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High Court Of Calcutta
M. M. DUTT, C. K. BANERJEE
APARNA BASU MALLICK - Appellant
Versus
BAR COUNCIL OF INDIA - Respondent
F. M. A. 348 Of 1983
Decided On : 08/11/1983
ADVOCATES ACT - ENROLMENT - CONDITIONS - RULE 1 (1) (C), PART IV OF THE BAR COUNCIL OF INDIA RULES - ULTRA VIRES - STANDARD OF LEGAL EDUCATION - CONSULTATION WITH UNIVERSITIES - SECTION 7 (H) OF THE ACT - DIRECTORY OR MANDATORY.
Fact of the Case:
The appellant, a law graduate from the University of Calcutta, applied for enrolment as an advocate with the Bar Council of West Bengal. Her application was rejected based on Rule 1 (1) (c) of Part IV of the Bar Council of India Rules, which required regular attendance at lectures, tutorials, and moot courts for a law degree. The appellant argued that she was not required to attend such classes as a non-collegiate student under Regulation 35 of the Calcutta University First Regulations and that the impugned rule was ultra vires.
Finding of the Court:
The court held that the impugned rule was ultra vires the provisions of Sections 49 (1) (d) and 24 (1) (c) (iii), and also Section 7 (i) of the Advocates Act, 1961, and was, therefore, illegal and invalid. The court found that the Bar Council of India did not have the power to lay down conditions of enrolment and that the impugned rule purported to amend Section 24 (1) (c) (iii) of the Act, which it could not do.
Issues: 1. Whether Rule 1 (1) (c) of Part IV of the Bar Council of India Rules was ultra vires the provisions of Sections 49 (1) (d) and 24 (1) (c) (iii), and also Section 7 (i) of the Advocates Act, 1961? 2. Whether the provision of Section 7 (h) of the Act, in so far as it provides for consultation with the Universities by the Bar Council of India for the purpose of laying down the standards of legal education, is directory or mandatory?
Ratio Decidendi: 1. The court held that the impugned rule was ultra vires the provisions of Sections 49 (1) (d) and 24 (1) (c) (iii), and also Section 7 (i) of the Advocates Act, 1961, and was, therefore, illegal and invalid. The court found that the Bar Council of India did not have the power to lay down conditions of enrolment and that the impugned rule purported to amend Section 24 (1) (c) (iii) of the Act, which it could not do. 2. The court did not consider the issue of whether the provision of Section 7 (h) of the Act, in so far as it provides for consultation with the Universities by the Bar Council of India for the purpose of laying down the standards of legal education, is directory or mandatory, as it had already held the impugned rule to be invalid on other grounds.
Final Decision: The court allowed the appeal, set aside the judgment and order of the learned Judge, and made the Rule Nisi absolute. The impugned Rule 1 (1), Part IV of the Bar Council of India Rules was declared inoperative and void. A writ in the nature of certiorari was issued quashing the impugned rule and the decision of the Bar Council of West Bengal rejecting the appellant's application for her enrolment as an advocate. Further, a writ in the nature of mandamus was issued commanding the respondents to enrol the appellant as an advocate and to take immediate steps in that regard.
( 1 ) IN this appeal the appellant Smt. Aparna Basu Mallick has challenged the propriety of the judgment of a single Judge of this Court discharging the Rule Nisi issued on her application under Article 226 of the Constitution of India.
( 2 ) THE appellant is an M. A. in Political Science of the Calcutta Universily and an M. A. in Modern History of the Rabindra Bharati University. After obtaining the Master's Degree, the appellant started prosecuting her studies in L. L. B. Course of the Calcutta University. At that time, Regulation 35 of the Calcutta University First Regulations, 1951 framed under the Calcutta University Act, 1951 was as follows :"a woman candidate may be allowed to appear as a non-collegiate student (1) at the preliminary Law Examination one year after her graduation from this University. (2) at the Intermediate Law Examination one year after passing the Preliminary Law Examination, and (3) at the Final Law Examination one year after her passing the Intermediate Law Examination of this University. There is no prescribed application Form for this purpose. Intending candidates must apply in plain sheet of paper, together with the usual non-Collegiate Students' Foe of Rs. 30/- and the B. A. /b. Sc. / B. Corn. diploma or Mark Sheet in original".
( 3 ) IT is the case of the appellant that before she started studying the L. L. B. Course she was aware of Regulation 35 as set out above. She passed the Preliminary Law Examination in 1977 and, thereafter, the Intermediate Law Examination which was held in 1979. She passed the Final Law Examination in 1980 and obtained a degree in Law from the University of Calcutta in compliance with Regulation 35.
( 4 ) THEREAFTER, the appellant applied in the prescribed form to the respondent No. 2, the Bar Council of West Bengal for her enrolment as an advocate and paid the sum of Rs. 250/- as the enrolment fee. She also performed all the requirements and/or formalities as required by the respondent No. 2, the Bar Council of West Bengal. But the Assistant Secretary of the Bar Council of West Bengal by his letter dated February 19, 1982, informed the appellant that the Enrolment Committee of the Council was unable to enrol the appellant as an advocate as the appellant did not fulfil the conditions laid down in Rule 1, Sub-rule (1) (c) of Part IV of the Bar Council of India Rules framed by the Bar Council of India under Sections 7 (b) and (i), 24 (1) (c) (iii) and (iiia) and 49 (1) (d) of the Advocates Act, 1961, hereinafter referred to as "the Art". In other words, the application of the appellant for her enrolment as an advocate was rejected by the Bar Council of West Bengal.
( 5 ) BEING aggrieved by the rejection of her application for enrolment, she filed a writ petition before the learned Judge and obtained a Rule Nisi out of which this appeal arises, In the writ pefilion, she inter alia prayed for a declaration that the provision of Rule 1 (1), Sub-rule (c), Part IV of the Bar Council of India Rules was ultra vires Articles 14 and 19 (1) (g) of the Constitution of India. She also prayed for a writ in the nature of certiorari for the quashing of the decision of the Bar Council of West Bengal rejecting her application for enrolment as contained in the letter dated February 19, 1983 of the Assistant Secretary of the said Bar Council.
( 6 ) THE rule was opposed by the Bar Council of India as also by the Bar Council of West Bengal. While the Bar Council of West Bengal, filed an affidavit-in-opposition, no affidavit was filed by the Bar Council of India. On the other hand, the University of Calcutta in its affidavit-in-opposition affirmed by Sri Pratim Kumar Mukherjee, the Registrar of the University, supported the appellant.
( 7 ) AT this stage, we may refer to some of the provisions of the Act. It is an Act to amend and consolidate the law relating to legal pracitioners and to provide for the constitution of Bar Councils and an All-India Bar. Section 2 of the
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