. On the other hand, they seek to add strength to Section 12-A by insisting upon adherence to the principle of merit in the matter of admissions. In the recent Full Bench decision of this Court in Writ Petition No. 9221 of 1992 and batch, dated 18th September, 1992 (or which both of us are members) the effect of Section 12-A of the University Grants Commission Act has been considered. But the principles laid down therein have no bearing on the points involved in the present batch of writ petitions.
30. Now, let us examine whether the LAWCET Rules are invalid and inoperative in view of the rules made by the Bar Council of India under Section 49 of the Advocates Act, 1961 and whether there is any repugnancy between the rules made by the Bar Council of India and the LAWCET Rules. At this juncture, it is necessary to state that as per the orders of this Court dated 3rd July, 1992 the Bar Council of India was impleaded as a respondent in all the present writ petitions. Thereafter, the matter was adjourned thrice to enable the Bar Council of India to file its counter-affidavit. But its attitude was callous and deplorable. No counter-affidavit was filed on its behalf. It had no courtesy to furnish even the authenticated information with regard to the existing rule position. In the circumstances, we are left with no alternative, but to proceed with the available material, the authenticity of which we are not certain.
31. Part IV of the Bar Council of India Rules deal with the standards of legal education and recognition of degrees in law for admission as an advocate. The said rules, stated to have been published in the Gazette of India, dated 4th September, 1986 are already extracted above. Another set of rules have been filed by Sri V. Raghunatha Reddy, learned counsel appearing for the Bar Council of India. It is not stated as to when and how those rules have been made and whether they have been published in any Gazette. From the material papers filed on behalf of the Bar Council of India it appears that the Secretary, Bar Council of India has communicated circular No. LE-7/1975 dated 2nd July, 1975 to the Registrars of all the Universities in India imparting legal education. It reads as under:
“Sir,
This is to communicate to your University the recommendations of the Bar Council of India on imparting Legal Education which are given below:-
(i) No student should be admitted to the course of instruction in law unjess he has inter alia, obtained at least 40% in the aggregate (if it is for the day classes or 50% in the aggregate if it is for the part-time course in the evening) in the B.A., B.Sc., B.Com., or other qualifying examination or last higher examination specified under the Rules approved by the Bar Council of India,
(ii) That admission to the course should be by means of a viva-voce test before a Board appointed for the purpose.
(iii) The medium of instruction in the course of instruction in law should be ordinarily in English, or that English should be included as a subject in the 1st year of the course,
(iv) There should be instructions on week days for three periods of sixty minutes duration,
(v) Previous permission of the Bar Council of India should be obtained in the case of affiliation granted in future to any law college,
(vi) All law colleges affiliated to the Universities now should by the end of three years from the date of the circular be independent law colleges and should cease to be departments attached to colleges for instruction for grant of law degrees.”
32. Another letter bearing No. LE (Cir) No. 1/1976 dated 12th June, 1976 emanating from the Secretary, Bar Council of India reads as follows:
"The Bar Council of India Ref: LE (Cir) No. 1/1976 Dated: 12th June, 1976. From: The Secretary, Bar Council of India, AB/21, Mathura Road, Facing Supreme Court Bldg., New Delhi -110 001. To: 1. Registrars of all the Universities in India imparting legal education. 2. Principals of all the law colleges in India. 3. Deans of the Faculties of law of the Universities in India. 4. Secretaries of all the State Bar Councils in India. I. Modification of the Council's recommendations communicated to the Universities/Law Colleges under the Bar Council of India's circular No.LE-7/1975, dated 2-7-1975.
At its meeting dated 28th and 29th February, 1976 the Legal Education Committee of the Bar Council of India considered the replies received from some of the Universities imparting legal education sent by them in response to our circular No.LE/7/1975 dated 2-7-1975 and the following modifications have been made to the earlier recommendations of the Bar Council of India. The modifications had been placed before the Bar Council of India and the same had been approved:-
(a) Recommendation No. 1 set out in Circular No.LE/7/1975 is amended as follows:- “No student should be admitted to the course of instruction in law unless he has inter alia, obtained at least 40% in the aggregate, if he is a full-time student not otherwise engaged in any other occupation and 50% in the aggregate if he takes a part-time course being employed otherwise, in the B.A., B.Sc, B.Com., or other qualifying examination or last higher examination specified under the rules approved by the Bar Council of India.”
Preference may be given to Scheduled Caste and Schedule Tribe students provided the minimum requirement mentioned above is complied with.
(b) Recommendation No. 2 which is given below is dropped:
“That admission to the course should be by means of a viva voce test before a board appointed for the purpose.”
(c) Consideration of Recommendation No. 3 has been post-poned for the time being.
(d) Recommendation No. 4 is modified as follows:-
“There should be actual instruction on week days for three hours on each day.”
(e) Regarding recommendation No. 5, the Council is of the view that it should adhere to its previous decision that permission of the Bar Council of India should be obtained before granting affiliation to any new law college by the Universities.
(f) Regarding recommendation No. 6, the Council is of the view that it should adhere to its earlier opinion that all the law colleges affiliated to the Universities should by the end of three years from the date of the earlier circular be independent law colleges and cease to be mere departments or sections of the colleges.
Note: A copy of circular No.LE/7/1975 dated 2-7-1975 is sent herewith for ready reference.
…………………
II. Clarifications by the Council on some matters.
(a) Re: Full-time and part-time students:
The Council is of the opinion that a student who has no other avocation and is pursuing only his studies at the college is described as a full-time student and one who has another avocation besides his studies in college is described as part-time student of law.
(b) Minimum marks required for admission: The Council is of the opinion that a student seeking admission to the 3 year law course should have obtained the minimum percentage of marks fixed by the Council either at the Graduate or at the post graduate examination.
(c) Proficiency in English:
Resolution No. 63/1976: Resolved that in the opinion o(the Council offering a paper in English like “General English” during graduation course would be sufficient compliance with the requirements of Rule 2 of the Rules of the Council in Part IV.
………………..
III. Re: B.Sc. (Agri.), B.Sc., Engg., B.E., and B.A.M.S. – eligibility for admission to law course. The Council is of the opinion that persons holding degrees in B.Sc., (Agri.), B.Sc. (Engg.,) and B.E., are eligible for admission to law course as they are graudates within the meaning of Rule 1(1 )(a) of the Rules of the Council in Part IV.
The Council is also of the opinion that the B.A.M.S. (Bachelor of Ayurvedic and Modern Medicines and Surgery) be recognised as equivalent to graduation for the purpose of Rule l(1)(a) of the Rules of the Council in Part IV.
…………………….
IV. Amendment of Rule in Part IV. Rule 6 in Part IV of the Rules of the Council relating to standards of legal education and recognition of the degrees in law has been amended by adding the following words at the end of the said rule:-
“A student shall also be required to attend lectures on Professional Ethics”.
Thus the amended rule will read as follows:-
“During the last year of the course mentioned in Rule 1 instruction and practical training shall also be imparted for a period of six months in the Rules of Courts and in drafting of pleadings and documents. A student shall also be required to attend lectures on Professional Ethics.”
(S.K. Srivastava)
Acting Secretary,
Bar Council of India.”
33. Then, in the year 1988, the Secretary, Bar Council of India addressed another letter bearing No.ST.BC. (Cir) No. 9/1988(LE); LE(Cir) No. 1/1988, dated 11th July. 1988, which reads as follows:-
“Sirs,
The Council reviewed the Rules relating to minimum marks prescribed for entry into law courses with reference to recommendation of the Legal Education Committee and other circumstances. It is noticed that there is no uniformity in the minimum pass marks prescribed by various Universities for different degree courses and other qualifying examinations in a university and different standards of evaluation of answer scripts and marking are followed in different universities. It is further seen that in many universities there is an entrance test conducted for entry into the law course and admissions are made solely on the basis of performance in such test. Besides under the amended Rules it is open to the universities to have either the three year degree course or five year degree course with of without a lateral entry for law. In view of the foregoing the Council is of the opinion that it may be left to the universities to prescribe the minimum standards for entry to law courses having regard to the primary object of improving standards of legal education. The Council passed the following Resolution:- Resolution No. 35/1988:
Resolved that the Rules in Part IV of the Rules of the Council relating to five year law course be and are hereby amended as follows:-
1. Rule 5, is deleted.
2. In Rule 7(ii) the words “with at least 50 per cent marks in Bachelor’s Degree Examination or B grade in the 7 point scale” be deleted.
3. In Rule 7(iii) the words “such candidate must have obtained at least 50 per cent marks in the qualifying examination before they are allowed to participate in the test” are deleted.
4. Provisos to Rule 7 are deleted. Resolved further that the other earlier decisions relating to minimum marks for admission into law course are rescinded.
Yours faithfully,
xxxxx
(Secretary)
Bar Council of India.
34. A letter bearing No.BCI:D:2014:1992 (Cr.Pro) dated 7th August, 1992, addressed to Sri D. Sudarshana Reddy, Advocate-cum-Government Pleader for Education, Government of Andhra Pradesh, reads as follows:-
“Sir,
Your letter dated 5-8-92 was received late last evening. I am sending herewith a Vakalatnama duly attested by an advocate at Delhi.
I have already explained to you the circumstances in which the Bar Council of India dropped the requirement as to minimum marks.
Rules in part IV made in 1982 were not published in the Gazette of India. Rule 1 in Chapter VI, Part II of the Bar Council of India Rules is as follows:-
“1. Unless the Council otherwise directs, all rules of the Council shall come into force on the date of their publication in the Gazette of India.”
In the Resolution itself the date of coming into force was mentioned and it was at that time thought not necessary to publish the same in the Gazette of India as the date of coming into force has been mentioned in the Resolution itself.
As regards to three year course, the requirement of minimum percentage of marks was never a part of the Rule either before 1982 or afterwards. It was introduced in the form of a recommendation to the Universities in the year 1975. I am sending herewith copies of the relevant Circulars i.e.,
(1) LE (Cir. No. 7/75) dated 2nd July, 75 and
(2) LE (Cir. No. 1/76) dated 11-6-76.
Since the time is very short it is difficult to prepare the counter- affidavit and send it to you. You may argue the case and bring the necessary facts before the Court.
Thanking you,
Yours faithfully,
CM. Balaraman
Officiating Secretary.”
From the letter dated 11th July, 1988 it is clear that the Bar Council of India by its resolution No. 35/1988 has decided to leave the matter entirely to the Universities to prescribe minimum standards for entry into law courses and all other earlier decisions relating to minimum marks for admission into law courses should be rescinded. In the letter dated 7th August, 1992 it is admitted that the Part IV of the Rules made in 1982 were not published in the Gazette of India. It is also not clear whether Resolution No. 35/1988 dated ll/12th July, 1988 has been notified. It is a well-settled proposition of law that no rule or regulation made by virtue of statutory power shall have effect unless it is duly published in the manner prescribed. However, wo do not propose to go into the validity of the Bar Council of India Rules since that question is not directly raised in the present proceedings.
35. Assuming that the rules mentioned above are valid and enforceable, the question to be determined is whether they come in the way of the Government prescribing LAWCET. In the cases referred in State of Andhra Pradesh v. I. Narendranath (3 supra) and Ambesh Kumar v. Principal LLRM Medical College, Meerut (5 supra) prescribing additional qualifications has been upheld by the Supreme Court. In Shobana Kumar, S. v. Mangalore University, M. Rama Jois, J., dealing with an identical question, held as follows:-
“8. As pointed out earlier, the power of the Bar Council is to prescribe minimum conditions of eligibility which is certainly binding on the University. Therefore, the Universities cannot prescribe any condition of eligibility for admission to the law degree course which is lower than the conditions of eligibility prescribed by the Bar Council. If the University does so, the Bar Council could refuse to recognise the law degree conferred by such University for the purpose of enrolment as an Advocate. But nothing prevents the University from prescribing a higher condition of eligibility. For instance, a University could prescribe that no candidate who has secured less than 50% marks in She general degree course would be eligible for admission to the law degree. It would be no contravention of the rules framed by the Bar Council. In the present cases, the universities have not prescribed any lower conditions of eligibility than the one prescribed by the Bar Council of India. They are insisting that no candidate who has secured-less than 40% marks in the degree course is eligible. The minimum condition of eligibility of the Bar Council even on the basis that the resolution of the Bar Council of India dated 29/30th September, 1984, on which the petitioners rely, can be regarded as an amendment to the rules, is more than 39.5% marks. Thus, it may be seen, the Universities have not prescribed a condition of eligibility which is lower than the condition prescribed by the Bar Council. Therefore, the universities are within their powers in enforcing the regulations.”
36. In Ajay Malik v. Punjab University, 1992(2) S.L.R. 507., a Division Bench of Punjab and Haryana High Court held that the university is competent to lay down higher qualifications for the purpose of admission to law course man the minimum qualifications prescribed by the Bar Council of India. We are in full agreement with the reasons given and principle laid down in these decisions.
37. In P. Basireddy Educational Society v. Government of A.P. (1990)1 An.W.R. 648., one of us (M.N. Rao, J.) dealing with grant of permission for establishing a law college at Cuddapah, as contemplated under Section 20 of the Andhra Pradesh Education Act, 1982, held,
“… The Advocates Act 1961 was enacted by Parliament with the object of amending and consolidating the law relating to legal practitioners and for providing for constitution of Bar Councils and All India Bar. The source of legislative power for enacting the Advocates Act is Article 246(1) read with Entries 77 and 78 of List I of Seventh Schedule, but not Entry 26 of List III of the same Schedule. That being the case, the matters that are covered by the Advocates Act are necessarily outside the ambit of the State Legislature with respect to any of the Entries either in List II or List III of the Seventh Schedule. There cannot be any repugnancy in respect of laws made by Parliament with respect to any of the subjects covered by Entries in List I: the question of repugnancy will arise only if there are two inconsistent laws, one made by Union Parliament and the other by the State Legislature, both in respect of a subject matter covered by any of the Entries in List III (concurrent list)…..” (Para 6)
There is a further observation in the said judgment holding that,
“While granting permission under Sub-section (2) of Section 20 the Concerned authorities shall have due regard to the six matters specified in sub- sec.(3) so far as starting of law colleges are concerned the only matters that can be taken into account by the State Government or the concerned authority are those covered by Clauses (b) and (c) which relate to adequate financial provision for continued and efficient management of the institution and locating the institution in sanitary and healthy surroundings. All other matters are covered by the Bar Council of India Rules. It, therefore, follows that in a case where the Bar Council of India has granted permission to an applicant for establishing a law college and the University has agreed for granting affiliation to such a law college, the State Government or the concerned authority has no power under Section 20 to reject permission save on grounds relatable to matters covered by Clauses (b) and (c) of Sec-.2O. Of course, if the law college is to impart a course of study in law without conferring the right on the pupils to enrol as advocates the position stands on a different footing. But that is not the case here. Admittedly the petitioner and the third respondent have applied for permission to start law colleges for imparting instruction in law to enable the students to enrol as advocates.” (Para 9)
The said judgment was affirmed by a Division Bench of this Court in Writ Appeal No. 340 of 1987 dated 1st June, 1987 except with regard to some observations made against establishment/administration of the Government of Andhra Pradesh. The matter was also carried to the Supreme Court in S.C. SLP (Civil) No. 15026 of 1987 and special leave was refused by the Supreme Court by an order dated 18th December, 1987. When the above judgment was cited in P. Venkatesxvara Rao v. Osmania University (1 supra), the Division Bench observed as follows:-
“We are unable to agree with these observations. The Bar Council Act does not deal with grant of permissions for establishing Law Colleges nor does it deal with the regulation of admissions into Law colleges…..” (para 31)
With great respect to the learned judges, we must say mat those observations are uncalled for, particularly when the said judgment was upheld by a Division Bench of this Court in Writ Appeal No. 340 of 1987 dated 1st June, 1987 and affirmed by the Supreme Court of India in S.C. SLP (Civil) No. 15026 of 1987. It is settled law that a Division Bench of two judges cannot differ from the opinion recorded by an earlier Division Bench of two judges; the only course open in such a situation is to refer the matter to a Full Bench, (vide Union of India v. Raghubir Singh, . The judgment in Basireddy Educational Society (8 supra) relates to establishment of law colleges; it has nothing to do with prescription of an entrance examination for admission to a law course. In the circumstances, we reiterate that the observations made in Basireddy Educational Society (8 supra) are perfectly valid in the facts and circumstances of that case. However, in view of the decisions of the Supreme Court in Chitralekha v. State of Mysore (2 supra), State of A.P. v. L. Narendra Nath (3 supra), Bar Council, U.P., v. State of U.P., (4 supra) and Ambesh Kumar v. Principal, LLRM Medical College, Meerut (5 supra), we agree with the other reasons given by the learned Judges in P. Venkateswara Rao (1 supra) for upholding the validity of the LAWCET Rules.
38. We have bestowed our anxious consideration to find out whether there is any repugnancy between the rules framed by the Bar Council of India assuming them to be valid, and the LAWCET Rules. The rules made by the bar Council of India prior to its Resolution No. 35/1988 dated ll/12th July, 1988, prescribe minimum percentage of marks in the qualifying examination for seeking admission to law course. The LAWCET Rules prescribe a pass in the LAWCET as a condition precedent for seeking admission to first year law course.
39. In M. Karunanidhi v. Union of India, ., the Supreme Court dealing with question of repugnancy observed as follows:-
“…..On a careful consideration, therefore, of the authorities referred to above, the following propositions emerge:-
1. That in order to decide the question of repugnancy it must be shown that the two enactments contain inconsistent and irreconcilable provisions, so that they cannot stand together or operate in the same field.
2. That there can be no repeal by implication unless the inconsistency appears on the face of the two statutes.
3. That where the two statutes occupy a particular field, but there is room or possibility of both the statutes operating in the same field without coming into collision with each other, no repugnanacy results.
4. That where there is no inconsistency but a statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both the statutes continue to operate in the same field;” (para 35)
40. We have carefully examined the rules made by the Bar Council of India as they stood prior to Resolution No. 35/1988 and the LAWCET Rules, keeping in view the above principles laid down by the Supreme Court and we are of the view that it is not possible to hold that there is any repugnancy between the two. It could be said that the doctrine of repugnancy comes into play only in a situation where the State Government prescribes rules laying down lower standards than what are prescribed by the Bar Council of India.
41. Sri Y. Suryanarayana, Senior Advocate, contends that Resolution No. 35 / 1988 dated 11/12th July, 1988 of the Bar Council of India is void as it has no power to delegate its powers either to the Universities or to the State Government. He has placed reliance on the famous maxim, DELEGATUS NON POTEST DELEGARE. His plea is that it is the function of the Bar Council of India alone to prescribe minimum qualification for admission to degree in law in any recognised university and the same cannot be delegated either to the universities or to the State Government. We are unable to accept this argument for the reason that Section 49 of the Advocates Act, 1961 is only an enabling provision. It does not obligate the Bar Council of India to prescribe the minimum qualifications required for admission to a course of degree in law in any university. Moreover, under Resolution No. 35/1988, the Bar Council of India has rescinded its earlier decisions taking into consideration the existing practice followed by the universities. In the said resolution, there is nothing to suggest that the Bar Council of India has sub-delegated its powers either to the universities or to the State Government. In the circumstances, we find no substance in this contention.
42. Sri R. Venugopal Reddy, Senior Advocate, and other learned counsel strenuously contend that the LAWCET Rules have become superfluous at the present stage when the seats are more and the candidates are less. This argument proceeds on the assumption that the seats in the existing colleges are more and there are no sufficient number of candidates who have passed LAWCET. This assumption is factually incorrect in view of what is stated in the counter-affidavits filed by the Convener and the Government of Andhra Pradesh. It is clearly stated in the said counter-affidavits that in all the law colleges including the colleges to whom permission was granted subsequent to holding of LAWCET in July, 1991 for the academic year 1991-92, the total number of seats is 9900 whereas the number of candidates passed in the LAWCET held in July, 1991 is 11426. Therefore, it cannot be said that seats are more and the candidates are less. May be the qualified candidates are not willing to join the private colleges. Here it is significant to note that mere is no complaint from the law colleges run by the universities that seats in their colleges are vacant. Even otherwise, it is for the State to consider all these aspects and take appropriate action. Suffice it to say that it is not for this Court to declare that LAWCET is unnecessary.
43. Sri P.S.Narayana, the learned counsel appearing for the petitioner in Writ Petition No. 4971 of 1992, apart from arguing the question of constitutional validity of the relevant provisions of the Andhra Pradesh Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983 and the LAWCET Rules also urges that it is only in the State of Andhra Pradesh, LAWCET is introduced whereas in all other States it is not there. He points out that when law graduates coming from other States are free to enrol as advocates in the State of Andhra Pradesh, there is no justification for the State of Andhra Pradesh to introduce LAWCET in this State. On that ground he contends that LAWCET Rules are violative of Article 14 of the Constitution of India. This submission cannot be countenanced for the reason that under the Constitution of India each State is free to make its own laws and regulations. When such laws made by State are in accordance with the Constitution, it is not open to any one to question the same on the ground that similar laws have not been made in other States. He has submitted a list of authorities in support of his contentions. We feel that in view of the clear legal position enunciated by the Supreme Court in the cases mentioned above, it is not necessary to refer to them.
44. It is the grievance of the private law colleges that they are unable to run colleges with the number of candidates allotted by the Convener. We cannot help them. Neither the Government nor the Convener, LAWCET, can compel any candidate who has passed LAWCET to join any college. As already stated above, 11426 candidates have passed LAWCET. Moreover, the Convener has given full liberty to private law colleges to admit any student who has passed LAWCET. Despite that, if the candidates who have passed LAWCET have not chosen to join the petitioners-law colleges there is no justification for them to complain either against the Government or the Convener. Merely because the privately established law colleges are not in sound financial position due to lack of adequate number of students, they cannot claim a right to admit students who did not appear for the entrance examination. The statutory rules under which permission was accorded to the privately managed law colleges enjoin upon them to admit only students who came out successful in the LAWCET and have been allotted to those institutions. To some extent, the authorities made a departure to this condition by permitting private managements to admit students who passed LAWCET irrespective of the consideration whether those students have been allotted to those institutions. In any event the rules do not permit continuance of any student in a law college without having been successful in the entrance examination. By making such a restriction, it cannot be said that any rights of the private managements are adversely affected. The Full Bench of this Court, referred to supra, has categorically held that right to establish private educational institutions is not a fundamental right and that the parameters of the rights and the obligations have to be ascertained from the relevant statute itself. As it is a statutory obligation to accord admission only to those who came out successful in the entrance examination, the private managements cannot act in violation of that requirement. It necessarily follows that all such admissions are without the sanction of law and so cannot be sustained.
45. The Full Bench decision of this Court, referred to supra, lays stress on the- aspect that there should not be any departure from merit and that excellence should be maintained. By allowing students, who did not pass LAWCET, to secure admission in law colleges, a situation forbidden by the statutory rules, the necessary consequence will be flooding of law colleges with students whose capacities to pursue a course of study in law, to say the least, is doubtful. Only those who have come out successful in the LAWCET, the statutory rules enjoin, are eligible for admission to law colleges. The object in prescribing entrance examination is to enable the meritorious students to seek admission and this process of selection must necessarily be gone through having regard to the undisputed fact that the seats available in the law colleges are limited and the aspirants are more.
46. It is hard to accept the contention of the learned counsel for the petitioners that seats were going abegging and, therefore, the managements had to admit students who did not appear for the LAWCET. This contention is at variance with the ground realities. We have already adverted to the large number of students who came out successful in the LAWCET – the number is far in excess of the available seats. It may be that several of them did not opt to join the law colleges established in the private sector. But that is no ground for the private managements to throw open their gates to persons who did not compete. It is only when an institution establishes reputation for maintaining excellence, it will attract students. What is more important is that most of the colleges came into existence after the LAWCET was over for the academic year 1991-92. It is true that all those who came out successful and were willing to join law colleges to which they were allotted, might not have joined or some of them might have dropped out, perhaps for the reason that they were not willing to take admission into colleges which are not to their liking. That only shows the reluctance of the students to join institutions which are not of their choice. But reputed institutions like constituent law colleges in the universities attracted students to the fullest capacity. Factually it is true that many of the private law colleges are without the requisite number of students. But that situation is peculiar to the academic year 1991-92 only for the reason that these institutions came to be established after the LAWCET was over and students had their own doubts as to the utility of joining in colleges which sprang up in large numbers abruptly.
47. Acceptance of the contention of the petitioners would result in a chaotic situation of graduates irrespective of their merit flooding the law colleges in large numbers which will ultimately undermine the prestige of the legal education. This may also result in ill-equipped law graduates joining the legal profession. The Bar Council, in order to maintain the high standards of legal education should have long ago thought of evolving stringent procedure for restricting admission to law colleges only to candidates of calibre. Why it was not done is inexplicable.
48. Lastly, it is urged by all the learned counsel appearing for the petitioners that the candidates who have been admitted pursuant to the interim directions of this Court and the candidates who have joined law colleges, on their own accord should be permitted to appear for the first year examinations, which are yet to be held. We are unable to accede to this request. As already observed above, candidates who were admitted pursuant to the interim directions of this Court could have prosecuted their studies only for a period of seven weeks. We find it difficult to accept the assertion of others that they have joined colleges on their own accord. In this regard, it is submitted by the learned counsel that despite the orders of the Division Bench of this Court vacating the interim directions, the candidates continued their studies with the fond hope that the writ petitions will be allowed. The same is the plea of the learned counsel appearing for the students who claim to have joined the law colleges without any directions from this Court. The law governing admissions to law colleges will be thrown to winds, if this plea is to be accepted.
49. In State of Tamilanadu v. St. Joseph Teachers Training Institute, ., the Supreme Court observed as follows:-
” The practice of admitting students by unauthorised educational institutions and then seeking permission for permitting the students to appear at the examination has been looked with disfavour by this Court. In N.M. Nageshwaramma v. State of A.P. (1986 Supp. SCC 166), this Court observed that if permission was granted to the students of an unrecognised institution to appear at the examination, it would amount to encouraging and condoning the establishment of unauthorised institutions. The court declared that the jurisdiction of this Court under Article 32 or of the High Court under Article 226 of the Constitution should not be frittered away for such a purpose. In A.P. Christians Medical Educational Society v. Government ofA.P. , a similar request made on behalf of the institution and the students for permitting them to appear at the examination even though affiliation had not been granted, was rejected by this Court. The Court observed that any direction of the nature sought for permitting the students to appear at the examination without the institution being affiliated or recognised would be in clear transgression of the provision of the Act and the regulations. The Court cannot be a party to direct the students to disobey the statute as that would be destructive of the rule of law. The Full Bench noted these decisions and observations and yet it granted relief to the students on humanitarian grounds. Courts cannot grant relief to a party on humanitarian grounds contrary to law. Since the students of unrecognised institutions were legally not entitled to appear at the examination held by the Education Department of the government, the High Court acted in violation of law in granting permission to such students for appearing at the public examination. The directions issued by the Full Bench are destructive of the rule of law. Since the Division Bench issued the impugned orders following the judgment of the Full Bench the impugned orders are not sustainable in law.” (para 6)
50. The above case related to admission of qualified students by unauthorised educational institutions and then seeking permission for permitting them to appear for the examinations. The present cases relate to admission of unqualified students to authorised educational institutions. It makes no difference as far as the principle is concerned. In the circumstances, we find it impossible to permit the candidates who have not passed LAWCET, to appear for the examinations of the first year law course.
51. For the aforesaid reasons, the writ petitions must fail. Accordingly, they are dismissed. There will be no order as to costs.