ARCHANA GIRISH SABNIS Vs. BAR COUNCIL OF INDIA & ORS
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 4232 of 2007, Judgment Date: Nov 26, 2014
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4232 OF 2007
Archana Girish Sabnis ...Appellant (s)
Versus
Bar Council of India and others ...Respondent(s)
JUDGMENT
M.Y. Eqbal, J.:
This appeal by special leave is directed against the judgment and
order dated 10.4.2006 passed by the High Court of Judicature at Bombay
whereby Writ Petition No.6133 of 2002 preferred by the appellant was
dismissed.
2. The case of the appellant in brief is that after completion of
professional course i.e. Licentiate of the Court of Examiners in
Homoeopathy medicines (LCEH), she took admission to LL.B. course conducted
by University of Mumbai. It is submitted by the appellant that LCEH is
considered as equivalent to graduation degree by the Central Council of
Homoeopathy and such decision is even approved by the Government of India
for equating the pay scales.
3. The University of Mumbai admitted the appellant to law course after
satisfying itself as regards the equivalence of the professional
qualification possessed by her. After completion of her LL.B. degree
course, the appellant being desirous of practicing law surrendered her
certificate of practicing homoeopathy, which was duly accepted by
Maharashtra Council of Homoeopathy on 25.9.2001.
4. In October, 2001, the appellant applied to Bar Council of Maharashtra
and Goa for getting herself enrolled as Advocate and on knowing that her
case has been referred to Bar Council of India for clarification as regards
her eligibility to get enrolled with reference to her graduation
qualification, the appellant made representation to the Bar Council of
India. On 23.1.2002, the Bar Council of Maharashtra and Goa informed
appellant that she cannot be considered for enrolment as an Advocate as her
qualification LCEH is not recongnized by Bar Council of India.
5. Upon an application being moved by the appellant, Bar Council of
India by letter dated 8.8.2002 reiterated that the professional course LCEH
is not considered equivalent to degree course. Aggrieved by this, the
appellant moved the High Court by way of writ petition praying for quashing
of the communications issued by the respondent informing that she cannot
seek enrolment as an Advocate since qualification of LCEH in Homoeopathy is
not recognized as equivalent to graduation. It has been contended on
behalf of the appellant that the Bar Council of Maharashtra or Bar Council
of India have no jurisdiction or authorities to decide the question of
equivalence of educational qualifications, and therefore, their orders are
not valid. Bombay University having considered this as a degree equivalent
to BHMS admitted the appellant for the three years LL.B. course and now she
cannot be denied the enrolment on the ground of non-recognition of the
degree of LCEH. It has also been pleaded that the appellant was not given
an opportunity to put forward her case and hence the principles of natural
justice were violated and consequently the whole action is of violation of
Article 14 of the Constitution.
6. We have heard learned counsel for the parties. Mr. Braj K. Mishra,
learned counsel for the appellant submitted that the Central Council of
Homoeopathy came to be established under the provisions of Homoeopathy
Central Council Act, 1973 and the main object of this statutory body inter
alia was to bring uniformity in the academic courses all over India and
also to bring uniformity in various nomenclatures for the courses in
homeopathy conducted by various institutions. Central Council of
Homoeopathy after considering various courses and nomenclatures for the
courses in DMS, DHMS, LCEH, etc. decided to have one common nomenclature
for graduation course in homoeopathy i.e. BHMS. Professional course of
LCEH in homoeopathy completed earlier by the appellant was considered as
equivalent to graduation degree by the Central Council of Homoeopathy. It
is further pleaded that the Bar Council of India does not even have a
defined policy as regards the equivalent of educational qualification to
the graduation degree and the Bar Council makes a decision on case to case
basis and such procedure itself is unfair and arbitrary without any
guidelines and in that case the decision of other professional body like
Central Council of Homoeopathy and academic body like University of Mumbai
should be decisive.
7. Learned counsel further contended that in the absence of the defined
policy of the Bar Council of India as to which educational qualification
can be treated as equivalent to graduation degree, there was no notice
whatsoever to the appellant as regards the view taken or to be taken by Bar
Council of India, and therefore, it was perfectly legal and reasonable for
the appellant to assume that the decision taken by the Central Council of
Homoeopathy and University of Mumbai and Government of India are legally
correct. In the present case, the appellant did not get even an
opportunity to persuade the Bar Council to see and examine the view point
of the appellant. It is submitted by the appellant that after completion
of her LL.B. course, she also completed LL.M with second rank in University
of Mumbai and at present she is working as a Member, District Consumer
Forum, Thane. Since the logical fall out of the decision of the Bar
Council is virtually the reversal of the appellant's admission to the law
course, interference of this Court has been sought by the appellant in the
interest of justice.
8. Mr. Ardhendumauli Kumar Prasad, learned counsel appearing for the Bar
Council of India submitted that under the provisions of Advocates Act and
Rules framed thereunder, Bar Council of India is empowered to lay down
standards of legal education and recognition of degrees in law for the
purpose of admission as advocates. The qualification possessed by the
appellant was at no point of time considered as equivalent to a graduate
degree of a university by the Bar Council of India. Neither appellant nor
the University made any enquiry with Bar Council of India about the
eligibility of students holding the LCEH qualification for admission in the
three year law course. The decision of Central Council of Homoeopathy
treating LCEH as equivalent to degree is not binding on the Bar Council of
India. It has been contended that the decision of the Government to treat
certain courses in Homeopathy as equivalent to degree was taken for
determining the pay scales and avoiding any disparity in any scales of
those holding different qualifications in Homeopathy. This cannot be
construed as a decision recognizing the said qualification for further
studies in the same subject or in any other subject. Furthermore, by the
impugned decision, the Bar Council of India is not withdrawing the LL.B.
degree secured by the appellant, but what is being denied to the appellant
is the enrollment as an advocate.
9. Learned counsel submitted that letter of the appellant dated 20th
March, 2002 was placed before the Legal Education Committee of the Bar
Council of India at its meetings held on 28th, 29th and 30th June, 2002 and
the Legal Education Committee considered the same and made the following
recommendations:-
"Legal Education committee considered the letter received from Mrs. Archana
Girish Sabnis requesting the council to recognize L.C.E.H. degree awarded
by Maharashtra Council of Homeopathy equivalent to graduation for admission
in the three year Law Course. After consideration Committee is of the view
that since Mrs. Archana Girish Sabnis has already been informed that the
L.C.E.H. Degree awarded by Maharashtra council of Homeopathy is not
recognized as equivalent to graduation for admission in the three year law
course by the Bar Council of India, the question of 'reconsideration does
not arise."
10. The above recommendation was placed before the Bar Council of India
at its meeting held on 30th June, 2002 and the Council accepted the said
recommendation which was duly communicated to the appellant vide letter
dated 08.08.2002.
11. It is submitted on behalf of the Council that since LL.B. is a
professional course and the minimum qualification laid down by the Bar
Council of India is graduation in any discipline or any other
qualification recognized as equivalent thereto, the Bar Council did not
find it appropriate to recognize the LCEH qualification as equivalent to
graduation for the purpose of admission in the three-year law course and
the fact that it is recognized as equivalent to graduation degree by any
other authority has no relevance and it is not binding on the Bar Council
of India. The Bar Council of India examines each case independently and
arrives at its own conclusion without being influenced by decisions taken
by other authorities in this regard.
12. In order to decide whether Bar Council of India was justified in
refusing enrolment of the appellant as an advocate, we think it
appropriate to refer relevant provisions of the Advocates Act and Rules
framed by Bar council of India.
13. Section 7 of the Advocates Act, 1961 (in short, "the Act") lays down
various functions of the Bar Council of India which includes inter alia to
promote legal education and to lay down standard of such education in
consultation with the Universities in India imparting such education and
the State Bar Councils. The Bar Council of India shall also 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.
14. Section 24 of the Act provides that a person shall be qualified to be
admitted as an Advocate on a State roll if he fulfills the conditions
mentioned in that Section, which reads as under:
"24. Persons who may be admitted as advocates on a State roll.-
(1) Subject to the provisions of this Act, and the rules made thereunder, a
person shall be qualified to be admitted as an advocate on a State roll, if
he fulfills the following conditions,
namely:-
(a) he is a citizen of India:
Provided that subject to the other provisions contained in this Act, a
national of any other country may be admitted as an advocate on a State
roll, if citizens of India, duly qualified, are permitted to practise law
in that other country;
(b) he has completed the age of twenty-one years;
(c) he has obtained a degree in law-
(i) before the 12th day of March, 1967, from any University in the
territory of India; or
(ii) before the 15th August, 1947, from any University in any area which
was comprised before that date within India as defined by the Government of
India Act, 1935; or
(iii) after the 12th day of March, 1967, save as provided in sub-clause
(iiia), after undergoing a three year course of study in law from any
University in India which is recognised for the purposes of this Act by the
Bar Council of India; or
(iiia) after undergoing a course of study in law, the
duration of which is not less than two academic years commencing from the
academic year 1967-68 or any earlier academic year from any University in
India which is recognised for the purposes of this Act by the Bar Council
of India; or]
(iv) in any other case, from any University outside the territory of India,
if the degree is recognised for the purposes of this Act by the Bar Council
of India or; he is barrister and is called to the Bar on or before the 31st
day of December, 1976 4[or has passed the article clerks examination or any
other examination specified by the High Court at Bombay or Calcutta for
enrolment as an attorney of that
High Court; or has obtained such other foreign qualification in law as is
recognised by the Bar Council of India for the purpose of admission as an
advocate under this Act;
******
(e) he fulfils such other conditions as may be specified in the rules made
by the State Bar Council under this Chapter;
(f) he has paid, in respect of the enrolment, stamp duty, if any,
chargeable under the Indian Stamp Act, 1899 (2 of 1899), and an enrolment
fee payable to the State Bar Council of six hundred rupees and to the Bar
Council of India, one hundred and fifty rupees by way of a bank draft drawn
in favour of that Council:
Provided that where such person is a member of the Schedule Castes or the
Schedule Tribes and produces a certificate to that effect from such
authority as may be prescribed, the enrolment fee payable by him to the
State Bar Council shall be one hundred rupees and to the Bar Council of
India, twenty-five rupees."
15. We may now reproduce sub-rule (1) of Rule 1 of Part IV of the Rules
as it stood at all material times:
"1. (1) Save as provided in Section 24(1)(c)(iii-a) of the Act, a degree in
law obtained from any University in the territory of India after the 12th
day of March 1967 shall not be recognised for purposes of Section
24(1)(c)(iii) of the Act unless the following conditions are fulfilled:
(a) That at the time of joining the course of instruction in law for a
degree in law, he is a graduate of a University, or possesses such academic
qualifications which are considered equivalent to a graduates' degree of a
University by the Bar Council of India;
(b) that the law degree has been obtained after undergoing a course of
study in law for a minimum period of three years as provided in these
rules;
(c) that the course of study in law has been by regular attendance at the
requisite number of lectures, tutorials and moot courts in a college
recognised by a University."
(Emphasis given)
16. Section 49 envisages general power of the Bar Council of India to
make rules prescribing minimum qualification required for admission in the
course of degree in law in any recognized university. For better
appreciation, Section 49 is quoted hereinbelow:-
"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-
(a) the conditions subject to which an advocate may be entitled to vote at
an election to the State Bar Council including the qualifications or
disqualifications of voters, and the manner in which an electoral roll of
voters may be prepared and revised by a State Bar Council;
(ab) qualifications for membership of a Bar Council and the
disqualifications for such membership;
(ac) the time within which and the manner in which effect may be given to
the proviso to sub-section (2) of section (3);
(ad) the manner in which the name of any advocate may be prevented from
being entered in more than one State roll;
(ae) the manner in which the seniority among advocates may be determined;
(af) the minimum qualifications required for admission to a course of
degree in law in any recognised University;
(ag) the class or category of persons entitled to be enrolled as
advocates;
(ah) the conditions subject to which an advocate shall have the right to
practise and the circumstances under which a person shall be deemed to
practise as an advocate in a court;
(b) the form in which an application shall be made for the transfer of the
name of an advocate from one State roll to another;
(c) the standard of professional conduct and etiquette to be observed by
advocates;
(d) the standards of legal education to be observed by universities in
India and the inspection of universities for that purpose;
(e) the foreign qualifications in law obtained by persons other than
citizens of India which shall be recognised for the purpose of admission as
an advocate under this Act;
(f) the procedure to be followed by the disciplinary committee of a State
Bar Council and by its own disciplinary committee;
(g) the restrictions in the matter of practice to which senior advocates
shall be subject;
(gg) the form of dresses or robes to be worn by advocates, having regard
to the climatic conditions, appearing before any court or tribunal;
(h) the fees which may be levied in respect of any matter under this Act;
(i) general principles for guidance of State Bar Councils and the manner in
which directions issued or orders made by the Bar Council of India may be
enforced;
(j) any other matter which may be prescribed:
Provided that no rules made with reference to clause (c) or clause (gg)
shall have effect unless they have been approved by the Chief Justice of
India:
Provided further that] no rules made with reference to clause (e) shall
have effect unless they have been approved by the Central Government.
(2) Notwithstanding anything contained in the first proviso to sub-section
(1), any rules made with reference to clause (c) or clause (gg) of the said
sub-section and in force immediately before commencement of the Advocates
(Amendment) Act, 1973 (60 of 1973), shall continue in force until altered
or repealed or amended in accordance with the provisions of this Act."
17. Under Section 49A of the Act, Central Government may, by notification
in the Official Gazette, make rules for carrying out the purposes of this
Act including rules with respect to any matter for which the Bar Council of
India or a State Bar Council has power to make rules, including the class
or category of persons entitled to be enrolled as advocates under this Act.
If any provision of a rule made by a Bar Council is repugnant to any
provision of a rule made by the Central Government under this section,
then, the rule under this section, whether made before or after the rule
made by the Bar Council, shall prevail and the rule made by the Bar Council
shall, to the extent of the repugnancy, be void.
18. First of all we would like to examine as to whether the professional
courses i.e. Licentiate of the Court of Examiners in Homoeopathy Medicines
(LCEH), which the petitioner obtained, is a degree or equivalent to a
graduation degree by the Central Council of Homoeopathy.
19. The Homoeopathy Central Council Act was enacted in the year 1973 with
the object to provide for constitution of Central Council of Homoeopathy
and the maintenance of a Central Registrar of Homoeopathy. The main
function of the Central Council of Homoeopathy would be to evolve a uniform
standard of education in homoeopathy and the registration of practitioners
of homoeopathy. Section 13 of the said Act is worth to be quoted
hereinbelow:-
"13. Recognition of medical qualifications granted by certain medical
institutions in India - (1) The medical qualifications granted by any
University, Board or other medical institution in India which are included
in the Second Schedule shall be recognized medical qualification for the
purposes of this Act.
(2) Any University, Board or other medical institutions in India which
grants a medical qualification not included in the Second Schedule may
apply to the Central Government to have any such qualification recognized,
and the Central Government, after consulting the Central council, may, by
notification in the Official Gazette, amend the Second Schedule so as to
include such qualification therein any such notification may also direct
that an entry shall be made in the last column of the Second Schedule
against such medical qualification only when granted after a specified
date."
20. For better appreciation, Second Schedule of the Council Act, which
recognized medical qualifications in Homoeopathy granted by the
Universities, Board or Medical Institutions in India, and, so far as
Maharashtra is concerned, is reproduced hereinbelow :-
THE SECOND SCHEDULE
(See section 13)
Recognised Medical Qualifications in Homoeopathy Granted by Universities,
Boards or Medical Institutions in India
|Name of the |Recognised Medical |Abbreviation|Remarks |
|University, Board or |qualification |of | |
|Medical Institution | |registration| |
|1 |2 |3 |4 |
|11. The Court of |Licentiate of the |L.C.E.H. |From December |
|Examiners of |Court of Examiners in| |1961 onwards, |
|Homoeopathic and |Homoeopathy Diploma | | |
|Biochemic Systems of |in Homoeopathy and | | |
|Medicines, Bombay |Biochemistry | | |
|11A. Vidarbha |Diploma in |D.H.B. |From October |
|Board of Homoeopathic |Homoeopathy and | |1955 onwards |
|and biochemic |Biochemistry | | |
|Medicines, Nagpur. | | | |
|11B. Court of |Diploma in |D.H.M.S. |From 1976 |
|Examiners in |Homoeopathy Medicine | |onwards |
|Homoeopathy and |and Surgery | | |
|Biochemic Systems of | | | |
|Medicine, Bombay | | | |
|11C. Pune |Bachelor in |B.H.M.S. |From 1988 to |
|University |Homoeopathic Medicine| |1990 |
| |and Surgery | | |
|11D. Bombay |Bachelor in |B.H.M.S. |From 1988 to |
|University |Homoeopathic Medicine| |1990 |
| |and Surgery | | |
|11E. Court of |Diploma in |D.H.M.S. |From 1987 |
|Examiners of |Homoeopathy Medicine |(CCH | |
|Homoeopathic and |and Surgery |Regulation | |
|Biochemic Systems of | |onwards) | |
|Medicine, Bombay. | | | |
|11F. Dr. Babasaheb|Bachelor in |B.H.M.S. |From 1991 to |
|Ambedkar Marathwada |Homoeopathic Medicine| |1995 |
|University, |and Surgery. |B.H.M.S. | |
|Aurangabad. |Bachelor in | |From 1991 to |
|Shri Bhagwan |Homoeopathic Medicine| |1995 |
|Homoeopathic Medical |and Surgery. |B.H.M.S. | |
|College, Aurangabad | | |From 1991 to |
|S.K. Homoeopathic |Bachelor in | |1995 |
|Medical College, Beed.|Homoeopathic Medicine| | |
| |and Surgery. | | |
|12. Court of |Fellow of the Court |F.C.E.H. |In May 1958 |
|Examiners in |of Examiners in | |only. |
|Homoeopathy. |Homoeopathy. | | |
|12A. Maharashtra |Diploma in |D.H.M.S. |From Sept., |
|Council of Homoeopathy|Homoeopathic Medicine| |1988 onwards. |
| |and Surgery |D.H.M.S. |From Sept., |
|Homoeopathic Medical |Diploma in | |1988 onwards. |
|College, Khamgaon. |Homoeopathic Medicine|D.H.M.S. | |
|Dakshin Kesari Muni |and Surgery. | |From Sept., |
|Mishrilalji | | |1988 onwards. |
|Homoeopathic Medical |Diploma in |D.H.M.S. | |
|College, Aurangabad |Homoeopathic Medicine| |From Sept., |
|Shri Janata |and Surgery |D.H.M.S. |1988 onwards |
|Homoeopathic Medical | | | |
|College, Akola. |Diploma in | |From Sept., |
|T.S. Homoeopathic |Homoeopathic Medicine|D.H.M.S. |1988 onwards |
|Medical College, |and Surgery | | |
|Amravati. | |D.H.M.S. |From Sept., |
|Homoeopathic Medical |Diploma in | |1988 onwards |
|College, Akola. |Homoeopathic Medicine| | |
|Rajrishi Chatrapati |and Surgery | |From Sept., |
|Sahu Homoeopathic | |D.H.M.S. |1988 onwards |
|Medical College, |Diploma in | | |
|Islampur. |Homoeopathic Medicine| | |
| |and Surgery |D.H.M.S. |From Sept., |
|P.C. Homoeopathic | | |1988 onwards |
|Medical College, |Diploma in |D.H.M.S. | |
|Chandrapur. |Homoeopathic Medicine| |From Sept., |
|Homoeopathic Medical |and Surgery |D.H.M.S. |1988 onwards |
|College, Nagpur | | | |
|Homoeopathic Medical | | |From Sept., |
|College, Chandwad. |Diploma in |D.H.M.S. |1988 onwards |
|Homoeopathic Medical |Homoeopathic Medicine| | |
|College, Chandwad. |and Surgery | |From Sept., |
|D.S. Homoeopathic | | |1988 onwards |
|Medical College, Pune.|Diploma in | | |
| |Homoeopathic Medicine| |From Sept., |
| |and Surgery | |1988 onwards |
| | | | |
| |Diploma in | | |
| |Homoeopathic Medicine| | |
| |and Surgery | | |
| | | | |
| |Diploma in | | |
| |Homoeopathic Medicine| | |
| |and Surgery | | |
| | | | |
| |Diploma in | | |
| |Homoeopathic Medicine| | |
| |and Surgery | | |
21. A bare perusal of the aforesaid provisions of Section 13 alongwith
Second Schedule would show that medical qualifications granted by any
University, Board or other institution which are included in the Schedule
shall be recognized as medical qualifications for the purpose of the Act
and not for any other purposes. The Second Schedule mentioned various
degree courses and diploma courses and other qualifications which are
granted by various homoeopathy medical colleges and institutions. From
perusal of the Schedule, it is evident that various States' homoeopathy
colleges recognized degree course and diploma courses. In the state of
Maharashtra, the Court of Examiners of Homoeopathy (LCEH) and Biochemic
System of Medicines (BSM) qualifications are conferred. In Maharashtra,
the Bombay University and Pune University and other universities grant
degree in Bachelor of Homoeopathic Medicine and Surgery (BHMS) also. From
the Second Schedule it is evident that LCEH is not a bachelor degree but it
is a qualification to practice in homeopathy medicine.
22. In exercise of power conferred by the Homoeopathic Central Council
Act, 1973, the Central Council of Homoeopathy with the previous sanction of
the Central Government made regulations called the Homoeopathic
(Postgraduate Degree Course) Regulations 1989. Regulation 4 lays the
condition for admission in postgraduate course i.e., MD(Hom). Regulation 4
reads as under:-
"Admission to Course
4. (1) No candidate shall be admitted to M.D.(Hom.) course unless he
possesses the degree of :-
(i) Bachelor of Homoeopathic Medicine and Surgery or equivalent
qualification in Homoeopathy included in the Second Schedule to the Act,
after undergoing a course of study of not less that five year and six
months duration including one year compulsory internship; or
(ii) Bachelor of Homoeopathic Medicine and Surgery (Graded Degree) or
equivalent qualification in Homoeopathy include in the Second Schedule to
the Act, after undergoing a course of study of not less than two years'
duration.
(2) .... .... ...."
23. Perusal of the aforesaid Regulation makes it clear that for the
purpose of admission to the M.D.(Hom.) the candidate must possess a degree
in Bachelor of Homoeopathic Medicine and Surgery (BHMS) or equivalent
qualification in Homoeopathy included in the Second Schedule to the Act
after completing a course of study of not less than 5 years and 6 months
duration including one year compulsory internship.
24. Admittedly, the appellant does not possess any degree in BHMS or
equivalent qualification in as much as the LCEH qualification which the
appellant possesses, is less than a 5 years' course without any compulsory
internship. It is a qualification of Licenciate of the Court Examiners in
Homoeopathy.
25. At this juncture, we would also like to refer the relevant provisions
of University Grants Commission Act, 1956 which was enacted for the
coordination and determination of standards in universities. Section 22 of
the said Act provides that the right of conferring or granting a degree
shall be exercised only by a University established or incorporated by or
under a Central Act, a Provincial Act or a State Act or an institution
deemed to be a University. The term degree has been defined under this
Section which is quoted hereinbelow:-
"22. Right to confer degrees - (1) The right of conferring or granting
degrees shall be exercised only by a University established or incorporated
by or under a Central Act, a Provincial Act or a State Act or an
institution deemed to be a University under Section 3 or an institution
specially empowered by an Act of Parliament to confer or grant degrees."
26. Sub-section 3 of Section 22 defines the word 'degree' which means any
such degree which is specified by the University Grants Commission in the
official gazette with the approval of the Central Government. Learned
counsel appearing for the appellant has not produced before us any such
notification to show that the qualification of LCEH is a degree or
equivalent to a degree duly notified by the Commission with the previous
approval of the Central Government.
27. The Bar Council of India Rules provide that for the purpose of
joining the course in law for a degree, candidate must be a graduate of any
University or must possess such academic qualifications which are
considered equivalent to a graduate degree of a University recognized by
the Bar Council of India. As noticed above, Section 7 and Section 49
specifically empower the Bar Council of India to make rules prescribing a
minimum qualification required for admission for the course of degree in
law from any recognized University.
28. In our view, the High Court has rightly held that Bar Council has the
independent power to recognize any equivalent qualification to a graduate
degree for the purpose of admission in the course of graduate degree in
law.
29. It was submitted by the counsel for the respondent that to ascertain
whether the qualification of LCEH is equivalent to a graduate degree, the
University was bound to consult Bar Council of India and not the
Homoeopathy Council.
30. Learned counsel appearing for the parties drew our attention to a
decision of this Court in the case of Bar Council of India and another vs.
Aparna Basu Mallick and ors., (1994) 2 SCC 102. The factual background in
which that decision was rendered was that the petitioner in that case after
obtaining postgraduate degree undertook studies in LL.B. course of Calcutta
University as a non-collegiate woman candidate under Regulation 35 of the
Calcutta University. On successful completion of the course, she was
conferred with the law degree in terms of Regulation 35 of the Calcutta
University. Thereafter, she applied to the Bar Council of India for
enrolment as an advocate. However, she was informed by the Bar Council of
India that she was not entitled to be enrolled as she did not fulfill the
condition contained in the Bar Council of India Rules framed under the
provisions of the Advocates Act. She challenged the rejection of her
application of enrolment before the High Court of Calcutta by way of writ
petition on the ground that the same is illegal and invalid and the Rule
1(1)(c) of the Bar Council of India Rules ultra vires Articles 14 and
19(1)(g) of the Constitution of India. Learned Single Judge overruled all
the contentions and discharged the rule nisi. Against the said decision,
an appeal was preferred before the Division Bench of the Calcutta High
Court. The Division Bench held that Rule 1(1)(c) did not lay down any
standard of legal education but provided that the law degree obtained from
any University in India shall not be recognized for the purpose of Section
24 of the Act unless the conditions specified therein were satisfied. The
Division Bench allowed the appeal and against that order, the Bar Council
of India moved this Court. This Court allowed the appeal and reversed the
decision of the Division Bench of the Calcutta High Court and restored the
decision of the Single Judge dismissing the writ petition. This Court
observed as under:
"[pic]14. Now under Section 7, one of the functions of the Bar Council of
India is to recognise Universities whose degree in law shall be a
qualification for enrolment as an advocate and for that purpose to visit
and inspect the Universities. This power of recognition of Universities is
conferred where the degree of law of that University entitles the
degreeholder for enrolment as an advocate. Under Section 24(1)(c)(iii)
which is relevant for this purpose, a person shall be qualified to be
admitted as an advocate on a State roll if he fulfils the conditions of
having undergone a three year course of study in law from any University in
India which is recognised by the Bar Council of India. Sub-section (3) of
Section 24 is an exception clause to sub-section (1) as it begins with a
non-obstante clause which entitles a person to be enrolled as an advocate
under special rule made in that behalf. No such rule was relied upon as
having been made under sub-section (3) of Section 24. Section 49(1)(d)
empowers the Bar Council of India to make rules which may prescribe the
standards of legal education to be observed by Universities in India and
the inspection of Universities for that purpose. If the acquisition of a
degree in law is essential for being qualified to be admitted as an
advocate on a State roll, it is obvious that the Bar Council of India must
have the authority to prescribe the standards of legal education to be
observed by Universities in the country. On a conjoint reading of these
provisions of the Act with Rule 1(1)(c) in Part IV of the Rules which
prescribe the standards for legal education and recognition of degrees in
law as well as admission as advocates, it is difficult to understand how
one can say that the said Rule is inconsistent with any of the provisions
of the Act. What Rule 1(1)(c) requires is that the course of study in law
must be completed by regular attendance at the requisite number of
lectures, tutorials and moot courts in a college recognised by a
University. As pointed out earlier, this Court in Baldev Raj Sharma case
[1989 Supp (2) SCC 91] pointed out that there was a substantial difference
between a course of studies pursued as a regular student and the course of
studies pursued as a private candidate. The policy underlying the relevant
provisions of the Rules is to lay emphasis on regular attendance of the law
classes. It is, therefore, clear that a candidate desiring enrolment as an
advocate must fulfil the conditions set out under the relevant clause of
Section 24 read with Rule 1(1)(c) of the Rules. In the present case since
both the candidates admittedly did not pursue any regular course of study
at any college recognised by the University by attending the law classes,
lectures, tutorials and moot courts, they cannot be said to have complied
with the requirements for enrolment as an advocate. In that view of the
matter we think that the view taken by the Calcutta High Court in Aparna
Basu Mallick v. Bar Council of India [AIR 1983 Cal 461] is erroneous.
16. It was lastly submitted that so far as the Calcutta student was
concerned, her case was governed by Regulation 35 which specifically
permitted a woman candidate to appear as non-collegiate student. This
Regulation underwent a change on the addition of the proviso by the
Resolution of December 7, 1979 which required the University to inform the
woman candidate in advance that she will not be eligible for enrolment as
an advocate and the degree to be awarded shall bear an inscription to the
effect that it was obtained as a non-collegiate student. Regulation 35
could not hold the field unless it was consistent with the provisions of
the Act and the Rules. That is why the proviso was required to be added to
the Regulation. But if the University had omitted to insert the proviso
that would not have entitled a woman candidate for enrolment as an advocate
on securing a degree as a non-collegiate. Unless the degree of law was
secured consistently with the requirements of the provisions of the Act and
the Rules, it would not serve as a qualification for enrolment. The proviso
was added to Regulation 35 by way of extra caution. After the incorporation
of Rule 1(1)(c) in its present form, Regulation 35 could not entitle a
woman candidate to be enrolled as an advocate if she secured the degree as
a non-collegiate."
31. We, therefore, after giving our anxious consideration in the matter,
are of the definite opinion that the Bar Council of India is not bound to
grant a license as claimed by the appellant. Pursuing law and practicing
law are two different things. One can pursue law but for the purpose of
obtaining license to practice, he or she must fulfill all the requirements
and conditions prescribed by the Bar Council of India. We do not find any
reason to differ with the view taken by the High Court.
32. In the facts of the case, we do not find any merit in the appeal,
which is accordingly dismissed.
..................................J.
[ M.Y. Eqbal ]
..................................J
[Abhay Manohar Sapre]
New Delhi
November 26, 2014
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