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2002 DIGILAW 596 (KER)

Sankaran Nair v. The Bar Council of India

2002-09-10

B.N.SRIKRISHNA, R.BASANT

body2002
Judgment :- Srikrishna, C.J. Appeal admitted. The respondents waive service through respective counsel. By consent appeal is called out for final hearing and heard. We appreciate the enthusiasm of the appellant who, even after crossing his 72nd year of age, desires to pursue the profession of law. 2. The appellant registered himself as a student of the Bhagalpur University for pursuing the degree in Bachelor of Law and was registered with Regn.No.763 of 1961. Prior thereto the appellant had obtained B.A. degree from the Kerala University in the year 1952. On 20.5.1973 the appellant obtained the degree of Bachelor of Laws from the Bhagalpur University. On 4th June 1980 the appellant made an application to the second respondent Bar Council of Kerala for enrolement as an advocate. The State Bar Council was of the view that his application deserved to be rejected on the ground that a law degree obtained by private study after 12th March, 1967 could not be recognised for the purpose of Section 24(1)(c)(iii) of the Advocate's Act 1961 (hereinafter referred to as "the Act.") The State Bar Council referred the matter to the first repondent Bar Council of India for its opinion. By resolution No.15 of 1981, the Bar Council of India approved the proposal of the second respondent to reject the application for enrolement filed by the appellant. Accordingly, a communication to that effect dated 1.3.1985 was forwarded to the appellant. On 3.3.1988 the appellant filed an application for review of the decision taken by the Bar Council of India in the light of the amendment carried out to Section 24 of the Advocate's Act by Act 60 of 1973. Thereafter, he filed a second application for enrolement on 7.3.1988. On 10.3.1988 the Bar Council of India rejected the review petition filed by the appellant. The appellant moved O.P.4599 of 1988 before this court challenging the decision of the respondents to reject the application. In the meanwhile, the Bar Council of India passed resolution No.91 of 1990 permitting the enrolement of another candidate by name parmatma Swarup Saxena. According to the appellant, the case of parmatma Swarup Saxena is identical to the case of the appellant himself inasmuch as the said Saxena also appeared as a private candidate and obtained his Bachelor of Arts from Bhagalpur University. On 22.11.1990 a Division Bench of this court dismissed the appellant's O.P.4599 of 1988. According to the appellant, the case of parmatma Swarup Saxena is identical to the case of the appellant himself inasmuch as the said Saxena also appeared as a private candidate and obtained his Bachelor of Arts from Bhagalpur University. On 22.11.1990 a Division Bench of this court dismissed the appellant's O.P.4599 of 1988. However, it directed the respondents-State Bar Council and the Bar Council of India-to pass appropriate orders on the second application of the appellant filed by him on 7.3.1988. The appellant challenged the judgment of this court in O.P.4999 of 1988 by S.L.P.No.6986 of 1991 before the Supreme Court. The Supreme Court dismissed the Special Leave petition by the following order: "We see no ground to interfere with the impugned judgment of the High Court. The special Leave petition is dismissed. Mr.Poti states that there are subsequent resolutions/developments on the basis of which he claims that his client could be enrolled as an Advocate. He may, if so advised, approach the Bar Council of Kerala". 3. Since nothing was being done by the respondents, even therefore, the appellant moved O.P.13539 of 1998 before this court and sought a writ of mandamus against the respondents. On 22.7.1998, this Original petition was disposed of by this court with a direction to the Bar Council of India to pass appropriate orders within two months. On 16/17.10.1998, by the resolution(Ext.P9) the Bar Council of India accepted the proposal of the Bar Council of Kerala to reject the application for enrolment made by the appellant. This decision of the Bar Council of India was challenged by the appellant by filing O.P.1800 of 1999. By an order made on 16.12.2001 the learned Single Judge directed the first respondent Bar Council of India to file an affidavit explaining whether the date of commencement of the course of instruction was the date of registration of a private candidates. On 13.11.2001 an affidavit was filed by the first respondent in compliance. Finally, by judgment dt. 15.2.2002, the learned Single Judge dismissed O.P.1800 of 1999. Aggrieved thereby, the appellant is before this court. 4. The main reason why the Bar Council of India rejected the application for enrolment (the second application) is evident from the penultimate paragraph of the order Ext. P9 wherein it is stated:- 5. Finally, by judgment dt. 15.2.2002, the learned Single Judge dismissed O.P.1800 of 1999. Aggrieved thereby, the appellant is before this court. 4. The main reason why the Bar Council of India rejected the application for enrolment (the second application) is evident from the penultimate paragraph of the order Ext. P9 wherein it is stated:- 5. The real point in question is whether Shri Sankaran Nair really started his course of study commencing from academic year 1966-67 or any other academic year. Only marksheet of part I of the B.L. examination was produced by Shri.Sankaran Nair which shows that he appeared for that examination in October, 1971, There is also another degree certificate which shows that he got B.L.degree in October, 1971. Apart from arguing on the basis of the Registration Number which is of the year 1967, there is no other material produced by him in support of his request for enrolment which shows that he commenced the study of law from or before the academic year 1967-68. His case is not covered by Ext.P6 referred to in the order of the Hon'ble Kerala High Court In the circumstances, the Bar Council of India accepts the referred by the Bar council of Kerala to reject his enrolment application - 6. After hearing counsel, it appears to us that though the Bar Council of India correctly summarized the crucial issue to be considered, the Bar Council of India fell into error by wrongly answering it. 7. Section 24 of the Advocates' Act 1961 prescribes the qualifications for a person to be admitted as an Advocate on a state roll. Counsel are agreed that the case of the appellant can be considered only under sub-clause (iiia) to clause (c) section 24 (1). The relevant clause reads as under:- "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 fulfiles the following conditions, namely:- (a)....... (b) ....... (c) he has obtained a degree in law- it could be assumed that he has commenced his study from that date. (b) ....... (c) he has obtained a degree in law- it could be assumed that he has commenced his study from that date. The emphasis in clause iii(a) of Section 24(i)(c) appears to be an the fact that the course of study in law should not be less than two academic years commencing from the academic year 1967-68 or any earlier academic year and further that it should be from a University of India recognized for the purpose of the Act by the Bar Council of India. Learned Counsel for the appellant Mr.Paikeday draws our attention to the meaning of the word "commence" in Blocks Law Dictionary vth Edition page 243. The word means "to initiate by performing the first act, to institute or start". Undoubtedly, the initiation of the course of study was on the date of registration. Learned counsel is therefore justified in his submission. That the Bar of Council of India has recognized the Bhagalpur University as a University recognized for the purpose of the Act, is not in dispute. Despite the clear averment in paragraph 2 made by the appellant to the effect: "....Therefore the petitioner recognized with the University of Bhagalpur in Bihar State as a private candidate for study of law in the year 1961...." the above averment does not seem to have been specifically denied. Pursuant to the interim order made by the learned Single Judge on 16.10.2001, a second affidavit dated 7.11.2001 was filed by the respondents. Even in this affidavit, there is no doubt expressed nor averment made that the appellant's registration as a student was for a purpose other than pursuing the course of study in law. Nor is there any assertion in this affidavit, much less material produced on record to indicate that the course of study in law as a private candidate in Bhagalpur University was for a duration of less than two academic years. Even the order of the Bar Council of India (Ext.P9) does not express any doubt on this facet of the matter. The order Ext.P9 proceeds only on the ground that mere registration would not evidence the commencement of the course of study in Law. Even the order of the Bar Council of India (Ext.P9) does not express any doubt on this facet of the matter. The order Ext.P9 proceeds only on the ground that mere registration would not evidence the commencement of the course of study in Law. In our view, in the facts and circumstances of the case as seen from the materials placed on record, there was no justification for the respondents to doubt that the appellant had not commenced his course of study in law from the date of registration as a student. That would be consistent with the general pattern of education. If there were any exceptional circumstances or material in the possession of the respondents which rebutted this presumption, then it was open to the respondents to disclose such material or circumstances to the appellant and take a contrary view after hearing him. Since this was the only reason why the appellant's application for enrolment was rejected appears to be based on an erroneous premise the order impunged must be quashed and appellant is entitled to succeed. We are of the view that the appellant's application has wrongly been rejected. We therefore aloe this writ Appeal, set aside the judgment of the Learned Single Judge and grant the prayers (ii) and (iii) made in the original petition. We make no order as to costs.