PETITIONER: BAR COUNCIL OF INDIA Vs. RESPONDENT: APARNA BASU MALLICK DATE OF JUDGMENT25/01/1994 BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) PUNCHHI, M.M. CITATION: 1994 AIR 1334 1994 SCC (2) 102 JT 1994 (1) 141 1994 SCALE (1)194 ACT: HEADNOTE: JUDGMENT:
The Judgment of the Court was delivered by
AHMADI, J.- This civil appeal and writ petition raise common
questions which are capable of being disposed of by a common
judgment. The facts in their abridged form may be noticed
at the outset.
Facts of Civil Appeal No. 8816 of 1983
2. Respondent 1, a postgraduate in Political Science and
Modern History, undertook studies in LL.B. course of the
Calcutta University as a non-collegiate woman candidate
under Regulation 35 of the Calcutta University, First
Regulations, 1951 framed under the Calcutta University Act,
195 1. The said regulation may be extracted at this stage:
“A woman candidate may be allowed to appear as
non-collegiate student (1) at the Preliminary
Law Examination one year after her graduation
from this University, (2) at the Intermediate
Law Examination one year after passing the
Preliminary Law Examination, and (3) at the
Final Law Examination one year after her
passing the intermediate Law Examination of
this University. There is no prescribed
application form for this purpose. Intending
candidates must apply on plain sheet of paper,
together with the usual non-collegiate
students’ fee of Rs 30 and the
B.A./B.Sc./B.Com. Diploma or Mark Sheet in
original.”
On December 14, 1979, a proviso was added to
the said regulation in following terms:
“Provided that the women candidates allowed to
appear as noncollegiate students at the LL.B.
Examination shall be informed in advance that
they shall not be eligible for enrollment as
advocates and the degree to be awarded to them
shall bear an inscription to the effect that
they have obtained the degree as non-
collegiate students.”
Respondent 1 passed the Preliminary Law Examination in 1977,
the Intermediate Law Examination in 1979 and the Final Law
Examination in 1980. On the successful completion of the
course she was conferred the law degree in terms of
Regulation 35 by the Calcutta University. Soon thereafter
she applied to the Bar Council of West Bengal, for
enrollment as an advocate and paid the fee of Rs 250.
However, she was informed by the Assistant Secretary of the
Bar Council that she was not entitled to be enrolled as she
did not fulfill the condition of Rule 1(1)(c) of Part IV of
the Bar Council of India Rules, 1975, hereafter called ‘the
Rules’, which were brought into force w.e.f. September 6,
1975, framed under the provisions of the Advocates Act,
1961, hereinafter called ‘the Act’. On learning of the
rejection of her application for enrollment she moved the
High Court of Calcutta by a writ petition under Article 226
of the Constitution. It was inter alia contended that Rule
1(1)(c) was ultra vires Articles 14 and 19(1)(g) of
105
the Constitution and consequently the rejection of her
application for enrollment was also illegal and invalid and
hence the Bar Council of West Bengal should be directed to
enroll her. The writ petition was contested by the Bar
Council of India as well as the Bar Council of West Bengal
which filed a counter-affidavit in support of the validity
of the rule as well as its action based thereon. It is,
however, significant to note that the University of Calcutta
supported the petition.
3. When the writ petition came up for hearing before the
learned Single Judge, the attack on Rule 1(1)(c) of Part IV
was twofold, namely, that it violated Articles 14 and
19(1)(g) of the Constitution and was ultra vires Section
49(1)(d) of the Act and since it was framed without
consulting the University it was invalid and could not
impinge on Regulation 35. The learned Single Judge
overruled all the aforesaid contentions and discharged the
rule nisi. Against the said decision an appeal came to be
preferred. The Division Bench held that Rule 1 (1)(c) did
not lay down any standard of legal education but provided
that after March 12, 1967 a law degree obtained from any
University in India shall not be recognised for the purpose
of Section 24(1)(c)(iii) of Act unless the conditions
specified in clauses (a) to (d) were satisfied. It further
held that Section 49(1)(d) of the Act did not confer power
to lay down conditions for enrollment, neither could such
conditions be imposed under Sections 7(i) and 24(1)(c)(iii)
of the Act. Indeed, the Court held, it was not the function
of the Bar Council of India to lay down such conditions for
recognition of the law degree. It further pointed out that
the purport of Rule 1(1) was to amend Section 24(1)(c)(iii)
and Section 7(i) of the Act which was clearly illegal. Thus
the Division Bench held Rule 1 (1)(c) ultra vires Sections
7(i), 24(1)(c)(iii) and 49(1)(d) of the Act. On the plea
that the rule was illegal as it was framed without prior
consultation with the University, it declined to express any
view. The appeal was thus allowed and hence this appeal by
special leave.
4. We may mention that the Division Bench of the Calcutta
High Court while allowing the appeal quashed the decision of
the Bar Council and directed a mandate to issue commanding
enrollment of the appellant as an advocate. The operation
of the judgment was stayed for two weeks at the behest of
the Bar Council of India. This Court while granting special
leave stayed the operation of the impugned judgment until
further orders.
Facts of Writ Petition No. 1153 of 1991
5. The petitioner who passed his Bachelor of Arts
examination in 1953 and acquired a Master’s degree in
Economics in 1956, joined the Punjab Civil Service,
Executive Branch, on May 8, 1957, which on reorganisation of
the State w.e.f. November 1, 1966 was designated as Haryana
Civil Service, Executive Branch. In due course he was
promoted to the Indian Administrative Service and was
allotted the year 1979. The petitioner contends that while
in service of the Punjab and Haryana Governments he held a
judicial office for more than ten years and exercised quasi-
judicial powers for over seven years while performing duties
in different capacities.
106
He has enumerated the different executive offices held by
him from 1957 to 1990 which required him to exercise powers
of Magistrate III Class and Magistrate 11 Class, Collector
under Punjab Excise Act, 1914, revisional power of State
Government under Section 42 of the East Punjab Consolidation
of Holdings and Prevention of Fragmentation Act and under
Sections 1 14 and 1 15 of the Haryana Cooperative Societies
Act, 1984.
6. The petitioner further contends that on the
recommendation of the Academic Council, vide Resolutions 30
and 33 dated September 15, 1973, the Executive Council of
the Kurukshetra University decided by Resolution 6 of
January 3, 1974 that the facility to appear as a private
candidate for the LL.B. (Professional) examination be
extended to the following:
“A member of any of the following services who
has served in the State of Haryana for at
least 3 years is also eligible to be admitted
to the LL.B. examination:
(i) Indian Administrative Service;
(ii) Indian Police Service;
(iii) Haryana Civil Service (Executive and
Judicial);
(iv) Haryana Police Service.”
Officers of the Income Tax Department enumerated in Section
116 of the Income Tax Act were also added to this list by
Resolution 26, dated March 5, 1974.
7. The petitioner claims to have undertaken a three-year
LL.B. (Professional) course from May 1975 and to have
appeared in the examinations held in 1975, 1976 and 1978 and
secured a degree in 1978. According to him the question
paper setters and the examiners of the answer books were the
same for non-institutional as well as institutional
candidates and no separate marks were reserved for internal
assessments. Thus according to the petitioner the yardstick
for assessing the worth of the candidates belonging to both
the classes was the same and hence any discrimination on the
basis of one belonging to the non-institutional category
would fall within the mischief of Article 14 of the
Constitution.
8. The Kurukshetra University is recognised for the
purpose of Section 7 of the Act as one of the Universities
whose degree in law is considered adequate qualification for
enrollment as an advocate. The petitioner contends that by
virtue of his experience spread over three years as an
officer belonging to the Haryana Civil Service, he was
considered eligible to appear in the LL.B. (Professional)
examination as a non-collegiate student and had secured the
degree in law after successfully clearing the examinations.
The petitioner, to emphasise his point, contends that he
possesses the qualifications for appointment as an Advocate
General under Article 165 of the Constitution. In 1990 the
petitioner decided to quit government service and thereafter
applied on May 10, 1991 for enrollment as an advocate paying
the fee of Rs 250 for such enrollment. In his application
he made it clear that he would resign from government
service as soon as his eligibility for enrollment as an
advocate was determined. Since he received no
107
communication he made inquiries and learnt from the
Assistant Secretary of the Bar Council of Punjab and
Haryana, Respondent 2, that his case was referred to the Bar
Council of India, Respondent 1 and the decision was awaited
from the latter. Thereupon lie requested Respondent 1 to
take a final decision on his application but he received no
communication in that behalf from Respondents 1 and 2 even
after the expiry of more than reasonable time. On inquiry
he also learnt that no non-collegiate degree holder had ever
been enrolled since September 6, 1975, the date from which
the rules came into force, as an advocate and hence he
thought it futile to wait and moved this petition under
Article 32 of the Constitution read with Article 19(1)(g)
thereof. Rule nisi was issued on January 20, 1992.
9.We may now notice the relevant provisions of law having a
bearing on the question at issue before us. The Act was
enacted inter alia to provide for the constitution of Bar
Councils and an All India Bar. Section 3 provides for the
constitution of State Bar Council and Section 4 for the Bar
Council of India. Section 6 enumerates the functions of the
former, which include the admission of persons as advocates
on its roll, whereas Section 7 enumerates the functions of
the latter which include among others (b) laying down of
standards of professional conduct and etiquette for
advocates (h) promotion of legal education and laying down
standards of such education in consultation with the
Universities of India imparting such education and (i)
recognition of Universities whose degree in law shall be a
qualification for enrollment as advocates. Section 17
enjoins that every State Bar Council shall prepare and
maintain a roll of advocates. Section 24 indicates the
persons who may be admitted as advocates on a State roll.
Such persons must be citizens of India and must have
completed twenty-one years of age. Clauses (c) and (e) of
Section 24(1) to the extent relevant provide:
“(1) Subject to the provisions of this Act,
and the rules made thereunder, a person shall
be qualified to be admitted as an advocate on
a State roll, if he fulfill the following
conditions, namely: Provided that subject to
the other provisions contained in this Act, a
national of any other country may be admitted
as an advocate on a State roll, if citizen of
India, duly qualified, are permitted to
practice law in that other country;
(c) he has obtained a degree in law-
(iii) after the 12th day of March, 1967, save
as provided in sub-clause (iii-a), after
undergoing a three-year course of study in law
from any University in India which is
recognised for the purpose of this Act by the
Bar Council of India;
(e) he fulfill such other conditions as may
be specified in the rules made by the State
Bar Council under this Chapter.”
108
10. We are not concerned with sub-clause (iii-a) which
concerns cases of persons who have undertaken the study from
the academic year 1967-68 or prior thereto. Section 28
confers on the State Bar Councils the power to make rules to
provide for the conditions subject to which a person may be
admitted as an advocate on any such roll. Section 49
confers general powers on the Bar Council of India to make
rules in regard to the matters enumerated in the various
clauses thereof which include the prescribing of standards
of legal education to be observed by Universities in India.
In pursuance of the power so conferred, the Bar Council of
India framed rules, Part IV whereof concerns “Standards for
Legal Education and Recognition of Degrees in Law or
Admission as Advocates”.
11.We may now reproduce sub-rule (1) of Rule 1 of Part IV of
the Rules asit stood at all material times:
“1. (1) Save as provided in Section
24(1)(c)(iii-a) of the Act, a degree in law
obtained from any University in the territory
of India after the 12th day of March 1967
shall not be recognised for purposes of
Section 24(1)(c)(iii) of the Act unless the
following conditions are fulfilled:
(a) That at the time of joining the course
of instruction in law for a degree in law, he
is a graduate of a University, or possesses
such academic qualifications which are
considered equivalent to a graduates’ degree
of a University by the Bar Council of India;
(b) that the law degree has been obtained
after undergoing a course of study in law for
a minimum period of three years as provided in
these rules;
(c) that the course of study in law has been
by regular attendance at the requisite number
of lectures, tutorials and moot courts in a
college recognised by a University.”
Rule 2 required the Council to publish by a notification in
the Gazette of India and prominent newspapers, the names of
Universities whose degrees are recognised under the rules
and forward copies thereof to the Universities concerned.
Thus, under Rule 1(1) after March 12, 1967, a degree of law
obtained from any University shall not be recognised for the
purpose of Section 24(1)(c)(iii) of the Act unless the
conditions stated in clause (c) are satisfied. Under the
said clause the degree of law was not to be recognised
unless the course of study in law has been by regular
attendance at the requisite number of lectures, tutorials
and moot courts in a college recognised by a University.
Respondent 1 of the first mentioned appeal admittedly
appeared and passed the three law examinations as non-
collegiate student without attending lectures, tutorials and
moot courts. Her contention is that before she started the
study of law she was aware of the requirement of Regulation
35 and had obtained the law degree in compliance therewith.
It is not disputed that the proviso was added to the said
Regulation on December 14, 1979 before she passed the final
examination in 1980. This proviso was added to make the
Regulation consistent with the Rules. It may
110
14. Now under Section 7, one of the functions of the Bar
Council of India is to recognise Universities whose degree
in law shall be a qualification for enrollment as an
advocate and for that purpose to visit and inspect the
Universities. This power of recognition of Universities is
conferred where the degree of law of that University
entitles the degree holder for enrollment as an advocate.
Under Section 24(1)(c)(iii) which is relevant for this
purpose, a person shall be qualified to be admitted as an
advocate on a State roll if he fulfill the conditions of
having undergone a three year course of study in law from
any University in India which is recognised by the Bar
Council of India. Sub-section (3) of Section 24 is an
exception clause to sub-section (1) as it begins with a non-
obstante clause which entities a person to be enrolled as an
advocate under special rule made in that behalf. No such
rule was relied upon as having been made under sub-section
(3) of Section 24. Section 49(1)(d) empowers the Bar
Council of India to make rules which may prescribe the
standards of legal education to be observed by Universities
in India and the inspection of Universities for that
purpose. If the acquisition of a degree in law is essential
for being qualified to be admitted as an advocate on a State
roll, it is obvious that the Bar Council of India must have
the authority to prescribe the standards of legal education
to be observed by Universities in the country. On a
conjoint reading of these provisions of the Act with Rule 1
(1)(c) in Part IV of the Rules which prescribe the standards
for legal education and recognition of degrees in law as
well as admission as advocates, it is difficult to
understand how one can say that the said Rule is
inconsistent with any of the provisions of the Act. What
Rule 1 (1)(c) requires is that the course of study in law
must be completed by regular attendance at the requisite
number of lectures, tutorials and moot courts in a college
recognised by a University. As pointed out earlier, this
Court in Baldev Raj Sharma case2 pointed out that there was
a substantial difference between a course of studies pursued
as a regular student and the course of studies pursued as a
private candidate. The policy underlying the relevant
provisions of the Rules is to lay emphasis on regular
attendance of the law classes. It is, therefore, clear that
a candidate desiring enrollment as an advocate must fulfill
the conditions set out under the relevant clause of Section
24 read with Rule 1 (1)(c) of the Rules. In the present
case since both the candidates admittedly did not pursue any
regular course of study at any college recognised by the
University by attending the law classes, lectures, tutorials
and moot courts, they cannot be said to have complied with
the requirements for enrollment as an advocate. In that
view of the matter we think that the view taken by the
Calcutta High Court in Aparna Basu Mallick
v. Bar Council of India’ is erroneous.
15. Our attention was then invited to the decision taken by
the Bar Council of India in the case of one Gulwant Singh
who had joined the course of instruction for first year
LL.B. in the academic year 1967-68 as a private candidate
and obtained a law degree of three years from the Punjab
University as a private candidate. On a reference being
made to the Bar Council of India, the latter opined that he
was entitled to be enrolled even
111
though he had passed the law degree as a private candidate.
On the analogy of this candidate, it was submitted that both
the candidates before us were also entitled to be enrolled
as advocates. We do not think that the submission is well
founded for the simple reason that the case of Gulwant Singh
fell within the scope of Section 24(1)(c)(iii-a) since he
had commenced the study in law from the academic year 1967-
68 and not after March 12, 1967.
16. It was lastly submitted that so far as the Calcutta
student was concerned, her case was governed by Regulation
35 which specifically permitted a woman candidate to appear
as non-collegiate student. This Regulation underwent a
change on the addition of the proviso by the Resolution of
December 7, 1979 which required the University to inform the
woman candidate in advance that she will not be eligible for
enrollment as an advocate and the degree to be awarded shall
bear an inscription to the effect that it was obtained as a
non-collegiate student. Regulation 35 could not hold the
field unless it was consistent with the provisions of the
Act and the Rules. That is why the proviso was required to
be added to the Regulation. But if the University had
omitted to insert the proviso that would not have entitled a
woman candidate for enrollment as an advocate on securing a
degree as a non-collegiate. Unless the degree of law was
secured consistently with the requirements of the provisions
of the Act and the Rules, it would not serve as a
qualification for enrollment. The proviso was added to
Regulation 35 by way of extra caution. After the
incorporation of Rule 1(1)(c) in its present form,
Regulation 35 could not entitle a woman candidate to be
enrolled as an advocate if she secured the degree as a non-
collegiate.
17. For the above reasons, we are of the opinion that Civil
Appeal No. 8816 of 1983 deserves to be allowed. We allow
the same, reverse the decision of the Division Bench of the
Calcutta High Court and restore the decision of the learned
Single Judge dismissing the writ petition which decision is
reported as Apama Basu Mallik v. Bar Council of India3 For
the same reasons Writ Petition No. 1153 of 1991 must also
fail and shall stand dismissed. The CMPs and the IA will
also stand disposed of. There will, however, be no order as
to costs in both the matters.
113
