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CASE NO.:

Appeal (civil) 5301-5302 of 2001

PETITIONER:

BAR COUNCIL OF INDIA

RESPONDENT:

BOARD OF MANG. DAYANAND COLL. OF LAW AND ORS

DATE OF JUDGMENT: 28/11/2006

BENCH:

H.K. SEMA & P.K. BALASUBRAMANYAN

JUDGMENT:

J U D G M E N T

P.K. BALASUBRAMANYAN, J.

1. The Bar Council of India challenges the

judgments of the High Court of Allahabad in two Writ

Petitions holding that the appointment of respondent No.

5 in these appeals as the Principal of the Dayanand

College of Law was valid and within the competence of the

State of Uttar Pradesh and the Chhatrapati Shri Sahu Ji

Maharaj Kanpur University, Kanpur. Respondent No. 5

was appointed Principal of the said Law College on

11.12.1995. On an inspection, the Bar Council of India

found that respondent No. 5 did not possess a

qualification in law and hence withdrew its recognition to

the College. At that stage, the Management of the College

filed Civil Miscellaneous Writ Petition No. 48183 of 2000

questioning the validity of the appointment of respondent

No. 5 as the Principal of the College. Meanwhile,

respondent No. 5 was transferred as the Principal of

Nagrik Degree College and he challenged the said order of

transfer on the ground that he was competent to hold the

post of Principal of the Law College and the reason for his

transfer was unsustainable and that a Principal could not

be transferred to another College as sought to be done.

The bone of contention in the Writ Petitions was whether a

person who did not possess a degree or a postgraduate

degree in law and was not qualified to practise law, could

be appointed as the Principal of a Law College and

whether it was not essential to have a degree in law before

one could be appointed as Principal of a Law College. The

Bar Council of India was not a party to the Writ Petitions.

The High Court took the view that going by the Uttar

Pradesh State Universities Act, 1973 (hereinafter referred

to as, "the University Act"), such an appointment could be

made notwithstanding anything contained in the

Advocates Act, 1961 or in the Rules framed by the Bar

Council of India. The High Court proceeded on the basis

that there was a conflict between the two enactments,

namely, the University Act and the Advocates Act and in

terms of Article 254(2) of the Constitution of India, the

University Act, the later State Act with the assent of the

President, would prevail over the Advocates Act and since

appointment to the post of a Principal of a College

affiliated to a University was governed by the University

Act, the appointment of respondent No. 5 as Principal of

the Law College was liable to be upheld. It was also held

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that the Bar Council of India did not have any control

regarding legal education. The order transferring

respondent No. 5 away from the post of Principal of the

Law College was consequently set aside. No notice was

also issued to the Bar Council of India, the apex

professional body of Advocates, before taking such a

decision. However, taking note of the consequences of the

decision rendered by the High Court, the Bar Council of

India has filed these appeals challenging the decision of

the High Court with the leave of this Court.

2. The appointments to Higher Educational

Institutions in the State of Uttar Pradesh including Degree

Colleges is done by the Higher Education Services

Commission constituted under the Uttar Pradesh Higher

Education Services Commission Act, 1980 (hereinafter

referred to as, "the Act") and in terms of Uttar Pradesh

Higher Education Services Commission (Procedure for

selection of teachers) Regulations, 1983. Section 12 of the

Act insists that every appointment of a teacher shall be in

terms of the Act and a teacher is defined to include a

Principal. Section 12(1) provides that any appointment

made in contravention of the Act would be void. On the

basis of the relevant Regulations framed under Section 31

of the said Act, advertisements are to be issued inviting

applications for appointment of Principals to various

degree colleges that had made requisitions in that behalf

or had reported vacancy and on the basis of the procedure

for selection, a list is to be prepared of the candidates

eligible for appointment as Principals. The appointments

to various Colleges are made from the said panel

depending on circumstances including the preference of

the candidates. Statute 11.14 provides the qualification to

be possessed for the post of Principal in the colleges

affiliated to the Kanpur University. Prior to 13.1.1995,

Statute 11.14 (i)(b) provided that the Principal must

possess "a doctorate degree in one of the subjects taught

in the college, with 7 years' experience of teaching degree

class". With effect from 13.1.1995, the said Statute was

amended and clause (b) thereafter read, "a doctorate

degree, with 7 years' experience of teaching degree class".

In other words, the requirement that the appointee must

have a doctorate degree in one of the subjects taught in

the College was done away with. Until 13.1.1995, a

person could be appointed Principal of a Law College only

if he possessed a doctorate degree in law or in one of the

branches of law taught in that College. But after

13.1.1995, on an ordinary literal interpretation of the

amended clause, a person possessing a doctorate degree

in a subject wholly unrelated to law could also be

appointed the Principal of a Law College. Respondent No.

5 herein, who was one among the candidates selected and

included in the panel and who was appointed as Principal

of the Dayanand Law College had a doctorate in

Philosophy and had no degree or qualification in law.

3. The management initially accepted the

appointment of respondent No. 5 as Principal. It is said

that he was teaching Ethics and Ancient Law in the

College. As noticed earlier, on an inspection made by the

Bar Council of India, it came out that the Principal did not

have any qualification in law. The Bar Council of India,

therefore, withdrew the recognition granted to the College.

This placed the students coming out of the College in

jeopardy since the Bar Council of India could deny them

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enrolment and entry into the profession on the ground

that the Institution in which they studied did not have

recognition. It was then, that the management, acting

through its Secretary, filed the Writ Petition praying for

the issue of a writ of quo warranto, calling upon

respondent No. 5 to show on what authority he was

holding office. In that situation, respondent No. 5 was

transferred as Principal of another College. It is the case

of respondent No. 5 that he could not join that post since

an interim order was passed by the High Court

restraining him from taking charge as Principal of that

College and this compelled him to file a writ petition

questioning his very transfer. It is in that context that the

High Court held that the appointment of respondent No. 5

was consistent with the University Act and since that Act

prevailed over the Advocates Act and the relevant rules of

the Bar Council of India, the status of respondent No. 5

could not be questioned. Based on that decision, the High

Court also set aside the order transferring respondent No.

5. No doubt, it also took the view that such a transfer of

Principal was not contemplated by the University Act or

the Regulations thereunder.

4. There is no doubt that the University Act, 1973

had the assent of the President of India and it was an

enactment later in point of time to the Advocates Act,

1961. According to the High Court, since the appointment

of the Principal of the Law College was made on the basis

of the relevant provisions of the University Act, and the

Regulations framed thereunder and based on the

qualification prescribed by the Statute 11.14 as it stood on

the date of appointment, the provisions of the Advocates

Act or the rules of the Bar Council of India could not be

invoked to nullify his appointment or to question his

authority as Principal. Thus, the High Court postulated a

conflict between a State Law that had the assent of the

President and a prior Central enactment and based on

Article 254(2) of the Constitution granted relief to

respondent No. 5.

5. The High Court also observed that the Bar

Council of India had no role in legal education as such

and that its role was confined to controlling the profession

of Advocates and the commencement of the profession,

that is, enrolment as an Advocate and hence the Bar

Council of India could not make any prescription

regarding legal education or about those who are to teach

law, or who are to be the Principal of a College of Law. It

also proceeded on the basis that the Advocates Act is a

legislation under Entry 25 or 26 of List III of the Seventh

Schedule to the Constitution of India and since the State

law is under Entry 25 of List III of the Seventh Schedule to

the Constitution, the State law would prevail in the

context of Article 254 (2) of the Constitution. The Bar

Council of India feels aggrieved by these findings of the

High Court and is before this Court with these appeals.

6. Learned counsel for the Bar Council of India

submitted that the High Court was first of all in error in

holding that the legislative power for enacting the

Advocates Act is traceable to Entry 26 of List III of the

Seventh Schedule to the Constitution. Learned counsel

relied on the decision of the Constitution Bench in O.N.

Mohindroo vs. The Bar Council of Delhi & Ors. [(1968)

2 S.C.R. 709] to contend that the said legislation falls

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under Entries 77 and 78 of List I of the Seventh Schedule

to the Constitution. Learned counsel also sought to derive

support from the decision in The Bar Council of Uttar

Pradesh Vs. The State of U.P. & Anr. [(1973) 2 S.C.R.

1073] in that regard. With reference to the decision in

M/s Ujagar Prints & Ors. Vs. Union of India & Ors.

[(1989) 3 S.C.C. 488], learned counsel reemphasized that

pith and substance rule had to be applied and even if the

law is traceable to more than one entry, it would still

continue to be a legislation under Entries 77 and 78 in

List I. He further submitted that the High Court was in

error in proceeding on the basis that both the legislations

fell under List III of the Seventh Schedule and

consequently the University Act would prevail. This was

sought to be met by learned counsel for respondent No. 5

and for the State by contending that the Advocates Act

could only be traced to Entry 26 of List III of the Seventh

Schedule and the High Court was right in finding that the

University Act would prevail.

7. The Bar Council of India is constituted under

Section 4 of the Advocates Act. It consists of the Attorney

General of India, the Solicitor General of India, both in

their ex officio capacities and one member elected by each

State Bar Council from amongst its members. It is a body

corporate. The functions assigned to it are enumerated in

Section 7 of the Act. The functions relevant for our

purpose are contained in Section 7(1) (h) and Section

7(1)(i). They read:

"7(1)(h) 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;"

7(1)(i) to recognize Universities whose

degree in law shall be a

qualification for enrolment as an

advocate and for that purpose to

visit and inspect Universities or

cause the State Bar Councils to

visit and inspect Universities in

accordance with such directions as

it may give in this behalf;"

The duty of admission and enrolment of Advocates is

entrusted to the State Bar Council except in the case of

Supreme Court advocates which is with the Bar Council of

India. After 12.3.1967, a person may be admitted as an

advocate on a State roll only if he has obtained a degree in

law from a University recognized by the Bar Council of

India. Section 24, to the extent it is relevant here, reads:

"24. Persons who may be admitted as

advocates on a State roll. \026 (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 fulfills the following

conditions, namely:-

(a) \005\005\005\005\005\005\005\005\005\005.

(b) \005\005\005\005\005\005\005\005\005\005\005

(c) he has obtained a degree in law--

(i) before the 12th day of March,

1967 from any University in the

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territory of India; or

(ii) before the 15th of August, 1947,

from any University in any area

which was comprised before that

date within India as defined by

the Government of India Act,

1935; or

(iii) after the 12th day of March,

1967, save as provided in sub-

clause (iiia) after undergoing a

three years course of study in law

from any University in India

which is recognized for the

purposes of this Act by the Bar

Council of India; or

(iiia) after undergoing a course of

study in law, the duration of

which is not less than two

academic years commencing from

the academic year 1967-68 or any

earlier academic year from any

University in India which is

recognized for the purposes of

this Act by the Bar Council of

India; or

(iv) in any other case, from any

University outside the territory of

India, if the degree is recognized

for the purposes of this Act by the

Bar Council of India] or;

he is a barrister and is called to

the Bar on or before the 31st day

of December, 1976 or has passed

the articled clerks" examination

or any other examination

specified by the High Court at

Bombay or Calcutta for enrolment

as an attorney of that High Court;

or has obtained such other

foreign qualification in law as is

recognized by the Bar Council of

India for the purpose of

admission as an advocate under

this Act;"

Section 49 confers the power to make rules for discharging

the functions of the Bar Council of India. Relevant topics

for our purposes are set down hereunder:

"49(1)(af) the minimum qualifications

required for admission to a course

of degree in law in any recognised

University;"

and

"49(1)(d). the standards of legal education

to be observed by Universities in

India and the inspection of

Universities for that purpose;"

8. The Bar Council of India Rules are framed by the

Bar Council of India in exercise of its rule making power.

Part IV thereof deals with legal education, the duration of

it, the syllabi etc. Section A deals with five-year law

course and Section B deals with three-year law course.

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Under Section A Rule 2, a degree in law obtained from a

University shall not be recognized for the purpose of

enrolment as an advocate under the Advocates Act unless

the conditions laid down therein are fulfilled. Only then a

student coming out of that University could get enrolled as

an advocate. Provision has also been made regarding

teachers of law. Rule 12 reads:

"12. Full-time teachers of law

including the Principal of the College

shall ordinarily be holders of a

Master's degree in law and where the

holders of Master's degree in law are

not available, persons with teaching

experience for a minimum period of 10

years in law may be considered. Part-

time teachers other then one with

LL.M. degree shall have a minimum

practice of five years at the Bar."

9. Rule 17(1) stipulates that no college after the

coming into force of the Rules shall impart instruction in a

course of study in law for enrolment as an advocate unless

its affiliation has been approved by the Bar Council of

India. Thus, though the Bar Council of India may not

have been entrusted with direct control of legal education

in the sense in which the same is entrusted to a

University, still, the Bar Council of India retains adequate

power to control the course of studies in law, the power of

inspection, the power of recognition of degrees and the

power to deny enrolment to law degree holders, unless the

University from which they pass out is recognized by the

Bar Council of India.

10. The first task of a court confronted with a set of

parallel provisions relating to the appointment of a

principal of a law college like the one in the amended

provision of the Statute under the University Act and the

Rules made by the Bar Council of India which could

ultimately refuse to admit a graduate of law coming out of

the University to enrolment as an advocate, which alone

would entitle him to practice, is to see whether the

provisions could not be reconciled or harmoniously

construed so as to achieve the object of both the

enactments. Prior to 13.1.1995, there was no conflict

between Statute 11.14 and Rule 12 of the Rules of the Bar

Council. In 1995, in the University Statutes, the

requirement of the Principal having to be the holder of a

doctorate in one of the subjects taught in the College, was

done away with. Obviously, such a provision could not be

understood as controlling fully professional education like

that in Medicine, Engineering or Law. No doubt, the

University has not made a distinction in that regard in

this context. But obviously, it does not appeal to

common sense to say that an engineer could be appointed

the Principal of a Medical College or a Great Physician

could be appointed as the Principal of an Engineering

College. Same is the position regarding the appointment

of a doctorate in Science or a doctorate in Philosophy as

the Principal of a law college.

11. The aim of most of the students who enter the

law college, is to get enrolled as Advocates and practice

law in the country. To do that, they have necessarily to

have a degree from a University that is recognized by the

Bar Council of India. Therefore, the court, in a situation

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like the present one, has to ask itself whether it could not

harmoniously construe the relevant provisions and reach

a conclusion consistent with the main aim of seeking or

imparting legal education. So approached, nothing stands

in the way of the court coming to the conclusion that

though under the relevant Statute of the University as

amended, theoretically, it may be possible to appoint a

Doctor of Philosophy or a Doctor of Science as the

Principal of a Law College, taking into account the

requirements of the Advocates Act, the Rules of the Bar

Council of India and the main purpose of legal education,

the Court would be justified in holding that as regards the

post of the Principal of a Law College, it would be

necessary for the proposed incumbent also to satisfy the

requirements of the Rules of the Bar Council of India.

Such a harmonious understanding of the position

recognizing the realities of the situation, would justify the

conclusion that a Doctorate holder in any of the law

subjects could alone be appointed as the Principal of a

Law College. The High Court, in our view, made an error

in not trying to reconcile the relevant provisions and in not

making an attempt to harmoniously construe the relevant

provisions so as to give efficacy to all of them. A

harmonious understanding could lead to the position that

the Principal of a Law College has to be appointed after a

process of selection by the body constituted in that behalf,

under the University Act, but while nominating from the

list prepared, and while appointing him, it must be borne

in mind that he should fulfill the requirements of the

Rules of the Bar Council of India framed under the

Advocates Act and it be ensured that he holds a Doctorate

in any one of the branches of law taught in the law college.

We do not see anything in the University Act or the

Statutes framed thereunder, which stands in the way of

the adopting of such a course. Therefore, when a request

is made for selection of a Principal of a law college, the

University and the Selection Committee has to ensure that

applications are invited from those who are qualified to be

principals of a law college in terms of the Rules of the Bar

Council and from the list prepared, a person possessing

the requisite qualification, is nominated and appointed as

the Principal of a law college.

12. It is clear from the decision of the Constitution

Bench in O.N. Mohindroo vs. The Bar Council of Delhi

& Ors. (supra) that in pith and substance, the Advocates

Act falls under Entries 77 and 78 of List I of the Seventh

Schedule. That apart, it is not necessary to postulate a

conflict of legislation in this case as we have indicated

earlier. It is true that under the University Act, the

selection of a Principal of a College affiliated to the

concerned University has been left to a Higher Education

Services Commission and respondent No. 5 was included

in the panel of selected candidates pursuant to a due

selection by that Commission. It is also true that

theoretically the State Government on the

recommendation of the Director of Higher Education could

appoint any one from that list as Principal of any College

including a Law College. But when concerned with the

appointment of a Principal of the Law College, there

cannot be any difficulty either in the Recommending

Authority or in the State Government recognizing the fact

that a person duly qualified in law is required to be the

Principal of that Law College in the interests of the

students coming out of that College in the light of the

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Advocates Act, 1961 and the rules framed by the Bar

Council of India governing enrolment of Advocates and

their practice. It must be the endeavour of the State and

the Recommending Authority to ensure that the students

coming out of the College are not put to any difficulty and

to ensure that their career as professionals is in no way

jeopardized by the action of the Government in appointing

a Principal to a Law College. Therefore, even while

adhering to its process of selection of a Principal, it

behoves the State to ensure that the appointment it makes

is also consistent with the Advocates Act and the rules

framed by the Bar Council of India. It may not be correct

to say that the Bar Council of India is totally unconcerned

with the legal education, though primarily legal education

may also be within the province of Universities. But, as

the apex professional body, the Bar Council of India is

concerned with the standards of the legal profession and

the equipment of those who seek entry into that

profession. The Bar Council of India is also thus

concerned with the legal education in the country.

Therefore, instead of taking a pedantic view of the

situation, the State Government and the Recommending

Authority are expected to ensure that the requirement set

down by the Bar Council of India is also complied with.

We are of the view that the High Court was not correct in

its approach in postulating a conflict between the two laws

and in resolving it based on Article 254(2) of the

Constitution. Of course, the question whether the assent

to the Act would also extend to the statute framed under it

and that too to an amendment made subsequent to the

assent are questions that do not call for an answer in this

case in the light of the view we have adopted.

13. According to us therefore, notwithstanding the

procedure to be followed under the University Act and

Statute 11.14 as amended, it is necessary for the

Recommending Authority and the State Government when

concerned with the appointment of a Principal of a Law

College, also to adhere to the requirements of the

Advocates Act and the rules of the Bar Council of India.

This would ensure a harmonious working of the

Universities and the Bar Council of India in respect of

legal education and the avoidance of any problems for the

students coming out of the Institution wanting to pursue

the legal profession. We therefore hold that the State

Government and the Recommending Authority were not

justified in recommending and appointing respondent No.

5 as the Principal of the Dayanand Law College.

14. It is somewhat difficult to appreciate why clause

(b) of Statute 11.14 (ii) was amended by dropping the

requirement that the Principal should hold a doctorate

degree in one of the subjects taught in the college. Does

the State and the University want a square peg in a round

hole? Is it consistent with good educational policy to

appoint a Scientist as the Principal of an exclusive Art or

Commerce College or a Doctor of Literature or History, as

the Principal of an exclusive Science College? It is,

therefore, necessary for the concerned authorities to look

into this aspect and consider whether clause (b), as it

stood prior to 13.1.1995, should be not restored in the

interests of education in general.

15. It was stated during the course of arguments

that the Bar Council of India itself has watered down the

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requirement that the Principal of a Law College must have

a Postgraduate degree in law and has now provided that it

is enough if he has a mere degree in law. This again is a

matter for the Bar Council of India to ponder over and to

consider whether there is any justification in watering

down the qualification for a Principal as either a doctorate

in law or a postgraduate degree in law. We are sure that

what was envisaged as the body of Peers would seriously

consider this question. Similarly, the argument by

learned counsel for the respondents that the Bar Council

of India takes no interest in legal education or in keeping

up the standards of the profession, is something that the

Bar Council of India should take note of so that it could

take steps to rectify the situation, if there is any substance

in that submission.

16. We find that consistent with the Advocates Act

and the rules of the Bar Council of India, respondent No. 5

could not have been appointed as the Principal of a Law

College, however, eminent he might be as a philosopher,

friend and guide to the students and his competence to

teach Ethics could be recognized. It is submitted on

behalf of the respondent No. 5 that he was not responsible

for his appointment as the Principal of the Law College

and he has suffered because of this controversy which is

not of his making and since he was relieved from the post

of the Principal of the Law College subsequent to the

interim order passed by this Court in these appeals. It is

submitted that though he was transferred as the Principal

of another Institution, he could not take charge because of

some interim orders passed by the High Court in a Writ

Petition filed by some interested persons. Now, that we

have clarified the position, we have, no doubt, that the

authorities that be and the High Court will deal with the

grievances of respondent No. 5 regarding his status and

posting in an expeditious manner, if moved in that behalf

and take an appropriate decision consistent with what we

have stated in this judgment.

17. The appeals are thus allowed, the judgments of

the High Court are set aside. The Writ Petition filed by the

management is allowed and the Writ Petition filed by

respondent No. 5 is dismissed. The parties are directed to

suffer their respective costs.