High Court of Judicature at Madras
THE HONOURABLE MRS. JUSTICE R. BANUMATHI & THE HONOURABLE MR. JUSTICE M.M. SUNDRESH
K. Sakthi Rani
Versus
The Secretary of The Bar Council of Tamilnadu & Others
W.P.Nos.26257 of 2009, 2963 of 2010, 2964 of 2010, 3079 of 2010, 3080 of 2010, 3081 of 2010, 3082 of 2010, 3083 of 2010, 3084 of 2010, 3150 of 2010, 25914 of 2009, 26289 of 2009, 26373 of 2009, 26632 of 2009, 101 of 2010, 215 of 2010, 26839 of 2009, 1175 of 2010, 26809 of 2009, 26810 of 2009, 26811 of 2009, 26771 of 2009, 26772 of 2009, 27189 of 2009, 27190 of 2009, 26528 of 2009, 27221 of 2009, 26827 of 2009, 26828 of 2009, 26910 of 2009, 26929 of 2009, 26930 of 2009, 27070 of 2009
Decided On : 16-04-2010
Decision of Bar Council of India that persons with Post Graduate qualifications from open universities course not entitled for enrolment in the State Rolls - Challenge in WP - Powers of Bar council of India - HELD, Council has ample powers to regulate and control mode by which legal education should be imparted and improved - Qualification for entry of a student to enter a law course can be insisted by council - Rule making Power and Explanation to Rule 5 - Scope - Explanation to Rule 5 and Rules of legal education in general, are not beyond rule making power of bar council, conferred under Section 7 (1)(h) and (i) & Section 49 of Advocates Act. Rules of Education, 2008 regarding Rule 5 cannot be made applicable to petitioners who had completed law course at the time of coming into force of Rules (Para 60).
B. PRINCIPLES OF PROMISSORY ESTOPPEL, LEGITIMATE EXPECTATION AND EQUITY -
The principle of promissory estoppel is based upon not only equity but on honesty, good faith which is the basis of rule of law - If Government makes a promise and promisee acts in reliance upon them and alter his position, then the Government should not go back upon the same - Law cannot acquire legitimacy and gain social acceptance, unless it accords with moral value of society (Para 73) - Doctrine of promissory estoppel is based on equitable doctrine - A public authority having committed to rule of law, cannot claim immunity to doctrine of promissory estoppel (Para 74) - Bar Council of Tamilnadu and India have allowed person identically placed like petitioners to enter into law course and complete and thereafter enroll- Petitioners got entry also by open competition - It is nobody’s case that their entry to law college is otherwise irregular (Paras 75 and 87) - Direction to Bar Council to mould suitable relief. (Para 30) - Direction to enrol candidates subject to Section 24(1) of Advocates Act issued. (Para 92)
Rules of legal education 2008 court be made applicable to case of petitioner who had already completed law course at the time of coming into force of Rules (Para 92).
C. CONSTITUTION OF INDIA -ARTICLE 14 - Admission to Bar -
Petitioner with 3 years of study stands on a different footing - Hence clarification made by Bar council is intelligible, having nexus to object (Para 62).
D. INTERPRETATION OF STATUTES -
A rule which is by way of subordinate legislation is to be construed as prospective, unless same is made retrospective, provided parent Act gives such power (Para 53).
E. PRECEDENTS -
A Judgment is a binding precedent for the issues decided on a conscious consideration of the facts involved therein - Law laid down by a court of law has to be applied to fact of a particular case (Para 50).
F. JURIS PRUDENCE -
A rule is presumed to be valid until and unless same is set aside - In absence of specific challenge to Rules in an incidental proceeding same cannot be questioned 2008 (7) SCC 353 followed. (Para 29).
Result : Direction Issued.
M.M. SUNDRESH, J.
In view of the common issues involved in all the writ petitions they have been taken up together for hearing and a common order is passed.
1(A). The above writ petitions are hereby divided into the following three categories:
.(i) Writ petitions challenging the orders of the State Bar Council cancelling and refusing enrollment.
.(ii) Writ petitions challenging the decision of the Bar Council of India holding that the persons with Post Graduate qualification from Open Universities are not entitled to be enrolled in the State Roll.
(iii) Writ petitions seeking a direction to the State Bar Council to entertain the applications for enrollment in the State Roll.
2. In all these writ petitions, the questions arise for consideration are as to whether the persons who studied law without basic degree, but obtained Post Graduate degree in Open Universities are entitled to be enrolled as Advocates and the applicability of Rule 2(8), Rule 4 and Rule 5 of the Legal Education Rules, 2008.
3. Lawis the cement of the society and an essential medium of change. It is said "Law is the king of kings, far more rigid and powerful than the kings. Nothing can be mightier than law by whose aid as by that of the highest monarch, even a weak may prevail over the strong." Rule of Law is the basic foundation of a democratic society.
3(a). A lawyer is a guardian of rule of law. The father of the nation described a lawyer as thus: "A lawyer is the salt of the nation."
.4. In J.S.Jadhav v. Mustafa Haji Mohammed Yusuf (AIR 1993 SC 1535), the Honourable Apex Court has defined legal profession as follows:
."Advocacy is not a craft but a calling; a profession wherein devotion to duty constitutes the hallmark. Sincerity of performance and the earnestness of endeavour are the two wings that will bar aloft the advocate to the tower of success. Given these virtues other qualifications will follow of their own account. This is the reason why legal profession is regarded to be a noble one. But it cannot be allowed to become a sorriest of trades."
.5. Similarly, in Sanjiv Bitta v. Deputy Secretary, Ministry of Information and Broadcasting (1995 (3) SCC 619), the Honourable Apex Court observed as follows:
."It is in the hands of the members of the legal profession to improve the quality of the service they render both to the litigant public and to the courts, and to brighten their image in the society. The legal profession is a solemn and serious occupation. It is noble calling and all those who belong to it are its honourable members. The legal profession is different from other professions in that what the lawyers do, affects not only an individual but also the administration of justice, which is the foundation of the civilised society. It must not be forgotten that the legal profession has always been held in high esteem and its members have played an enviable role in public life."
6. A good legal education is a sine quo non for creating a good lawyer. Such a legal education is the basis and foundation for creating a good and competent Judge as well.
7. In P.D.Gupta v. Ram Murti and another {(1997) 7 Supreme Court cases 147}, the Honourable Apex Court observed that the administration of justice is the concern of Bench and Bar as well and the Bar is the principal ground for recruiting Judges.
.8. Thepassage from Harry R.Blythe, 21 Green Bag.224, may be usefully quoted in this context:
."Great God! the hour has come when we must clear the legal fields from poison and from fear; we must remould our standards--build them higher, and clear the air as though by cleansing fire, weed out the damning traitors to the law, restore her to her ancient place of awe."
.9. Sri.Dr.C.Radhakrishnan, the first vice-president of Republic India, has lamented thus:
."Our Colleges of law do not hold a place of high esteem either at home or abroad, nor has law become an arena of profound scholarship and enlightened research."
.10. It is said, Legal
3. A.P.Steel Re-Rolling Mill Ltd. (2007) 2 SCC 725
120. ANNAMALAI UNIVERSITY REPRESENTED BY REGISTRAR v. SECRETARY TO GOVERNMENT
224. Sanjiv Bitta v. Deputy Secretary
227. Baldev Raj Sharma v. Bar Council of India and others reported in AIR 1989 SC 1541
229. Bar Council of India v. Board of Management
334. Herrington v. British Railways Board (1972(2) WLR 537)
340. Union of India and others v. Muralidhara Menon and another [(2009) 9 Supreme Court Cases 304]
6. Tamil Nadu Electricity Board v. Status Spinning Mills Ltd. (2008) 7 SCC 353
8. BALDEV RAJ SHARMA v. BAR COUNCIL OF INDIA AND OTHERS [AIR 1989 SC 1541]
12. (2009)1 SCC 610 [GURU NANAK DEV UNIVERSITY v. SANJAY KUMAR KATWAL AND ANOTHER]
113. (2006) 6 SCC 239 [STATE OF GOA v. WESTERN BUILDERS]
115. (2003) 3 SCC 321 [ST.JOHNS TEACHERS TRAINING INSTITUTE v. REGIONAL DIRECTOR
14.2008 (1) WLN 177 [MANOJ SINGH v. STATE OF RAJASTHAN AND OTHERS)
223. P.D.Gupta v. Ram Murti and another {(1997) 7 Supreme Court cases 147}
4. Pawan Alloys and Casting (P) Ltd. v. U.P.SEB AIR 1997 SC 3910 : (1997)7 SCC 251
9. Haridas Das v. Usha Rani Banik reported in AIR 2007 SUPREME COURT 2688
222. ANNAMALAI UNIVERSITY REPRESENTED BY REGISTRAR v. SECRETARY TO GOVERNMENT
225. J.S.Jadhav v. Mustafa Haji Mohammed Yusuf (AIR 1993 SC 1535)
228. Bar Council of India v. Aparna Basu Mallick [(1994) 2 Supreme Court Cases 102]
335. Gopal Krushna Rath v. M.A.A.Baig (Dead) by L.Rs. and others (1999) 1 SCC 544
339. Uttaranchal v. Alok Sharma and others [(2009) 7 Supreme Court Cases 647]
119. State of Tamil Nadu v. Sr.S.Sagayarani [(2009) 5 MLJ 652]
20.21. V.Sudeer v. Bar Council of India and another [(1999) 3 Supreme Court Cases 176]
2. Mahabir Vegetable Oils (P) Ltd. v. State of Haryana (2006) 3 SCC 620
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