Punjab-Haryana High Court
Rajan Sharma vs The Bar Council Of India And Another on 20 October, 2011
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
CWP No. 20966 of 2010 & connected petitions
Date of Decision: October 20, 2011
Rajan Sharma
...Petitioner
Versus
The Bar Council of India and another
...Respondents
CORAM: HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present:
For the Petitioner(s): Mr. Bhrigu Dutt Sharma, Advocate,
(in CWP No. 12097 of 2009)
Mr. Arun Gosain, Advocate,
(in CWP Nos. 5258, 20966 of 2010)
Mr. Lokesh Sinhal, Advocate,
(in CWP No. 12528 of 2011)
None in CWP No. 11947 of 2009.
For the Respondent(s): Mr. K.S. Rekhi, Advocate,
for Guru Nanak Dev University, Amritsar.
None for the Bar Council of India.
1. To be referred to the Reporters or not?
2. Whether the judgment should be
reported in the Digest?
M.M. KUMAR, Acting C.J.
1. This order shall dispose of a bunch of five petitions*
because common question of law and facts are involved. In all
the petitions, filed under Article 226 of the Constitution, the
petitioner(s) have prayed for striking down Clause 28 of
CWP No. 20966 of 2010 & connected petitions 2
Schedule-III appended to the Rules of Legal Education, 2008 (for
brevity, 'the Rules'), framed by the respondent Bar Council of
India being ultra vires, unconstitutional and arbitrary.
2. The undisputed facts are that the Bar Council of India
is a statutory body constituted under Section 4 of the Advocates
Act, 1961 (for brevity, 'the Advocates Act'). It is competent to
lay down the standards of legal education and recognition of the
degree in law for admission as an advocate. Section 7 of the
Advocates Act lays down the functions of the Bar Council of India
which includes promotion of legal education and to lay down
standards of such education in consultation with the Universities
in India and the State Bar Councils. Sections 15 and 49 of the
Advocates Act further empower the Bar Council of India to frame
Rules for carrying out all its functions.
3. On 14.9.2008, the Bar Council of India passed
Resolution No. 110/2008 and formulated 'the Rules'. The Rules
have been basically formulated to prescribe the standards of
legal education and recognition of degrees in law for the purpose
of enrolment as advocate and inspection of Universities for
recognising its degree in law under Section 7(1)(h) and (i), 24(1)
(c)(iii), and (iiia), 49(1)(af), (ag), and (d) of the Advocates Act.
4. Schedule-III appended to 'the Rules' prescribes the
minimum infrastructural facilities required in a Centre of Legal
Education for applying permission to run law courses with
affiliation from an Indian University. Clause 28 of Schedule-III
relates to 'age on admission', and stipulates the age limit for
CWP No. 20966 of 2010 & connected petitions 3
admission in 3 year and 5 year law courses. It reads as under:
"28. Age on admission:
(a) Subject to the condition stipulated by a
University on this behalf and the high degree of
professional commitment required, the maximum age
for seeking admission into a stream of integrated
Bachelor of law degree program, is limited to twenty
years in case of general category of applicants and to
twenty two years in case of applicants from SC, ST and
other Backward communities.
(b) Subject to the condition stipulated by a
University, and the general social condition of the
applicants seeking legal education belatedly, the
maximum age for seeking admission into a stream of
Three Year Bachelor Degree Course in Law, is limited
to thirty years with right of the University to give
concession of 5 further year for the applicant
belonging to SC or ST or any other Backward
Community."
5. A bare perusal of Clause 28(a) shows that the
maximum age for seeking admission into a stream of integrated
Bachelor of Law degree program (which is of 5 years duration)
the age has been limited to 20 years in case of General category
applicants and 22 years in case of applicants belonging to SC, ST
and other Backward communities. Similarly, Clause 28(b)
prescribes a cap of 30 years in respect of General category
CWP No. 20966 of 2010 & connected petitions 4
applicants as the maximum age limit for seeking admission into
a 3 years Bachelor Degree Course in Law. However, in the case
of SC, ST and other Backward community applicants, the
concerned University has the right to give a concession of 5
years.
6. In the year 2009, the respondent Guru Nanak Dev
University, Amritsar issued a prospectus for conducting Common
Entrance Test for admission into Three Years LL.B. Course, Five
Years B.A. LL.B. Course as also Five Years B.A. LL.B. (Hons.
School) Course, prescribing the following Educational
Qualifications:
"2. CET Law 2009 Educational Qualification
1.1 Guru Nanak Dev University, Amritsar and
institutions affiliated to Guru Nanak Dev University,
Amritsar.
Three Years LL.B. Course
Bachelor degree of Guru Nanak Dev University or a
degree recognized as equivalent with atleast 45%
marks in aggregate (40% marks in case of SC/ST
candidates). The candidates should not have
completed the age of 30 years (35 years in case of
SC/ST and Backward classes) on the First of July of the
year of admission.
Five Years B.A. LL.B. Course
(a) 10+2 examination of Punjab School Education
Board or any other equivalent examination recognized
CWP No. 20966 of 2010 & connected petitions 5
as such by the University with at least 45% marks
(40% in case of SC/ST candidates)
(b) The candidates should not have completed the
age of 20 years (22 years in case of SC/ST and
backward classes) on the First of July of the year of
admission.
Five Years B.A. LL.B. (Hons. School) Course
(a) 10+2 examination of Punjab School Education
Board or any other equivalent examination recognized
as such by the University with at least 50% marks
(45% in case of SC/ST candidates)
(b) The candidates should not have completed the
age of 20 years (22 years in case of SC/ST and
backward classes) on the First of July of the year of
admission."
7. The common grievance of the petitioner(s) in these
petitions is that they intend to further enhance their educational
qualification and want to take admission in the 3/5 years Course
of Law. But by virtue of the stipulation for maximum age, they
were deprived from taking admission despite the fact that some
of them had appeared in the entrance examination and obtained
high rank. They were refused admission for not fulfilling the age
criteria as fixed by Clause 28 of Schedule-III appended to the
Rules.
8. The question whether the Bar Council of India is
competent to frame the Rule barring a person above the age of
CWP No. 20966 of 2010 & connected petitions 6
45 years from enrolment as an Advocate was considered by
Hon'ble the Supreme Court in the case of Indian Council of Legal
Aid and Advice and others v. Bar Council of India and another
(1995) 1 SCC 732. In para 9 of the judgment, it has been held by
their Lordships of Hon'ble the Supreme Court that a Rule which
operates at pre-enrolment stage cannot receive the shelter of
clause (ah) of Section 49(1) of the Advocates Act. Para 8 of the
judgment which deals with the issue reads as under:
"8. The newly added rule seeks to bar the entry
of persons who have completed the age of 45
years on the date of application for enrolment
as an advocate from being enrolled as such by
the State Bar Council concerned. While Section
24 of the Act prescribes the minimum age for
enrolment as twenty-one years complete, there
is no provision in the Act which can be said
to prescribe the maximum age for entry into
the profession. Since the Act is silent on this
point the Bar Council of India was required to
resort to its rule-making power. The rules made
by the Bar Council of India under Section 49(1)
of the Act are in seven parts, each part having
its own chapters. Part VI is entitled "Rules
Governing Advocates" and the said part has
three chapters. Chapter I sets out the
restrictions on senior advocates and is relatable
to Sections 16(3) and 49(1)(g) of the Act,
Chapter II lays down the standards of
professional conduct and etiquette and is
relatable to Section 49(1)(c) read with the
proviso thereto and Chapter III deals with
"Conditions for right to practice" and is stated to
CWP No. 20966 of 2010 & connected petitions 7
be made in exercise of power under clause (ah)
of sub-section (1) of Section 49 of the Act.
That clause reads as under:
"(ah) the conditions subject to which an
advocate shall have the right to practice and the
circumstances under which a person shall be
deemed to practice as an advocate in a
court;"
On the plain language of the said
clause it seems clear to us that under the said
provision the Bar Council of India can lay down
the 'conditions' subject to which "an advocate"
shall have the right to practice. These
conditions which the Bar Council of India can
lay down are applicable to an advocate, i.e., a
person who has already been enrolled as an
advocate by the State Bar Council concerned.
The conditions which can be prescribed must
apply at the post-enrolment stage since they
are expected to relate to the right to practice.
They can, therefore, not operate at the pre-
enrolment stage. By the impugned rule, the
entry of those who have completed 45 years at
the date of application for enrolment is sought to
be barred. The rule clearly operates at the pre-
enrolment stage and cannot, therefore, receive
the shelter of clause (ah) of Section 49(1) of the
Act. Under the said clause conditions applicable
to an advocate touching his right to practice can
be laid down, and if laid down he must exercise
his right subject to those conditions. But the
language of the said clause does not permit
laying down of conditions for entry into the
profession. We have, therefore, no hesitation
in coming to the conclusion that clause (ah) of
CWP No. 20966 of 2010 & connected petitions 8
Section 49(1) of the Act does not empower the
Bar Council of India to frame a rule barring
persons who have completed 45 years of age
from enrolment as an advocate. The impugned
rule is, therefore, ultra vires the said provision."
9. The impugned Clause 28 dealing with the age on
admission occurring in Schedule-III appended to the Rules have
been framed under Section 7(1)(h) and (i) and 24(1)(c)(iii) and
(iiia), 49(1)(af), (ag), and (d) of the Advocates Act. Section 7 of
the Advocates Act deals with the function of the Bar Council of
India and Clause 7(1)(h) and (i) only deals with such functions of
the Bar Council of India, which are aimed at promoting to legal
education and to lay down standards of such education in
consultation with the Universities in India imparting such
education and to recognize the Universities whose degree in law
shall be a qualification for enrolment as an Advocate. Therefore,
this clause would not arm the Bar Council of India to incorporate
the provisions in the Rules like clause 28 concerning the age on
admission to LL.B. Course. Likewise, Section 24(i)(c) deals with
person who may be admitted as an Advocate on a State roll. It
has got nothing to do with the age on admission and cannot be
construed to have conferred power on the Bar Council of India to
prescribe the maximum age for the purposes of admission to
LL.B. Five years' Course or LL.B. Three Years' Course .
10. We are left to deal with Section 49(1)(af) and (ag) of
the Advocates Act. The aforesaid clause (af) deals with the
minimum qualification required for admission to a course of
CWP No. 20966 of 2010 & connected petitions 9
degree in law in any recognized University and clause (ag) deals
with the class or category of the persons entitled to be enrolled
as Advocates. Clause (d) of Section 49 (i) of the Advocates Act
deals with the standards of legal education to be observed by
universities in India and the inspection of universities for that
purpose. We are afraid that even this Clause would not extend
to grant competence to Bar Council of India to incorporate a
provision concerning the maximum age for admission to LL.B.
Course. The matter has been discussed in detail in Indian
Council of Legal Aid and Advice's case (supra) by Hon'ble the
Supreme Court. It is also relevant to mention that a similar view
was taken by a Division Bench of Madras High Court in the case
of M. Radhakrishnan v. The Secretary, the Bar Council of India
AIR 2007 Madras 108. Therefore, we find that the provisions of
Clause 28 of Schedule-III appended to the Rules are beyond the
legislative competence of the Bar Council of India. Clause 28
ultra vires the provisions of Sections 7(1)(h) and (i), 24(1)(c) (iii)
and (iiia) or Section 49(1)(af) (ag) and (d) of the Advocate Act.
Even otherwise, the Rule is arbitrary as it introduces an invidious
classification by dividing one Class of student into two artificial
and irrational Classes by prescribing the maximum age for
admission to law courses.
12. As a sequel to the above discussion, the writ petitions
are allowed. The petitioners who have been admitted on the
basis of the interim order would continue and their admissions
should not be cancelled on the ground that they did not fulfill the
CWP No. 20966 of 2010 & connected petitions 10
criteria of maximum age.
13. A photocopy of this order be placed on the files of
connected cases.
(M.M. KUMAR)
ACTING CHIEF JUSTICE
(RAJIV NARAIN RAINA)
October 20, 2011 JUDGE
Pkapoor/atul
*
Sr. Civil Writ Title No. Petition No. 1. 11947 of 2009 Lt. Col. (Retd.) Harjinder Singh Sangha and
others v. State of Punjab and others
2. 12097 of 2009 Janak Raj v. Bar Council of India and another
3. 5258 of 2010 Nitin Gupta v. Bar Council of India and another
4. 20966 of 2010 Rajan Sharma v. Bar Council of India and another
5. 12528 of 2011 Ankit Bhardwaj v. Bar Council of India and another (M.M. KUMAR) ACTING CHIEF JUSTICE (RAJIV NARAIN RAINA) October 20, 2011 JUDGE Pkapoor/atul