Karnataka High Court
Miranda Education Society ... vs State Of Karnataka And Others on 18 August, 1997
Equivalent citations: 2000(3)KARLJ202
Author: R.V. Raveendran
Bench: R.V. Raveendran
ORDER
Facts in W.P. Nos. 3957 and 14671 of 1997
1. Petitioner-society (also referred to as 'MES' for short) applied to the Bangalore University ('University' for short) under Section 53 of the Karnataka State Universities Act, 1976 ('the Act' for short) seeking permission and affiliation for starting a part-time Law College for imparting instructions for a three year LL.B. degree course. The Local Inspection Committee of the University inspected the college on 23-5-1996 and submitted a report recommending grant of affiliation. The Academic Council recommended grant of affiliation on 10-6-1996, subject to the condition that the new college should obtain the prior approval of the Bar Council of India. The Syndicate, at its meeting held on 18-6-1996 approved the resolution of the Academic Council. Thereafter, the matter was referred to the State Government under Section 53(5) of the Act. The petitioner gave several representations for acceptance of recommendation.
1.1 The Bar Council of India ('BCI' for short) sent a letter dated 15-4-1996 to all States and Universities requesting them not to grant affiliation to Law Colleges without the prior approval of affiliation by the Bar Council of India under the Bar Council of India Rules ('BCI Rules' for short). In view of it, the State Government issued a circular dated 21-5-1996 to the Universities that the State Government had decided that without the prior approval of the Bar, the Universities and the Government should not permit affiliation or renewal to any Law College. The Government therefore did not make any recommendation for affiliation under Section 53(5). As no decision was communicated for a long time the petitioner filed W.P. No. 3957 of 1997 seeking a direction to respondents to grant affiliation to the petitioner for starting a Law College (for three year LL.B. Degree Course) from the academic year 1997-98 and for quashing the Circular dated 21-5-1996 (Annexure-D).
1.2 In the meanwhile, the petitioner-society had also applied to BCI. The inspection team of BCI inspected the premises of the petitioner and submitted an adverse report to the Legal Education Committee of BCI. A copy of the said report was sent by BCI to the Registrar of the University for his comments. After considering the comments of the University, the Legal Education Committee at its meeting held on 18/19-4-1997 recommended that approval-of affiliation to the petitioner's college be declined. The BCI, at its meeting held on 10/11-5-1997 accepted the same. In view of it, the BCI sent a communication dated 19-5-1997 (Annexure-B), informing the petitioner about the rejection of approval of affiliation and also furnished a copy of the Inspection Report to the petitioner.
1.3 Feeling aggrieved, petitioner has filed W.P. No. 14671 of 1997 for quashing the decision of the Bar Council of India communicated under the letter dated 19-5-1997 (Annexure-B) as also the report of the Legal Education Committee. Petitioner has also sought a direction to the BCI to reconsider its decision in the light of the points made out by petitioner and grant its approval for the affiliation to be granted by the University for 1997-98.
Facts in W.P. Nos. 4247 and 13820 of 1997
2. The facts in regard to the petitioner-society (also referred to as 'PET' for short) are similar to the facts in W.P. Nos. 3957 and 14671 of 1997. It applied to the University seeking permission/affiliation for starting a part-time Law College. The Academic Council and the Syndicate recommended grant of affiliation on 10-6-1996 and 18-6-1996. The State Government by letter dated 11-10-1996 informed PET that affiliation could not be granted till approval is granted by BCI and directing the petitioner to obtain such approval. In spite of PET giving a detailed representation to the State Government and University, affiliation was not granted. PET filed W.P. No. 4247 of 1997 seeking a direction to the State and the University to consider and grant affiliation to PET to start an evening college and seeking a declaration that the Government circular dated 21-5-1996 is ultra vires and inapplicable to petitioner.
2.1 PET applied to BCI for approval/permission on 17-7-1996. The premises was inspected by the BCI inspection team on 23-9-1996. The Legal Education Committee of BCI made a recommendation on 18/19-4-1997 to reject the application for approval. The BCI considered the recommendations at its meeting on 10/11-5-1997 and accepted it. By communication dated 19-5-1997, BCI informed PET about the rejection and also furnished copy of the Inspection Report. PET has filed Writ Petition No. 13820 of 1997 for quashing Annexure-C, dated 19-5-1997 and Inspection Report (Annexure-D) and a direction to BCI to reconsider PET's request for approval of affiliation to start a Law College for three years Law Course, after affiliation by the University.
Points for consideration:
3. The following two questions arise for consideration.-
(i) Whether the State Government can postpone their decision (recommendation) under Section 53(5) of the Act till the receipt of the prior approval of the Bar Council of India; and whether the approval of BCI, required under BCI Rules, is 'approval after affiliation' or 'prior approval' before recommendation by the State Government and grant of affiliation by the University.
(ii) Whether the decision of the Bar Council of India accepting the recommendation of the Legal Education Committee not to grant approval of affiliation (Annexure-B) to the Law Colleges to be started by the two petitioners, is valid and correct.
Relevant legal provisions:
4. Section 53 of the Act deals with affiliation. The procedure contemplated is as follows:
The college has to apply for affiliation to the University. After the Local Inspection Committee inspects and gives its report, the Academic Council and the Syndicate will have to record their opinions on the application. Thereafter, the Registrar of the University has to submit the application as also the inspection report and the proceedings of the Academic Council and the Syndicate to the State Government. The State Government, after such enquiry as may appear to it to be necessary, has to make its recommendations for the grant of the affiliation or refusal thereof. The recommendation is binding on the University and the University shall have to either accordingly grant affiliation or reject the application. The Act does not contemplate either the State Government or the University obtaining the prior approval or consent of any other authority, for either the State Government making recommendation for affiliation or for the University granting affiliation.
4.1 Section 7 of the Advocates Act, 1961 enumerates the functions of BCI, which include promoting legal education and laying down the standards of such education in consultation with the Universities in India imparting such education and the State Bar Councils; and recognising Universities whose degrees in law shall be a qualification for enrolment as an Advocate.
4.2 Section 49 of the Advocates Act provides that the BCI may make rules for discharging its functions under the said Act. Sub-section (1)(d) of Section 49 provides that the Bar Council of India may make rules prescribing the standards of legal education to be observed by Universities in India. Sub-section (1)(ag) provides for making of rules prescribing the class or category of persons entitled to be enrolled as Advocates.
4.3 Part IV of the Bar Council of India Rules relates to 'Standards of Legal Education and Recognition of Degrees in Law, for admission as Advocates'. Section A thereof relates to five year Law Course and Section B relates to three year Law Course. The applications of both petitioners were for starting a college for a three year Law Course. Rule 12 of Section B reads as follows:
"(1) No college started after the coming into force of these rules shall impart instruction in a course of study in law for enrolment as an Advocate unless its affiliation has been approved by the Bar Council of India.
(2) An existing Law College shall not be competent to impart instruction in a course of study in law for enrolment as an Advocate, if the continuance of its affiliation is disapproved by the Bar Council of India".
4.4 Rule 13 provides the manner of grant of approval of affiliation or disapproval of affiliation. Relevant portions of the said rule are extracted below:
"13. The Bar Council of India shall cause a Law College affiliated or sought to be affiliated to a University, to be inspected by a Committee to be appointed by it for the purpose; when:
(a) An application for approval of affiliation of a new college is received by it; or It suo motu decides, in order to ensure that the standards of Legal Education laid down by it are being complied with.
(b) The application for approval of affiliation of new college shall be addressed to the Secretary, Bar Council of India, and shall be sent only through the Registrar of the University concerned with his recommendations and the application be accompanied by an inspection fee of Rs. 25,000/-.
(c) xxx xxx xxx.
(d) (1) The Inspection team, before recommending approval of affiliation to a new Law College should, inter alia, make a specific recommendation as to why such a Law College is required at the same place/area where the Law College is proposed to be started keeping in view the total number of existing Law Colleges in the place/area in particular and the State in general.
(2) xxx xxx xxx.
(e) xxx xxx xxx.
(f) xxx xxx xxx.
(g) If the Legal Education Committee is satisfied that the standards of Legal Education and/or the rules for affiliation or continuance of affiliation provided for in these rules by the Bar Council of India are not complied with, and/or that the courses of study, teaching and/or examination are not such as to secure to persons undergoing legal education, the knowledge and training requisite for the competent practice of law, the Legal Education Committee shall recommend to the Bar Council of India, the approval/disapproval of affiliation or continuance of affiliation, as the case may be.
XXX XXX XXX (h) xxx xxx xxx.
(i) If the Council is of the opinion that affiliation of a college be disapproved, it shall give notice of the proposed action to the Principal of the college and Registrar of the University to show cause within 30 days of the receipt of the notice and the Council shall take into consideration the reply before making final orders.
(j) The decision of the Bar Council of India shall be communicated to the Registrar of the University.
xxx xxx xxx (k) (1)xxx xxx xxx". (emphasis supplied) Re: Point (i)
5. A careful reading of the relevant provisions of the Advocates Act and the BCI Rules, makes it clear that they do not contain any provision regarding prior approval of BCI for obtaining affiliation from the University for a new college. Rule 12 only requires that the affiliation of a new college should be approved by the BCI. Rule 13 provides how such approval should be granted. The use of the words 'approval of affiliation' in Rules 12(1) and 13(a), (b), (d), (g) and the use of the words 'disapproval of affiliation' in Rule 13(g)(i) make it clear that the stage at which the BCI has to grant approval is after the grant of affiliation by the University and not prior to the grant of affiliation by the University or before the recommendation by the State Government for affiliation under Section 53(5). The words 'unless affiliation has been approved' in Rule 12 and the words 'approval of affiliation' in Rule 13 cannot be read as requiring 'prior approval of affiliation' by BCI. The words 'approval' and 'approve' refer to the act of confirming, ratifying, asserting, or consenting to some act already done. The word 'approval' is always used in contradistinction from the words 'authorise' or 'permit' which mean allowing or consenting to doing of an act in future.
5.1 An application for approval of affiliation under Rule 13(a) sets in motion the process of approval of affiliation. Clause (b) provides that an applicant should pay an inspection fee of Rs. 25,000/- while applying for approval of affiliation. Clause (d) requires the inspection team to inspect the college and make a recommendation for approval of affiliation to a new college. Clause (g) contemplates the Legal Education Committee recommending to the BCI, the approval/disapproval of affiliation or continuance of affiliation as the case may be. Clause (i) provides that if the BCI is of the opinion that affiliation of a college is to be disapproved, it shall give a show- cause notice of the proposed action to the Principal of the college and the Registrar of the University. All these provisions refer to 'approval of affiliation' or 'disapproval of affiliation', making it clear that the stage at which the BCI has to consider the matter, is after, and not before, the grant of affiliation by the University.
5.2 Having regard to the provisions of the Advocates Act and the BCI Rules, BCI cannot instruct the State Government or the University that they should not make any recommendation for affiliation nor grant any affiliation, until it (BCI) grants prior approval of the affiliation. It has already been noticed that neither the Advocates Act nor the BCI Rules refer to any prior approval of BCI. The stage of approval by BCI arises only after the affiliation by the University, Therefore, the State Government cannot postpone consideration of the application for affiliation, for making a recommendation under Section 53(5) of the Act, on the ground that prior approval is not received. The State Government will have to consider the application and make necessary recommendations and the University will have to thereafter act in accordance with such recommendation. Hence, the Circular dated 21-5-1996 issued by the State Government is contrary to the provisions of the Section 53 of the Act and cannot be sustained.
5.3 The learned Counsel for BCI contended that Rule 13 starts with the words "The Bar Council of India shall cause a Law College affiliated or sought to be affiliated to a University to be inspected by a Committee to be appointed by it". He, therefore, contended that the BCI Rules contemplate inspection by a Committee constituted by BCI even before affiliation is granted; and this would imply that the stage of approval is prior to affiliation. There is no merit in this contention. Rule 12 holds the key to the problem. Rule 12 states that no college shall be started unless its affiliation has been approved by BCI. Rule 13 merely provides how approval of affiliation should be obtained, that is the procedure of obtaining affiliation. The use of the words 'sought to be affiliated' merely enables a college which has already obtained a recommendation for affiliation from the Government but needing the affiliation from the University, towards an application for approval so that the legal process under Rule 13 could be put into motion. Further, each State has a different enactment relating to Universities and having regard to the provisions of some Acts, it may be prudent or necessary for a college to commence the process of seeking approval simultaneously with or immediately after applying for affiliation. For example, in Karnataka the recommendation of State Government regarding affiliation is mandatory and binding on the University; and in such a situation, a college may apply for approval to BCI immediately after the State Government's recommendation, in the hope of expediting the matter so that by the time affiliation is received, inspection by the Committee appointed by BCI is completed and matter becomes ripe for consideration by BCI for approval. Further Rule 13, merely enables making of an application prior to obtaining affiliation and does not provide for grant of approval prior to affiliation. At all events, if 'prior approval' was intended, the rule would have said 'prior approval of affiliation' instead of approval of affiliation.
5.4 The learned Counsel for BCI next contended that Rule 13(1) introduced by BCI Resolution dated 11-8-1996, refers to 'refusal to grant permission to start a Law College' and these words imply that the college should obtain the prior permission of BCI before applying for affiliation. The interpretation is repugnant to the provisions of Rule 12 and earlier provisions of Rule 13, that is clauses (a) to (k). A plain reading of clause (1) in the context in which it is used makes it clear that the word 'permission' refers to the approval of affiliation and nothing more.
5.5 Rule 13(i) requires that if BCI is of the opinion that affiliation of a college is to be disapproved, notice should be given to the college and the University. If 'approval' has to be granted before affiliation, then the question of giving an opportunity to show cause, to the University in addition to the college will not arise. The use of the words 'affiliation of a college be disapproved make it clear that the act of approval or disapproval is post-affiliation and not pre-affiliation. Rule 13(i) makes it clear beyond doubt that approval or disapproval is after affiliation.
5.6 The intention and purpose of these provisions (Rules 12 and 13) will also give an indication as to whether 'approval' should be read as 'prior approval', BCI is not a parallel Body granting affiliation. Rules 12 and 13 are made in the context of fixing standards of Legal Education and recognition of degrees in Law for admission as Advocates. The purpose of approval of affiliation is to ensure that the students admitted to such colleges are given proper instructions in accordance with the standards of legal education and become fit to be enrolled as Advocates. Hence, what is required and contemplated is approval and not prior approval.
5.7 The learned Counsel for BCI stated that unless the rules are read as requiring prior approval of BCI, the quality of legal education will be affected. He also contended that immediately after affiliation, students are likely to be admitted and if subsequently BCI disapproves the affiliation, the students are likely to be affected. He also pointed out that BCI is required to send its inspection team to find out the availability of necessary infrastructural facilities and there is no point in requiring such an inspection after affiliation. There is absolutely no basis for the apprehension voiced by the learned Counsel for BCI. As pointed out above, the scheme as contained in the Rules make it clear that mere affiliation is not sufficient for the college to start classes or impart instructions in a course of study in law. Unless the college has obtained approval of the affiliation under Rule 12, after affiliation by the University, a Law College cannot make any admissions, nor can it impart instructions in a course of study in law.
5.8 Therefore, it has to be held that neither the State Government nor the University can or should await the 'approval' before making the recommendation for affiliation or granting affiliation. Approval by BCI is after affiliation by the University.
Re: Point (ii)
6. Rule 13(h) requires that the recommendation of the Legal Education Committee of BCI recommending approval or disapproval of affiliation (in the case of new colleges) or continuance of affiliation (in the case of old colleges) will have to be placed before BCI. Rule 13(i) provides that if BCI is of the opinion that the affiliation has to be disapproved, it has to give notice of the proposed action to the Principal of the college and the Registrar of the University to show cause within fifteen days of the receipt of the notice; and BCI is required to take into consideration the reply received, before making final orders. It is thus, evident that before refusing approval of affiliation, BCI should issue a notice of proposed disapproval both to the Registrar of the University and the college. The learned Counsel for the BCI however, contended that clause (i) of Rule 13 will apply only where the Bar Council of India proposes to disapprove the continuance of affiliation to an existing Law College and does not apply to a case where it decides to disapprove the affiliation in regard to a new college. The said construction is opposed to the plain wording of the rule and cannot be accepted.
6.1 Clause (i) of Rule 13 is the only provision dealing with the making of decision of the Bar Council of India. Clauses (d) to (h) deal with the report of the Inspection Committee and the recommendation of Legal Education Committee. Clause (i) does not make any distinction between disapproval of affiliation in the case of a new college and disapproval of continuance of affiliation in the case of an old or existing college. If the intention was to apply, Rule 13(i) to only existing colleges and not new colleges, the wording would have been 'If the council is of the opinion that continuance of affiliation of a college be disapproved' instead of 'If the council is of the opinion that affiliation of a college be disapproved'. Having regard to the scheme relating to approval of affiliation contained in Rules 12 and 13, it is clear that before taking a decision to disapprove the affiliation, BCI will have to issue a notice in regard to the proposed disapproval to the college and the University as contemplated under Rule 13(i). In this case, evidently the Bar Council of India has not followed the mandatory requirements of Rule 13(i) while issuing Annexure-B, dated 19-5-1997. Firstly, there is no affiliation by University that could be disapproved. Secondly, no show-cause notice has been issued to the college and University, before deciding to disapprove the affiliation. Therefore, the orders of disapproval passed by BCI cannot be sustained.
Conclusion:
7. In view of the above, these petitions are disposed of as follows:
(i) The Circular dated 21-5-1996 of the State Government (Annexure-L in W.P. No. 3957 of 1997) is quashed.
(ii) The communication of Bar Council of India dated 19-5-1997 to petitioner in W.P. No. 14671 of 1997 (Annexure-B) is quashed.
(iii) The communication of Bar Council of India dated 19-5-1997 to petitioner in W.P. No. 13820 of 1997 (Annexure-C) is quashed.
(iv) The State Government is directed to consider the Reports/Resolutions received under Section 53(5) of the Karnataka State Universities Act, 1976 in respect of both the petitioners and pass orders relating to recommendation in accordance with law and the Bangalore University is directed to act in accordance with such recommendation. Compliance within four months from the date of receipt of this order.
(v) Liberty is reserved to Bar Council of India to issue a notice as contemplated under Rule 13(i) of Section B of Part IV of the Bar Council of India Rules, after affiliations of the colleges, and then take a decision in accordance with law within four months from the date of petitioners informing them about affiliation, if affiliation is granted.
(vi) It is made clear that the petitioner-colleges shall not make any admissions or commence imparting instructions in any course of study until the affiliation by the University and approval of such affiliation by the Bar Council of India.
PROCEEDINGS OF THE GOVERNMENT OF KARNATAKA Sub: Affiliation of Miranda Law College, HAL 3rd Stage, Bangalore.
Read: (1) Letter No. ACA 3/Bapasa/Hokapra/96-97, dated 8-7- 1996 of Registrar, Bangalore University.
(2) Judgment dated 18-8-1997 in the High Court of Karnataka in W.P. Nos. 3957, 14671, 4247 and 13820 of 1997 of Miranda Education Society of Bangalore.
(3) O.M. No. ED(LC) 3957 LWP 97, dated 15-12-1997. (4) Letter dated 31-12-1997 of General Secretary, Miranda Education Society, Bangalore. Preamble:
(1) Miranda Education Society, HAL 3rd Stage, Bangalore had applied for affiliation of Miranda Law College at Bangalore for the academic year 1996-97. In view of the Circular No. ED 52 URC 95, dated 21-5-1996 stipulating that the prior approval of the Bar Council of India should be obtained for affiliation of Law Colleges, affiliation was not granted and the college was directed to produce a copy of the letter of Bar Council of India approving the college. Miranda Education Society which is the Management of the college had filed W.P. No. 3957 of 1997 seeking a writ of mandamus commanding the respondents to grant affiliation sought for to the above Law College commencing from the academic year 1997-98 and to quash a said Circular dated 21-5-1996. In its judgment dated 18-8-1997, the High Court while quashing the Circular dated 21-5-1996 and also letter dated 19-5-1997 of the Bar Council of India, has directed the respondents to consider the Reports/Resolutions received under Section 53(5) of Karnataka State Universities Act, 1976, within 4 months, making it clear that petitioner-college shall not make any admission or commence imparting instruction in any course of study until the affiliation by the University and approval of such affiliation by the Bar Council of India (BCI). Liberty has also been reserved to BCI to issue a notice under Rule 13(i) of Section B of Part IV of BCI Rules after affiliation of the college and then take a decision in accordance with law within 4 months from the date of petitioners informing them about affiliation if it is granted.
(2) Miranda Education Society, has requested to sanction affiliation in compliance with the directions of the High Court. It has been considered in consultation with Legal Cell of the Education Department, and also recommendation of the Syndicate. It is considered necessary to grant affiliation in fulfilment of the ruling of High Court of Karnataka.
GOVERNMENT ORDER No. ED 136 UBV 97, Bangalore, dated 7-1-1998 (3) In exercise of the powers conferred under Section 53(5) of Karnataka State Universities Act, 1976, the Government of Karnataka recommends to sanction of affiliation to Miranda Law College, H.A.L. III Stage, Bangalore-560075, by Bangalore University from the academic year 1997-98 with 3 year LL.B. Course (Evening) with an intake of 80 (eighty) subject to the following conditions.-
(1) The college shall not seek any financial assistance in the nature of Grant-in-Aid from the Government of Karnataka and there shall be no grant for ever basis in confirmity with the interim undertaking executed by it on 1-1-1998;
(2) Admission of students shall be strictly in accordance with the Regulations governing LL.B. Course in Bangalore University as amended from time to time and the BCI Regulations;
(3) The college shall not infringe the norms and standards prescribed by the BCI, Bangalore University, and Government, from time to time;
(4) The college shall obtain the prior approval of BCI, before starting of Law College and shall not make any admission and commence imparting instructions in any course of study until affiliation by the Bangalore University and approval of such affiliation by the BCI, is granted in terms of the ruling contained in the judgement dated 18-8-1997, and subject to outcome of the appeal, if any, preferred thereagainst by the BCI.