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2001 DIGILAW 438 (KER)

Tellus Mon Wil v. Registrar, High Court of Kerala

2001-08-10

M.RAMACHANDRAN, P.K.BALASUBRAMANYAN

body2001
Judgment :- M. Ramachandran, J. 1. Four Original Petitions, agitating common issues, had been referred to the Division Bench when they had come up for admission. The respondents had appeared, taking notice. O.P. No. 21948 of 2001 is agreed to be considered as a representative case, and the first respondent-Registrar, High Court of Kerala has filed a statement substantiating their stand. The other respondents are the Bar Council of Kerala and the State Government. 2. By notification dated 26.3.2001, the High Court had invited applications from qualified candidates for appointment to the post of Munsiff-Magistrate. The Kerala Judicial Service Rules issued in exercise of powers under Art.234 and 235 of the Constitution and the Public Services Act governs the selection and appointment to the post of Munsiff-Magistrate. The methods of recruitment are specified as (i) direct recruitment from the Bar and (ii) recruitment by transfer. The selection was to be by holding written examination and interview. The date notified for written examination is 11th and 12th of August 2001. The last date for receipt of applications was 6.6.2001. In so far as they relate to direct recruitees, the minimum qualification for appointment is shown as: "4. Qualifications : (i) Direct recruitment - No person shall be eligible for appointment as Munsiff-Magistrate by direct recruitment unless he is a graduate in Law or a Barrister-at-Law and a practising Advocate having a standing at the Bar for a period of not less than five years. But a practising Advocate who is a member of Scheduled Caste or Scheduled Tribe shall be eligible for appointment as Munsiff-Magistrate if he is having practice at the Bar for a minimum period of not less than three years." 3. The petitioners who belong to SC/ST category had responded in time, and they had made available the relevant certificates and declarations as specified. However, by a communication dated 16.7.2001 (Ext. P3), all of them have been advised that their applications are rejected as extracted below: "With reference to the above I am to inform you that the application has been rejected for the following reason: You have not completed the prescribed length of bar practice of three years as on 6.6.01 i.e., the last date fixed for receipt of application." 4. The rejection memos are under challenge. The rejection memos are under challenge. The petitioners have not attacked the notification, nor the Special Rules, as according to them, the rejection alone was illegal, since all of them were qualified for appointment as per the notification. 5. The case of the petitioners projected in the Original Petitions could be understood as following. After acquiring degree in Law, petitioners were desirous of practising the profession of law. With the above objective, they had submitted applications to the Bar Council of Kerala. During the relevant time, the Bar Council of India in exercise of the powers under S.24(3)(D) of the Advocates Act, 1961 had enforced Rules as 'Bar Council of India Training Rules, 1996 and effective from 2.4.1996. Training as prescribed under the Rules was mandatory, for enrolment. Required fee for enrolment as also training was to be remitted in advance. The training was normally of one year duration and was to be undergone under a qualified guide. According to the petitioners, they had underwent the rigorous training, and on completion of the training period, had submitted their credentials before the Enrolment Committee of the Bar Council. As cleared by them, the petitioners were enrolled as Advocates, respectively on 22.11.1998, 28.2.1999, 26.7.1998 and 28.2.1999. The certificate is worded as following: "This is to certify that Sri. Tellus Mon Wil A.V. has been admitted as an Advocate on the Roll of the Bar Council of Kerala on the 22nd day of November, 1998 under the provisions of S.17 of the Advocate's Act (Act 25 of 1961). Given under the seal of the Bar Council of Kerala. The period of training from 13.11.1997 to 12.11.1998 as per the Bar Council of India Training Rules, 1995 is treated as legal practice and he/she is deemed to be an Advocate for all intents and purposes of the Advocates Act, 1961." The later portion of the certificate, as extracted above, evidently was an addition, but nevertheless genuine and authorised. The certificate apparently wanted to convey that even though the enrolment was on 22.11.1998, the period of training of one year was treated as legal practice and the incumbent was to be deemed as an Advocate for all intents and purposes of Advocates' Act, 1961. The certificate apparently wanted to convey that even though the enrolment was on 22.11.1998, the period of training of one year was treated as legal practice and the incumbent was to be deemed as an Advocate for all intents and purposes of Advocates' Act, 1961. The petitioners submitted that if this deemed period of one year is added on to the length of practice after their enrolment, every one of them automatically were to be considered as having a standing of not less than three years at the Bar. Viewed from the above perspective, the petitioners submitted that the rejection of their candidature was misconceived. 6. The deeming provision in the enrolment certificate, according to the petitioners, had come to be recorded in the wake of the decision of the Supreme Court in Sudheer v. Bar Council of India reported in 1999 (2) KLT 73. In the said decision dated 12.3.1999 (and clarified on 15.3.1999) the Supreme Court had held that Rules prescribed for training (under which the petitioners had received the training) were beyond the Rule making power of the Bar Council of India and ultra vires of the Act. It is averred that the incorporation in the certificate as above was made on the authority of a resolution passed by the Bar Council to that effect. By not permitting the petitioners to enrol after they acquired minimum qualification for enrolment, of course because of presence of the training rules, the individuals were put to hardship. When the Rules were found as one prescribed without jurisdiction, the Bar Council might have thought it fit to confer the benefit of an earlier date on the individuals concerned by adopting such a procedure. Thus it was a case where petitioner was trying to secure the benefit arising from the benevolence of the Bar Council. 7. We heard Sri. N.N. Sugunapalan, representing the High Court. The Statement filed by the Registrar highlighted the circumstances in which Ext. P3 rejection memo came to be issued. Mr. Sugunapalan relied on the self same decision of the Supreme Court (1999 (2) KLT 73) and especially Para.42 thereof. He also had invited our attention to the ruling in Madan Lal v. State of J. & K. (1995 (3) SCC 486). He pointed out that when Special Rules govern the selection, the minimum qualification could not have been watered down by any interpretation contrary to the Rules. He also had invited our attention to the ruling in Madan Lal v. State of J. & K. (1995 (3) SCC 486). He pointed out that when Special Rules govern the selection, the minimum qualification could not have been watered down by any interpretation contrary to the Rules. The certificate of the petitioners respectively showed their date of enrolment, and it was not possible to go to any anterior date, on a notional basis or deeming mechanism so as to confer on them the experience which they otherwise did not possess. Prior to the date of their enrolment they were not "practising Advocates having a stand at the Bar". They were admittedly undergoing training, and were disabled from functioning as practitioners. The claim put up by them therefore was unsustainable, and it could not have been possible to accept their candidature without doing violence to the terms of the Special Rules, and the notification. 8. On an examination of the available situation, we find that the contentions urged by the petitioners have no merit. On a plain understanding of the decision in Sudeer's case (cited supra), we find that the petitioners' case or claims could not at all have been linked with the directions which came to be passed in the said decision. Their enrolment date was earlier than the date of the decision. The Supreme Court also made it clear that the decision was not retrospective. The effect of the decision was that the training from the date of the decision was of no consequence. In this context, Para.42 of the decision is highly relevant: "Before concluding these proceedings we must mention that it would be necessary to direct that the present judgment will operate only prospectively to avoid unnecessary confusion and complications. It is clarified that this judgment will have no retrospective effect in the sense that it will not apply to those applicants for enrolment who have earlier applied for enrolment and have successfully completed their pre-enrolment training as per the impugned rules. However, all those who apply for enrolment after this judgment will not have to undergo pre-enrolment training. It is clarified that this judgment will have no retrospective effect in the sense that it will not apply to those applicants for enrolment who have earlier applied for enrolment and have successfully completed their pre-enrolment training as per the impugned rules. However, all those who apply for enrolment after this judgment will not have to undergo pre-enrolment training. This will be irrespective of the fact whether they had earlier applied for enrolment and have not completed their pre-enrolment training under the impugned rules till the date of this judgment or whether they had not earlier applied for enrolment despite getting their law degrees prior to the date of this judgment." 9. Petitioners not only had successfully completed their pre-enrolment training, but had commenced practising as Advocates on the date. Resolution of the Bar Council for incorporating a deeming provision was not therefore required as arising from the decision at least as far as such persons were concerned. Nor the petitioners have been able to show any provisions in the Advocates Act authorising the Bar Council to confer any such privilege. 10.Advocate is defined under the Act, as one entered in any roll under the provisions of the Act. Roll under S.2(k) means roll of advocates prepared and maintained under the Act. Petitioners have no case that when their enrolment date is reckoned any of them do have three years Bar experience as on the relevant date. The date of enrolment is specifically given in the certificate as well and it is meaningful that it is not anti-dated. When S.38 lays down that advocates alone are entitled to practice, we have to understand the significance of the provisions appropriately. Acceptance of the case of the petitioners would mean that an apprentice is as well entitled to practice, and such practice has to be reckoned as 'Bar experience'. The decision in Madan Lal's case (cited supra) makes it clear that practice specified is to be treated as actual practice after enrolment. The sustenance for the said proposition might have been drawn from an earlier decision, viz., All India Judges' Association v. Union of India (1993 (2) KLT 581), and especially Para.19. It has been observed that 'Neither knowledge derived from books nor pre-service training can be an adequate substitute for the first-hand experience of the working of the court-system and the administration of justice begotten through legal practice. It has been observed that 'Neither knowledge derived from books nor pre-service training can be an adequate substitute for the first-hand experience of the working of the court-system and the administration of justice begotten through legal practice. The practice involves much more than mere advocacy. Unless the judicial officer is familiar with the working of the said components, his education and equipment as a judge is likely to remain incomplete. The experience as a lawyer is, therefore, essential to enable the judge to discharge his duties and functions efficiently and with confidence and circumspection.' 11. Therefore, as pointed out by the respondents, the benefit referred to in Ext. P1 could be understood as one capable of being claimed under the Advocates Act alone. In the matters like qualification for election, membership in Welfare Funds and so on it could have been reckonable. We are definite that the period of apprenticeship cannot be equated to practice as advocate when qualification prescribed have a special and specific connotation and purpose. The appendage to the enrolment certificate does not confer on the petitioners a right which is not conceived of by the statute. 12. Ext. P3 and similar memos cannot therefore be faulted. The Original Petitions are dismissed. P.K. Balasubramanyan, Ag.C.J. I fully agree with the views expressed by my learned brother. When the matter came up before us I suggested to counsel appearing for the parties that this matter can be sent up to another Bench since I was a member of the Committee relating to the selection process. But counsel for the petitioners submitted that the petitioners would request the court to take a decision on the judicial side and the matter may be heard. I also realised that all the available Division Benches in this Court were being presided over by judges who were members of the concerned Committee. There was also urgency in the matter since the tests are to take place on 11.8.2001 and under the circumstances the constitution of a fresh Division Bench would take one or two days. It was in that situation that the matter was heard by us on 8.8.2001.