Punjab-Haryana High Court
Jarnail Singh vs The Bar Council Of Punjab And Haryana And ... on 2 April, 1998
Equivalent citations: (1998)119PLR99
Author: M.L. Singhal
Bench: M.L. Singhal
JUDGMENT M.L. Singhal, J.
1. This is a Civil Writ Petition filed by Jarnail Singh (petitioner) under Articles 226 and 227 of the Constitution of India against the Bar Council of India (respondents) whereby he has prayed for the issuance of writ in the nature of certiorari for quashing Rule 4 of the Training Rules framed by the Bar Council of India in 1996. He has also prayed for the issuance of a Writ in the nature of mandamus directing the respondents to enroll him on the roll of advocates of the Punjab and Haryana State Bar Council, as he has already completed a period of 17 years as an Advocate.
Facts: The petitioner completed his LL.B. degree in the year 1981 from Rajasthan University, Jaipur and obtained first division. From December 1981 to August, 1984 he got training as a lawyer with one Shri Virinder Khera, Advocate in District Courts at Ludhiana so that he became sufficiently equipped with legal training. He acquired necessary expertise which is required for becoming a successful Advocate. Certificate Annexure P-1 was issued to him by Shri Virinder Khera, Advocate, showing that he worked with him as Advocate with effect from December, 1981 to August, 1984 in District Courts, Ludhiana. Thereafter, he went to United States of America. He had thus to withdraw from the chamber of Shri Virinder Khara, Advocate, in the year 1984. In the U.S.A. he established himself as an Attorney because he had the necessary legal background and had also acquired necessary expertise while working in the chamber of Shri Virinder Khara, Advocate for three years. He passed Jurist Doctor in Law which is a very prestigious examination in U.S.A. Annexure P-2 is certificate to this effect issued by the Board of Trustees of the John Marshall Law School. He was made a member of the U.S. Supreme Court and Federal Court of Illinois in recognition of his competence and capability. Annexures P-3 and P-4 are certificates to this effect issued by the Clerk of the United States District Courts for the Northern District of Illinois and the Supreme Court of the United State of America, respectively. He not only worked in India but also excelled himself in the legal work in the United States of America. With Shri Virinder Khara he did legal research, legal writings and other legal works in the Courts including drafting etc He practiced in civil and criminal matters when he went to U.S.A. arid also while arguing, drafting working as an Attorney in civil and Criminal law in U.S.A. While working in U.S.A. he conducted more than 300 trials and over 1000 bail applications on behalf of State. He also got licence from the U.S. Supreme Court in 1995. Earlier, in 1994, he was appointed as full time public defender for Co-county in Chicago, to defend the criminal cases. It is averred by him that he came back to India in 1997 as he wanted his children to adopt Indian culture and traditions. He migrated from U.S.A. because he wanted to bring up his children in India which is their motherland. He made representation to the respondent No. 1 for grant of licence to him for practicing as an Advocate in the Courts, Annexure P-5 is such representation. He came to know that the Bar Council of India has framed rules known as Bar Council of India Training Rules, 1996, in exercise of powers purportedly vesting in the Bar Council of India by virtue of Section 24(3)(d) of the Advocate Act, 1961. Annexure P-6 is the copy of these rules. He came to know that his case had been sent by the Bar Council of Punjab & Haryana for decision to the Bar Council of India. Bar Council of Punjab and Haryana had told him that they had received letter from Bar Council of India that he was not eligible to be enrolled as an advocate in view of the rules ibid. It is averred that rules, which prescribe that a person should have undergone one year training after degree in law with an Advocate having 15 years of practice at bar or designated as Senior Advocate, are not applicable to him as he is not a fresher and he passed LL.B. in the year 1981 and got training in legal matters at Ludhiana as well as in U.S.A. He was entitled to exemption from undergoing one year training as required under the rules as he is not a fresher. Training Rules framed by the Bar Council of India in 1996 are prospective in nature. These rules cannot be made operative with retrospective effect. All those law graduates who are completing their law degrees after 1996 when these rules came into play would be governed by these rules and the said rules would not be applicable to those candidates who had already completed their law degrees before 1996 and had also undertaken the requisite training. Action of the respondents is wholly discriminatory and violative of Article 14 of the Constitution of India. Bar council of Punjab and Haryana wrote a letter to him informing that he could not be granted exemption. Annexure P-8 is that letter. Letter Annexure P-8 is required to he quashed. Respondents contested this petition urging that earlier C. W. P. No. 4763 of 1996 tilled as Major Sudhir Mittal and Ors. v. Bar Council of India and Ors., was filed in this Court challenging the training Rules, Annexure P-6 and the same was transferred to the Hon'ble Supreme Court vide Order dated 10th May, 1996 of the Hon'ble Supreme Court of India and the said writ petition was ordered to be transferred to the Hon'ble Supreme Court as various writ petitions were filed throughout India in other High courts challenging the validity of Training Rules, Annexure P-6, framed by the Bar Council of India. So that there was no contradictory order the Hon'ble Supreme Court withdrew all the writ petitions of the same nature and were ordered to be transferred to the Hon'ble Supreme Court. Hon'ble Supreme Court in writ petition (Civil) No. 434/1996 titled as Shally Bhasin v. Bar Council of India passed Order dated 30.10.1996 whereby all petitions pending in various High Courts or which may be filed thereafter were ordered to be stayed till further orders. Annexure R-1 is the copy of that order. Annexure R- 2 is the letter from the Hon'ble Supreme Court to this Court informing of order, Annexure R-1. Petitioner has got an alternative remedy to appeal against the order of Bar Council of Punjab and Haryana rejecting his application for exemption from training under Rules 14 of the Rules in view of Rule 15. Similarly, a writ petition was filed in the Madras High Court challenging the order of Enrollment Committee of the Bar council of Madras whereby the application for exemption from training was rejected by the High Court of Madras dismissing the writ petition holding that the petitioner should avail the remedy of appeal. It was urged that training Rules came in force on 2.4.1996. Prior to 2.4.1996, training if any, held by the petitioner is of no avail. Anybody who seeks to be enrolled as an Advocate after the promulgation of these rules is to undergo training for one year before enrolled as an Advocate.
2. We have heard the learned counsel for the parties and have gone through the record.
3. Bar Council of India Training Rules, 1996 came into effect on 2.4.1996. Rule 2 of these rules says that no person shall be entitled to be enrolled as an Advocate unless he is eligible to be enrolled as such Under Section 24 of the Advocates Act, 1961 and has undergone training as prescribed under these rules. Rule 14 says that the scheme of these training rules would not be applicable to the persons applying for registration as an Advocate who were earlier working as Judicial Officers. It was submitted by the learned counsel for the petitioner that the petitioner obtained law degree in the year 1981 when these rules were not in force. In the year 1981 he could obtain licence to practice as an advocate without undergoing any training. If the petitioner wanted to be enrolled as an Advocate prior to 2.4.1996, he would have been given licence to practice as an Advocate straightaway without any such training. These rules cannot be retrospective. These rules are only to be prospective. Anybody who obtains law degree after 2.4.1996 has to undergo training as laid down by these rules with an Advocate having 15 years of practice at the Bar or designated senior Advocate. Bar council of India framed rules known as Bar Council of India Training Rules, 1995, only for those who wanted to be enrolled as an Advocate after 2.4.1996. In our opinion, petitioner is not governed by these rules. He will be governed by the law/rules applicable in the year 1981 for enrollment as Advocate by the Bar Council of Punjab and Haryana. Right had become accrued to the petitioner for enrolment as an Advocate in the year 1981 without undergoing any such training. The petitioner could not be divested of that right by these rules promulgated on 2.4.1996. If these rules are made applicable to those who obtained law degree prior to 2.4.1996, but did not obtain licence to practice as an Advocate, there will be discrimination between those who got enrollment after 2.4.19% though each of them had obtained law degree prior to 2.4.1996. Such discrimination cannot be there. Persons placed similarly had to be treated similarly. So, this petition is allowed and the respondents are directed to enroll the petitioner as an Advocate without asking him to undergo training as prescribed by the Bar Council of India, Training Rules, 1995.