Bombay High Court
Vishnu Rambhhaji Harishchandre vs Bar Council Of India Through Secretary ... on 20 August, 2021
Author: S.G. Mehare
Bench: Ravindra V. Ghuge, S.G. Mehare
*1* 930wp6752o21
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.6752 OF 2021
VISHNU RAMBHHAJI HARISHCHANDRE
VERSUS
BAR COUNCIL OF INDIA THROUGH SECRETARY AND
OTHERS
...
Advocate for the Petitioner : Shri Karpe Rahul R.
...
CORAM : RAVINDRA V. GHUGE
&
S.G. MEHARE, JJ.
DATE :- 20th August, 2021 Per Court :-
1. On 04.08.2021, after considering the submissions of the learned advocate for the petitioner, we had passed the following order :-
"1. It is undisputed that the petitioner has failed in Higher Secondary Certificate (HSC) examination in 1995 and has acquired his graduation decree from Yashwantrao Chavan Maharashtra Open University, Nashik in 2008.
2. The impugned communication dated 17.04.2021 has not been placed on record. So also, the Rules of the Open University, allegedly permitting admission to the graduation course without passing HSC, are also not placed on record.
3. Reliance is placed upon the Full Bench judgment of the Honourable Madras High Court dated 13.03.2018 in the case of G.S.Jagadeesh vs. The Chairman, 3 Year LLB Admission, Chennai in Writ ::: Uploaded on - 24/08/2021 ::: Downloaded on - 08/10/2021 10:05:55 ::: *2* 930wp6752o21 Petition No.32984/2016 reported at AIR 2018 MAD 243, contending that once a candidate acquires graduation degree, his admission to the law course is to be mechanically granted without questioning the degree.
4. The view taken by the learned Full Bench of the Madras High Court would not strictly bind us since it would only have persuasive value.
5. The petitioner also relies upon the judgment of the learned Division Bench of this Court dated 27.06.2019 delivered in Writ Petition No.1441/2014 at the Principal Seat, filed by Shobha @ Neha Bhimrao Buddhivant vs. The Bar Council of India and others. It is then contended that as Shobha (supra), similar to the petitioner herein, had passed the preparatory course entrance test of the said Open University, Nashik, she was admitted to the first year B.A. course of the Open University and subsequently, she acquired her graduation degree. Based on such facts, this Court permitted Shobha (supra) to be admitted to the LLB course.
6. We wish to know as to whether, a candidate failing in 12th standard (HSC) can be permitted to be admitted to the graduation course of the Open University? Whether, such a candidate passing the preparatory course entrance test of the Open University, cures the deficiency of having failed in HSC examination thereby, being eligible to be admitted for graduation course of the Open University?
7. The petitioner shall, therefore, place on record the copy of the impugned communication dated 17.04.2021. The petitioner shall also place on record the Rules for admitting students to the graduation course of the Open University without passing the HSC examination. Such documents shall be filed on or before 13.08.2021.
8. List this Writ Petition in the "urgent admissions"
category on 20.08.2021."
2. The learned advocate for the petitioner has placed ::: Uploaded on - 24/08/2021 ::: Downloaded on - 08/10/2021 10:05:55 ::: *3* 930wp6752o21 the prospectus with regard to the School of Commerce and Management, Bachelor of Commerce (B.Com) of the Yashwantrao Chavan Maharashtra Open University, Nashik, before us. Reliance is placed on Clause 4 pertaining to the admission procedure for the First Year B.Com. Degree course. Relevant portion of Clause 4 reads as under:-
"4. Admission Procedure for F.Y. B.Com. 4.1 Eligibility Criteria The admission to this programme is based on fulfilling any one of the following criteria:-
(1) Preparatory programme of YCMOU with minimum 40% marks. Certificate Programme for Self Help Group facilitators of YCMOU with minimum 40% marks.
(2) H.S.C. or equivalent examination of Maharashtra or other State HSC Board. (3) 11th standard passed (Before 1975). (4) Government recognised certificate/ diploma of minimum two years after SSC."
3. The learned advocate for the petitioner, therefore, contends that the admission to this course is based on fulfilling any one criteria. Even if the petitioner has not passed his HSC, by undergoing the preparatory programme of the Open University for six months in which, he has scored 60% marks, he was held eligible for the B.Com. Course.
4. While considering the above submissions, the ::: Uploaded on - 24/08/2021 ::: Downloaded on - 08/10/2021 10:05:55 ::: *4* 930wp6752o21 question that crops up is as to whether, the preparatory programme of the Open University for a period of six months, could be said to be equivalent to HSC of the State Board.
5. We have come across the judgment delivered by this Court (Coram : R.M.Borde and Mangesh S. Patil, JJ) dated 10.10.2018 in Writ Petition No.9118/2018 filed by Dattatraya Tanaji Mhetre vs. The State of Maharashtra and others. This case is practically identical to the case of the petitioner in hand. It was concluded that such qualification of graduation on the basis of the preparatory program of six months, without passing HSC, would mean that the candidate has non-sequential educational qualification. Respondent Nos.1 and 2 had relied upon Rule 2.4 as well as Explanation 1 to contend that non sequential educational qualification from the Open University, which would lead to acquiring of degree/ graduation certificate, would not be termed to be a graduation degree in the absence of passing HSC examination.
6. It would be apposite to reproduce paragraphs 3, 4, 5 and 6 of the judgment in Dattatraya Tanaji Mhetre (supra) hereunder :-
"3. It is the contention of respondent-admission ::: Uploaded on - 24/08/2021 ::: Downloaded on - 08/10/2021 10:05:55 ::: *5* 930wp6752o21 authority that in view of Rule 2.4 as well as explanation 1, petitioner is not eligible to secure admission to LL.B. degree course. Petitioner has secured SSC qualification in the year 2012 and has completed graduation from Open University in the year 2017. After securing graduation degree, petitioner appeared for 12 standard examination and has secured HSC certificate in the year 2018. Rule 2.4 of the admission rules provides that a candidate who has obtained HSC or equivalent and graduation degree through open/distant mode are also eligible. However Non Sequential qualification is not allowed. Explanation (i) reads "If the Candidate has not obtained any of the qualifications prescribed in the pattern of 10+2+3, then, he/she will not be eligible for admission to any of the three year LL.B. Degree course. This means that candidate having Non-sequential Educational Qualifications will not be eligible for admission to LL.B. 3 Yrs. CET/Course." In the instant matter, petitioner though has secured graduation degree however, the qualification secured by him is Non-sequential educational qualification. Petitioner has secured graduation degree in the year 2017 whereas he has cleared 12th standard in the year 2018.
4. Petitioner has invited our attention to Rules of Legal Education framed by the Bar Council of India and replying upon proviso to Rule 5, it is contended that the applicants who have obtained 10 + 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. Explanation to Rule 5 provides that 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 instant matter, basic qualification required for prosecuting degree course is 12th standard which, the petitioner did not possess while prosecuting ::: Uploaded on - 24/08/2021 ::: Downloaded on - 08/10/2021 10:05:55 ::: *6* 930wp6752o21 degree education. Petitioner thus, appears to have cleared graduation qualification without having any basic qualification for prosecuting such studies and as such, he is not eligible for admission to 3 yrs. law course.
5. The issue raised in the instant petition has been considered by the Full Bench of the Madras High Court in Writ Petition no.44242/2016 and other companion matters decided on 23.07.2018. The Full Bench of the Madras High court has recorded findings in paragraphs no. 39 and 40 of the judgment which read thus :
39. Much emphasis has been placed on the Explanation after the proviso to Rule 5 of the Legal Education Rules, which reads that "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".
The Explanation means that for admission to the Three Year LL.B. Course, it is necessary for a student to first clear the Secondary School Leaving Certificate Examination or equivalent examination conducted by some recognized board; thereafter, the Higher Secondary Course Certificate Examination or equivalent examination conducted by some recognized board, and thereafter on successful completion of an Undergraduate course and/or programme in any discipline conducted by recognized University or its affiliated institution either by holding classes which require attendance or through the distance or correspondence mode. It is reiterated that the graduate degree would have to be obtained by successfully completing a regular course conducted by the university.
40. A candidate, who may have passed the Higher Secondary Course Certificate Examination (+2) without clearing the Secondary School Leaving Certificate Examination (+10+ or alternatively a candidate, who may have straightway graduated under the Open University System without clearing the Secondary Course Certificate Examination, or either, as the case ::: Uploaded on - 24/08/2021 ::: Downloaded on - 08/10/2021 10:05:55 ::: *7* 930wp6752o21 might be, would not be eligible for admission.
6. We are in respectful agreement with the view adopted by the Full Bench of Madras High Court, which is based on correct interpretation of the provisions of the Rules of Legal Education framed by the Bar Council of India."
7. The judgment in Dattatraya Tanaji Mhetre (supra) was followed by the learned Division Bench of this Court (Coram : S.V. Gangapurwala and A.M. Dhavale, JJ) in Writ Petition No.12192/2018 filed by Pratiksha Dnyanoba Mane vs. the State of Maharashtra and others. Vide the final order dated 22.01.2019, this Court dismissed the petition filed by Pratiksha Mane concluding that the passing of 10+2+degree in sequential manner is essential for three years LLB course and there was nothing on record to establish that the preparatory examination of six months could be said to be equivalent to the HSC examination for the purpose of academics and admission to the professional course.
8. We thus, find that the view taken in Dattatraya Tanaji Mhetre (supra) was not cited before the learned Division Bench (Coram : S.C. Dharmadhikari & M.S. Karnik, JJ) at the Principal Seat when Writ Petition No.1441/2014 filed by Shobha @ Neha Bhimrao Buddhivant vs. The Bar Council of India and ::: Uploaded on - 24/08/2021 ::: Downloaded on - 08/10/2021 10:05:55 ::: *8* 930wp6752o21 others, was allowed vide judgment dated 27.06.2019. It appears that the view taken by this Court earlier in Dattatraya Tanaji Mhetre (supra) was not brought to the notice of the learned Division Bench, which decided Shobha @ Neha (supra) on 27.06.2019.
9. Nevertheless, having considered the view taken in Dattatraya Tanaji Mhetre (supra) and in Shobha @ Neha (supra), we are of the view that non-sequential educational qualification cannot be the basis for granting admission to three years LLB course for reasons more than one. Firstly, that 10+2+3 sequence for securing admission to the three years LLB degree course is not achieved by the present petitioner. Secondly, that six months preparatory course of the Open University, which is in fact a course for preparing the candidate to appear for the admission process of the graduation degree course of distant learning with the Open University, would not be equivalent to the passing of HSC examination.
10. Since we are in agreement with the view taken in Dattatraya Tanaji Mhetre (supra) and we do not agree with the view taken in Shobha @ Neha (supra), which was delivered without noticing the judgment in Dattatraya Tanaji Mhetre ::: Uploaded on - 24/08/2021 ::: Downloaded on - 08/10/2021 10:05:55 ::: *9* 930wp6752o21 (supra), we find it appropriate to refer this matter to the Honourable The Chief Justice of this Court under Rule 8 of Chapter 1 of the Bombay High Court (Appellate Sides) Rules, 1960 for formation of a Larger Bench to decide the following two issues :-
(a) Whether, the preparatory course under clause 4.1(1) of the Yashwantrao Chavan Maharashtra Open University, Nashik could be treated as being equivalent of HSC?
(b) Whether, acquiring the B.Com. degree under distant learning programme of the Yashwantrao Chavan Maharashtra Open University, Nashik, on the basis of the preparatory programme of six months, could tantamount to a candidate having acquired 10+2+3 sequential educational qualification so as to be eligible for acquiring admission to the three years LLB degree course?
11. We request the learned Registrar (Judicial) of this Court to place this matter before the learned Registrar General for bringing it to the notice of the Honourable The Chief Justice for formation of the Larger Bench.
kps (S.G. MEHARE, J.) (RAVINDRA V. GHUGE, J.) ::: Uploaded on - 24/08/2021 ::: Downloaded on - 08/10/2021 10:05:55 :::