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2019 Supreme(Bom) 2014
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.C. Dharmadhikari, M.S. Karnik, JJ.
Shobha @ Neha Bhimrao Buddhivant - Appellant
Versus
Bar Council Of India & Ors. - Respondents
Writ Petition No. 1441 of 2014
Decided On : 27-06-2019
Nitin S Satpute, Advocate, Amit D Sale, Advocate, Rui Rodrigues, Advocate, Rimi Jain, Advocate
The main legal point established in the judgment is that the eligibility for admission to the LL.B. course should be determined based on the provisions of the relevant legislation and the recognized status of the University from which the degree was obtained.
Headnote:
Rule 5 - Legal Education - Rules of Legal Education, 2008 - Article 226 of the Constitution of India - The Yashwantrao Chavan Maharashtra Open University Act, 1989 - [Rule 5 of Rules of Legal Education, 2008] - [The Yashwantrao Chavan Maharashtra Open University Act, 1989] - [The Rules of 2008 and Circulars L.E. CIR. 02/2010, dated 20/12/2010 and BCI:D: 1823/2010, dated 30/11/2010 were challenged by the petitioner under Article 226 of the Constitution of India. The petitioner sought direction for enrollment in the LL.B. course and challenged the explanation provided under Rule 5 of the Rules of Legal Education, 2008 and Circulars issued by the Bar Council of India. The petitioner's eligibility for admission to the LL.B. course based on her graduation from the Open University was contested. The court analyzed the provisions of the Act of 1989 and the legal implications of the explanation to Rule 5, and concluded that the petitioner, having obtained graduation from a recognized University established under the Act of 1989, was eligible for admission to the LL.B. course.
Fact of the Case:
The petitioner sought direction for enrollment in the LL.B. course and challenged the explanation provided under Rule 5 of the Rules of Legal Education, 2008 and Circulars issued by the Bar Council of India. The petitioner's eligibility for admission to the LL.B. course based on her graduation from the Open University was contested.
Finding of the Court:
The court found that the petitioner, having obtained graduation from a recognized University established under the Act of 1989, was eligible for admission to the LL.B. course.
Issues: The eligibility of the petitioner for admission to the LL.B. course based on her graduation from the Open University and the validity of the explanation provided under Rule 5 of the Rules of Legal Education, 2008 were the key issues.
Ratio Decidendi: The court relied on the provisions of the Act of 1989 and the decision of the Full Bench of the Madras High Court in G.S. Jagadeesh's case to establish that the petitioner, having obtained graduation from a recognized University established under the Act of 1989, was eligible for admission to the LL.B. course.
Final Decision: The Writ Petition was allowed, and the petitioner was directed to be admitted to the ensuing session of the Three Year Law Course, subject to compliance with all requisite formalities for obtaining admission.
JUDGMENT
M.S.Karnik, J. - Rule. Rule is made returnable forthwith by consent of the parties and heard finally.
2. By this Petition filed under Article 226 of the Constitution of India, the petitioner seeks to challenge the "Explanation" provided under Rule 5 of Rules of Legal Education, 2008 (''rules of 2008'' for short) and Circulars L.E. CIR. 02/2010, dated 20/12/2010 and BCI:D: 1823/2010, dated 30/11/2010 issued by respondent No.1 - the Bar Council of India.
3. The petitioner prays for a direction to respondent No.2 - University of Mumbai to enroll the name of the petitioner for First Year LL.B. in three year Law Course since 17/8/2011, through respondent No. 3 - The New Law College and consider petitioner''s admission from the date of actual receipt of payment of admission fees i.e. 17/8/2011. The petitioner further prays for a direction to respondent Nos. 2 and 3 to allow the petitioner to appear for the examination of first semester in the year 2014 for three year LL.B. Course.
4. The Petition came to be amended and the petitioner has also prayed for quashing and setting aside the letter dated 8/9/2015 and for restoration of her admission with respondent No. 3.
5. The facts of the case in nutshell are as under :
The petitioner completed her graduation in Bachelor of Arts (B.A.) in the year 2005 through distance learning system imparted by respondent No. 4 - Yashwantrao Chavan Open University (''Open University'' for short), Nashik. The petitioner is seeking enrollment with respondent No. 2 - University of Mumbai for the first year LL.B. (three year course) through respondent No.3 - The New Law College.
6. Education details of the petitioner are material for deciding the controversy. She passed S.S.C. in the year 1990. She passed F.Y.J.C. in the year 1991. She appeared for H.S.C. in the year 1992, but failed. She appeared for the Preparatory Course Entrance Written Test of the Open University, Nashik which was necessary qualification and eligibility for the admission for F.Y.B.A. of the Open University. She completed her B.A. from the Open University in the year 2005. The petitioner decided to pursue LL.B. Course. She was admitted by respondent No.3 which admission procedure was completed on 18/8/2011. However, on the next day i.e. on 19/8/2011, the petitioner was called to be informed by respondent No.3 that she cannot be admitted with respondent No.3 and enrolled with respondent No.2, due to implementation of circulars (which are mentioned in paragraph 1) issued in accordance with the rules of 2008.
7. The objection on the basis of the "Explanation" to Rule 5 of the Rules of 2008 is that those who have obtained 10+2 or graduation through Open University system directly without having any basic qualifications for prosecuting such studies are not eligible for admission in law courses. She was formally informed by respondent No. 3 - College that according to the rules framed by the Bar Council of India and as accepted by the University of Mumbai, the candidate who passed Degree Examination after prosecuting studies in distance or open learning without having passed H.S.C. Examination (being the basic qualification for prosecuting degree studies) cannot be admitted to the Three Year Degree Programme. This letter is dated 8th September, 2015.
8. As the petitioner does not possess the basic qualification of H.S.C., she is held not eligible to take admission to LL.B. Course.
9. Learned Counsel for the petitioner submits that the "Explanation" to Rule 5 of the Rules of 2008 is arbitrary and unjustified. He would submit that the Rules of 2008 cannot be applied retrospectively. According to him, the petitioner had already graduated in the year 2005 from the Open University and as per the rules prevailing then she was eligible for admission to LL.B. Course on the strength of her graduating from the Open University. He would therefore submit that the Rules of 2008 will not apply to the petitioner. In his submission, respondent No.4
