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inamdar Vahab Badasha and Ors. Vs. Symbosis Society's Law Collegs, Pune and Ors. (02.03.1984 - BOMHC) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberWrit Petn. No. 3413 of 1983
Judge
Reported inAIR1984Bom451; 1984(2)BomCR382; 1985MhLJ438
ActsAdvocates Act, 1961 - Sections 7(1) and 49(1); Bar Couoncil of India Rules - Rule 5
Appellantinamdar Vahab Badasha and Ors.
RespondentSymbosis Society's Law Collegs, Pune and Ors.
Appellant AdvocateM.P. Vahsi and;M.M. Vsahi, Advs.
Respondent AdvocateKiran Bhargakua,;R.S. Bhonsale,;V.R. Bhonsale and;S.B. Jaisinghani, Advs.
Excerpt:
a) the case debated over the validity of rule 5 part iv of the bar council of india rules, which prescribed minimum percentage of marks in qualifying examination for admission to course of degree in law- it was held not ultra vires the powers of bar council of india.;b) the case debated over the validity of rule 5, part iv of the bar council of india rules, which prescribed a minimum qualification for admissions to law courses- it was held that rule 5 was not arbitrary and it had a rational nexus to purpose sought to be achieved. - indian penal code, 1860 [c.a. no. 45/1860].sections 124-a, 153-a, 153-b, 292, 293 & 295a; [f.i. rebello, smt v.k. tahilramani & a.s. oka, jj] declaration as to forfeiture of book held, the power can be exercised only if the government forms opinion that said..........for admission to the new course is an important step towards improvement of the standard of legaleducation. considering the complexity of the legal system and ever expending sweep of the legislation in a welfare state having a democratic system and committed to social, economic and political justice, a student aspiring to have legal career must have the basis equipment needed to acquire knowledge of humanities which deal with ......... ensuring that only such students take up law course as have aptitude for is, is to lay down a minimum qualifying standard for admisisons. no profession can maintain high standard if it is allowed to be inundated by persons who reluctantly took up the law course because having failed to secure admission to the courses of their choice, they have.....
Judgment:

Jamdar, J.

1. This challenge in this Writ Petition is to Rule 5 of Part IV of the Rules of Bar Council of India in respect of the Standards of Legal Education & Recognition of Degree in Law.

2. Up to academic year 1981-82 as per Rule 1 of Part IV of the them existing Bar standards of legal education and recognition of degrees in law, for admission as an Advocate, degree in law obtained form any University in the territory of India after 12 th day of March 1967 was recognised for the purpose of section 24(1)(c)(iii) of the Advocate's Act, 1961, provided that at the time of joining the course of instruction in the law for a degree in law, the candidate waw a graduate of University or possessed such academic qualification to a graduate's degree of a University by the Bar Council of India and that the law degree was contained after undergoing a course of studying law for a minimum period of three years as provided in therules. However, in exercise of the powers conferred by S. 49 read with Ss. 7(h) and (I), 24(1)(c)(iii) and (iii) of the Advocates Act, 1961, (hereinafter called the 'said Act'), the Bar Council of India decided to change the pattern of legal education in the country and formulated a new law course which contemplates 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 recongnised by the educational authority of the Central or the State Governments or possesses such academic qualifications which are considered equivalent ot such 10+ 2 courses by the Bar Council of India, and the law degree has been obtained after undergoing a regular course of studying a duly recognised law college under sid 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 years course of study in law to be commenced thereafter. A resolution adopting the new pattern of legal education was considered in a meeting of the Bar Council of India held on 17th / 18th April 1982 and was passed in a meeting held on 6th /7th May 1982 Consequently, the Bar Council of India Rules regarding the standards of legal education andrecognition of degreees in law for admission as advocate were

3. at the stage we would like to quote the Preamble of the new Rules in Part IV, formulated by the Bar Council of India, because the purpose stated in the preamble has some relevance while considering the challenge in this Writ Petition:--

'Preamble of the Rules of the Bar Council of India in Part IV Where there is almost complete unanimity of opinion in the country that Legal Education needs to be drastically altered an improved.

And whereas piecemeal changes introduced from time to time have not brought about any significant raising of standards and improvement in the qualify of new entrants to the Bar.

And whereas it is the statutory obligation of the Bar Council of India to promote Legal Education and to lay down standards of such education for purposes of admission to the bar.

And whereas the Legal Education Committee of Bar Council of India has examined the problem in great depth in consultation with Universities ad State Bar Councils made its proposals,

And whereas it is now recongnised the Bar Council of India has considered the implications and merits of the said proposals.

And whereas it is now recognised the world over that apart from technical knowledge of law a liberal technical involving exposure to other disciplines and fields of knowledge in particular the humanities is essential to enable a lawyer to make a useful contribution to social change and development.

This Council in exercise of its powers under Ss. 7(h) and (1), 24 and 49(1) of the advocates Act, 1961 and all other powers enabling wo to do,make the following rules.'

4. Rules 5. The vires of which is challenged in this Writ Petition, reads as follows:-

'Admission of a student to the course of instruction in law shall ordinarily be on the basis of merit. No student shall be admitted kto the course of instruction in Provided that in the case of student sof Scheduled Castes and Scheduled Tribes a relaxation of makes upto 5% in the qualifying examinations may be given.'

5. the challenge to the rule is made under the following cirumstances. According to the new rules the Universities were supposed to introduce the new law course from the academic year 1982-83, though an option was given to all the Universities to continue the old course under an intimation to the Bar Council of India for a term not exceeding two years from 1982-83 and the first respondent, Symbiosis society's Law College, Pune, took a lead in this matter in the State of Maharashtra and implemented the new law courser form the academic year 1983-84. Application for admission were duly invited by the first respondent. Petitioners Nos. 1 to 7 and others, some Scheduled Tribes sought admission to the first year of the new law course, even though they did not possess requisite percentage of marks viz. 40% for the candidates belonging to the scheduled Castes and Scheduled Tribes and 45% for other categrories. Admittedly all the students were admitted provisional and they were informed at the time of admission that their admission was provisional and was subject to the relaxation by the Bar Council of India of the qualification qualifying marks for admission.

6. However, on 22nd June 1983 respondent No. 1 college addressed a letter to the Dean of Law Faculty University of Poona, pointing out that the condition of requirement of 45% qualifying marks created considerable hardship to a large section of students. The college also suggested certain measures for removing the hardship cause to the large section of students who failed to obtain the minimum requisite percentage prescirbed for admission to the new Law Course. Bar Council of India for admission to the new law course while recommending to the Bar Council of India that the minimum qualifying marks prescribed for admission to the new five year law course be realised and a candidate securing 40 marks in X11 or equivalent examination ( 35 % marks in case of B. C. Candidate ) should be allowed to be admitted to the new five year law course.

7. thereafter the above referred students who were provisionalyadmitted and who were apprehensive that their provisional admissions any be cancelled, addressed a letter/representation dated 13 th August 1983 to the President, Bar Council of India, New Delhi, and brought to this notice the predicament in which they were landed inview of the provisional admissions granted to them and requested him to consider their case sympathetically and allow them to continue their studies in the faculty of law. they also mentioned in the said letter that also mentioned in the said letter that they had learnt that the University had passed a resolution ot the effect that the admissions to the pre-law course should be given to the students who had obtained 40% marks at H. S. VC. (for B. C. 35%) against the Bar Council requirement of 45%

8. the Principal of the college, 1st respondent also wrote a latter Dt. 16-8-1983 to shri Ram Jethmalani, former President of the Bar Council of India and pointed out to him that the requirement of minimum qualifying marks of 45% for admission was causing considerable hardship to a large section of the minimum percentage be revised kto 40% )35 for B. C. students) for obtaining admission tot he first year of new law course. It was stated that the said proposal was in keeping with the sprit of the recent resolution passed by the Law Faculty orf Poona University at a meeting held on Sunday, the 3rd July 1983. It was also mentioned that for admission to first year LL. B. (three year course) the minimum qualifying percentage of marks was 40% in B. A., B.Com., B. Sc., or other/qualifying examinations with percentage was also implemented for the admission to the first year of new give year course.

9-10. Howeover, as the Law Faculty of Poona University has adopted the standard laid down by the Bar Council of India down by the only recommended to the Bar Council of India to reduce to the minimum percentage of qualifying marks, the Registrar of the Poona University in his letter dated 2nd September, 1983,. Addressed tot he secretary, Bar council of India, copy whereof was also endorsed to the Principal of the symbiosis society's Law College, 1st respondent, had made it clear that the University had no passed any resolution to the effect that the admissions to the pre-law course should be given to the students who have obtained 40l% marks at H. S. C. (for B. C. 35%) against the Bar Council requirement of 45% and asserted the statement of the effect in the representation made by the students was wrong. In the endorsement, forwarding a copy of the said letter to the Principal of the first respndetn, the Registrar of University directed the Principal to ensure that no student not fulfilling the requirement of circular No. 141 of 1983-84 was admitted to his college and if any admissions were given wrongly, the same should be forthwithconcelled.

11.In the replay dated 12-9-1983, the Principal of the first respondent brought to the notice of the registrar the recommendatory resolution passed by the Law Faculty of Pune University, as also the representation made to the Bar Council of India by the college authorities and the students concerned. However, while stating that the decision of Bar Council of India was awaited, the Principal of the first respondent stated that in compliance with the directions issued by the Registrar, necessary orders directing cancellation of admissions of 28 students were being issued. A copy of this lette was endorsed to the Secretary, bar Council of India with as most of the students were disqualified because of the technical hitch in spite of they being sincere and enthusiastic students intending to make a career in law the Bar council, however did not respond and in our vie rightly, and hence the petitioners and other students, who were provisionalyadmitte, were informed by a general notice dated 9-9-1983 that as they did not secure minimum qualifying marks, their admissions stood cancelled as per directive received from the University of Pune. It is this Circular which is sought to be quashed. The petitioners also pray that the respondents be prevented by an order and injunction form cancelling their admissions and/ or preventing them from attending college and tutorials in the first respondent college.

12.As mentioned above, while granting admissions to the petitioners and other 22 students the college authorities had made it clear to them that their admissions wer provisional and subject to the relaxation by the Bar Council of India of the qualification regarding the minimum percentage of marks required for admission to the new give year law course. It appears that the college authorities felt that this qualification caused hardship to a large number of students and was more stringent than the qualification prescribed for admission to the three year law course. The college authorities, therefore, moved the University authorities as also the Bar Council of India. As mentioned above, the Law Faculty of the Pune University while adopting the standard laid down by the Bar Council of India that the minimum qualifying marks for admission to the new five year law course be relaxted. This recommendation being obviously inconsistent with Rule 5, was not accepted by the Bar Council of India and hence the University authorities and ultimately the first respondent were constrained to cancel the provisional admissions, which they were justified undoing in view of the decision taken by the Bar council of India.

13.The Bar Council of India did not respond favourably to the representation made by the concerned students and the first respondent college and the recommendation made by the concerned students and the first respondent college and the recommendation made by the aLaw faculty of the Pune University, obviously in view of Rule 5, quoted above. It is contended by the powers of the Bar Council of India because the Bar Council has no power to prescribe the minimum percentage to the marks for the purpose of admission to the faw course, It, is, however, difficult ot accept this submission inview of the clear statutory provisions contained in the Advocates Act, 1961.

14. Part IV of the Bar council of India Rules related ot the standards of legal education and recognition of degrees in law, framed under Ss. 7(1)(h) and (I) 24(1)(c)(iii) and (iiia) and 49(af) (ag) and (d) of the advocates Act, 1961, section 7(1) of the Advocates Act, 1961, lays down the functions of the Bar Council of India. It will be seen from clause (h) sub-section (1) of section 7 of the said Act that 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 Council is one of the statutory functions of the Bar Council of India. As per clause (I) of sub-section (1) OF s. 7 of the sadi Act, to recognise Universities whose degrees in law shall be a qualification for enrolment as an Advocate and for that purpose to visit and inspect Universities is also a function of the Bar Council of India. Section we deals with the qualification which a person must possess for his admission as an Advocate on the State Roll. As per subclause (iii)of clause (c) of sub-section (1) of S. 24 of the said Act a person obtaining d degree in law after 12 th day of March provided in sub-clause (iiia) after undergoing a three year course of study in law form any University in Inda which is recognised for the purpose of the said sub-clause (iiia) lays down that in the alternative he should have obtained a degree after undergoing a course of study in law, duration of which is not less than two academic years form the academic year 1967-68 or any earlier academic year from any University in India which is recognised for the purpose of the Said act by the Bar Council of India. Sub-section (1) of S. 49 confers powers on the Bar Council of India to make rules for Advocates Act, 1961. Clause (a) to (j) of sub-section (1) 9of S. 49 of the said Act lay down that such rules may prescribe in particular as per clause (af), which was ;substituted by Act 60 of 1973, minimum qualifications required for admission of a course of degree in law in any recognised University while as per sub-clause (ag) such rules may prescribe class or category of persons entitled to be enrolled as advocates . Sub-clause (d) provides that such rules may prescribe the standards of legal education to be observed bu legal education to be observed by Universities in India and the inspection of Universities for that purpose. It is therefore clear that the Bar Council of India, the discharge of its statutory functions of promoting legal education and laying down standards of such education in consultation with the Universities in India imparting such education and State Bar Councils and to recognise Unversities whose degree in law shall be a qualification or enrolment as an advocate and for the purpose to visit and inspect Universities is competent ot frame rules referring the minimum qualification required for admission toa course of degree in law in any recognised University and also the standards of legal education to be observed by Universities in India.

15. a question about the scopt of the power conferred on the Bar Council of India by S. 24 of ;the Act fell the consideration of the Division Bench of the Andhra Pradesh High Court in the case Bar Council of India, New Delhi v. Gundimeda Keshvaramayya, : AIR1972AP206 In that case the resolution passed byt eh Bar Council of India tot he effect that no degree of law obtained after 30 the June 1964 from any University in India was recognised unless such degree was contained after undergoing a course of study in law for a minimum period of two years after graduation, provided however, that nothing therein contained was to affect a person who has commence a course of study in law before graduation prior to 28th Feb. 1963 and obtainted a degree in law befor the 1st October 1966 was challenged by the respondent in that case. The application for enrolment as an Advocate of the respondent was rejected ............ Andhra Pradesh because though the respondenttook up a course of study on law prior to 28 the Feb. 1963, he took the degree in 1969, and thus lacked the requisite qualification for his enrolment. It was contended on behalf of the respondent in that case that the fixation of he upper limit of 1-10-1066 was Ultra vires the powers of the Bar Council of India and was therefore, null and void. The Writ was granted by a single Judge of the Andhra Pradesh High Court, but in appeal the Division Bench upheld the validity of he Resolution holding that S. 24 of the Advocates Act, 1961 conferred unqualified power and direction on the Bar Council of India to recognise or not to recognise the degrees in law conferred by the Universities in India after 28-2-1963 and the Council was, therefore, competent to take ;such steps for the promotion of legal education and in pursuit of that objective to lay down standards of such education which necessarily implied power to defined standard of general education as a condition for admission to the course of law. It is permanent to note that sub-clause (iiii) of clause (c) of sub section (1) of S. 24 as it stood at the relevant time, provided that ;a person who obtained a degree in law after 28th Feb. 1963 form any University in the territory of India was qualified for admission as an advocate on a State Roll only if the degree was recognised for the purpose of the Act by the Bar Council of India. The resolution impugned in that case was passed in exercise of this power to recognise degrees obtained after 28th Feb. 1963 Apart form that when this matter was decided, clause (af) of sub-section (1) of S,. 49 of the prescribed that after March 12, 1967 a degree in law obtained form any degree in law obtained form any University shall not be recognised for the purpose of S. 24(1)(c)(iii) of the Advocate Act. Unless certain conditions mentioned there in were fulfilled, was struck down by the Calcutta High Court as ultra vires the provision of Ss. 49(1)(d) and 24(1)(c)(iii) as also S. 7(1) of the advocates Act. In that case the application for enrolment as an Advocates by a woman candidate who obtained thedegree in law form the University of Calcutta as non-collegiate student in compliance with Regulation 35 of he Calcutta University First Regulations (1951), was rejected on the ground that the course of study in law was not by regular attendance at the requisite number of lectures tutorials and moot Courts in a college recognised by a University as envisaged by Cl (c) of R. 1 (1) of the Bar Council of India Rules. The learned Judges of the Division Bench upheld the challenge by observing as follows in para 17 of the judgment:---

'It is true that S. 24(1) which lays down conditions for enrolment as advocate on a State roll has been made subject to the provisions of the Act and the rules framed there under but such rules have to be made by the Bar Council of India in accordance with the provision of the Act, that is to say, within the ambit of tis rulemaking power is conferred by S. 49(1) of the Act, Cl.(d) of S. 49(1) does not on the face of its, authorise the Bar Council of India to lay down conditions of enrolmetn. Under Cl,. (d) , the Bar Council of India can frame rules relating to the standards of legal education to the observed by Universities for that purpose. 'Standards of legal education' ad 'condition of enrolment' are two distinct matters one having no connection with the other. The impugned R. 1 (1) of Part IV of the Bar Council of India rules, does not lay down any standard of legal education . It lays down the conditions of enrolment which is not the function of the Bar Council of India. Its funcation for the purpose of S. 24(1)(c)(iii) is to recognise the Indian University for the purpose of the Act.Council of India purports to amend S. 24(1)(c)(iii) of the Act, which it cannot.' However this decision cannot be of any avail tot he petitioners because the challenge in this case is not to the rule relating to the enrolment of Advocates but the challenges in to rule 5 which prescribes the minimum qualifications required for admission to a course of degree in law in any recognised University which Bar Council of India is competent to frame in view of he powers conferred upon it byCl. (af) sub-sec. (1) of S. 49 of the Advocates Act, 1961.

16. It was next urged that this rule is arbitrary and has not rational nexus to the purpose sought to be achieved. The preamble to the rules, quoted above completely negatives this contention. As stated in the preamble there was almost complete unanimity of opinion in the country that the legal education needs to be drastically altered and improved and that the piecemeal changes introduced from the to time had not brought about any significant raising of standards and improvement in the quality of ;new entrants to the Bar. It is also categorically stated in the preamble ;that ;the rules were framed in discharge of ;lt;he statutory obligation cast upon the Bar Council of India to promoted the legal education and to lay down the standard of such education for the purpose of admission to the Bar and that the rules were formulated after the Legal Education Committee of the Bar Council of India examined the problem in great depth in consultation with the Universities and State Bar Councils and after considering the implications and import of lhe proposals. It cannot be denied that fixing a particular percentage for admission to the new course is an important step towards improvement of the standard of legaleducation. Considering the complexity of the legal system and ever expending sweep of the legislation in a welfare state having a democratic system and committed to social, economic and political justice, a student aspiring to have legal career must have the basis equipment needed to acquire knowledge of humanities which deal with ......... ensuring that only such students take up law course as have aptitude for is, is to lay down a minimum qualifying standard for admisisons. No profession can maintain high standard if it is allowed to be inundated by persons who reluctantly took up the law course because having failed to secure admission to the courses of their choice, they have ;nothing else to so. The prescribed minimum qualification therefore has a rational nexus to the purpose sought to be achieved. We also do not feel that ;the percentage fixed is in any manner arbitrary. It is reasonable and more so in view of the general pattern of percentage of marks generally obtained at the qualifying examinations. We are held that practically similar qualifying standard is laid down for admission to other professional courses. There is, therefore, no substance in the challenge to the rule on the basis of which the admission of the Petitioners and other were canceeled.

17. The logical corollary of this conclusion would be to upheld the notices issued by the first respondent ot the petitioners and other similarly situated candidates cancelling their provisional admissions, But the earlier narration will clearly show that students alone cannot be blamed. It appears that in spits of he clear mandate of the Bar Council of India and the University the first respondent college proceeded to grant admission, though provisional, to the petitioners and other similarly situated students with a prior hope that their representation he Bar Council of India that the qualifying standard should be resuced, would be accepted No doubt the college made genuine efforts to get the qualification relaxed and for that purpose laid emphasis amongst other, on the circumstance that it was the first institution to start the new law course when other institutions were in two minds. But this conduct on the part of the qualification would be relaxed. It is also pertinent ot note that thedecisiontocancel their provisional admissions were communicated to the petitioners and other students in September 1983 when doors of Hence to uphold the cancellation of their admissions would cause irreparable hardship to the petitioners and other similarly situated students for very little fault on their part. The blame for the predicament in which the petitioners and other students are landed. Clearly lies on the institution which granted admission to the petitioners and others in spite of the clear mandate of the Bar Council of India. Moreover, if the petitioners and other similarly situated students are allowed ;to necessary to create more seats nor would it impose additional financial burden on the University or the Govrernment.

18. Hehce, while rejecting the challenge to the relevant rule formed by the Bar Council of India, we direct, though reluctantly, the respondents to allow the petitioners and other similarly situated students to continue their education for the new five year law course as if they were validly admitted. Rule made absolute to that extent, No. order as to costs.

19. Rule made absolute.


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