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HIGH COURT OF MADHYA PRADESH : JABALPUR
WP NO.387/10 : Prakash Sharma
Vs.
Rani Durgawati
Vishwavidyalaya Jabalpur & others
____________________________________________________
1- Date of Order : 18.2.2010.
2- Bench constituted of Hon'ble Arun Mishra,J.
Hon'ble S.C. Sinho, J.
3- Order passed by Hon'ble Arun Mishra, J.
4- Whether approved for reporting : Yes
5- Name of Counsel for parties :
Petitioner by Shri V.K. Shukla, Adv.
Shri Suyash Tripath for respondent No.1.
Shri Deepak Awasthy, GA, for respondents No.2&3
________________________________________________________
ORDER
AS PER : ARUN MISHRA J.
The writ petition has been filed by the petitioner
aggrieved by cancellation of his admission in LL.B. First
Year on the ground that he was not having requisite
percentage of 45% in the qualifying examination.
2- It is averred in the petition that the petitioner
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possessed 41.89% marks in graduation. He appeared in
the entrance test for admission in 3 years LL.B. course in
which 40% marks in graduation were required. As he
fulfilled the criteria he was permitted to participate in
the entrance examination and admission was given to
him, but, suddenly his admission was cancelled on the
ground that he was having 41.89% marks in graduation,
not 45% as required. Petitioner filed a representation
which was not considered. Hence, petition has been
preferred.
3- In the return filed by the respondents No.2 and 3 it
is contended that Bar Council of India has framed the
Rules of Legal Education and as per Part-IV Chapter II
Rule 7 minimum marks to be obtained in the qualifying
examination is 45% in the case of general category
candidates for admission in 3 years LL.B. course. The
guidelines dated 22.5.2009 framed by the College were
not in tune with the rules of legal education framed by
the Bar Council of India having statutory force. When
said fact came to the notice, error was rectified vide
letter dt.25.7.2009, it was clarified that for 5 years
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course and also for 3 years LL.B. course, the minimum
qualifying marks are fixed as 45% for general category
candidates as prescribed by the Bar Council of India.
Petitioner was admitted on 23.7.2009 and order of
cancellation was passed on 7.8.2009 within two weeks of
admission. No case is made out so as to interfere in the
writ petition.
4- Shri V.K. Shukla, learned counsel appearing on
behalf of the petitioner has submitted that admission was
rightly given in view of admission bulletin for LL.B. First
Semester published by the Rani Durgawati Vishwa
Vidyalaya, Jabalpur in which it was mentioned in para 4
and 12 that admission in the First Year has to be on the
basis of entrance examination in qualifying examination
and graduation or post-graduation incumbent must
possess 40% marks. Guidelines (P/3) issued by Higher
Education Department in para 5.3 has also been relied
upon by the petitioner which provides that for admission
in the First Year Course of LL.B. in case entrance test is
conducted 40% marks are required and in
graduation/post-graduation and 45% in case entrance
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examination is not conducted.
5- Counsel appearing on behalf of the respondents
have relied upon the Bar Council of India Rules framed
under the Advocates Act contained in Part-IV. Chapter II
Rule 7 of BCI Rules. The BCI has prescribed the
standard vide Resolution No.110/2008 which came in
force w.e.f. 14.9.2008. The resolution provides that
minimum percentage in the qualifying examination
should not be below 45% of the total marks in case of
general category candidate and 40% of total marks in
case of SC/ST candidates. It is contended that it was not
open to the State Govt. or to University to violate the
binding directive of BCI, thus, the guidelines which were
framed by University and State Govt. were corrected to
bring them in tune with the rule 7 contained in Part IV
Chapter II of BCI Rules.
6- No doubt about it that in the admission guidelines
issued by the University and the State Govt. it was
provided that minimum percentage for general category
candidate is 40% in case admission is by holding
entrance examination and in case it is not conducted
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qualifying percentage in the graduation/post graduation
had been fixed at 45%. However, said guidelines are in
contravention of BCI Rules Rule 7 contained in Chapter
II Part IV of the BCI Rules framed under the Advocates
Act which have the statutory force. BCI has power to
prescribe the standard for the purpose of standards of
legal education and recognition of degrees in law for the
purpose of enrolment as advocate and inspection of
Universities for recognizing its degree in law under
sections 7(1)(h) and (I), 24(1)(c)(iii) and (iiia), 49(1)(af),
(ag), and (d) of the Advocates Act, 1961. the rules have
statutory force Rule 7 contained in Chapter II of Part IV
of Bar Council of India Rules is as follows :
“7. Minimum marks in
qualifying examination for admission.
Bar council of India may from time
to time, stipulates the minimum
percentage of marks not below 45% of
the total marks in case of general
category applicants and 40% of the total
marks in case of SC and ST applicants, to
be obtained for the qualifying
examination, such as +2 Examination in
case of Integrated Five Years’ course or
Degree course in any discipline for Three
years’ LL.B. course, for the purpose of
applying for and getting admitted into a
Law Degree Program of any recognized
University in either of the streams.
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Provided that such a minimum qualifying
marks shall not automatically entitle a
person to get admission into an
institution but only shall entitle the
person concerned to fulfill other
institutional criteria notified by the
institution concerned or by the
government concerned from time to time
to apply for admission.”
It is apparent from Rule 7 of the aforesaid rules
that Bar Council of India has prescribed minimum
percentage of marks not below 45% in case of general
category and 40% in case of SC/ST candidates to be
obtained in the qualifying examination, such as +2
examination in case of integrated five years course or in
Degree course in any discipline for admission in three
years’ LL.B. course. It is pre-requisite for admission into
the law degree programme of any recognized University
in either scheme. Proviso also makes it clear that the
person who possess minimum qualifying marks has also
to fulfill other institutional criteria notified by the
institution concerned or by the government concerned
from time to time to apply for admission. By making
provision of entrance test institutional criteria has been
prescribed, but, in no case it was open to the University
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to violate the directive of the BCI contained in Rule 7
Chapter II Part IV of the Bar Council of India Rules. Rule
is mandatory and it could not have been by-passed by
making the provision of entrance test. The prescribing of
40% marks in the qualifying examination for 3 years
course amounted to dilution of the mandatory direction
of the BCI. Bar Council of India has prescribed aforesaid
standard in exercise of various provisions of Advocate
Act referred to above. Realizing the mistake the
respondents have rightly cancelled the admission and it
was rightly realized by the State Government and the
College that such a dilution of the standard prescribed
by the BCI is not permissible. Admission was cancelled
within 15 days. It cannot be said that the action taken
was illegal in any manner. It was in accordance with
mandatory directive of BCI. The guidelines (P/2, P/3)
which were framed were not in tune of mandatory
directive of the BCI. The State and University had
realized their mistake and rightly taken the curative
steps.
7- We do not find any merit in the submission of
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counsel that the petitioner be awarded compensation as
he was wrongly admitted in the course. His admission
was cancelled within 15 days. However, as conceded by
counsel appearing for respondent the admission fee and
tuition fee which may have been deposited shall be
refunded to the petitioner.
8- Resultantly, we find no merit in this petition, same
is dismissed. Parties to bear their own costs as incurred.
(Arun Mishra) (S.C. Sinho)
Judge. Judge.
Khan*