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2001 DIGILAW 588 (CAL)

Sumeet Kalyan Sen v. State of West Bengal

2001-09-10

ASHOK KUMAR MATHUR, GIRISH CHANDRA GUPTA

body2001
JUDGMENT Mathur, C.J. : This is an appeal directed against an order passed by the learned Single Judge dated 20th April, 2001 whereby the learned Single Judge has dismissed the writ petition filed by the appellants. The brief facts which are necessary for disposal of this appeal are that an advertisement was published by the Public Service Commission for recruitment of members of Judicial Service, by which applications were invited from Advocates having three years practice to their credit. The petitioners in this case were enrolled as Advocates in the role of Bar Council of West Bengal from time to time and they were also enrolled as trainees from various dates, particulars whereof will appear from the annexures to the writ petition. After completion of their training under Rules 15A to 15C of the Bar Council of India Training Rules, 1995, which required that an applicant for enrolment has to undergo a training of one year after he obtains law degree from a recognised University in India. In the said rule it was also mentioned that the period undergone in training would be deemed as period spent on practice and the period of training to be counted as period of practice. But, the said date was not described as the date of enrolment but the date of enrolment have been specified at a later date. By virtue of the notification issued by the Public Service Commission, the petitioners were held to be ineligible to apply because they are not having three years enrolment, therefore, the petitioners prayed that their enrolment date may be anti-dated i.e. from the date when they were enrolled for training. The petitioners also prayed that they may be permitted to appear in the recruitment for the post of Civil Judge, Junior Division treating the period of their training as period spent by them in practice. 2. It was also contended on behalf of the petitioners that the Bar Council of India Training Rules, 1995, under which the training was required to be undergone by the candidate for enrolment as an Advocate after obtaining the law degree from a recognised University was declared to be ultra vires. 2. It was also contended on behalf of the petitioners that the Bar Council of India Training Rules, 1995, under which the training was required to be undergone by the candidate for enrolment as an Advocate after obtaining the law degree from a recognised University was declared to be ultra vires. The Rules framed by the Bar Council of India was found to be beyond the legislative competence of the Bar Council of India by the Apex Court in the case of (1) V. Sudeer v. Bar Council of India reported in AIR 1999 SC 1167 . It was also held by the Apex Court that the Bar Council of India Training Rules, 1995 is ultra vires of the Advocate's Act and beyond legislative competence of the Bar Council of India as the Advocates Act does not empower the Bar Council of India to lay down such rules. Therefore, the petitioner prayed that they should be treated to have .been enrolled on the date when they were enrolled for training and that period is to be counted and they should be deemed to have completed three years of practice and thus would be eligible for competing for recruitment to the post of Judicial Officer undertaken by the Public Service Commission. 3. The learned Single Judge after considering the matter did not find any merit in the matter and dismissed the writ petition. Their Lordships of the Hon'ble Supreme Court in V. Sudeer's Case (supra) held as under:- "The Rule making Dower contemplated by the legislature under Section 49(1)(ag) for being exercised by the Bar Council of India was pertaining to only those classes or categories of persons who thought fit to be enrolled as Advocates though they might not be eligible to be enrolled under Section 24(1) of the Act as it stood on the statute book. In other words, this enabling rule making power only by which the Bar Council of India could add to the category of eligible persons for enrolment which would have otherwise remained outside the sweep of the statutory scheme of eligibility for enrolment for enrolment as laid down by Section 24(1), did not contemplate any power to curtail the existing eligibility of applicants under Section 24(1) for enrolment as Advocate. It is only for such additional class or category or persons that the enabling provision as per the said rule making power could be available to the Bar Council of India. It is difficult to appreciate how by any process of interpretation an enabling provision can be treated as a restrictive one. In fact, on a conjoint reading of Section 24(3)(d) and Section 49(1)(ag) the conclusion becomes inevitable that the Bar Council of India in exercise of its statutory function entrusted to it under sub-section (3)(d) of Section 24(1) can frame suitable rule for bringing in the umbrella of enrolment provision those who otherwise would have remained outside. The rule making power under Section 49(1)(ag) has to take colour from the statutory function entrusted to the Bar Council of India by Section 24(3)(d). As we have already held that Section 24(3)(d) does not enable the Bar Council of India to impose additional restriction on the eligibility of an applicant who seeks enrolment as per Section 24(1) by necessary implication power under Section 49(1)(ag) also cannot enable such an impermissible exercise. The rule making power under Section 49(1)(ag) is ancillary to the statutory function entrusted to the Bar Council of India by Section 24(3)(d) and it cannot travel beyond the staid statutory sphere." 4. Therefore, their Lordships categorically laid down that the Bar Council of India Training Rules, 1995 framed by the Bar Council of India is beyond the Advocates Act and the rules are ultra vires of the Advocates Act. However, while concluding the judgment their Lordships had given it a prospective effect and their Lordships held:- "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 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 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." 5. The Apex Court held the Rules of 1995 as ultra vires still their Lordships have not given it a retrospective effect, therefore, the certificate issued-by the Bar Council of India cannot be struck down by virtue of this judgment as it has a prospective effect. That being the position the West Bengal Bar Council has not amended the certificates. The certificates issued by the respective Bar Council does not treat the petitioners' being enrolled as an Advocate from the date when they joined as trainee Advocates, they have not completed three years of enrolment as such they are not eligible for the post, accordingly, the Public Service Commission rightly rejected their application being ineligible. 6. The learned Single Judge accordingly held that in view of the aforesaid decision of the Apex Court no relief can be granted to the petitioner. 7. Aggrieved against this order the present appeal has been filed by the appellant. The learned Counsel for the appellant has strenuously urged before us that since the impugned rules have been struck down an ultra vires the rules should be treated that as if they never existed on the statute book. It was also contended that the rules having been struck down it never existed in the statute book and the petitioners are entitled to be enrolled from the date of their registration as trainee Advocates. The contention of the learned Counsel for the appellant would have been accepted had it been as simple as that but in the present case the Apex Court has specifically made a prospective overruling, therefore, the general proposition of law is not applicable in the present case. The contention of the learned Counsel for the appellant would have been accepted had it been as simple as that but in the present case the Apex Court has specifically made a prospective overruling, therefore, the general proposition of law is not applicable in the present case. In the present case the Apex Court, as mentioned above, has prospectively overruled the Rules of 1995 and it was specifically mentioned that it shall not be given a retrospective effect. The theory of prospective overruling was invoked by their Lordships therefore in that case it cannot be held since the rules have been struck down, the effect should be that it never existed and the incumbents should be treated as enrolled as Advocates from the date of their joining as trainee Advocates. In view of the law laid down by the Apex Court, no relief can be given to the appellants. This theory of prospective overruling is not a new proposition. The Constitution Bench of the Supreme Court in somewhat identical situation in the case of (2) Managing Director, ECIL v. B. Karunakaran reported in AIR 1994 SC 1074 accepted the theory of prospective overruling when their Lordships observed:- "Since the said decision made the law expressly prospective in operation the law laid down there will apply only to those orders of punishment which are passed by the disciplinary authority after 20th November, 1990. This is so, notwithstanding the ultimate relief which was granted in (3) Mohd. Ramzan Khan's Case, AIR 1991 SC 471 which was per incuriam. No order of punishment passed before that date would be challengeable on the ground that there was a failure to furnish the inquiry report to the delinquent employee. The proceedings pending in Courts/tribunals in respect of orders of punishment passed prior to 20th November, 1990 will have to be decided according to the law that prevailed prior to the said date and not according to the law laid down in Mohd. Ramzan Khan's Case." 8. Therefore, in this case also their Lordships held that notwithstanding the amendment in Article 311 whereby a second notice was dispensed with their Lordships laid down that though the requirement has been done away still the authorities are required to supply a copy of the report of the inquiry officer and proposed punishment before passing an order of punishment because it is required under the principles of natural Justice. This law was given a prospective effect and not retrospective effect that is from the date when Mohd. Ramzan Khan's Case was decided that is on 20th November, 1990. The same view has been taken by a Constitution Bench of the Supreme Court in the case of (4) M/s. Somaiya Organics (India) Ltd. v. State of Uttar Pradesh reported in AIR 2001 SC 1723 wherein it was held :- "It is true that the effect of a legislation without legislative competence is that it is nonest. Nevertheless a law enacted without legislative competence remains on the statute book till a Court of competent jurisdiction adjudicates thereon and declares it to be void. When the Court declares it to be void it is only then that it can be said that it is nonest for all purposes. Imposing vend fee on industrial alcohol was a declaration under Article 141 of the Constitution. It was for doing complete Justice that the Court in exercise of its jurisdiction under Article 142 moulded the relief in such a way as to give effect to its declaration prospectively. It cannot be said that such an order of prospective overruling is contrary to law. An invalid law has not been held to be valid. All that has happened is that the declaration of invalidity of the legislation was directed to take effect from a future date. The principle of prospective overruling is too well enshrined in our jurisprudence for it to be disturbed." Therefore, the theory of prospective overruling is well enshrined in our jurisprudence as is evident from two Constitutional Bench judgments of the Supreme Court which laid down the law beyond the pale of any controversy. Therefore. the view taken by the learned Single Judge that in view of the prospective declaration of the Rules of 1995 as ultra vires on relief can be given to the petitioner by giving a direction to the Bar Council of West Bengal to amend the certificate and give them the benefit of one years training towards their enrolment. The view taken by the learned Single Judge cannot be said to be wrong and we do not find any merit in this appeal and the same in dismissed with no order as to costs.