*THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU + W.P.Nos.16585, 18135, 19072, 19076, 20521, 21977, 22588, 22587, 19945,17100, 17966 & 23658 of 2009 % 31-12-2009 WP NO.16585/2009: #B. Mallesham ..Petitioner Vs. $1. The Bar Council of India represented by its Secretary, New Delhi and others. ..Respondents ! Counsel for the petitioner : Mr.B.H.R. Chowdhary Mr. G.Madhusudhan Reddy ^ Counsel for the 1st&2nd respondents : Mrs. S.Nanda Counsel for the 3rd respondent: Mr. Sudesh Anand < Gist: >Head Note ?1. (1995) 1 SCC 732 2. 1990 (1) An.W.R. 648 3.1995 Suppl .(2) SCC 235 4.AIR 1967 SC 1889 5.AIR 1967 SC 52 6.2008 (3) ALD 624 7.(2007) 12 SCC 210 8. AIR 1972 AP 206 9. 2002 (3) ALD 716 (DB) 10. 2000 (2) ALD 487 11. (1995) 1 SCC 732 12. 1995 Supp (2) SCC 235 13. 1990(1) An.W.R. 648 14. (2009) 4 SCC 590 THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU W.P.Nos.16585, 18135, 19072, 19076, 20521, 21977, 22588, 22587, 19945,17100, 17966 & 23658 of 2009 Date of Order: 31 --12—2009 CT in W.P.No.16585 of 2009 B.Mallesham ..Petitioner and 1.The Bar Council of India rep. By its Secretary, New Delhi and others. ..Respondents The Court made the following Common Order: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU W.P.Nos.16585, 18135, 19072, 19076, 20521, 21977, 22588, 22587, 19945,17100, 17966 & 23658 of 2009 Common Order: (Per Honourable Sri Justice A.Gopal Reddy) 1. In all these batch of writ petitions, petitioners are seeking quashing of the Explanation added to Rule 5 of Rules of Legal Education, 2008 (for short “the Rules, 2008”) and for a consequential direction directing the respondents to admit them into three years Law Course during the academic year 2009-2010. 2. The petitioner in W.P.No.16585 of 2009, who passed SSC in 2003 without prosecuting two years Intermediate Course obtained B.A. Degree through Dr.B.R.Ambedkar University in 2009 appeared for LAWCET and secured 1006 rank, was denied admission on the ground that he has not prosecuted 10+2 and directly obtained degree through Open University and not eligible for admission as per the Explanation added to Rule 5. 3. The petitioner in W.P.No.18135 of 2009 on passing SSC examination in the year 1995 without prosecuting two years Intermediate Course obtained B.A. Degree from Annamalai University during the year 2008 and qualified in LAWCET. When she approached 5th respondent—College for admission into three years Law Course she was informed that she is not eligible to get admission as per Rules. 4. The petitioner in W.P.No.19072 of 2009, who completed SSC Examination in the year 1996 could not pursue Intermediate Course but obtained B.A. degree by way of Distance Education from Andhra University, appeared for LAWCET and qualified. When he approached the 5th respondent—College for admission into three years LLB Course, he was informed that as per Rules of Legal Education he was not eligible to get admission into three years Law Course. 5. The petitioner in W.P.No.19676 of 2009 on obtaining SSC qualification in the year 1996 joined two years Intermediate Course but discontinued the same. He completed Graduation in Commerce by Distance Media from Kakatiya University during the year 2004-2009, appeared and secured 4072 rank in the LAWCET but denied admission into three years LL.B. Course. 6. The petitioner in W.P.No.20521 of 2009 after obtaining Secondary School Certificate in 2002 could not prosecute Intermediate Course but obtained B.A. Degree from Dr.B.R.Ambedkar Open University in 2008. He appeared and qualified in LAWCET but he was denied admission on the ground that he has not prosecuted 10+2. 7. The petitioner in W.P.No.21979 of 2009 after passing SSC examination in the year 2002 without undertaking Intermediate Course obtained B.A. Degree from Andhra University by Distance Education, appeared for Entrance Test and secured rank in LAWCET but he was denied admission into three years Law Course. 8. Three petitioners in W.P.No.22588 of 2009 without prosecuting two years Intermediate Course directly obtained B.A. Degrees from Kakatiya University and Dr.B.R.Ambedkar University. Though they were qualified in LAWCET, they were denied admission into three years Law Course. 9. The petitioner in W.P.No.22587 of 2009 after completion of SSC examination in the year 1994 joined Intermediate Course but discontinued the same and obtained B.A. degree directly from Dr.B.R.Ambedkar Open University while working as Record Assistant in the High Court of Andhra Pradesh. Though he qualified in the LAWCET, he was denied admission into three years Law Course on the ground that he has not prosecuted 10+2. 10. The petitioner in W.P.No.19945 of 2009 completed SSC Examination in the year 1991, discontinued Intermediate Course and Graduation Course, obtained Post Graduation in M.A. Sociology through Madhurai Kamaraj University, appeared for LAWCET and qualified in the same, but denied admission into three years Law Course. 11. The petitioner in W.P.No.19945 of 2009 completed SSC Examination in the year 1996, obtained B.Com Degree in 2002 from School of Distance Education and also completed MBA from Andhra University by Distance Education, appeared for LAWCET and got 3023 rank, but denied admission on the ground of not having 10+2+3 qualification. 12. The petitioner in W.P.No.17966 of 2009 after obtaining Secondary School Certificate in the year 2000, completed Sahitya Ratna (said to be equivalent to B.A. Degree Course) and M.A. (Hindi) by Distance Education in the year 2007 appeared for LAWCET, 2009 and qualified in the same, but denied admission into three years LL.B. Course. 13. The Petitioner in W.P.No.23658 of 2009 on obtaining SSC qualification in the year 1989 without prosecuting two years Intermediate Course directly obtained B.A. Degree from Kakatiya University, appeared for LAWCET and got 8880 rank, but did not get admission into three years Law Course. 14. Respondent No.1—Bar Council of India (BCI) filed a counter affidavit, opposing the writ petitions, contending that curriculum for LL.B. Course, which was in force prior to 14-09-2009, was prepared and implemented more than a decade ago. Due to the changed circumstances, namely, economic changes, globalisation, increase of international trade and commerce by metes and bounds, necessitated drastic changes in the education system also and regulation of all major professional courses to meet the challenges to bring it on par with such education elsewhere in the World. The BCI took up the task of revising the curriculum for professional courses in consultation with the Universities imparting legal education and the State Bar Councils. The BCI framed Rules under the Advocates Act, 1961 (for short “the Act”) for laying down the standards in legal education to be complied with by the various Universities imparting legal education in the country with the Part-IV of BCI Rules and the same has been approved and adopted by BCI in its meeting held on 14-09-2008 vide Resolution No.110/2008. The said Rules were framed to standardize the legal education and recognition of degrees in Law for the purpose of enrolment as advocates and inspection of University for recognizing its degrees in Law. Rule 5 of Rules, 2008 prescribes eligibility criteria for admission into Three Year Law Degree Course and Integrated Five Years Course; Rule 7 deals with minimum marks in qualifying examination for admission and Rule 8 lays down standard of courses. In the light of Explanation to Rule 5, petitioners are not eligible for admission into three years Law Course, since they took degree without obtaining 10+2. The petitioners, who after having completed high school education did not do the regular Intermediate Course and obtained B.A. and other degrees, are not entitled to seek admission into three years Law Course. The BCI vide resolution No.79 of 2009 in its meeting held on 27-06-2009 decided B.A. degree obtained by S.H.Santha Kumar Sharma from IGNOU cannot be treated on par with regular degree obtained from the recognized University. In view of the Explanation to Rule 5, prescribing qualification to get them admitted into three years Law Course, petitioners were rightly denied admission, since they did not have 10+2. 15. The BCI is a statutory body constituted under Section 4 of the Act to lay down the standard of legal education and recognition of degree in law for the admission as an advocate. The said power was assigned to its sub-Committee known as “Legal Education Committee” constituted by the BCI under Section 19(2)(b) of the Act. The Legal Education Committee after elaborate study finalized the remaining schedule of BCI Rules in Part-IV relating to the standard of legal education and recognition of degree in Law for admission as an advocate. Though the Explanation to Rule 5 was not added, BCI in its meeting held on 14-09-2008 by resolution No.110/2008 accepted the recommendations of the Legal Education Committee. While confirming the Minutes of the Bar Council of India and on suggestions made to amend certain part of rules, Bar Council of India in its resolution No.137/2008 resolved to add explanation to Rule 5 in tune with the recommendations made by Legal Education Committee. 16. The grounds of challenge briefly stated are thus: 1. The BCI went beyond the power envisaged under the Act by prescribing minimum qualification i.e. pre-graduation stage. We find it difficult to accept the contention. 2. There is no material in taking a decision to prescribe minimum qualification 10+2 for admission into three years Law Course. Hence the same is arbitrary. 3. Prescribing minimum qualification violates Article 14, since it amounts to discrimination in two homogeneous groups of graduates, namely, regular graduates and graduates who obtained degree in Open University by Distance Education. 4. The BCI’s decision is ante-poor. 17. Smt. Manchakalapati Renuka, learned counsel for the petitioner in W.P.No.18135 of 2009 contended that under Section 7(h) of the Act the functions of BCI is to promote legal education and to lay down standards under the rule-making power under Section 49 of the Act. The BCI can prescribe a degree from any recognized University as minimum qualification required for admission into a course, but how the degree is obtained is immaterial. Therefore, rule- making power cannot go beyond prescribing the minimum qualification. She placed strong reliance on the following judgments: 1. INDIAN COUNCIL OF LEGAL AID AND ADVICE v. BAR COUNCIL OF INDIA [1] 2. P.BASI REDDY v. GOVERNMENT OF ANDHRA PRADESH[2] 3. V.N.SUNANDA REDDY v. STATE OF A.P.[3] 18. Sri J.Sudheer, learned counsel for the petitioner in W.P.No.20521 of 2009, contended that once the source of power for framing the Rules for BCI is from Section 7(1)(h) (i); under Section 49(1)(af) the BCI being a statutory body cannot go beyond its power to fix the minimum qualification required for admission, where it prescribed 10+2 for five years Integrated Course and 10+2+3 for three years Law Course. Section 7(H) of the Act prescribes the powers and functions i.e. to promote legal education and lay down standards of such education in consultation with the Universities in India imparting such education and the State Bar Councils. In the counter it is not stated such consultation process was undertaken before Explanation is added to Rule 5. For the said proposition reliance is placed on the following judgments. 1. ROSHAN LAL TANDON v. UNION OF INDIA[4] 2. MERVYN CONTINHO v. COLLECTOR OF CUSTOMS[5] He further contended that for discrimination of two homogeneous groups of graduates: 1.who obtained B.A. degree directly from the recognized University and 2.who obtained degree in normal course, there is no material to treat them as different classes. He also contended that the BCI’s decision is ante-poor, since the poorer sections, who could not prosecute the regular school education, did hard work, acquired graduation and come up in their life, cannot be denied admission. For which he placed strong reliance on the following judgments. 1.G.RAVI KUMAR v. DISTRICT AND SESSIONS JUDGE, NALGONDA[6] 2. INSTITUTE OF CHARTERED FINANCIAL ANALYSSTS OF INDIA v. COUNCIL OF THE INSTITUTE OF CHARTERED ACCOUNTS OF INDIA[7] He also made a feeble submission that the Rules, 2008 came into force from September, 2008, which cannot be applied retrospectively. Since the petitioners obtained degrees before September, 2008, the same cannot be made applicable to them. 19. Sri Ch.Ramesh Babu, learned counsel for the petitioner in W.P.No.22587 of 2009 contended that BCI can only prescribe qualification for enrolment, but not for acquiring degree. 20. Sri K.S.Murthy, learned counsel for the petitioner in W.P.No.19945 of 2009 contended that while inserting Explanation to Rule 5 what is the object sought to be achieved has not been explained and the same has no nexus to the objects sought to be achieved and the same is irrational. It is total non-application of mind without there being any power to make standards in legal education but the same will not authorize to prescribe standards in pre-gradation level, namely, 10+2. 21. Sri J.Prabhakar, learned counsel for the petitioner in W.P.No.23658 of 2009 contended that though the petitioner was given admission into Law Course in convener quota in the 5th respondent— College, since the same is not ratified, the said seat was allotted to some other candidate and now the seats are vacant in the 6th respondent—College and it is not prepared to admit unless necessary directions are obtained from the Court. In spite the petitioner could secure good rank and compete on par with the others he was denied admission only by virtue of Explanation added to Rule 5. Therefore, the same is liable to be set aside. 22. Smt.S.Nanda, learned standing counsel for the 1st respondent—Bar Council of India, per contra, while justifying the Rules framed by the BCI would contend that the functions of BCI is to promote legal education and lay down the standards in consultation with the Universities imparting legal education and State Bar Councils and to recognize Universities whose degree in Law shall be qualification for enrolment as an advocate to the said purpose. The BCI will have power to inspect the Universities and can do all other things necessary to discharge the aforementioned functions. Section 2(h) of the Act defines the word law graduate, which means a person who has obtained a bachelor's degree in law from any University established by law in India. Under Section 24 of the Act it is prerogative of the BCI to admit an advocate on the state rolls. Under the rule-making power the BCI can make rules prescribing minimum qualification to admit into a course of degree in Law and the class or category of persons entitled to enroll as an advocate. She also contends that laying standards in legal education also includes power to define a standard of general education as a condition for admission into Law Course. 23. Sri Sudesh Anand, learned standing counsel for the State Council for Higher Education submitted that Convener do not allot any candidates. The counselling was held 10-08-2009 and last date for admission is 31-08-2009, classes were commenced on 07-09-2009. 24. Before we proceed to examine the merits of submissions and counter submissions made by the counsel, it is relevant to summarize the statutory provisions of the Advocates Act and Rule impugned. “Section 2 (a): "advocate" means an advocate entered in any roll under the provisions of this Act. Section 2(h): "law graduate" means a person who has obtained a bachelor's degree in law from any University established by law in India. Section 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; (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. (ia) to conduct seminars and organize talks on legal topics by eminent jurists and publish journals and papers of legal interest; (ib) to organize legal aid to the poor in the prescribed manner; (ic) to recognize on a reciprocal basis foreign qualifications in law obtained outside India for the purpose of admission as an advocate under this Act. Section 24 Persons who may be admitted as advocates on a State roll (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 fulfils the following conditions, namely: (a) he is a citizen of India: Provided that subject to the other provisions contained in this Act, a national of any other country may be admitted as an advocate on a State roll, if citizens of India, duly qualified, are permitted to practice law in that other country; (b) he has completed the age of twenty-one years; (c) he has obtained a degree in law Section 49: General power of the Bar Council of India to make rules— (1) The Bar Council of India may make rules for discharging its functions under this Act, and, in particular, such rules may prescribe (af) the minimum qualifications required for admission to a course of degree in law in any recognized University; (ag) the class or category of persons entitled to be enrolled as advocates; (d) the standards of legal education to be observed by Universities in India and the inspection of Universities for that purpose. Rule 5 of Rules, 2008: Eligibility for admission: (a) Three Year Law Degree Course: an applicant who has graduated in any discipline of knowledge from a University established by an Act of Parliament or by a State Legislature or an equivalent national institution recognized as a Deemed to be University or foreign University recognized as equivalent to the status of an Indian University by an authority competent to declare equivalence, may apply for a three years’ degree programme in law leading to conferment of LL.B. degree on successful completion of the regular programme conducted by a University whose degree in law is recognized by the Bar Council of India for the purpose of enrolment. (b) Integrated Degree Programme: An applicant who has successfully completed Senior Secondary School Course (‘+2’) or equivalent (such as 11+1, ‘A’ level in Senior School Leaving certificate course) from a recognized University of India or outside or from a Senior Secondary Board or equivalent, constituted or recognized by the Union or by a State Government or from any equivalent institution from a foreign country recognized by the Government of that country for the propose of issue of qualifying certificate on successful completion of the course, may apply for and be admitted into the program of the Centers of Legal Education to obtain the integrated degree in law with a degree in any other subject as the fit degree from the university whose such a degree in law is recognized by the Bar Council of India for the purpose of enrolment. Provided that applicants who have obtained +2 Higher Secondary Pass Certificate or First Degree Certificate after prosecuting studies in distance or correspondence method shall also be considered as eligible for admission in the Integrated Five Years course or three years’ LL.B. course, as the case may be. Explanation: The applicants who have obtained 10 +2 or graduation / post graduation through open Universities system directly without having any basic qualification for prosecuting such studies are not eligible or admission in the law courses. 25. We shall scrutinize the respective contentions of the learned counsel and the position of law with reference to the relevant rules and the various judicial pronouncements of this Court and the Supreme Court in series of decisions dealing with powers vested in the BCI. 26. From the scheme of the Act, Section 7(1)(h) deals with promotion of 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 and 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; to verify legal standards and give necessary instructions in the manner of conducting three years or five years Law Course as the case may be. Section 24 deals with enrolment of law graduate to be admitted as an advocate on a State roll. Under Section 49, the BCI is conferred with the power to make rules for laying the standards of legal education in consultation with the Universities. Clause (af) of sub-section (1) of Section 49 authorizes BCI to make rules prescribing minimum qualifications required for admission to a course of degree in law in any recognized University. Clause (ag) of sub-Section (1) of Section 49 deals with class or category of persons entitled to be enrolled as advocates. Clause (d) of sub-Section (1) of Section 49 envisages the standards of legal education to be observed by Universities in India and the inspection of Universities for that purpose. 27. In exercise of rule-making power, the BCI framed Rules, 2008 prescribing the eligibility for admission into Three Year Law Degree Course and Integrated Degree Programme. 28. The Legal Education Committee under the Chairmanship, Mr. Justice A.P.Mishra, Former Judge of Supreme Court, consisting of Honourable Judges of the Supreme Court, namely, Justice, A.S.Anand, Justice S.C.Agarwal, Justice K.N.Saikia, Justice A.P.Mishra and Justice V.S.Sirpurkar and also Justice A.K.Patnaik, Chief Justice of Madhya Pradesh, as members besides Dr.N.L.Mitra, former Director NLSIU, Bangalore and National Law School, Jodhpur apart from members of the Bar Council of India after due deliberations/consultations for nearly two years prepared draft rules and curriculum and sent to the Universities imparting Legal Education and State Bar Councils as a part of consultation as provided for under the Advocates Act, 1961. The Bar Council of India through its Resolution No.110/2008, dt. 14-10-2009 accepted the revised rules with effect from 2009-2010. 29. This Court in BAR COUNCIL OF INDIA v. G.KESAVARAMAYYA[8] while dealing with competence of Bar Council of India to take steps for promotion of legal education and in pursuit of that objective to lay down standards of such education held as under: “The clause (h) of Section 7 does not lend itself to the narrow construction advocated by counsel. It is competent for the Bar Council. It is competent for the Bar Council of India to take steps for the promotion of legal education and in pursuit of that objective to lay down standards of such education. Is it consistent with reason to urge that standards of legal education can be prescribed without the prior equipment or accomplishments of students of law? It s a mere illusion to think that without the foundational general education, sound standards of legal education can be achieved. The expression "standards of such education" is sufficiently wide to enable the Bar Council to insist upon a minimum level of general education as a steppingstone for taking up the study of law. It is sell known that for a proper comprehension of subjects like jurisprudence, constitutional law etc., a fairly high standard of academic training is indispensable. The ability to grasp and assimilate principles of law cannot be expected of a person who has not obtained a degree in arts, science or commerce. How can be standards of legal education be maintained or promoted unless persons admitted to the study of law have the standard of ability or the faculty of comprehension to imbibe the essential principles of law? We are clearly of opinion that the function of laying down standards of legal education necessarily implies the power to define a standard of general education as a condition for admission to a course of law. There standard of legal education cannot be disassociated from the antecedent equipment of general education. We cannot accede to the contention of Mr. Ramanujachari that clause (h) of Section 7 ought to be understood as excluding the power to fix a minimum academic standard as a pre-requisite for the commencement of studies in law.” …It is nevertheless a function of the BCI under clause (i) of Section 7(1) 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. The necessary implication of clause (i) read along with clause (n) of Section 7 is that it is permissible for