IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 20966 of 2010 & connected petitions Date of Decision: October 20, 2011 Rajan Sharma …Petitioner Versus The Bar Council of India and another …Respondents CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON’BLE MR. JUSTICE RAJIV NARAIN RAINA Present: For the Petitioner(s): Mr. Bhrigu Dutt Sharma, Advocate, (in CWP No. 12097 of 2009) Mr. Arun Gosain, Advocate, (in CWP Nos. 5258, 20966 of 2010) Mr. Lokesh Sinhal, Advocate, (in CWP No. 12528 of 2011) None in CWP No. 11947 of 2009. For the Respondent(s): Mr. K.S. Rekhi, Advocate, for Guru Nanak Dev University, Amritsar. None for the Bar Council of India. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, Acting C.J. 1. This order shall dispose of a bunch of five petitions* because common question of law and facts are involved. In all the petitions, filed under Article 226 of the Constitution, the petitioner(s) have prayed for striking down Clause 28 of CWP No. 20966 of 2010 & connected petitions Schedule-III appended to the Rules of Legal Education, 2008 (for brevity, ‘the Rules’), framed by the respondent Bar Council of India being ultra vires, unconstitutional and arbitrary. 2. The undisputed facts are that the Bar Council of India is a statutory body constituted under Section 4 of the Advocates Act, 1961 (for brevity, ‘the Advocates Act’). It is competent to lay down the standards of legal education and recognition of the degree in law for admission as an advocate. Section 7 of the Advocates Act lays down the functions of the Bar Council of India which includes promotion of legal education and to lay down standards of such education in consultation with the Universities in India and the State Bar Councils. Sections 15 and 49 of the Advocates Act further empower the Bar Council of India to frame Rules for carrying out all its functions. 3. On 14.9.2008, the Bar Council of India passed Resolution No. 110/2008 and formulated ‘the Rules’. The Rules have been basically formulated to prescribe the standards of legal education and recognition of degrees in law for the purpose of enrolment as advocate and inspection of Universities for recognising its degree in law under Section 7(1)(h) and (i), 24(1) (c)(iii), and (iiia), 49(1)(af), (ag), and (d) of the Advocates Act. 4. Schedule-III appended to ‘the Rules’ prescribes the minimum infrastructural facilities required in a Centre of Legal Education for applying permission to run law courses with affiliation from an Indian University. Clause 28 of Schedule-III relates to ‘age on admission’, and stipulates the age limit for 2 CWP No. 20966 of 2010 & connected petitions admission in 3 year and 5 year law courses. It reads as under: “28. Age on admission: (a) Subject to the condition stipulated by a University on this behalf and the high degree of professional commitment required, the maximum age for seeking admission into a stream of integrated Bachelor of law degree program, is limited to twenty years in case of general category of applicants and to twenty two years in case of applicants from SC, ST and other Backward communities. (b) Subject to the condition stipulated by a University, and the general social condition of the applicants seeking legal education belatedly, the maximum age for seeking admission into a stream of Three Year Bachelor Degree Course in Law, is limited to thirty years with right of the University to give concession of 5 further year for the applicant belonging to SC or ST or any other Backward Community.” 5. A bare perusal of Clause 28(a) shows that the maximum age for seeking admission into a stream of integrated Bachelor of Law degree program (which is of 5 years duration) the age has been limited to 20 years in case of General category applicants and 22 years in case of applicants belonging to SC, ST and other Backward communities. Similarly, Clause 28(b) prescribes a cap of 30 years in respect of General category 3 CWP No. 20966 of 2010 & connected petitions applicants as the maximum age limit for seeking admission into a 3 years Bachelor Degree Course in Law. However, in the case of SC, ST and other Backward community applicants, the concerned University has the right to give a concession of 5 years. 6. In the year 2009, the respondent Guru Nanak Dev University, Amritsar issued a prospectus for conducting Common Entrance Test for admission into Three Years LL.B. Course, Five Years B.A. LL.B. Course as also Five Years B.A. LL.B. (Hons. School) Course, prescribing the following Educational Qualifications: “2. CET Law 2009 Educational Qualification 1.1 Guru Nanak Dev University, Amritsar and institutions affiliated to Guru Nanak Dev University, Amritsar. Three Years LL.B. Course Bachelor degree of Guru Nanak Dev University or a degree recognized as equivalent with atleast 45% marks in aggregate (40% marks in case of SC/ST candidates). The candidates should not have completed the age of 30 years (35 years in case of SC/ST and Backward classes) on the First of July of the year of admission. Five Years B.A. LL.B. Course (a) 10+2 examination of Punjab School Education Board or any other equivalent examination recognized 4 CWP No. 20966 of 2010 & connected petitions as such by the University with at least 45% marks (40% in case of SC/ST candidates) (b) The candidates should not have completed the age of 20 years (22 years in case of SC/ST and backward classes) on the First of July of the year of admission. Five Years B.A. LL.B. (Hons. School) Course (a) 10+2 examination of Punjab School Education Board or any other equivalent examination recognized as such by the University with at least 50% marks (45% in case of SC/ST candidates) (b) The candidates should not have completed the age of 20 years (22 years in case of SC/ST and backward classes) on the First of July of the year of admission.” 7. The common grievance of the petitioner(s) in these petitions is that they intend to further enhance their educational qualification and want to take admission in the 3/5 years Course of Law. But by virtue of the stipulation for maximum age, they were deprived from taking admission despite the fact that some of them had appeared in the entrance examination and obtained high rank. They were refused admission for not fulfilling the age criteria as fixed by Clause 28 of Schedule-III appended to the Rules. 8. The question whether the Bar Council of India is competent to frame the Rule barring a person above the age of 5 CWP No. 20966 of 2010 & connected petitions 45 years from enrolment as an Advocate was considered by Hon'ble the Supreme Court in the case of Indian Council of Legal Aid and Advice and others v. Bar Council of India and another (1995) 1 SCC 732. In para 9 of the judgment, it has been held by their Lordships of Hon'ble the Supreme Court that a Rule which operates at pre-enrolment stage cannot receive the shelter of clause (ah) of Section 49(1) of the Advocates Act. Para 8 of the judgment which deals with the issue reads as under: “8. The newly added rule seeks to bar the entry of persons who have completed the age of 45 years on the date of application for enrolment as an advocate from being enrolled as such by the State Bar Council concerned. While Section 24 of the Act prescribes the minimum age for enrolment as twenty-one years complete, there is no provision in the Act which can be said to prescribe the maximum age for entry into the profession. Since the Act is silent on this point the Bar Council of India was required to resort to its rule-making power. The rules made by the Bar Council of India under Section 49(1) of the Act are in seven parts, each part having its own chapters. Part VI is entitled "Rules Governing Advocates" and the said part has three chapters. Chapter I sets out the restrictions on senior advocates and is relatable to Sections 16(3) and 49(1)(g) of the Act, Chapter II lays down the standards of professional conduct and etiquette and is relatable to Section 49(1)(c) read with the proviso thereto and Chapter III deals with "Conditions for right to practice" and is stated to 6 CWP No. 20966 of 2010 & connected petitions be made in exercise of power under clause (ah) of sub-section (1) of Section 49 of the Act. That clause reads as under: "(ah) the conditions subject to which an advocate shall have the right to practice and the circumstances under which a person shall be deemed to practice as an advocate in a court;" On the plain language of the said clause it seems clear to us that under the said provision the Bar Council of India can lay down the 'conditions' subject to which "an advocate" shall have the right to practice. These conditions which the Bar Council of India can lay down are applicable to an advocate, i.e., a person who has already been enrolled as an advocate by the State Bar Council concerned. The conditions which can be prescribed must apply at the post-enrolment stage since they are expected to relate to the right to practice. They can, therefore, not operate at the pre- enrolment stage. By the impugned rule, the entry of those who have completed 45 years at the date of application for enrolment is sought to be barred. The rule clearly operates at the pre- enrolment stage and cannot, therefore, receive the shelter of clause (ah) of Section 49(1) of the Act. Under the said clause conditions applicable to an advocate touching his right to practice can be laid down, and if laid down he must exercise his right subject to those conditions. But the language of the said clause does not permit laying down of conditions for entry into the profession. We have, therefore, no hesitation in coming to the conclusion that clause (ah) of 7 CWP No. 20966 of 2010 & connected petitions Section 49(1) of the Act does not empower the Bar Council of India to frame a rule barring persons who have completed 45 years of age from enrolment as an advocate. The impugned rule is, therefore, ultra vires the said provision.” 9. The impugned Clause 28 dealing with the age on admission occurring in Schedule-III appended to the Rules have been framed under Section 7(1)(h) and (i) and 24(1)(c)(iii) and (iiia), 49(1)(af), (ag), and (d) of the Advocates Act. Section 7 of the Advocates Act deals with the function of the Bar Council of India and Clause 7(1)(h) and (i) only deals with such functions of the Bar Council of India, which are aimed at promoting to legal education and to lay down standards of such education in consultation with the Universities in India imparting such education and to recognize the Universities whose degree in law shall be a qualification for enrolment as an Advocate. Therefore, this clause would not arm the Bar Council of India to incorporate the provisions in the Rules like clause 28 concerning the age on admission to LL.B. Course. Likewise, Section 24(i)(c) deals with person who may be admitted as an Advocate on a State roll. It has got nothing to do with the age on admission and cannot be construed to have conferred power on the Bar Council of India to prescribe the maximum age for the purposes of admission to LL.B. Five years' Course or LL.B. Three Years' Course . 10. We are left to deal with Section 49(1)(af) and (ag) of the Advocates Act. The aforesaid clause (af) deals with the minimum qualification required for admission to a course of 8 CWP No. 20966 of 2010 & connected petitions degree in law in any recognized University and clause (ag) deals with the class or category of the persons entitled to be enrolled as Advocates. Clause (d) of Section 49 (i) of the Advocates Act deals with the standards of legal education to be observed by universities in India and the inspection of universities for that purpose. We are afraid that even this Clause would not extend to grant competence to Bar Council of India to incorporate a provision concerning the maximum age for admission to LL.B. Course. The matter has been discussed in detail in Indian Council of Legal Aid and Advice's case (supra) by Hon'ble the Supreme Court. It is also relevant to mention that a similar view was taken by a Division Bench of Madras High Court in the case of M. Radhakrishnan v. The Secretary, the Bar Council of India AIR 2007 Madras 108. Therefore, we find that the provisions of Clause 28 of Schedule-III appended to the Rules are beyond the legislative competence of the Bar Council of India. Clause 28 ultra vires the provisions of Sections 7(1)(h) and (i), 24(1)(c) (iii) and (iiia) or Section 49(1)(af) (ag) and (d) of the Advocate Act. Even otherwise, the Rule is arbitrary as it introduces an invidious classification by dividing one Class of student into two artificial and irrational Classes by prescribing the maximum age for admission to law courses. 12. As a sequel to the above discussion, the writ petitions are allowed. The petitioners who have been admitted on the basis of the interim order would continue and their admissions should not be cancelled on the ground that they did not fulfill the 9 CWP No. 20966 of 2010 & connected petitions criteria of maximum age. 13. A photocopy of this order be placed on the files of connected cases. (M.M. KUMAR) ACTING CHIEF JUSTICE (RAJIV NARAIN RAINA) October 20, 2011 JUDGE Pkapoor/atul * Sr. No. Civil Writ Petition No. Title 1. 11947 of 2009 Lt. Col. (Retd.) Harjinder Singh Sangha and others v. State of Punjab and others 2. 12097 of 2009 Janak Raj v. Bar Council of India and another 3. 5258 of 2010 Nitin Gupta v. Bar Council of India and another 4. 20966 of 2010 Rajan Sharma v. Bar Council of India and another 5. 12528 of 2011 Ankit Bhardwaj v. Bar Council of India and another (M.M. KUMAR) ACTING CHIEF JUSTICE (RAJIV NARAIN RAINA) October 20, 2011 JUDGE Pkapoor/atul 10