Karnataka High Court
Kumari Jahanavi Naik K. P. vs Karnataka State Law University on 27 August, 2018
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF AUGUST 2018
BEFORE
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
WRIT PETITION Nos.36519-36520/2018(EDN-RES)
BETWEEN:
1. KUMARI JAHANAVI NAIK K.P.
AGED ABOUT 21 YEARS
D/O. SRI JANARDHNA NAIK,
RESIDENT OF KELAGINA PADA HOUSE,
VORKADY POST, MANJESWARA - 671 323.
KASARAGODE TALUK, KERALA.
2. KUMARI. ALAN NANDA EVA,
AGED ABOUT 21 YEARS,
DAUGHTER OF SRI SUDHAKARAN K.
RESIDENT OF EVA NEST,
EDECHERRY P.O., PALLIKUNU
KANNUR - 670 001, KERALA. ... PETITIONERS
(BY SRI GIRIDHAR H., ADVOCATE)
AND:
KARNATAKA STATE LAW UNIVERSITY
NAVANAGAR
HUBBALLI - 580 025.
THROUGH ITS REGISTRAR. ... RESPONDENT
*****
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
DECLARE THE REGULATIONS AT ANNEXURES-C TO F ARE
UNCONSTITUTIONAL, CONSEQUENTIALLY QUASH THE
2
ANNEXURES-C TO F AS ULTRA VIRES TO RULES OF LEGAL
EDUCATION, 2008 FRAMED BY BAR COUNCIL OF INDIA, ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioners have sought the following reliefs in these writ petitions:
"(a) to declare the Regulations at Annexures C to F are unconstitutional, consequentially, issue writ of certiorari to quash the Annexures C to F as ultra Vires to Rules of Legal Education, 2008 framed by Bar Council of India;
(b) to issue writ of mandamus or any other writ to direct the respondent to allow the petitioners to pursue 5 year Integrated Degree Course in Law at Annexures C and D alike student pursuing 3 year LL.B Degree Course in Law at Annexure-E by promoting them to IV year of 5 year B.A., LL.B Integrated Degree Course in Law at Annexure- F in any class by strictly adhering to the provisions of Chapter II of Rules of Legal Education, 2008 framed under Sections 7(1)(h) and (i) 24(1)((c)iii) and 3 (iiia), 49(1)(af), (ag) and (d) of the Advocates Act, 1961;
(c) to issue Writ of Mandamus or any other writ to direct the respondent to give admission to the petitioners to fourth year of their 5 year B.A. LL.B., Integrated Degree Course in Law for academic year 2018-2019 to enable them for admission to further year of 5 year B.A, LL.B, Integrated Degree Course in Law for academic year 2019-2020;
(d) to grant such other order or relief to which the petitioners may be found entitled to under the circumstances of the case in the interest of justice."
2. It is the case of the petitioners that they are pursuing their Five Year B.A. LL.B Integrated Degree Course in Law in Shree Dharmasthala Manjunatheshwara Law College and Centre for Post Graduate Studies and Research in Law, Mahatma Gandhi Road, Mangaluru, which is affiliated to the respondent-University. That petitioner No.1 has completed I to IV Semesters B.A. LL.B. Examinations conducted by respondent. Petitioner No.1 did 4 not pass in all subjects of V Semester examination conducted in December 2017 by the respondent. Later, she prosecuted VI Semester and appeared in the VI Semester Examination. Petitioner No.2 also took up her V Semester Examination in December 2017 conducted by the respondent. She passed in one subject in V Semester and failed in the remaining subjects and failed in all subjects of VI Semester Examination. As a result, petitioners have become ineligible to be promoted to the VII Semester which is in the fourth year of Law Degree on account of Regulation-15 of the Karnataka State Law University's Regulations (hereinafter referred to as `Regulations' for the sake of brevity) governing Five Year B.A. LL.B Integrated Degree Course in Law, which reads as under:
"15 PROMOTION
(a) No student shall be promoted to the next year of the course unless he/she has passed in a minimum of one subject in each semester.
(b) Students are required to successfully complete the entire course within ten years from admission to the course."5
In the circumstances, petitioners have assailed the said Regulation which according to them is in conflict with the Bar Council of India Rules of Legal Education (hereinafter referred to as 'Rules' for the sake of convenience) by seeking the aforesaid prayers.
3. I have heard learned counsel for petitioners, Sri. Giridhar H. and Smt.Saritha Kulkarni, learned counsel appearing for the respondent-University and perused the material on record.
4. Learned counsel for petitioners drew my attention to Entry 25 of List III - Concurrent List as well as Entry 66 of List I of the Seventh Schedule of the Constitution. He contended that having regard to Entry 66 of List I in the guise of exercising powers under Entry 25 of List -III respondent - University could not have passed the impugned Regulation, as it is an infraction of Entry 66 of List I of the Seventh Schedule. In this regard, learned counsel for petitioners drew my attention to Section 7 of the Advocates Act, 1961 (hereinafter referred 6 to as the 'Act' for the sake of brevity) in which the functions of the Bar Council of India are delineated and he contended, one of the functions of the Bar Council of India is to promote legal education and to lay down standards of such education in consultation with the Universities of India imparting such education and the State Bar Councils. That pursuant to Section 7 of the Act as well as Section 49(1)(d) of the Act, Rules regarding standards of legal education to be observed by the Universities in India and the inspection of Universities for that purpose, have been enforced by the Bar Council of India Rules of Legal Education ('Rules' for short). He submitted that having regard to Section 7 read with Section 49(1)(d) of the Act, under which, the said Rules have been framed by the Bar Council of India and under the said Rules, there is no provision made regarding promotion. The respondent- University could not have framed any Regulation governing Five Year LL.B. Integrated Law Course and in the absence of there being any such provision, Regulation 15 as extracted above restraining the right of students such as 7 the petitioners to be admitted to the next year of the course in the absence of passing in at least one subject in each semester, in other words, at least two subjects in the entire academic year could not have been made. He further drew my attention to Annexure-F dated 27/08/2010, wherein Regulation 15 has been amended to the effect that "no student shall be promoted to the next year of the course unless he/she has passed in a minimum of two subjects in either semester or one subject in each semester". He contended that in the absence of the Bar Council making any eligibility criteria for promotion to the next higher class, respondent - University could not have enacted such a Regulation in the form of Regulation 15. In fact the contention of the petitioners is that the respondent
- University could not have enacted any Regulation at all, as the Rules of the Bar Council have occupied the field. In support of his submission, he placed reliance on certain decisions of the Hon'ble Supreme Court, which shall be discussed later. Learned counsel for petitioners further contended that Regulation 15 dealing with promotion is 8 contrary to Entry 66 of List I and therefore, the said Regulation being repugnant would have to be struck down in terms of Article 254 of the Constitution.
5. Per contra, learned counsel for respondent- University drew my attention to Rule 9 of the Rules to contend that the University has to ensure the process and manner of running integrated course such as 5 year LL.B. course. That the respondent-University, in the absence of Bar Council setting any standard with regard to promotion, has enacted Regulation 15 which has set a standard in the matter of promotion and it cannot be contended that Regulation -15 is repugnant to the Bar Council of India Rules. She submitted that the object and purpose of Regulation 15 is to ensure that the students who are pursuing their Five Year LL.B. integrated degree program have to pass minimum subjects before they are admitted to the next higher class which ensures standards in legal education. She contended that there is no merit in these writ petitions and writ petitions may be dismissed. 9
6. Learned Additional Government Advocate appearing by way of assistance to this Court drew my attention to the order passed by this Court on 30/10/2017 in Writ Petition Nos.47874-47876/2017 and connected writ petitions, to contend that this Court has already taken a view that the standards that are made in respect of Five Year integrated degree program is distinct and different from what is prescribed for a three year degree program. That the order passed by this court in Writ Petition Nos.47874-47876/2017 and connected writ petitions have been upheld and confirmed by the Division Bench in Writ Appeal Nos.7049-7052/2017 disposed off on 27/06/2018. Therefore, the said aspect may be borne in mind while considering the contentions of the rival parties herein, in the context of Article 254 of the Constitution of India. Learned Additional Government Advocate further submitted that the doctrine of repugnancy does not apply in the instant case and therefore these writ petitions are devoid of any merit.
10
7. Having heard learned counsel for the respective parties, at the outset, it would be necessary to extract the relevant provisions of law in the context of submissions made by the respective counsel. Article 254 of the Constitution reads as under:
"254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States - (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause(2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List 11 contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State."
The said Article pertains to List III (Concurrent List) of Seventh Schedule. Entry 25 of List III reads as under:
"25. Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List 1; vocational and technical training of labour."
The said Entry is subject to Entries 63, 64, 65 and 66 of List I - Union List of Seventh Schedule. Learned counsel 12 for petitioners has made a pointed reference to Entry 66 of List I which reads as under:
"66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions"
8. Section 7 of the Act deals with the functions of the Bar Council of India. Section 7(h) reads as under:
"7. Functions of Bar Council of India - (1) The functions of the Bar Council of India shall be -
(b) to lay down standards of professional conduct and etiquette for advocates;
(c) to lay down the procedure to be followed by its disciplinary committee and the disciplinary committee of each State Bar Council;
(d) to safeguard the rights, privileges and interest of advocates;
(e) to promote and support law reform;13
(f) to deal with and dispose of any matter arising under this Act, which may be referred to it by a State Bar Council;
(g) to exercise general supervision and control over State Bar Councils;
(h) 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 Councils."
(i) to recognize Universities whose degree in law shall be a qualification for enrolment as an advocate and for that purpose to visit and inspect Universities [or cause the State Bar Councils to visit and inspect Universities in accordance with such directions as it may give in this behalf];
(ia) to conduct seminars and organize talks on legal topics by eminent jurists and publish journals and papers of legal interest;
(ib) to organize legal aid to the poor in the prescribed manner;
(ic) to recognise on a reciprocal basis foreign qualifications in law obtained outside India for 14 the purpose of admission as an advocate under this Act;
(j) to manage and invest the funds of the Bar Council;
(k) to provide for the election of its members;
(j) to perform all other functions conferred on it by or under this Act.
(m) to do all other things necessary for discharging the aforesaid functions;
(2) The Bar Council of India may constitute one or more funds in the prescribed manner for the purpose of -
(a) giving financial assistance to organize welfare schemes for indigent disabled or other advocates;
(b) giving legal aid or advice in accordance with the rules made in this behalf;
(c) establishing law libraries.
(3) The Bar Council of India may receive any grants, donations, gifts or benefactions for all or any of the purposes specified in sub-
section(2) which shall be credited to the 15 appropriate fund or funds constituted under that sub-section."
Under Section 49(1) the Bar Council of India is empowered to make rules for discharging its functions. Section 49(1) (d), which is relevant for the purposes of these cases reads as under:
"49. General power of the Bar Council of India to make rules. - (1) The Bar Council of India may make rules for discharging its functions under this Act, and, in particular, such rules may prescribe -
x x x
(d) the standards of legal education to be observed by universities in India and the inspection of universities for that purpose."
Thus the Bar Council of India has the duty to promote legal education and to lay down standards of such education in consultation with the Universities in India imparting such education as well as the State Bar Councils. The Bar Council of India is empowered to make rules to discharge its functions and under Section 49(1)(d) rules laying down 16 the standards of legal education to be observed by the universities in India could be made. Under the said powers, the Bar Council of India has enacted the Rules of Legal Education (Rules).
9. Chapter II of the Rules deals with the standards of professional Legal Education. Chapter II of the Rules inter alia deals with two types of Law Courses namely, three year degree course in law and a double degree integrated course; Eligibility Criteria for admission for three year Degree Course in law and integrated Law Programme; Minimum marks in qualifying examination for admission; Standard of courses, Process and manner of running integrated course and End Semester Test. Chapter III deals with inspection, recognition and accreditation of Centres of Legal Education, which inter alia, deals with inspection of constituent College or University Department or Faculty of a University; affiliation of Centre of Legal Education to a University. Chapter IV deals with Directorate of Legal Education to be established for the 17 purpose of organising running, conducting, holding and administering inter alia, continuing legal education, legal research etc. Chapter V of the Rules deals with recommendation of degree in Law of a Foreign University, while Chapter VI deals with Miscellaneous Provisions.
10. Schedule-I of the Schedules to the said Rules deals with the list of Indian Universities and its approved Centres of Law Education whose degrees in law are recognised for enrolment, while Schedule II deals with Academic Standards and Course to be studied. Clause -2 of Schedule II states that "a University is free to design its academic programme" under LL.B and LL.B Honours course as well as programme under the integrated programme in bachelor degree component as well as LL.B. component with or/without Honours course. However, LL.B Courses shall include the courses as stipulated under this schedule. The said Schedule deals with the Academic Standards of Courses to be studied, Curricular in both the three year 18 degree course as well as five year integrated programme and differentialities of various branches of law to be studied. Schedule III deals with minimum infrastructural facilities required in a Centre of Legal Education for applying permission to run law courses with affiliation from an Indian University, while Schedule IV deals with Inspection and other fees. List of Foreign Universities whose degrees are recognised by the Bar Council of India under Section 24(1) (c) (iii) in the Advocates Act, 1961 is enumerated in Schedule V. Schedule VI deals with Proforma for application, Inspection report.
11. Though Chapter II specifically deals with the standards of professional Legal Education, standards of Courses/Semester system and End Semester Test pertaining to attendance, prohibition against lateral entry and exit, there is no specific provision made with regard to promotion to the next higher class. Rule 9 reads as under:
"9. Process and manner of running integrated course 19 The University concerned shall ensure that-
(a) Faculties for running the entire course shall design the purpose, manner and the process of running the integrated courses semester-wise with clear objective criteria of integration.
(b) There are all infrastructural facilities available for the courses, such as faculty for teaching the subjects concerned, laboratories needed, and other class room fixtures and fittings including the computer support.
(c)The double degree courses may be planned by the University in order to suitably integrate the program meaningfully.
(d) The University shall cause documentary evidences and records of the above requirements in (a), (b) and (c) to be submitted to the Bar Council of India, whose inspection committee would review the program from time to time and provide suggestions to the University concerned, if any.20
Schedule II of the said Rules deals with Academic Standards and Courses to be studied. Clause(2) of Schedule-II reads as under:
"University's responsibility: A University is free to design its academic program under LL.B and LL.B. Honours course as well as program under the integrated degree program in Bachelor degree component as well as the LL.B. component with or/and without Honours course. However, LL.B courses shall include the courses as stipulated under this schedule."
The aforesaid deal with Central legislation.
12. As far as State legislation is concerned, the respondent-University under Section 86 read with Section 34(2)(ii) and Section 49 of the Karnataka State Law University Act, 2009 has enacted Regulations governing the Five Year LL.B Integrated Degree Course in Law. Sections 86 & 34 (2) (ii) and 49 of Karnataka State Law University Act, 2009 read as under:
"86. Transitory powers of the first Vice Chancellor - (1) Notwithstanding anything contained 21 in this Act, the First Vice-Chancellor may with the previous approval of the Chancellor and subject to or otherwise discharge all or any of the functions of the University for the purpose of carrying out the provisions of this Act and for that purpose exercise any powers or perform any duties which by this Act are to be exercised or performed by any authority of the University until such authority comes into existence as provided by this Act.
(2) It shall be the duty of the First Vice Chancellor to make Arrangements for constituting the Syndicate and other Authorities of the University within six months from the date of commencement of this Act or such longer period not exceeding one year as the Government may, by notification, direct.
(3) The first Vice Chancellor shall, in consultation with the Chancellor, make such Statutes as may be necessary for the functioning of the University.
(4) It shall be the duty of the First Vice Chancellor to draft such statutes as may be immediately necessary and submit them to the Competent Authority for approval.
(5) Notwithstanding anything contained in this Act and until such time an authority is duly constituted under the Act, the first Vice Chancellor may appoint any 22 officer or constitute any committee temporarily to exercise and perform any of the powers and duties of such authority under this Act.
x x x 34. Powers of the Academic Council.- (1) xxx
(2) Without prejudice to the generality of the foregoing provisions and subject to such conditions as may be specified by or under the provisions of this Act, the Academic Council shall exercise the following powers, namely:-
(i) xxx
(ii) To make Regulations regarding the courses of study in so far as they are not covered by the Ordinances;
x x x
49. The Regulations - (1) The Academic Council may make Regulations consistent with this Act, the Statutes and Ordinances providing for exercising all or any of the powers enumerated in section 34 and particularly for the following matters, namely:-
(a) admission of students to the University;
(b) recognition of examinations and degrees of other Universities as equivalent to the examinations and degrees of the University;23
(c) the University courses and examinations and conditions on which students of the University or the affiliated colleges or other university institutions shall be admitted to examinations or degrees, diplomas and other certificates of the University.
(d) grant of exemptions.
(2) All Regulations passed by the Academic Council shall be sent to the State Government for submission to the Chancellor for approval.
The State Government shall transmit the Regulations within two months from the date of receipt thereof from the University to the Chancellor with its comments. The Chancellor may within one month of the date of receipt of the Regulations from the State Government either approve them or refer them to the Academic Council for further consideration. (3) All Regulations shall come into force on the date of their approval by the Chancellor or on such other date as the Chancellor may direct."
13. Regulations governing three year LL.B Course inter alia, deal with the course and duration, instruction, 24 training, admission procedure, intake, tuitions and other fees, medium of instruction, promotion, award of degree, award of class.
14. Before answering the question as to whether there is a conflict between the Rules and the Regulation made by the Bar Council of India and Respondent - varsity respectively, it would be useful to delineate on the nuances of Article 254 of the Constitution.
(a) Article 254 will not be applicable in case of conflict between the State Act made under List II and Central Act made under List III. Article 254(2) is attracted only if the State law is repugnant to the Central law which means that the two cannot stand together.
(b) Article 254(1) of the Constitution accords supremacy to the law made by Parliament, which Parliament is competent to enact. But, for application of this Article, firstly, there must be repugnancy between the State law and the law made by Parliament. Secondly, if there is repugnancy, the State legislation would be void 25 only to the extent of repugnancy. If there is no repugnancy between the two laws, there is no question of application of Article 254(1) and both the Acts would prevail vide Kanak Gruha Nirmana Sahakara Sangh vs. Narayanamma (2003) 1 SCC 228, 234.
(c) The onus of showing repugnancy and the extent thereof is on the party who attacks the validity of the State law. The State law may be repugnant when there is a direct conflict between the two provisions i.e., between the Central provision under the Central Act and the provision under the State Act. This may happen where one cannot be obeyed without disobeying the other. On the contrary, two enactments may also be inconsistent although obedience to each of them may be possible without disobeying the other. It may also arise where both laws operate in the same field and the two cannot possibly stand together. For example, where both prescribe punishment for the same offence but the punishment differs in degree or kind or in the procedure prescribed. 26 Repugnancy may arise in several circumstances and it is not possible to state any one principle that could be uniformly applicable to all cases of repugnancy. It would have to be seen in the facts of each case while keeping in mind the laws which are in conflict with each other. It is only when there is conflict with the law made by Parliament or any sub-ordinate legislation which is made under any Parliamentary legislation the same shall prevail over a State law, under Article 254(2). Further, there can be no repeal by implication unless the inconsistency appears on the face of the two statutes. i.e. Central and State.
(d) Further, Article 254(2) deals with the situation where the State legislation having been reserved and having obtained President's assent, prevails in that State; this again is subject to the proviso that Parliament can again bring a legislation to override even such State legislation. However, if the Central law itself permits or recognises other laws, restricting or qualifying the general 27 provision made in it, the special provisions of such State or local law cannot be said to be repugnant to the Central law. Hence, where a particular provision cannot coexist or intended to subsist in the event of there being repugnancy between Central and State legislation, Courts would have to declare it to be so on the ground of repeal by implication. But in the absence of a clear provision in the Parliamentary legislation overriding the provisions of the State Act, the provisions of the State Act would remain operative. The Court must bear in mind that where the application of a Parliamentary and a legislative Act comes up for consideration, endeavour should be made to see that provisions of both the Acts are made applicable. Thus repugnancy would arise only when the law made by Parliament and the law made by State legislature occupy the same field. If they deal with separate and distinct matters though of a cognate and allied character or their purposes are different repugnancy does not arise. Where the State law prescribes additional or supplemental provisions of the Central Act where the Central Act is not 28 intended to be exhaustive there is no repugnancy vide National Engg. Industries Ltd. vs. Shri Kishan Bhageria [AIR 1988 SC 329] and Fazalbhoy Currimbhoy vs. Official Trustee of Maharashtra [AIR 1979 SC 687]. Thus, there is no repugnancy unless the two Acts are wholly incompatible with each other or the two together would lead to absurd results. Even if there is some overlapping, the same should be ignored. When a question of repugnancy arises under Article 254, every effort should be made to reconcile the two enactments and to construe them so as to avoid they being repugnant to each other and care should be taken to see whether the two really operate in different fields without encroachment. [Source: D.D.Basu's "Shorter Constitution of India" 15th Edition] The aforesaid principles shall be applied to Regulation 15 of the respondent - University's Regulation. Regulation 15 dealing with promotion reads as under: 29
"Promotion:
(a) No student shall be promoted to the next year of the course unless he/she has passed in a minimum of one subject in each semester.
(b) Students are required to successfully complete the entire course within ten years from admission to the course."
The same has been amended with effect from 27/08/2010. The extract and reason for amendment reads as under:
"(a) No student shall be promoted to the next year of the Course unless he/she has passed in a minimum of one subject in each semester.
On putting this Rule into operation many Colleges have had hard experience as their pupils could not be promoted to the next year of the Course, albeit they have successfully completed all, or more than two, papers. The students were placed in an untold plight either owing to ill health or some genuine reasons. However, such provision is not found in the Regulations Governing 3 year LL.B. Course. The Principals of affiliated Law Colleges have drawn the attention of the University, with an 30 appeal to amend the aforementioned Rule, with retrospective effect, thus:-
(a) No student shall be promoted to the next year of the Course unless he/she has passed in a minimum of two subjects in either semester or one subject in each semester"
15. On a conspectus consideration of the above, it becomes clear that Entry 25 of List III which is in Concurrent List empowers both the Parliament as well as a State Legislature to make legislation with regard to Education, including technical education, medical education and Universities, subject to Entries 63, 64, 65 and 66 of List I (Union List). The expression 'legal education' is not expressly included within the word 'education' under Entry 25 of List III, but the said Entry is an inclusive one and includes legal education also. Entry 66 of List I deals with co-ordination and determination of standards in institutions of higher education or research and scientific and technical institutions. It is pursuant to Entry 66 of List 31 I that the Bar Council of India is empowered to make Rules for Legal Education uniformly applicable throughout the country under the Act. Therefore, if on any aspect of legal education, the Bar Council of India has made Rules under the enactment made by the Parliament i.e. Section 49 of the Act, by way of sub-ordinate legislation, then by virtue of Entry 25 of List III being subject to entry 66 of List I, the said Rules of Bar Council of India would prevail over any other State enactment or Rules or Regulations made thereunder. This is on the basis of doctrine of occupied field. Therefore, if on any aspect of legal Education, the Bar Council of India has made any rule, then on that very aspect, the State legislature or anybody under the State Government or the respondent - University cannot frame any rule which would be in conflict with the rule made by the Bar Council of India. If such a rule is framed, it would have to receive the assent of the President of India under Article 254(2), but in the absence of such an assent, it is always Parliamentary or Central enactment or Central sub- ordinate legislation such as the Bar Council of India Rules 32 which would prevail over the State enactment or any subordinate legislation made by any body under the State Government or the University in the instant case. Therefore, the test that has to be applied is whether the Bar Council of India has made any specific rule with regard to the promotion of a student to next higher class under the Rules under consideration. In other words, whether on the aspect of promotion to the next higher class, whether Bar Council of India has made any rule laying down a standard has to be considered.
16. On a close perusal of the rules made by the Bar Council of India, it is noted that any rule regarding promotion is conspicuous by its absence. Therefore, the doctrine of occupied field in the matter of promotion of a student from one class to the higher class, vis-a-vis the Bar Council of India Rules does not apply as it has not made any rule in the instant case. Since the subject education is one which is in the Concurrent List (Entry 25 of List III) nothing bars the respondent - University from 33 making a rule on the said aspect of eligibility of promotion to the next higher class in Five year Integrated Law course. It could also be observed that if subsequently the Bar Council of India makes any rule with regard to promotion, then Regulation 15 of the respondent - University with regard to promotion not being assented to by the President of India would automatically give way to the rule regarding promotion made by the Bar Council of India. But as of now, in the absence of any rule being made by the Bar Council of India regarding promotion to the next higher class, there is competence in the respondent - University and it is infact not denuded of its power in framing of any regulation or rule with regard to promotion of a student such as the petitioner to the next higher class.
17. The interpretation of Entry 25 List III and Entry 66 of List I of the seventh schedule of the Constitution in the context of Article 254 of the Constitution has been made by the Hon'ble Supreme Court in the case of State 34 of Tamil Nadu and Another v. Adhiyaman Educational & Research Institute and Others reported in (1995) 4 SCC 104. The relevant paragraphs are as under:
"12. The subject coordination and determination of standards in institutions for higher education or research and scientific and technical institutions' has always remained the special preserve of Parliament. This was so even before the Forty-second Amendment, since Entry 11 of List II even then was subject, among others to Entry 66 of List I. After the said Amendment, the constitutional position on that score has not undergone any change. All that has happened is that Entry 11 was taken out from List II and amalgamated with Entry 25 of List III. However, even the new Entry 25 of List III is also subject to the provisions, among others, of Entry 66 of List I. It cannot, therefore, be doubted nor is it contended before us, that the legislation with regard to coordination and determination of standards in institutions for higher education or research and scientific and technical institutions has always been the preserve of Parliament. What was contended before us on behalf of the State 35 was that Entry 66 enables Parliament to lay down the minimum standards but does not deprive the State legislature from laying down standards above the said minimum standards. We will deal with this argument at its proper place."
"41. What emerges from the above discussion is as follows;
(i) The expression 'coordination' used in Entry 66 of the Union List of the Seventh Schedule to the Constitution does not merely mean evaluation. It means harmonisation with a view to forge a uniform pattern for a concerted action according to a certain design, scheme plan for development. It, therefore, includes action not only for removal of disparities in standards but also for preventing the occurrence of such disparities. It would, therefore, also include power to do all things which are necessary to prevent what would make 'coordination' either impossible or difficult. This power is absolute and unconditional and in the absence of any valid compelling reasons, it must be given its full 36 effect according to its plain and express intention.
(ii) To the extent that the State legislation is in conflict with the Central
legislation though the former is purported to have been made under Entry 25 of the Concurrent List but in effect encroaches upon legislation including subordinate legislation made by the Centre under Entry 25 of the Concurrent List or to give effect to Entry 66 of the Union List, it would be void and inoperative.
(iii) If there is a conflict between the two legislations, unless the State legislation is saved by the provisions of the main part of clause(2) of Article 254, the State legislation being repugnant to the Central legislation, the same would be inoperative.
(iv) Whether the State law encroaches upon Entry 66 of the Union List or is repugnant to the law made by the Centre under Entry 25 of the Concurrent List, will have to be determined by the examination of the two laws and will depend upon the facts of each case.37
(v) When there are more applicants than the available situations/seats, the State authority is not prevented from laying down higher standards or qualifications than those laid down by the Centre or the Central authority to short-list the applicants. When the State authority does so, it does not encroach upon Entry 66 of the Union List or make a law which is repugnant to the Central law.
(vi) However, when the situations/seats are available and the State authorities deny an applicant the same on the ground that the applicant is not qualified according to its standards or qualifications, as the case may be, although the applicant satisfies the standards or qualifications laid down by the Central law, they act unconstitutionally. So also when the State authorities de-recognise or disaffiliate an institution for not satisfying the standards or requirement laid down by them, although it satisfied the norms and requirements laid down by the Central authority the State authorities act illegally."
(underlining by me) 38 However, in the said case, the Hon'ble Supreme Court on considering the respective statute therein, held that the provisions of the Central Statute on the one hand and of the State statute on the other, being inconsistent with each other and, therefore, repugnant with each other, the Central statute prevailed and the de-recognition by the State Government or the disaffiliation by the State University on grounds which were inconsistent with those enumerated in the Central statute were held to be inoperative.
18. Certain other decisions of the Hon'ble Supreme Court on Article 254 of the Constitution could be referred to at this stage.
(a) While considering Article 254 in the case of Zavarbhai Amindas vs. State of Bombay [AIR 1954 SC 752], the Hon'ble Supreme Court has laid emphasis on the expression "in respect of the same matter". 39
(b) Also in Tikaramji and Others etc. vs. The State of Uttar Pradesh and Others [AIR 1956 SC 676], the Hon'ble Court held that the doctrine of repugnancy has to be considered when the law made by the Parliament and the law made by the State Legislature occupy the same field because if both these pieces of legislation deal with separate and distinct matters though of a cognate and allied character, repugnancy does not arise.
(c) In Deep Chand vs. State of UP [AIR 1959 SC 648], the question was whether there could be repugnancy between a pre-Constitution law and a post- Constitutional enactment.
(d) In M.Karunanidhi vs. Union of India [AIR 1979 SC 898], it was held that even if the State Legislature on a subject covered by the Concurrent List is inconsistent with and repugnant to a previous law made by Parliament, then such a law can be protected by obtaining the assent of the President under Article 254 (2) 40 of the Constitution. The result of obtaining the assent of the President would be that so far as the State Act is concerned, it will prevail in the State and overrule the provisions of the Central Act in their applicability to that State only. But such a state of affairs will exist only until Parliament may, at any time, make a law, adding to, or amending, varying or repealing the law made by the State Legislature vide, proviso to Article 254.
(e) In Rajiv Sarin vs. State of Uttarkhand [(2011) 8 SCC 708], while considering the provisions of the Kumaun and Uttarkhand Zamindari Abolition and Land Reforms Act, 1960, which is a State legislation (State Act) which had received Presidential assent and the provisions of the Indian Forest Act, 1927, which is a Central enactment (a Pre Constitution law), it was held that the State Act was not repugnant to the Central Act and therefore, Presidential assent under Article 254(2) although it was obtained was not required. It was further held that for the applicability of Article 254 there must be 41 direct conflict and both laws must be completely inconsistent or absolutely irreconcilable. The Parliamentary law must be exhaustive, unqualified and cover the entire field. The subject matter of both legislations must be the same. In order to ascertain the subject matter of enactment under List III, doctrine of pith and substance would apply. In the said case, it was held that the State Act being an enactment for agrarian reforms and the Indian Forest Act, 1927 dealing mainly with forests, the pith and substance of Forest Act, 1927 was different from the State Act therein and hence, they both could co-exist.
19. On consideration of the aforesaid provisions in light of the judicial dicta, the question as to whether Regulation 15 of the respondent - University is in direct conflict with any rule of the Bar Council of India would have to be considered. As already noted above, the Bar Council of India Rules of Legal Education on defining various words and expressions in Chapter -I has in Chapter-II laid down the Standards of Professional Legal 42 Education including recognized Universities, eligibility for admission, standard of courses, minimum marks in qualifying examination for admission, prohibition to register for two regular courses of study, semester system, end semester test, prohibition against lateral entry and exit. It does not control legal education but lays down standards of legal education at an all India level. In the said chapter dealing with the Standards of Professional Legal Education, the Bar Council has not touched upon any criteria for promotion to the next higher class i.e., from first year to second year, second year to third year and so on up to the fifth year. Thus the said Rules are silent on the aspect of eligibility criteria for promotion from one class to the higher class. That is precisely what Regulation 15 of the Regulations of the respondent - University deals with as there is a vacuum on the aspect of criteria for promotion to the next higher class.
20. Having noted the above, it is further observed that under the Regulations governing the Five Year LL.B 43 Integrated Degree Course in law made by respondent- University, there are provisions regarding eligibility criteria for admission and admission procedure; intake, tuition and other fees, curricular, medium of instruction, attendance, prohibition against lateral entry and exit, none of which is assailed in these writ petitions as possibly they are in tandem with the Rules or specially provided on account of their absence in the Bar Council of India Rules. That on the aspect of promotion to the next higher class there being no rule touching upon the said aspect under the Rules made by the Bar Council of India the respondent-University has stipulated that no student would be promoted to the next year unless he/she has passed in a minimum of one subject in one Semester each (two semesters being conducted in a year). Thereafter the same has been amended by stating that unless the student has passed in a minimum of two subjects in either semester or one subject in each semester he/she cannot be promoted to the next higher class. The challenge made to that rule by the petitioners herein is on account of the fact that 44 petitioners have not passed in any subject in the sixth semester. Therefore, they have neither complied with the first criterion nor with the second criterion of the amended Regulation on promotion. It is in that context that an attempt has been made to assail Regulation 15 in these writ petitions. In fact, the argument of learned counsel for petitioners is that the respondent-University is denuded of its power or has no competence to make any regulation whatsoever. However, the said argument would have to be noticed only to be rejected in view of discussion made above and on the basis of the judgments of the Hon'ble Supreme Court.
21. In view of the aforesaid discussion, it would have to be held that the respondent-University is not denuded of its powers or rather has competence to make the Regulation as such. Further Regulation 15 in no way an infraction of Entry 66 of List I. In fact, Regulation 15 intends to maintain standards in legal education inasmuch as students who have not passed even one subject in a 45 semester or atleast two subjects in two semesters of a year cannot be promoted to the higher class. The object is to ensure that students have at least passed in one subject in each semester before they are promoted to the next higher class. In my view, such standards cannot be considered to be contrary to the standards set by the Bar Council of India in its Rules.
22. Further, it is not so high standard for a student pursuing Five Year LL.B Course to comply with for the purpose of enabling students to ultimately enroll as advocates under the Act and to practice as advocates in Law Courts. It is only when students ultimately complete their course in accordance with the rules of the Bar Council of India concerning legal education as well as the Regulations of the respondent - University that they could practice in Law Courts on being enrolled under the Act. Even otherwise, prescription of such a standard cannot be considered to be so high or unreasonable so as not to be able to achieve. In fact these petitioners have passed 46 their course up to the end of second year and the problem arose only in the V and VI semester of third year and they have become ineligible to be promoted to the fourth year consisting of VII and VIII semesters.
23. At this stage, it would be necessary to refer to the citations relied upon by the learned counsel for petitioners:
a) Bharat Coking Coal Ltd. vs. State of Bihar and others [(1990) 4 SCC 557], arose under Article 245 and 246 of the Constitution of India, it did not touch upon Article 254 of the Constitution. Under Articles 245 and 246, the question was, when a subject matter exclusively falls within the Union List, mere absence of any Parliamentary legislation or statutory rules would not confer power on State legislature to legislate on that subject. The Hon'ble Supreme Court held that under Article 245 and 246 of the Constitution read with Seventh Schedule, on the legislative competence of Parliament and State legislature, Parliament has exclusive power to make 47 laws with respect to any of the matters enumerated in List I in the Seventh Schedule. Similarly, State legislature has exclusive power to make laws with respect to any of the matters enumerated in List II. Parliament and the State legislature both have legislative powers to make laws with respect to any matter enumerated in List III, or Concurrent List.
b) In Bar Council of India vs. Board of Management, Dayanand College of Law and Others [(2007) 2 SCC 202], the Hon'ble Supreme Court held that the Bar Council of India is concerned with the legal education in the country, but it does not directly control the same. While adverting to the Advocates Act, 1961, which has been enacted under Entries 77 and 78 of List I of the Seventh Schedule, Sections 7 (1) (h), (i), 24, 49(1) (af) & (d) as well as Bar Council of India Rules, pertaining to legal education, the Hon'ble Supreme Court held that the provisions of the Universities Act and Advocates Act and the Rules of the Bar Council of India must be 48 construed harmoniously and notwithstanding the procedure to be prescribed under the Universities Act and the University statute, the State Government must also adhere to the requirements of Advocates Act and the Bar Council of India Rules. In that context, it was held that in the absence of conflict, Article 254 need not be invoked so as to hold that the State Act would prevail over the Central Act and the Central Act have to be read harmoniously and in the absence of there being any conflict, Article 254 (1) of the Constitution would not apply. The aforesaid dictum squarely applies in the instant case.
c) In Kalyani Mathivanan vs. K.V. Jeyaraj and Others [(2015) 6 SCC 363], the Hon'ble Supreme Court held that if a State Legislation is in conflict with the Central legislation including subordinate legislation made thereunder, State Legislation shall be repugnant to Central Legislation and would be inoperative and not otherwise.
24. In the instant case, it has been held that on the aspect of promotion of a student from one class to the 49 next higher class there is no conflict between the Regulations of the respondent-University and the Rules of the Bar Council of India which are both subordinate legislation and therefore Article 254 would not apply at all. Further the subject education being in Entry 25 of Concurrent List of List III, both Parliament as well as State legislature as well as subordinate legislation made under a Parliamentary legislation as well as the subordinate legislation under the State legislation could operate harmoniously. It is the duty of the Court in the case of an apparent conflict to harmoniously interpret the State legislation so that it could operate in its respective field without being repugnant to the Parliamentary legislation or subordinate legislation made thereunder.
25. In the circumstances, I do not find any merit in these writ petitions. Writ petitions are hence dismissed.
Sd/-
JUDGE Msu/ksm/mvs