Kerala High Court
Surajan.P.C vs Commissioner Of Entrance Examinations
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
MONDAY, THE 28TH DAY OF NOVEMBER 2016/7TH AGRAHAYANA, 1938
WP(C).No. 37089 of 2016 (I)
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PETITIONER:
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SURAJAN.P.C,AGED 32 YEARS,
S/O.CHANDRAN,PALLIKKADU,MUDICODE,PATTIKKAD.P.O,
THRISSUR-680652.
BY ADVS.SRI.G.KRISHNAKUMAR
SMT.M.L.REMYA
RESPONDENT(S):
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1. COMMISSIONER OF ENTRANCE EXAMINATIONS,
SANTHI NAGAR,THIRUVANANTHAPURAM-695001.
2. STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
HIGHER EDUCATION(C)DEPARTMENT,GOVERNMENT
SECRETARIAT,THIRUVANANTHAPURAM-695001.
3. THE PRINCIPAL,
GOVERNMENT LAW COLLEGE,CALICUT-673012.
4. THE PRINCIPAL,
GOVERNMENT LAW COLLEGE,THRISSUR-680003.
5. BAR COUNCIL OF INDIA,
21,ROUSE AVENUE,INSTITUTIONAL AREA,
NEW DELHI-110 002,REPRESENTED BY ITS' SECRETARY.
6. LEGAL EDUCATION COMMITTEE,
BAR COUNCIL OF INDIA, 21,ROUSE AVENUE,
INSTITUTIONAL AREA,NEW DELHI-110002,
REPRESENTED BY IT'S CHAIRMAN.
7. UNIVERSITY OF CALICUT,
CALICUT UNIVERSITY.P.O-673635,
REPRESENTED BY ITS REGISTRAR.
8. UNIVERSITY GRANTS COMMISSION(UGC),
BAHADUR SHAH ZAFAR MARG,NEW DELHI-110 002.
-2-
-2-
WPC 37089 OF 2016:
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9. UNION OF INDIA,
REPRESENTED BY IT'S SECRETARY TO GOVERNMENT,
MINISTRY OF LAW & JUSTICE,NEW DELHI-110001.
R1 TO R4 BY SENIOR GOVERNMENT PLEADER SRI C.P.PRADEEP
R5,R6 BY SRI.RAJIT, SC, BAR COUNCIL OF INDIA
R7 BY SRI.P.C.SASIDHARAN, SC, CALICUT UNIVERSITY
R8 BY ADV. SRI.S.KRISHNAMOORTHY, CGC
R9 BY ADVS. SRI.GIRISH KUMAR.V., CGC
SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 23-11-2016, THE COURT ON 28-11-2016 DELIVERED THE
FOLLOWING:
K.V.
WP(C).No. 37089 of 2016 (I)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGES OF THE PROSPECTUS FOR
ADMISSION FOR THE YEAR 2016-2017 TO THE 3 YEAR LL.B
COURSE IN KERALA ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE GO(RT)NO.2106/2016/H.EDN DATED
10.08.2016 APPROVING EXHIBIT P1 PROSPECTUS.
EXHIBIT P3 TRUE COPY OF THE ADMIT CARD ISSUED TO THE PETITIONER
FOR ENTRANCE EXAMINATION FOR ADMISSION TO 3 YEAR LLB
BY THE 1ST RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE RELEVANT PAGES OF THE CANDIDATES DATA
SHEET ISSUED BY THE 1ST RESPONDENT FOR ADMISSION TO
THE 3 YEAR LLB COURSE 20116-2017.
EXHIBIT P5 TRUE COPY OF THE RELEVANT PAGE OF THE
CATEGORY/COMMUNITY WISE LIST OF ADMISSION TO LL.B 3
YEAR COURSE 2016-2017.
EXHIBIT P6 TRUE COPY OF THE ALLOTMENT DATED 08.11.2016 WITH
ENDORSEMENT OF THE 3RD RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE CIRCULAR NO.BC1/D/1823/2010 (LE)
DATED 30.11.2010 OF THE 5TH RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE RELEVANT PAGE OF SSLC CERTIFICATE.
EXHIBIT P9 TRUE COPY OF THE 1ST YEAR MARK LIST
DATED 9.12.2009,ISSUED BY THE 7TH RESPONDENT.
EXHIBIT P10 TRUE COPY OF THE CONSOLIDATED MARK LIST
DATED 04.04.2012 ISSUED BY THE 7TH RESPONDENT.
EXHIBIT P11 TRUE COPY OF THE B.COM DEGREE CERTIFICATE ISSUED BY
THE 7TH RESPONDENT.
EXHIBIT P12 TRUE COPY OF THE LIST OF DISTANT EDUCATION
UNIVERSITIES APPROVED U.G.C.DOWNLOADED FROM
WWW.UNIVERSITY,CAREER 360.COM.
EXHIBIT P13 TRUE COPY OF DEC APPROVED COURSED OF UNIVERSITY IN
KERALA DOWNLOADED FROM THE WEBSITE
WWW.INDIAEDUINFO.COM.
EXHIBIT P14 TRUE COPY OF THE COMMUNICATION FNO UGC/DEB/2013
DATED 14.10.2013.
EXHIBIT P15 TRUE COPY OF CIRCULAR NO.FI NO.52/2000 CCPP-II DATED
05.05.2004 ISSUED BY UGC.
EXHIBIT P16 TRUE COPY OF THE CERTIFICATE DATED 15.11.2016 ISSUED
BY THE 7TH RESPONDENT.
RESPONDENT(S)' EXHIBITS NIL
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/TRUE COPY/
K.V. P.A.TO JUDGE
A.M. SHAFFIQUE, J.
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W.P. (C) No. 37089 of 2016
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Dated this, the 28th day of November, 2016
J U D G M E N T
Petitioner applied for admission to the 3 year LLB Course during the academic year 2016-17. He appeared for the entrance examination conducted on 4/9/2016 and he is Sl.No.435 in the rank list. He was included as rank No.56 in the Ezhava category. Petitioner submits that he is allotted admission to the 3rd respondent college on 8/11/2016 with date of joining between 10 and 14th of November. When the petitioner went to the 3rd respondent college with all documents, 3rd respondent did not allow the petitioner to join the course on the ground that petitioner obtained graduation after passing SSLC without undergoing Plus two/Pre-degree course. An endorsement to that effect has been made in Ext.P6 letter of allotment. Petitioner submits that there is no such restriction either in the prospectus or the University statutes. Even as per the Rules of Legal Education, 2008 framed by the Bar Council of India, eligibility for admission to 3 year law degree course is only graduation in any discipline of knowledge from a University W.P(C) No.37089/16 -:2:- established by an Act of Parliament or by a State Legislature or an equivalent national institution recognised as a Deemed University or foreign University recognised as equivalent to the status of an Indian University. In so far as the petitioner had obtained a graduate degree which is equivalent to a degree of University of Calicut, there is no restriction for admitting the petitioner as a student of the said College.
2. At the time of admission of the writ petition, instructions were sought for from the University of Calicut as well as the Bar Council of India and thereafter the matter was heard.
3. Learned counsel appearing for the Bar Council of India submits that as per the Explanation to Rule 5 of the Rules of Legal Education, 2008 (hereinafter referred to as the Rules), the applicants who have obtained 10+2 or graduation/post graduation through open Universities system directly without having any basic qualification for prosecuting such studies are not eligible for admission in the law courses. In the light of the Explanation to Rule 5, petitioner who had obtained graduation after passing SSLC alone is not eligible for getting admission to 3 year Law Degree Course.
W.P(C) No.37089/16 -:3:-
4. Learned counsel appearing for the University submits that though the Degree obtained by the petitioner is equivalent to a Degree of University of Calicut, still, he cannot join the LLB Course on account of the fact that he had not completed the graduation course in the regular stream that is 10+2+3.
5. The petitioner having known about the Explanation to Rule, while seeking a direction to admit him to the 3 year LLB course, also challenges the Explanation as ultra vires the Advocates Act, UGC Act and the Regulations.
6. There cannot be any dispute that if the Explanation is valid, petitioner is not eligible for admission to the 3 year LLB Course. Therefore, the only issue that arises for consideration is whether the Explanation to Rule 5 of the Rules is ultra vires the Advocates Act, UGC Act and the Regulations. Learned counsel for the petitioner submits that the Rules of Legal Education, 2008 is framed in exercise of powers conferred under the provisions of the Advocates Act, 1961 which accepts a degree obtained by the Distance Education as a valid degree for the purpose of admission. Even UGC Regulations accepts degree obtained under the Distance Education mode without completing the 12 year W.P(C) No.37089/16 -:4:- schooling to be eligible for admission to the graduate course provided he had passed an entrance test conducted by the University. Even the provisions of the University Act or the statutes framed thereunder does not prohibit the degrees obtained under Distance Education mode for the purpose of further studies. It is therefore contended that when the degree obtained under Distance Education mode has been accepted by all competent agencies as a valid degree, the Rules which prescribe a degree to be obtained on regular study is ultra vires the statute.
7. Yet another contention urged is that Rule 5 prescribes the minimum standards of education required for getting admission to 3 year law degree course. The Explanation which prescribes a different standard is in conflict with the main provision under Rule 5(a) and such an Explanation has to be treated as ultra vires Rule 5(a).
8. As far as the contention regarding the validity of Rules is concerned, it is framed under the provisions of the Advocates Act, 1961. Rule 5(a), (b) and its proviso which are relevant read as under:-
W.P(C) No.37089/16 -:5:-
"5. Eligibility for admission (a) Three Year Law Degree Course: An applicant who has graduated in any discipline of knowledge from a University established by an Act of Parliament or by a State legislature or an equivalent national institution recognized as a Deemed to be University or foreign University recognized as equivalent to the status of an Indian University by an authority competent to declare equivalence, may apply for a three years' degree program in law leading to conferment of LL.B.degree on successful completion of the regular program conducted by a University whose degree in law is recognized by the Bar Council of India for the purpose of enrolment.
(b) Integrated Degree Program: An applicant who has successfully completed Senior Secondary School course ('+2') or equivalent (such as 11+1, 'A' level in Senior School Leaving certificate course) from a recognized University of India or outside or from a Senior Secondary Board or equivalent, constituted or recognized by the Union or by a State Government or from any equivalent institution from a foreign country recognized by the government of that country for the purpose of issue of qualifying certificate on successful completion of the course, may apply for and be admitted into the program of the Centres of Legal Education to obtain the integrated degree in law with a degree in any other subject as the first degree from the University whose such a degree in law is recognized by the Bar Council of India for the purpose of enrolment:
W.P(C) No.37089/16 -:6:-
Provided that applicants who have obtained +2 Higher Secondary Pass Certificate or First Degree Certificate after prosecuting studies in distance or correspondence method shall also be considered as eligible for admission in the Integrated Five Years course or three years' LL.B. course, as the case may be."
9. The petitioners do not have a contention that Rule 5(a) is ultra vires to any other statute. Hence, I do not think it necessary for this Court to endeavour upon the validity of Rule 5
(a). The only ground taken is with reference to the Explanation to Rule 5, which reads as under:-
"Explanation- The applicants who have obtained
10 + 2 or graduation/post-graduation through open Universities system directly without having any basic qualification for prosecuting such studies are not eligible of admission in the law courses."
10. The main contention urged by the petitioner is that the Explanation is in conflict with the main provision which comes under Rule 5(a). Petitioner relies upon judgment in Lissy v. Tahsildar (2000 (3) KLT 497) and contends that while considering the scope of Explanation to Section 2(e) of the Building Tax Act, 1975, this Court relying upon the judgment of the Apex Court in Dr.M.K.Salpekar v. Sunil Kumar W.P(C) No.37089/16 -:7:- Shamsunder Chaudhari and others (AIR 1988 SC 1841) held that Explanation cannot restrict the scope of the main term building. In other words, the argument is that when graduation is treated as a pre-condition for getting admission to 3 year LLB course, by incorporating an Explanation, no restriction can be imposed to the main provision under Rule 5(a).
11. Reference is also made to a judgment of this Court in Mani M.P v. Tirur Urban Co-operative Bank Ltd and others (2013 (2) KLT 609). While considering the scope of Rule 186(1) of the Co-operative Societies Rules, 1969, this Court held that under law, there is no distinction between the degree certificate obtained by way of distance education programme or by way of regular study. If any distinction has to be drawn, it has to be made by amending the Rule.
12. In Indian Council of Legal Aid and Advise v. Bar Council of India [(1995) 1 SCC 732], the Apex Court was considering the question whether the Rule prescribing upper age limit of 45 for enrolment is ultra vires the Advocates Act, 1961. It was held that fixation of the upper age limit at 45 for enrolment is discriminatory, unreasonable and arbitrary and therefore violates W.P(C) No.37089/16 -:8:- the principle of equality under Art.14 of the Constitution of India.
13. In New India Assurance Co.Ltd. v. Muhammed Ali and Others (2015 (1) KLT 1004), a learned Single Judge of this Court while considering Explanation 2 to Section 4(1)(b) of Workmen's Compensation Act, 1923 held that the Explanation is not a substantive provision but only meant to explain or clarify the ambiguities that may arise.
14. In Saji C.M. and others v. State of Kerala (2015 (4) KLT 452), a Division Bench of this Court held that when a Note is added as clarificatory, which shall not disturb the rule itself, it must be read in the context of substantive provision and is not in anyway derogative to the same.
15. Learned counsel also placed reliance on the Apex Court judgment in Guru Nanak Dev University. v. Sanjay Kumar Katwal [(2009) 1 SCC 610] wherein it was held that though the candidate does not fulfil the eligibility criteria prescribed by the University for admission to the 3 year course, he was permitted to continue the studies on account of the fact that he was admitted through a common entrance test process during 2004-05 and he was permitted to take the first semester examinations by the W.P(C) No.37089/16 -:9:- University. In the judgment, it is stated that the candidate was not guilty of any suppression or misrepresentation of facts, but there was confusion in the appellant University itself as to whether the distance education attended by the petitioner as correspondence course was recognised or not. This judgment apparently does not apply to the facts of the present case. In the present case, there is no confusion as far as the college authorities are concerned. According to them, the qualification has to be in accordance with the Rules. The Rules had been framed in exercise of the powers under the Advocates Act, 1961. Part IV of the Rules relates to legal education. "Bachelor degree in law" has been defined under the definition as per Rule 2(vi) as under:-
"(vi) "Bachelor degree in law" means and includes a degree in law conferred by the University recognized by the Bar Council of India for the purpose of the Act and includes a bachelor degree in law after any bachelor degree in science, arts, commerce, engineering, medicine, or any other discipline of a University for a period of study not less than three years or an integrated bachelor degree combining the course of a first bachelor degree in any subject and also the law running together in concert and compression for not less than a period of five years after 10+2 or 11+1 courses as the case may be."
W.P(C) No.37089/16 -:10:-
16. First degree is defined under 2(viii) as under:-
"(viii) "First Degree" means Bachelor Degree in any branch of knowledge such as Arts, Fine Arts, Science, Commerce, Management, Medicine, Engineering, Pharmacy, Technology etc. conferred by Universities or any other qualifications awarded by an institution/authority recognized by the Bar Council of India, from time to time."
Rule 5(a) indicates that for admission to the 3 year Law degree course, the applicant should be a graduate in any discipline of knowledge from a University established by an Act of Parliament or by a State Legislature. Rule 5(b) relates to the Integrated Degree Program, where the applicant has to successfully complete Senior Secondary School course (+2) or equivalent such as 11+1 etc.
17. The proviso indicates that the applicants who have obtained + 2 Higher Secondary Pass Certificate or First Degree Certificate after prosecuting studies in distance or correspondence method shall also be considered as eligible for admission in the Integrated 5 years course or 3 years' LLB Course, as the case may be. The Explanation further provides that the applicants who have obtained 10 + 2 for graduation through open Universities system directly without having any basic qualification W.P(C) No.37089/16 -:11:- for prosecuting such studies are not eligible for admission in the law courses.
18. The contention urged by the petitioner is that when a degree from a University is recognised as a basic qualification to attend the law course, which is the substantive provision, an Explanation cannot regulate or restrict the right of such candidates by further insisting that they should have completed the 10 + 2 in the main stream before getting graduation.
19. In Controller of Estate Duty v. Kantilal Trikamlal (AIR 1976 SC 1935), the Apex Court held that an explanation may be added to include something within or to exclude something from the ambit of the main enactment or the connotation of some word occurring in it. In ITO (First) Salem v. Short Brothers (P) Ltd. (AIR 1967 SC 81), it was held that even a negative explanation which excludes certain types of a category from the ambit of the enactment may have the effect of showing that the category leaving aside the excepted types is included within it. In Bihta Co-operative Development and Cane Marketing Union Ltd. v. Bank of Bihar (AIR 1967 SC 389), it was held that an explanation, normally, should be so read as to harmonise with W.P(C) No.37089/16 -:12:- and clear up any ambiguity in the main section and should not be so construed as to widen the ambit of the section. In Y.P.Chawla v. M.P.Tiwari (AIR 1992 SC 1360), it is held that an explanation may have been added in a declaratory form to retrospectively clarify a doubtful point in law and to serve as a proviso to the main section.
20. Now coming to the facts of the present case, the main provision, viz., Rule 5(a) only indicates that to undertake the 3 year LLB course, the basic qualification should be graduation. The explanation only clarifies the fact that those candidates who had obtained graduation through open Universities system directly without having any basic qualification for prosecuting such studies are not eligible for admission in the law courses. This explanation applies to Rule 5(a) and (b) and it is clearly clarifies the mode of obtaining graduation. Nothing prevents the statute makers to include or exclude by way of an explanation certain types of a category from the ambit of enactment. It is an admitted position that a graduation can be obtained by different streams and it is possible that a graduation can be obtained without undertaking the basic studies of 10 + 2. Under such W.P(C) No.37089/16 -:13:- circumstances, when it is explained that such person who does not undertake the regular course of study and obtained graduation will not be permitted to undertake the law courses, I do not think that such an Explanation can be declared as ultra vires.
21. In the said circumstances, when the statute is rather clear and it is not ultra vires the Advocates Act or is not arbitrary in any manner, contention urged by the petitioner cannot be sustained. The college authorities as well as the University were justified in denying admission to the petitioner based on the Rules of the Bar Council of India.
Writ petition is, therefore, dismissed.
Sd/-
A.M. SHAFFIQUE, JUDGE Rp //True Copy// P.S to Judge