Gujarat High Court
Nandish Hemang Shah vs Bar Council Of India on 15 July, 2019
Equivalent citations: AIR 2019 (NOC) 780 (GUJ), AIRONLINE 2019 GUJ 160
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/8186/2019 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8186 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.Y. KOGJE Sd/-
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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NANDISH HEMANG SHAH
Versus
BAR COUNCIL OF INDIA
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Appearance:
MR MITUL SHELAT with MS DISHA N NANAVATY(2957) for the Petitioner(s)
No. 1
MR MANAN A SHAH(5412) for the Respondent(s) No. 1
RC JANI AND ASSOCIATE(6436) for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 15/07/2019
ORAL JUDGMENT
1. RULE. Learned Advocate Mr.Manan Shah waives service of Rule on behalf of respondent No.1 and learned Advocate Mr.R.C.Jani waives service of Rule on behalf of respondent No.2.
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C/SCA/8186/2019 JUDGMENT
2. This petition is filed under Article 226 of the Constitution of India seeking direction to quash and set aside notification dated 26.03.2019 issued by respondent No.1-Bar Council of India (BCI) and seeking further direction to declare result of the petitioner of All India Bar Examination (AIBE) conducted on 23.12.2018. It is further prayed for direction respondent No.2-Bar Council of Gujarat (BCG) to issue certificate of enrollment as provided under Section 22 of the Advocates Act, 1961.
3. Learned Advocate for the petitioner submitted that the petitioner had cleared degree examination for Bachelor of Law (LLB) from Mumbai University in May 2018. Accordingly, the petitioner applied to BCG on 26.09.2018 with requisite fees. Considering the application, BCG addressed letter dated 07.12.2018 informing about resolution of the Enrollment Committee. The resolution was to the effect that the petitioner would be enrolled provisionally upon undertaking given by him in respect of genuineness of mark sheet or certificates of other State University submitted along with enrollment application and also an undertaking that if upon verification, the certificate or mark sheet are found to be fake or forged, the provisional enrollment shall be surrendered. On the basis of the provisional enrollment, the petitioner was Page 2 of 9 Downloaded on : Tue Jul 16 22:52:51 IST 2019 C/SCA/8186/2019 JUDGMENT permitted to appear in AIBE conducted by Bar Council of India.
3.1 It is submitted that on account of procedural requirement of verification certificate as well as some technical problem with regard to server, the petitioner and other similarly situated candidates did not receive their respective admit cards for AIBE and hence, the petitioner filed SCA No.20367 of 2018 before this Court and this Court by order dated 21.12.2018 directed issuance of admit card to the petitioner to attend AIBE. 3.2 BCG issued yet another communication dated 05.03.2019 entering the name of the petitioner on the roll of BCG as Advocate. However, was restrained from appearing and arguing any case in any Court of India in view of pending result of AIBE. The petitioner, under circular No.4 of 2013 dated 12.04.2013 of BCI, was permitted to provisionally practice for a period of two years from the date of enrollment, till the time he qualifies under AIBE or for a period of two years from the date of enrollment. BCI conducted examination where the petitioner also appeared and result of the examination was announced on 15.03.2019. However, result of the petitioner along with some other students was withheld with remark of "enrollment certificate missing".
The petitioner inquired on several occasions and Page 3 of 9 Downloaded on : Tue Jul 16 22:52:51 IST 2019 C/SCA/8186/2019 JUDGMENT
thereafter, under notification dated 26.03.2019 by BCI, the petitioner came to know that in cases of the candidates who were having two enrollment numbers, i.e. to say provisional enrollment number and new enrollment number of respective State Bar Councils are withheld until order is issued by their respective High Court. The grievance therefore is that though the petitioner is entered in the roll of Advocates maintained by BCG, certificate of enrollment is not yet issued. 3.3 It is submitted that Enrollment Committee of BCG is to meet somewhere in August 2019 for considering issuance of certificate of enrollment and therefore, if result of the petitioner is not declared forthwith, the case of the petitioner for issuance of certificate of enrollment contemplated under Section 22 of the Advocates Act will not be considered by the Enrollment Committee.
4. Upon issuance of notice, learned Advocates for the respondents have appeared. Leaned Advocate for BCI has produced on record communication dated 28.03.2019 addressed to BCG, wherein decision of Monitoring Committee of BCI pertaining to withholding of the results is annexed. It is submitted that it is on account of two enrollment certificates issued, BCI is unable to treat exact date of enrollment. If the date of enrollment issued subsequently is considered then the petitioner is Page 4 of 9 Downloaded on : Tue Jul 16 22:52:51 IST 2019 C/SCA/8186/2019 JUDGMENT not eligible to appear for AIBE as the AIBE was conducted prior to issuance of such enrollment certificate and therefore, resolution was passed for seeking order from the High Court.
5. Having considered the rival submissions and the documents on record, it is not in dispute that the petitioner had completed five year LLB course, when his result was declared on 04.09.2018. The application for enrollment was given on 26.09.2018. On 07.12.2018, BCG had issued provisional enrollment NO.G/P-39/2018 dated 05.12.2018. AIBE was scheduled on 23.12.2018. However, on account of procedure of cross-verification of the certificates, as the petitioner was student of University of other State, some time was consumed and therefore, atleast till AIBE was to be conducted, the petitioner was not able to receive admit card, for which SCA No.20367 of 2018 came to be filed before this Court and this Court by order dated 21.12.2018, granted interim order in terms of para-8(c), pursuant to which, admit cards were issued to the petitioner and other similarly situated candidates. Accordingly, aforementioned writ petition came to be disposed of. The petitioner thereafter appeared in AIBE and thereafter, on 05.03.2019, received another communication, wherein the petitioner was given Enrollment No.G/77/2019 with the date of enrollment being Page 5 of 9 Downloaded on : Tue Jul 16 22:52:51 IST 2019 C/SCA/8186/2019 JUDGMENT 20.01.2019. The dates of enrollment given in communication dated 07.12.2018 and 05.03.2019 by BCG appear to be the problem area in considering the case of the petitioner for declaring result.
6. The minutes of the Monitoring Committee meeting of BCI produced today would read as under:-
"The Committee considered the agenda at Item No.3 and is of the view that the candidates who appeared in AIBE-XIII by virtue of the order passed by the High Court, should be directed to seek an order from the court itself for declaration of their results as it would not be appropriate for this Monitoring Committee to decide the question as to what would be the date and year of enrollment of such candidates who were permitted to appear in the examination on the direction of the High Court allowing them to appear provisionally. This is specifically for the reason that the candidates who appeared in AIBE-XIII were ineligible to appear in AIBE-XIII examination as according to the rules of the Bar Council of India, a candidate cannot take the Bar Examination without being enrolled in any State Bar Council. However, the High Court passed an order permitting them to appear provisionally by virtue of separate order passed in favor of each of the candidates whereby the question as to what would be the actual date of their enrollment in that event has not been addressed or decided.Page 6 of 9 Downloaded on : Tue Jul 16 22:52:51 IST 2019
C/SCA/8186/2019 JUDGMENT Hence, in view of this Committee, the order as to whether their enrollment certificate should be treated of 2018 or not when infect they were enrolled only in 2019, is a question which will have to be addressed and resolved by the High Court itself on the judicial side as any decision on this count by the Monitoring Committee would amount to transgressing its authority and jurisdiction. Hence, the candidates be informed to seek an appropriate order from the High Court in this regard.
Consequently, results of all such candidates who appeared provisionally by virtue of the court order, should be informed to seen an order from the concerned Court for declaration of their result which could obviously will decide as to what would be the appropriate year of their enrollment, meaning thereby that if their enrollment is of the year 2019, then whether they were eligible to appear in AIBE- XIII.
Examination in 2018 and hence the effect of order of the High Court granting permissions to such candidates to appear provisionally."
7. It is in the aforesaid set of facts that the petitioner has filed the present petition when the petitioner was intimated about this under the impugned communication dated 26.03.2019.
8. Apparently, the petitioner has not earned any Page 7 of 9 Downloaded on : Tue Jul 16 22:52:51 IST 2019 C/SCA/8186/2019 JUDGMENT disqualification after the petitioner was enrolled provisionally with Enrollment No.G/P-39/2018 with date of enrollment being 05.12.2018. Such provisional enrollment was required to be issued only on account of procedural requirement of cross-verification of certificates /degrees issued to a student by the Universities /Colleges of other States. It is after such exercise, once BCG was satisfied that the petitioner is fulfilling all necessary requirements as per enrollment intimation letter dated 05.03.2019 that Enrollment No.G/77/2019 with date of enrollment 20.01.2019 was issued.
9. In view of the aforesaid facts, when the respondents, on the strength of provisional enrollment dated 05.12.2018 have permitted the petitioner to appear in AIBE and after due procedure, have proceeded to issue final Enrollment No.G/77/2019 dated 20.01.2019, nothing adverse is coming on record respondents including any provision of law or rule under any notification of BCI or BCG for not treating the date of provisional enrollment to be the date of enrollment and therefore, it would be safe and in the interest of the petitioner to treat the date of provisional enrollment to be the date of enrollment with BCG.
10. Having held as above, it would therefore now be appropriate to direct that the result of the petitioner- Page 8 of 9 Downloaded on : Tue Jul 16 22:52:51 IST 2019
C/SCA/8186/2019 JUDGMENT Nandish Hemang Shah bearing AIBE Role No.2210577 be declared. The enrollment number may continue as per
enrollment intimation letter dated 05.03.2019, however, date of enrollment be treated as 05.12.2018 when the petitioner had been granted provisional enrollment.
11. The petition stands allowed to the aforesaid extent. Rule is made absolute. No order as to costs.
Direct service is permitted.
Sd/-
(A.Y. KOGJE, J) SHITOLE Page 9 of 9 Downloaded on : Tue Jul 16 22:52:51 IST 2019