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2000 DIGILAW 188 (CAL)

Jyotirmoy Barman v. University of North Bengal

2000-04-17

AMITAVA LALA

body2000
JUDGMENT This writ petition is, virtually, made against the University of North Bengal for giving effect or further effect etc. of impugned letter bearing reference No. 354/UG/99 dated 5th August, 1999, issued by the respondent No.5, i.e., the Secretary, Under Graduate Council, north Bengal University, canceling admission of the petitioners into preliminary of Three Years LL. B. Course for the Session 1998-99 under Jalpaiguri Law College and the purported notice, issued by the Lecturer-in-Charge, Jalpaiguri Law College, the respondent No.6 thereto, both being Annexures 'J' & 'K' respectively. 2. An interim order was sought for, for the purpose of allowing the petitioners to sit in the examination during the pendency of the writ petition which was refused by this Court under all order dated 20th January, 2000. 3. At the time of final adjudication, this Court has come to know from Annexure' B' to the petition that as per Circular of the Bar Council of India, if there is entrance test, the percentage should be 40 but if there is no entrance test, the percentage should be 45 for LL. B. admission, 4. It further appears that all the Universities imparting Legal Education are directed to follow the above requirement strictly and also ask the Colleges imparting LL.B. decree courses to tallow the requirement with immediate effect. 5. Such Circular being LE (Cir) No. 3/1997 was issued on 19th September, 1997. 6. Lecturer-in-Charge of the concerned College published an admission notice, accordingly, for the Session 1998-99 in the 1st Year/Part-I/Preliminary of Three Years LL.B. Course: 7. Eligibility criteria as prescribed therein was Bachelor's Degree of Arts or Science or Commerce or Engineering or an Equivalent Examination with honours or in Pass Course .with at least 45% marks in the aggregate or has obtained the. Masters Degree in any discipline or equivalent. No entrance test will be held. 8. Admission notice, as published, is not strict compliance of the Circular or the Bar Council of India although the same was directed to be strictly followed. 9. From Annexure 'A' to the petition, it appears that the Governing Body of the Jalpaiguri' Law College consists of two University Nominees and two Government Nominees. Moreover, such Governing Body is headed by the District Magistrate, Jalpaiguri, Ex-officio, (President or Governing Body). 10. After such publication of notice of admission on 27th January. 9. From Annexure 'A' to the petition, it appears that the Governing Body of the Jalpaiguri' Law College consists of two University Nominees and two Government Nominees. Moreover, such Governing Body is headed by the District Magistrate, Jalpaiguri, Ex-officio, (President or Governing Body). 10. After such publication of notice of admission on 27th January. 1999, a further notice was issued by the Lecturer-in-Charge, for admission test of the students in the Preliminary Law Course for the Session 1998-99. 11. The petitioners herein were given admission by the Jalpaiguri Law College and ultimately a fixture was fixed for Preliminary LL.B. Examination, 1999 which was scheduled to be held from 21st August, 1999. It is significant to note that from the Annexure 'B' being the fixtures of the Preliminary LL.B. Examination, schedule was fixed under an order of the Deputy. Controller of Examination, University of North Bengal, as on 24th May, 1999. 12. Impugned order, under challenge, is Annexure 'J' to the petition being reference No. 354/UG/99 dated 5th August, 1999, issued by the Secretary, Under Graduate Council, North Bengal University and order of giving effect by the College Authority being Annexure 'K' thereto. 13. The impugned order dated 5th August, 1999 issued by the Secretary, Under Graduate Council, North Bengal University, is quoted here under :- "The report of the enquiry committee constituted by the Governing Body of Jalpaiguri Law College to enquire into alleged irregularity in the matter of admission in the Preliminary Law Class for the Session 1998-99 was received vide your letter No. 98-99/Reg./102 dated 20.5.1999. The University has examined the report and the matter was discussed in. the meetings of Under Graduate and the Executive Councils on 25.6.1999 and 29.6.1999 respectively and legal opinion in the subject was also taken. The observations, and decision of the University are given below for your information and necessary action. (1) The candidates bearing roll Nos. from 241 to 275 have scored between 40% and 44% marks but still they were given admission in violation of Bar Council of India (BCI) norms. As per BCI stipulation no candidate scoring less than 45% marks can be given direct admission. The BCI does not permit any relaxation for SC/ST candidates. (2) Moreover, scrutiny of the report revealed that the candidates bearing roll Nos. 265, 267, 269, 271 and 274 were of general category and had marks less than 45%. As per BCI stipulation no candidate scoring less than 45% marks can be given direct admission. The BCI does not permit any relaxation for SC/ST candidates. (2) Moreover, scrutiny of the report revealed that the candidates bearing roll Nos. 265, 267, 269, 271 and 274 were of general category and had marks less than 45%. The admission of those candidates has also been in violation of norms of BCI. (3) The candidates from roll Nos. 276 to 329 were given admission on the basis of their performance in the entrance test. The qualifying marks in the entrance examination was kept at aft absurdly low level of 20%. It is not known what type of question paper was set and who were the evaluators. The University was not consulted. As such the University is not in a position to take cognizance of such entrance examination. (4) Candidates scoring 37.8% (roll 279) and 39.1 % (roll 320) marks at graduation level were allowed to appear in the entrance examination and were subsequently admitted. (5) A candidate who passed Part I Honours Examination (roll 329) was also admitted on the plea that her case is equivalent to pass graduate. The University was not consulted whether she had given any option in this regard. (6) 1 have been directed to inform you that the University considers the admission of candidates bearing roll Nos. from 241 to 329 as irregular on the grounds stated hereinabove and has decided that the admission of those candidates should be cancelled forthwith and they would not be allowed to appear in the University examination. Besides, it is not clear whether the candidate bearing roll No. 200 (serial No. 544) was eligible for admission. In case he has scored less than 45% marks, his admission should also be cancelled. I have also been directed to request you to immediate action and send compliance report within 3 days of receipt of this letter." 14. According to the petitioners, the Bar Councils' direction is directory but not mandatory. Section 7(h) of the Advocates Act, 1961 contemplates that the functions of the Bar Council of India shall be 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. 15. According to the petitioners, the Bar Councils' direction is directory but not mandatory. Section 7(h) of the Advocates Act, 1961 contemplates that the functions of the Bar Council of India shall be 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. 15. The learned Counsel appearing on behalf of the petitioners cited a judgment reported in (1) 1999(3) SCC 176 , V. Sudeer v. Bar Council of India & Another in its Paragraph 19 that All that the Bar Council of India can do is to suggest ways and means to promote such legal education to be imparted by the Universities and for that purpose, it may lay down the standards of education, syllabi in consultation with the Universities in India. Therefore, it is difficult to appreciate how far Bar Council of India can promote legal education through the Universities imparting legal education in India. The Bar Council of India can itself take up the role of laying down pre-enrolment training for application seeking to enter the legal profession by getting enrolled under Section 24 of the Act. 16. Moreover, the power of Bar Council is to prescribe only a minimum condition of eligibility for admission for the purpose of recognising a Degree of the University to maintain standards. 17. He has relied upon a judgment reported in (2) 1992 All India Educational Cases 89, Ajay Malik v. Punjab University & •Ors., in its paragraphs 5 and 7 in support of such contentions as above, their, I find that the Division Bench of the Punjab, and Haryana High Court held that if the University prescribes any condition of eligibility for admission to the law degree course is lower than the condition of eligibility prescribed by the Bar Council, the latter can refuse to recognise the law degree conferred by the University for the purpose of enrolment as an Advocate. The University is not bound by the condition of eligibility laid down by the Bar. Council of India and in case "the former" prescribed any condition lower than the one prescribed by the Bar Council, it would be open to "the latter" not to recognise the degree awarded by the University. The University is not bound by the condition of eligibility laid down by the Bar. Council of India and in case "the former" prescribed any condition lower than the one prescribed by the Bar Council, it would be open to "the latter" not to recognise the degree awarded by the University. Even otherwise, what is prescribed by the Bar Council of India is only the minimum qualification for admission and, therefore, it is open to the University to prescribe higher qualification while admitting students to the LL. B. Course. 18. Next point he urged in respect of cancellation of the admission which is directly under challenge in the writ jurisdiction of this Court. 19. He relied upon various judgments i.e. (3) AIR 1983 SC 580 , Doddi Atchayyamma v. Doddi Venkata Ramanna & Anr., in its Paragraphs 5 and 11; (4) 1986 (Supp) SCC 740, Rajendra Prasad Mathur v. Karnataka University & Anr., in its Paragraph 8 ; (5) 1989 (1) SCC 399 , Ashok Chand Singhvi v. University of Jodhpur & Ors., in its Paragraph 17 ; (6) AIR 1990 SC 749 , State of Bihar v. Dr. Sanjay Kumar Sinha, in its Paragraph 6 ; (7) 1996 (4) Services Law Reporter 270 (Cal), University of North Bengal & Ors. y. Malabika Dhar & Ors , in its Paragraphs 11 to 13 ; (8) 1998 (2) CLJ 379, Samiran Dasgupta v. State of West Bengal & Ors., in its Paragraphs 37 and 38 ; (9) 1998 (2) SLR 652, Ajeet Kumar Tripathi v. State of Haryana & Anr., in its Paragraphs 3 and 10 & (10) 1995 Supp (1) SCC 155, K. Sujatha v. Mararhwada University & Ors., in its Paragraphs 6 and 7. 20. The basic criteria of showing such judgments is that the authorities should make admissions by ignoring the relies of admission cannot be allowed differently subsequent thereto. 21. Therefore, notwithstanding the fact that the petitioners were in eligible for the admission, they must be allowed to continue their studies in the respective College in which they were granted admission. When all facts were before the University and nothing was suppressed, it would not be proper to penalise the students for no fault of them. There can be a departure in respect of the admission for this year. When all facts were before the University and nothing was suppressed, it would not be proper to penalise the students for no fault of them. There can be a departure in respect of the admission for this year. In view of the aforesaid circumstances, the Court is not only a Court of law but also a Court of equity, therefore, guideline has given by the Bar Council of India, is not mandatory but directory and such circumstances departure, if any, can be regularised by the University and the College. Fruits of hard labour of a student would not be allowed to be denied on the basis of manipulation done admittedly by an Officer of the University at whose instance n0t known but done with some ulterior and wholly motive, the petitioners cannot be made to suffer. If admission has been granted by no fraud having been practised by the candidates and the said candidate has studied a long way, in that event it is totally improper later on to cancel his admission, but if a fraud has been practised by the candidate by submitting a false certificate or in any way misleading the University, then passage of time will not come to his rescue. The ends of Justice that the petitioners will be permitted to continue their studies. 22. Lastly, the learned Counsel appearing for the petitioners contended that once the Governing Body in which two nominees are from University and other two from the Government and such Governing Body is headed by the District Magistrate of a District being Ex-officio, President, can it be held thereafter that the admission on the part of the knowledge under the Universities is improper because they had no knowledge of admission in respect of the candidature of the students before hand. In this respect, it is contended by the petitioners that the Statute 5 of the University of North Bengal says that the Governing Body of every College shall be responsible for the proper management of the affairs of the College and may exercise all such powers and functions as may be necessary for the purpose. Specially, when they are responsible for ensuring the direction issued by the University from time to time and carried out and compliance with them reported speedily to the University. 23. Specially, when they are responsible for ensuring the direction issued by the University from time to time and carried out and compliance with them reported speedily to the University. 23. In this context as well as for the sake of admission of the students and about the applicability of the Bar Council Circular, learned Counsel has drawn my attention to the Rule III of the First Ordinances and Regulations of the University of North Bengal wherefrom I come to know that every candidate for the Degree of Bachelor of Laws shall satisfy the following conditions : "He must have passed the examination for the Degree of Arts or Science or Commerce or Medicine or Engineering of an equivalent examination with Honours or in Pass Course with at least 40% marks in the aggregate, or has obtained the Master's Degree in any discipline or• equivalent." 24. Therefore, one factual aspect is very clear before this Court that although such ordinance gives mandatory direction the level of 40% marks in aggregate for the admission but the admission notice was issued following the Bar Council Rules for obtaining at least 45% marks without any intimation as to why the ordinance of getting admission of the candidates having 40% marks will not be eligible for admission as per notice. 25. It is crystal clear that the College authority partially followed the Circular of the Bar Council of India, partially followed the Ordinance of the University and partially followed back door policy. 26. Therefore, the students who were given admission admittedly getting lesser marks than the ratio of 40% by following the back door policy is not permissible under the law. 27. Under such circumstances, this Court held finally as follows :- Those who have obtained more than 45% of marks, they are eligible for admission both on the basis of the Bar Council of India's resolution vis-a-vis, the Ordinances and Regulations of the University of North Bengal. Those who have obtained more than 40% but less than 45%, they are entitled for admission even without admission test since the Ordinances I Regulations III of the University has not been amended as yet and speaks for eligibility criteria of 40% marks. Those who have obtained marks of 39.5% or more obviously they should be treated at per with 40% since 39.5% to 40.4% is mathematically cannot be treated as 39% which is ineligibility criteria. Those who have obtained marks of 39.5% or more obviously they should be treated at per with 40% since 39.5% to 40.4% is mathematically cannot be treated as 39% which is ineligibility criteria. Those who have obtained marks less than 39.5% and on the basis of the mark obtained in Part-I Examination, they should be declared as ineligible candidates, thus, their admission, if any, is struck down by this Court. There is no specification for admission in case of General candidates, Scheduled Caste and Scheduled Tribe candidates or other reserved candidates, therefore, such principle is inapplicable herein by treating all of them are equal. Since the admission of the candidates are regularised by this Court now, the eligible candidates are declared to be fit for sitting in the forthcoming preliminary examination in the coming session; but not treated retrospectively. The University authority is entitled to proceed as against the members of the Governing Body upon calling explanation from each of them since they cannot avoid the responsibility of improper admission. 28. Henceforth in case of any irregularity of admission in the College, the University authority may take necessary action for cancellation of recognition or of the Institution. 29. Thus, the writ petition stands disposed of. 30. There will be no order as to costs. Let urgent certified copy of this order, if applied for, be given to the learned Advocates for the parties within 2 weeks from the date of submitting of the requisites.