Full Judgment Text
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CASE NO.:
Appeal (civil) 5301-5302 of 2001
PETITIONER:
BAR COUNCIL OF INDIA
RESPONDENT:
BOARD OF MANG. DAYANAND COLL. OF LAW AND ORS
DATE OF JUDGMENT: 28/11/2006
BENCH:
H.K. SEMA & P.K. BALASUBRAMANYAN
JUDGMENT:
J U D G M E N T
P.K. BALASUBRAMANYAN, J.
1. The Bar Council of India challenges the
judgments of the High Court of Allahabad in two Writ
Petitions holding that the appointment of respondent No.
5 in these appeals as the Principal of the Dayanand
College of Law was valid and within the competence of the
State of Uttar Pradesh and the Chhatrapati Shri Sahu Ji
Maharaj Kanpur University, Kanpur. Respondent No. 5
was appointed Principal of the said Law College on
11.12.1995. On an inspection, the Bar Council of India
found that respondent No. 5 did not possess a
qualification in law and hence withdrew its recognition to
the College. At that stage, the Management of the College
filed Civil Miscellaneous Writ Petition No. 48183 of 2000
questioning the validity of the appointment of respondent
No. 5 as the Principal of the College. Meanwhile,
respondent No. 5 was transferred as the Principal of
Nagrik Degree College and he challenged the said order of
transfer on the ground that he was competent to hold the
post of Principal of the Law College and the reason for his
transfer was unsustainable and that a Principal could not
be transferred to another College as sought to be done.
The bone of contention in the Writ Petitions was whether a
person who did not possess a degree or a postgraduate
degree in law and was not qualified to practise law, could
be appointed as the Principal of a Law College and
whether it was not essential to have a degree in law before
one could be appointed as Principal of a Law College. The
Bar Council of India was not a party to the Writ Petitions.
The High Court took the view that going by the Uttar
Pradesh State Universities Act, 1973 (hereinafter referred
to as, "the University Act"), such an appointment could be
made notwithstanding anything contained in the
Advocates Act, 1961 or in the Rules framed by the Bar
Council of India. The High Court proceeded on the basis
that there was a conflict between the two enactments,
namely, the University Act and the Advocates Act and in
terms of Article 254(2) of the Constitution of India, the
University Act, the later State Act with the assent of the
President, would prevail over the Advocates Act and since
appointment to the post of a Principal of a College
affiliated to a University was governed by the University
Act, the appointment of respondent No. 5 as Principal of
the Law College was liable to be upheld. It was also held
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that the Bar Council of India did not have any control
regarding legal education. The order transferring
respondent No. 5 away from the post of Principal of the
Law College was consequently set aside. No notice was
also issued to the Bar Council of India, the apex
professional body of Advocates, before taking such a
decision. However, taking note of the consequences of the
decision rendered by the High Court, the Bar Council of
India has filed these appeals challenging the decision of
the High Court with the leave of this Court.
2. The appointments to Higher Educational
Institutions in the State of Uttar Pradesh including Degree
Colleges is done by the Higher Education Services
Commission constituted under the Uttar Pradesh Higher
Education Services Commission Act, 1980 (hereinafter
referred to as, "the Act") and in terms of Uttar Pradesh
Higher Education Services Commission (Procedure for
selection of teachers) Regulations, 1983. Section 12 of the
Act insists that every appointment of a teacher shall be in
terms of the Act and a teacher is defined to include a
Principal. Section 12(1) provides that any appointment
made in contravention of the Act would be void. On the
basis of the relevant Regulations framed under Section 31
of the said Act, advertisements are to be issued inviting
applications for appointment of Principals to various
degree colleges that had made requisitions in that behalf
or had reported vacancy and on the basis of the procedure
for selection, a list is to be prepared of the candidates
eligible for appointment as Principals. The appointments
to various Colleges are made from the said panel
depending on circumstances including the preference of
the candidates. Statute 11.14 provides the qualification to
be possessed for the post of Principal in the colleges
affiliated to the Kanpur University. Prior to 13.1.1995,
Statute 11.14 (i)(b) provided that the Principal must
possess "a doctorate degree in one of the subjects taught
in the college, with 7 years’ experience of teaching degree
class". With effect from 13.1.1995, the said Statute was
amended and clause (b) thereafter read, "a doctorate
degree, with 7 years’ experience of teaching degree class".
In other words, the requirement that the appointee must
have a doctorate degree in one of the subjects taught in
the College was done away with. Until 13.1.1995, a
person could be appointed Principal of a Law College only
if he possessed a doctorate degree in law or in one of the
branches of law taught in that College. But after
13.1.1995, on an ordinary literal interpretation of the
amended clause, a person possessing a doctorate degree
in a subject wholly unrelated to law could also be
appointed the Principal of a Law College. Respondent No.
5 herein, who was one among the candidates selected and
included in the panel and who was appointed as Principal
of the Dayanand Law College had a doctorate in
Philosophy and had no degree or qualification in law.
3. The management initially accepted the
appointment of respondent No. 5 as Principal. It is said
that he was teaching Ethics and Ancient Law in the
College. As noticed earlier, on an inspection made by the
Bar Council of India, it came out that the Principal did not
have any qualification in law. The Bar Council of India,
therefore, withdrew the recognition granted to the College.
This placed the students coming out of the College in
jeopardy since the Bar Council of India could deny them
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enrolment and entry into the profession on the ground
that the Institution in which they studied did not have
recognition. It was then, that the management, acting
through its Secretary, filed the Writ Petition praying for
the issue of a writ of quo warranto, calling upon
respondent No. 5 to show on what authority he was
holding office. In that situation, respondent No. 5 was
transferred as Principal of another College. It is the case
of respondent No. 5 that he could not join that post since
an interim order was passed by the High Court
restraining him from taking charge as Principal of that
College and this compelled him to file a writ petition
questioning his very transfer. It is in that context that the
High Court held that the appointment of respondent No. 5
was consistent with the University Act and since that Act
prevailed over the Advocates Act and the relevant rules of
the Bar Council of India, the status of respondent No. 5
could not be questioned. Based on that decision, the High
Court also set aside the order transferring respondent No.
5. No doubt, it also took the view that such a transfer of
Principal was not contemplated by the University Act or
the Regulations thereunder.
4. There is no doubt that the University Act, 1973
had the assent of the President of India and it was an
enactment later in point of time to the Advocates Act,
1961. According to the High Court, since the appointment
of the Principal of the Law College was made on the basis
of the relevant provisions of the University Act, and the
Regulations framed thereunder and based on the
qualification prescribed by the Statute 11.14 as it stood on
the date of appointment, the provisions of the Advocates
Act or the rules of the Bar Council of India could not be
invoked to nullify his appointment or to question his
authority as Principal. Thus, the High Court postulated a
conflict between a State Law that had the assent of the
President and a prior Central enactment and based on
Article 254(2) of the Constitution granted relief to
respondent No. 5.
5. The High Court also observed that the Bar
Council of India had no role in legal education as such
and that its role was confined to controlling the profession
of Advocates and the commencement of the profession,
that is, enrolment as an Advocate and hence the Bar
Council of India could not make any prescription
regarding legal education or about those who are to teach
law, or who are to be the Principal of a College of Law. It
also proceeded on the basis that the Advocates Act is a
legislation under Entry 25 or 26 of List III of the Seventh
Schedule to the Constitution of India and since the State
law is under Entry 25 of List III of the Seventh Schedule to
the Constitution, the State law would prevail in the
context of Article 254 (2) of the Constitution. The Bar
Council of India feels aggrieved by these findings of the
High Court and is before this Court with these appeals.
6. Learned counsel for the Bar Council of India
submitted that the High Court was first of all in error in
holding that the legislative power for enacting the
Advocates Act is traceable to Entry 26 of List III of the
Seventh Schedule to the Constitution. Learned counsel
relied on the decision of the Constitution Bench in O.N.
Mohindroo vs. The Bar Council of Delhi & Ors. [(1968)
2 S.C.R. 709] to contend that the said legislation falls
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under Entries 77 and 78 of List I of the Seventh Schedule
to the Constitution. Learned counsel also sought to derive
support from the decision in The Bar Council of Uttar
Pradesh Vs. The State of U.P. & Anr. [(1973) 2 S.C.R.
1073] in that regard. With reference to the decision in
M/s Ujagar Prints & Ors. Vs. Union of India & Ors.
[(1989) 3 S.C.C. 488], learned counsel reemphasized that
pith and substance rule had to be applied and even if the
law is traceable to more than one entry, it would still
continue to be a legislation under Entries 77 and 78 in
List I. He further submitted that the High Court was in
error in proceeding on the basis that both the legislations
fell under List III of the Seventh Schedule and
consequently the University Act would prevail. This was
sought to be met by learned counsel for respondent No. 5
and for the State by contending that the Advocates Act
could only be traced to Entry 26 of List III of the Seventh
Schedule and the High Court was right in finding that the
University Act would prevail.
7. The Bar Council of India is constituted under
Section 4 of the Advocates Act. It consists of the Attorney
General of India, the Solicitor General of India, both in
their ex officio capacities and one member elected by each
State Bar Council from amongst its members. It is a body
corporate. The functions assigned to it are enumerated in
Section 7 of the Act. The functions relevant for our
purpose are contained in Section 7(1) (h) and Section
7(1)(i). They read:
"7(1)(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;"
7(1)(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;"
The duty of admission and enrolment of Advocates is
entrusted to the State Bar Council except in the case of
Supreme Court advocates which is with the Bar Council of
India. After 12.3.1967, a person may be admitted as an
advocate on a State roll only if he has obtained a degree in
law from a University recognized by the Bar Council of
India. Section 24, to the extent it is relevant here, reads:
"24. Persons who may be admitted as
advocates on a State roll. \026 (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) \005\005\005\005\005\005\005\005\005\005.
(b) \005\005\005\005\005\005\005\005\005\005\005
(c) he has obtained a degree in law--
(i) before the 12th day of March,
1967 from any University in the
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territory of India; or
(ii) before the 15th of 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 years course of study in law
from any University in India
which is recognized 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
recognized 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 recognized
for the purposes of this Act by the
Bar Council of India] or;
he is a barrister and is called to
the Bar on or before the 31st day
of December, 1976 or has passed
the articled 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
recognized by the Bar Council of
India for the purpose of
admission as an advocate under
this Act;"
Section 49 confers the power to make rules for discharging
the functions of the Bar Council of India. Relevant topics
for our purposes are set down hereunder:
"49(1)(af) the minimum qualifications
required for admission to a course
of degree in law in any recognised
University;"
and
"49(1)(d). the standards of legal education
to be observed by Universities in
India and the inspection of
Universities for that purpose;"
8. The Bar Council of India Rules are framed by the
Bar Council of India in exercise of its rule making power.
Part IV thereof deals with legal education, the duration of
it, the syllabi etc. Section A deals with five-year law
course and Section B deals with three-year law course.
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Under Section A Rule 2, a degree in law obtained from a
University shall not be recognized for the purpose of
enrolment as an advocate under the Advocates Act unless
the conditions laid down therein are fulfilled. Only then a
student coming out of that University could get enrolled as
an advocate. Provision has also been made regarding
teachers of law. Rule 12 reads:
"12. Full-time teachers of law
including the Principal of the College
shall ordinarily be holders of a
Master’s degree in law and where the
holders of Master’s degree in law are
not available, persons with teaching
experience for a minimum period of 10
years in law may be considered. Part-
time teachers other then one with
LL.M. degree shall have a minimum
practice of five years at the Bar."
9. Rule 17(1) stipulates that no college after the
coming into force of the Rules shall impart instruction in a
course of study in law for enrolment as an advocate unless
its affiliation has been approved by the Bar Council of
India. Thus, though the Bar Council of India may not
have been entrusted with direct control of legal education
in the sense in which the same is entrusted to a
University, still, the Bar Council of India retains adequate
power to control the course of studies in law, the power of
inspection, the power of recognition of degrees and the
power to deny enrolment to law degree holders, unless the
University from which they pass out is recognized by the
Bar Council of India.
10. The first task of a court confronted with a set of
parallel provisions relating to the appointment of a
principal of a law college like the one in the amended
provision of the Statute under the University Act and the
Rules made by the Bar Council of India which could
ultimately refuse to admit a graduate of law coming out of
the University to enrolment as an advocate, which alone
would entitle him to practice, is to see whether the
provisions could not be reconciled or harmoniously
construed so as to achieve the object of both the
enactments. Prior to 13.1.1995, there was no conflict
between Statute 11.14 and Rule 12 of the Rules of the Bar
Council. In 1995, in the University Statutes, the
requirement of the Principal having to be the holder of a
doctorate in one of the subjects taught in the College, was
done away with. Obviously, such a provision could not be
understood as controlling fully professional education like
that in Medicine, Engineering or Law. No doubt, the
University has not made a distinction in that regard in
this context. But obviously, it does not appeal to
common sense to say that an engineer could be appointed
the Principal of a Medical College or a Great Physician
could be appointed as the Principal of an Engineering
College. Same is the position regarding the appointment
of a doctorate in Science or a doctorate in Philosophy as
the Principal of a law college.
11. The aim of most of the students who enter the
law college, is to get enrolled as Advocates and practice
law in the country. To do that, they have necessarily to
have a degree from a University that is recognized by the
Bar Council of India. Therefore, the court, in a situation
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like the present one, has to ask itself whether it could not
harmoniously construe the relevant provisions and reach
a conclusion consistent with the main aim of seeking or
imparting legal education. So approached, nothing stands
in the way of the court coming to the conclusion that
though under the relevant Statute of the University as
amended, theoretically, it may be possible to appoint a
Doctor of Philosophy or a Doctor of Science as the
Principal of a Law College, taking into account the
requirements of the Advocates Act, the Rules of the Bar
Council of India and the main purpose of legal education,
the Court would be justified in holding that as regards the
post of the Principal of a Law College, it would be
necessary for the proposed incumbent also to satisfy the
requirements of the Rules of the Bar Council of India.
Such a harmonious understanding of the position
recognizing the realities of the situation, would justify the
conclusion that a Doctorate holder in any of the law
subjects could alone be appointed as the Principal of a
Law College. The High Court, in our view, made an error
in not trying to reconcile the relevant provisions and in not
making an attempt to harmoniously construe the relevant
provisions so as to give efficacy to all of them. A
harmonious understanding could lead to the position that
the Principal of a Law College has to be appointed after a
process of selection by the body constituted in that behalf,
under the University Act, but while nominating from the
list prepared, and while appointing him, it must be borne
in mind that he should fulfill the requirements of the
Rules of the Bar Council of India framed under the
Advocates Act and it be ensured that he holds a Doctorate
in any one of the branches of law taught in the law college.
We do not see anything in the University Act or the
Statutes framed thereunder, which stands in the way of
the adopting of such a course. Therefore, when a request
is made for selection of a Principal of a law college, the
University and the Selection Committee has to ensure that
applications are invited from those who are qualified to be
principals of a law college in terms of the Rules of the Bar
Council and from the list prepared, a person possessing
the requisite qualification, is nominated and appointed as
the Principal of a law college.
12. It is clear from the decision of the Constitution
Bench in O.N. Mohindroo vs. The Bar Council of Delhi
& Ors. (supra) that in pith and substance, the Advocates
Act falls under Entries 77 and 78 of List I of the Seventh
Schedule. That apart, it is not necessary to postulate a
conflict of legislation in this case as we have indicated
earlier. It is true that under the University Act, the
selection of a Principal of a College affiliated to the
concerned University has been left to a Higher Education
Services Commission and respondent No. 5 was included
in the panel of selected candidates pursuant to a due
selection by that Commission. It is also true that
theoretically the State Government on the
recommendation of the Director of Higher Education could
appoint any one from that list as Principal of any College
including a Law College. But when concerned with the
appointment of a Principal of the Law College, there
cannot be any difficulty either in the Recommending
Authority or in the State Government recognizing the fact
that a person duly qualified in law is required to be the
Principal of that Law College in the interests of the
students coming out of that College in the light of the
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Advocates Act, 1961 and the rules framed by the Bar
Council of India governing enrolment of Advocates and
their practice. It must be the endeavour of the State and
the Recommending Authority to ensure that the students
coming out of the College are not put to any difficulty and
to ensure that their career as professionals is in no way
jeopardized by the action of the Government in appointing
a Principal to a Law College. Therefore, even while
adhering to its process of selection of a Principal, it
behoves the State to ensure that the appointment it makes
is also consistent with the Advocates Act and the rules
framed by the Bar Council of India. It may not be correct
to say that the Bar Council of India is totally unconcerned
with the legal education, though primarily legal education
may also be within the province of Universities. But, as
the apex professional body, the Bar Council of India is
concerned with the standards of the legal profession and
the equipment of those who seek entry into that
profession. The Bar Council of India is also thus
concerned with the legal education in the country.
Therefore, instead of taking a pedantic view of the
situation, the State Government and the Recommending
Authority are expected to ensure that the requirement set
down by the Bar Council of India is also complied with.
We are of the view that the High Court was not correct in
its approach in postulating a conflict between the two laws
and in resolving it based on Article 254(2) of the
Constitution. Of course, the question whether the assent
to the Act would also extend to the statute framed under it
and that too to an amendment made subsequent to the
assent are questions that do not call for an answer in this
case in the light of the view we have adopted.
13. According to us therefore, notwithstanding the
procedure to be followed under the University Act and
Statute 11.14 as amended, it is necessary for the
Recommending Authority and the State Government when
concerned with the appointment of a Principal of a Law
College, also to adhere to the requirements of the
Advocates Act and the rules of the Bar Council of India.
This would ensure a harmonious working of the
Universities and the Bar Council of India in respect of
legal education and the avoidance of any problems for the
students coming out of the Institution wanting to pursue
the legal profession. We therefore hold that the State
Government and the Recommending Authority were not
justified in recommending and appointing respondent No.
5 as the Principal of the Dayanand Law College.
14. It is somewhat difficult to appreciate why clause
(b) of Statute 11.14 (ii) was amended by dropping the
requirement that the Principal should hold a doctorate
degree in one of the subjects taught in the college. Does
the State and the University want a square peg in a round
hole? Is it consistent with good educational policy to
appoint a Scientist as the Principal of an exclusive Art or
Commerce College or a Doctor of Literature or History, as
the Principal of an exclusive Science College? It is,
therefore, necessary for the concerned authorities to look
into this aspect and consider whether clause (b), as it
stood prior to 13.1.1995, should be not restored in the
interests of education in general.
15. It was stated during the course of arguments
that the Bar Council of India itself has watered down the
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requirement that the Principal of a Law College must have
a Postgraduate degree in law and has now provided that it
is enough if he has a mere degree in law. This again is a
matter for the Bar Council of India to ponder over and to
consider whether there is any justification in watering
down the qualification for a Principal as either a doctorate
in law or a postgraduate degree in law. We are sure that
what was envisaged as the body of Peers would seriously
consider this question. Similarly, the argument by
learned counsel for the respondents that the Bar Council
of India takes no interest in legal education or in keeping
up the standards of the profession, is something that the
Bar Council of India should take note of so that it could
take steps to rectify the situation, if there is any substance
in that submission.
16. We find that consistent with the Advocates Act
and the rules of the Bar Council of India, respondent No. 5
could not have been appointed as the Principal of a Law
College, however, eminent he might be as a philosopher,
friend and guide to the students and his competence to
teach Ethics could be recognized. It is submitted on
behalf of the respondent No. 5 that he was not responsible
for his appointment as the Principal of the Law College
and he has suffered because of this controversy which is
not of his making and since he was relieved from the post
of the Principal of the Law College subsequent to the
interim order passed by this Court in these appeals. It is
submitted that though he was transferred as the Principal
of another Institution, he could not take charge because of
some interim orders passed by the High Court in a Writ
Petition filed by some interested persons. Now, that we
have clarified the position, we have, no doubt, that the
authorities that be and the High Court will deal with the
grievances of respondent No. 5 regarding his status and
posting in an expeditious manner, if moved in that behalf
and take an appropriate decision consistent with what we
have stated in this judgment.
17. The appeals are thus allowed, the judgments of
the High Court are set aside. The Writ Petition filed by the
management is allowed and the Writ Petition filed by
respondent No. 5 is dismissed. The parties are directed to
suffer their respective costs.