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High Court Of Calcutta
B. C. Ray
APARNA BASUMALLIK - Appellant
Versus
BAR COUNCIL OF INDIA - Respondent
C. O. 4645 (W) Of 1982
Decided On : 09/14/1982
ADVOCATES ACT, 1961 - SECTION 7(H)(I), 24(1)(C)(III) AND (III)(A), 49(1)(D) - RULES FRAMED BY THE BAR COUNCIL OF INDIA - VALIDITY - ENROLMENT OF ADVOCATES - STANDARDS OF LEGAL EDUCATION - RECOGNITION OF UNIVERSITIES - CONDITIONS FOR ENROLMENT - POWER OF THE BAR COUNCIL OF INDIA TO FRAME RULES - ULTRA VIRES - NON-COMPLIANCE WITH RULES - EFFECT - RIGHT TO PRACTISE AS AN ADVOCATE - STATUTORY RIGHT - COMPLIANCE WITH PRE-REQUISITES - MANDATORY NATURE OF RULES - UNIVERSITY'S FAILURE TO COMPLY WITH RULES - EFFECT ON PETITIONER'S RIGHT TO ENROLMENT - UNIVERSITY'S ARGUMENT REGARDING LACK OF PRIOR INFORMATION - REJECTION.
Fact of the Case:
The petitioner, a law graduate from the University of Calcutta, challenged the decision of the State Bar Council refusing to enrol her as an Advocate on the ground that she did not fulfil the conditions laid down in Rule 1(c) framed by the Bar Council of India under Sections 7(h)(i), 24(1)(c)(iii) and (iii)(a) and 49(1)(d) of the Advocates Act, 1961. The petitioner argued that the rule was ultra vires the rule-making power conferred by Section 49(1)(d) of the Act and that she was not informed about the change in application form for admission as an Advocate.
Finding of the Court:
1. The Bar Council of India has been vested with powers to make rules in order to enable it to discharge its functions under the Act, including laying down standards of legal education. 2. The impugned rule framed by the Bar Council of India is intra vires the rule-making powers conferred by Section 49 of the Act. 3. To entitle a person to be enrolled as an Advocate, the requirement laid down in Rule 1(c) of the Bar Council of India's rules, which specifies that the degree has to be obtained after prosecuting the course of study in law by attending requisite number of lectures in a college recognized by a University, must be complied with. 4. The petitioner, who appeared in all three tiers of law examinations as a private student pursuant to regulation 35 framed by the Calcutta University, cannot be enrolled as an Advocate as she did not comply with the requirement of Rule 1(c). 5. The University's argument that it was not informed prior to 12-5-1980 that the degree conferred by it would not be recognized by the Bar Council of India and that no permission would be granted for enrolment of the candidate's name as an Advocate in the State Roll is not sustainable in view of the clear provisions of the statute.
Issues: 1. Whether the Bar Council of India is competent to frame rules laying down the standards of legal education to be observed by the Universities? 2. Whether the rule framed by the Bar Council of India laying down the standards of legal education, including Rule 1(c), is within the rule-making power conferred on it? 3. Whether the petitioner, who has obtained a law degree from the University of Calcutta, is entitled to have her name enrolled in the State Roll? 4. Whether the order impugned, which rejected the petitioner's application for enrolment in the State Roll, is valid and proper?
Ratio Decidendi: 1. The Bar Council of India has been empowered by Section 7(h) and (i) and Section 49(1)(d) of the Advocates Act, 1961 to frame rules laying down standards of legal education to be observed by the Universities. 2. The impugned rule framed by the Bar Council of India is intra vires the rule-making powers conferred by Section 49 of the Act as it is in accordance with the provisions of Section 7(h) and (i) and Section 49(1)(d) of the Act. 3. The petitioner, who did not attend college but appeared in all three tiers of law examinations as a private student, cannot be enrolled as an Advocate as she did not comply with the requirement of Rule 1(c) of the Bar Council of India's rules, which specifies that the degree has to be obtained after prosecuting the course of study in law by attending requisite number of lectures in a college recognized by a University. 4. The order impugned, which rejected the petitioner's application for enrolment in the State Roll, is valid and proper as the petitioner did not comply with the essential requirements laid down in the statute and the rules framed thereunder.
Final Decision: The petitioner's application challenging the decision of the State Bar Council refusing to enrol her as an Advocate was dismissed.
( 1 ) THIS application is at the instance of the petitioner challenging the validity of the letter dated 19-2-82 communicating the decision of the State Bar Council on the basis of the decision of the Bar Council of India that the petitioner's application for enrolment in the State Bar Council's roll to practise as an Advocate has not been entertained as she did not fulfil the conditions laid down in Rule 1 (c) as framed by the Bar Council of India under Sections 7 (h) (i), 24 (1) (c) (iii) and (iii) (a) and S. 49 (1) (d) of the Advocates Act. 1961 and she was asked to collect the enrolment fee of a sum of Rupees 250/- deposited by her with the Bar Council of West Bengal. The petitioner has stated in her petition that she passed the B. A. Examination in 1972 from the University of Calcutta and thereafter she passed the M. A. Examination from the Calcutta University in Political Science and also in Modern History from Rabindra Bharati University. It has been stated that after obtaining the aforesaid degrees the petitioner in accordance with Rule 33 of the Rules framed by the Calcutta University commenced her studies for LL. B. Course in order to become a practising Advocate after completing the LL. B. Course and after passing the Final LL. B. Examination from the University of Calcutta. It is stated that she was to appear in the Preliminary Law Examination in 1976 but due to some difficulties the said examination was held sometime in 1977 and she duly passed the Preliminary Law Examination. She also passed the Intermediate Examination in Law after appearing in 1979 as the examination which was due to be held in 1978 could not be held owing to some disturbances and finally she being a batch of 1978 but due to the examination being not held in 1979 and was held in March, 1980 she appeared in the Final Examination in Law and duly passed the same. Thus she became a Law Graduate from the Calcutta University. It has been stated that after obtaining provisional certificate from the University of Calcutta she applied in the form prescribed to the respondent No. 1, the Bar Council of West Bengal, with a deposit of necessary fee of Rs. 250/-for admission and enrolment as an Advocate. This application form was numbered at File No. 441/81 dated 11-2-81. It has been stated that the respondent No. 2 suddenly changed the application form for admission as an Advocate sometime in June. 198d and since then it began to issue the changed application forms with instruction to apply in the new application forms instead of the old application forms which were issued before June, 1980. The petitioner, however, in the column mentioned "n. C. " that is Noo-Coilegiate. Thereafter the impugned letter dated 19-2-82 was sent to the petitioner informing her that her application for enrolment as an Advocate in the State Roll maintained by the State Bar Council has been refused for non-compliance of certain provisions of the Advocates Act, 1961.
( 2 ) IT has been challenged in this application that the Bar Council of India which has been empowered to make rules providing the standards of education in law in consultation with the Universities in India. But the University did not indicate either in their curriculum or in the rules framed in connection with the study of law that a private student even if he or she passes the Final Law Examination and becomes a Law Graduate will be debarred from practising in Court unless he or she attends a regular course of studies for a period of three years under the University in any University Law College. It has been submitted on behalf of the petitioner that Rule 35 clearly provides that private female candidates after studying law and without attending classes may appear in the examinations in law and after being successful they win be entitled to get law degree from the Calcutta University. It has been submitted that the petitioner being totally unaware of the restriction that has been imposed by framing
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