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Before the Honble High Court of Kerala at Ernakulam


W.P.C.No. 34023

of 2016

N.Prakash

Petitioner

The Bar Council of India and others

Respondents

Synopsis
The petitioner is challenging Exhibit P6 circular issued by the first
respondent restoring the age limit for joining five year LL.B course as
20 years by restoring Clause 28 of the Legal Education Rules. Clause 28
of the Rules was challenged before the Punjab and Haryana High Court
and as per Exhibit P2 it was held that the provisions of Clause 28 of
Schedule-III appended to the Rules are beyond the legislative
competence of the Bar Council of India. Clause 28 ultra vires the
provisions of Sections 7(1)(h) and (i), 24(1)(c) (iii) and (iiia) or Section
49(1)(af) (ag) and (d) of the Advocate Act. Even otherwise, the Rule is
arbitrary as it introduces an invidious classification by dividing one Class
of student into two artificial and irrational Classes by prescribing the
maximum age for admission to law courses. The first respondent filed
special leave petition before the Supreme Court and got it dismissed as
withdrawn. Later the first respondent issued notification dated
28.9.2013 withdrawing the age restriction for joining three year and five
year LL.B course. The above notification was challenged before the High
Court of Madras and the High Court of Madras allowed the writ petition
and held that Clause 28 under Schedule-III to Rule 11 of the Rules of
Legal Education, 2008, has been amended, without following the
provisions of the Act and the Rules made thereunder. The first
respondent filed Special Leave Petition before the Supreme Court which
was dismissed vide Exhibit P5. Instead of following the proper procedure
and withdrawing the age limit, the first respondent has issued Exhibit
P6 restoring the age restriction which is impermissible going by Exhibits
P10 and P11 and also because of the fact that Exhibit P2 has become
final. Being aggrieved by Exhibits P6 and P8, the present Writ Petition
is filed.
Dated this the 23rd October,2016
N.Prakash

Party-in-person

Before the Honble High Court of Kerala at Ernakulam

(Special Original Jurisdiction)

W.P.C.No.

of 2016

PETITIONER:-

N.Prakash
PrajithVihar
Ayini Nada Road
Maradu P.O.
Ernakulam District

Vs

RESPONDENTS:-

1.

Bar Council of India, represented


By its Secretary, Bar Council of India
21, Rouse Avenue Institutional Area
Near Bal Bhavan, New delhi-110002

2.

The Commissioner for Entrance Examinations


Fifth Floor, Housing Board Buildings
Santhi Nagar, Thiruvananthapuram-695 001

3.

State of Kerala, represented by its


Principal Secretary, Higher Education (C) Department

Government Secretariat,
Thiruvananthapuram-695001

4.

Mahatma Gandhi University


Represented by its Registrar
Priyadarsini Hills P.O.
Athirampuzha, Kottayam-686560

Address for service of notice on the petitioner and that of the


respondents is as shown above.

Writ Petition (Civil) filed under Article 226 of the Constitution of India

The petitioner was a student of the Government Law College,


Ernakulam for five year integrated B.A.(Criminology)LL.B (Hons.)
course. This course was being conducted without the necessary prior
approval from the Bar Council of India (BCI for short). This was
confirmed by the BCI in response to a query under the Right to
Information Act to the following effect:The University Grants Commission has not recognized any
degree in BA(Criminology). The Bar Council of India also issued
show-cause notice to Mahatma Gandhi University, Kottayam for
imparting BA (Criminology)LL.B (Hons). So far, there is no degree
namely BA (Criminology) LL.B (Hons.) recognized by the Bar
Council of India. If anybody produce the degree BA (criminology)
LL.B. (Hons.) is not entitled to be enrolled as an advocate.
True copy of the communication No.BCI:D:/09/2016 (RTI-130/LE)
dated 16.2.2016 issued by the Assistant Secretary/CPIO, Bar Council of
India to Mr.GeevanT.Charles, Kolenchery P.O. is produced herewith and
marked as Exhibit P1. The petitioner desirous of enrolling himself and
practicing thereafter as an Advocate had therefore no other option but
to discontinue the course.

2.

The second respondent Commissioner invited applications for the

Entrance Examination for Admission to Integrated Five Year LL.B


Courses for the current year i.e. 2016-17. Applications were to be

submitted online from 29-07-2016 to 08-08-2016 till 3pm.The Entrance


Examination

was

conducted

at

Thiruvananthapuram,

Ernakulam,

Thrissur and Kozhikode on 21.08.2016 (Sunday). The petitioner


attended the entrance examination. The results of the entrance
examination were published on 8.9.2016 and the petitioner has secured
rank No.148.

3.

As it originally stood, clause 28 of Schedule III of Legal Education

Rules 2008 prescribe a maximum age of 20 for admission to the five


year LL.B course. The said clause is extracted below for easy reference.

Age on admission:
"(a) Subject to the condition stipulated by a University on
this behalf and the high degree of professional commitment
required, the maximum age for seeking admission into a
stream of integrated Bachelor of law degree program, is
limited to twenty years in case of general category of
applicants and to twenty two years in case of applicants
from SC, ST and other Backward communities.
(b) Subject to the condition stipulated by a University, and
the general social condition of the applicants seeking legal
education

belatedly,

the

maximum

age

for

seeking

admission into a stream of Three Year Bachelor Degree


Course in Law, is limited to thirty years with right of the
University to give concession offive further years for the
applicant belonging to SC or ST or any other Backward
Community. "
4.

The aforesaid clause 28 of the Legal Education Rules 2008 was

challenged before the Honble High Court of Punjab and Haryana in CWP
No. 20966 of 2010 & connected petitions. The BCI was made a party
respondent to these writ petitions. The Hon'ble Division Bench of the
Punjab and Haryana High Court considered the validity of the Rules,
with reference to the provisions of the Advocates Act, 1961 and taking
note of the decision of the Hon'ble Apex Court in Indian Council of Legal

Aid and Advice and others v. Bar Council of India and another reported
in (1995) 1 SCC 732, held that the Bar Council of India is not armed
with any power to incorporate a provision in the rules, like clause 28,
concerning the age on admission to law degree course. After a detailed
consideration of the aforementioned aspects, the Honble High Court
disposed of these writ petitions by judgment dated 20.10.2011 stating
thus:8. The question whether the Bar Council of India is competent to
frame the Rule barring a person above the age of 45 years from
enrolment as an Advocate was considered by Hon'ble the
Supreme Court in the case of Indian Council of Legal Aid and
Advice and others v. Bar Council of India and another (1995) 1
SCC 732. In para 9 of the judgment, it has been held by their
Lordships of Hon'ble the Supreme Court that a Rule which
operates at pre-enrolment stage cannot receive the shelter of
clause (ah) of Section 49(1) of the Advocates Act. Para 8 of the
judgment which deals with the issue reads as under:8.

The newly added rule seeks to bar the entry of

persons who have completed the age of 45 years on the


date of application for enrolment as an advocate from being
enrolled as such by the State Bar Council concerned. While
Section 24

of the Act prescribes the minimum age for

enrolment

as twenty-one years complete, there is no

provision in the Act which

can

be said to prescribe the

maximum age for entry into the profession. Since the Act
is silent on this point the Bar Council of India was required
to resort to its rule-making power. The rules made by the
Bar Council of India under Section 49(1) of the Act are in
seven parts, each part having its own chapters.

Part VI

is entitled "Rules Governing Advocates" and the said part


has three chapters. Chapter I sets out the restrictions on
senior advocates and is

relatable to Sections 16(3) and

49(1)(g) of the Act, Chapter II lays down the standards of


professional

conduct and etiquette and is relatable to

Section 49(1)(c) read with the proviso thereto and Chapter


III deals with "Conditions for right to practice" and is stated
tobe made in exercise of power under clause (ah) of sub-

section (1) of Section 49 of the Act. That clause reads as


under: "(ah) the conditions subject to which an advocate
shall have the right to practice and the circumstances under
which a person shall be deemed to practice as an advocate
in a court;" On the plain language of the said clause it
seems clear to us that under the said provision the Bar
Council of India can lay down the 'conditions' subject to
which "an advocate" shall have the right to practice. These
conditions which the Bar Council of India can lay down are
applicable to an advocate, i.e., a person who has already
been enrolled as an advocate by the State Bar Council
concerned. The conditions which can be prescribed must
apply at the post-enrolment stage since they are expected
to relate to the right to practice. They can, therefore, not
operate at the pre-enrolment stage. By the impugned
rule, the entry of those who have completed 45 years at
the date of application for enrolment is sought to be barred.
The rule clearly operates at the pre-enrolment stage and
cannot, therefore, receive the shelter of clause (ah) of
Section 49(1) of the Act. Under the said clause conditions
applicable to an advocate touching his right to practice can
be laid down, and if laid down he must exercise his right
subject to those conditions. But the language of the said
clause does not permit laying down of conditions for entry
into the profession. We have, therefore, no hesitation in
coming to the conclusion that clause (ah) of Section 49(1)
of the Act does not empower the Bar Council of India to
frame a rule barring persons who have completed 45 years
of age from enrolment as an advocate. The impugned rule
is, therefore, ultra vires the said provision.
9.

The impugned Clause 28 dealing with the age on admission

occurring in Schedule-III appended to the Rules have been


framed under Section 7(1)(h) and (i) and 24(1)(c)(iii) and (iiia),
49(1)(af), (ag), and (d) of the Advocates Act. Section 7 of the
Advocates Act deals with the function of the Bar Council of India
and Clause 7(1)(h) and (i) only deals with such functions of the
Bar Council of India, which are aimed at promoting to legal

education and to lay down standards of such education in


consultation with the Universities in India imparting such
education and to recognize the Universities whose degree in law
shall be a qualification for enrolment as an Advocate. Therefore,
this clause would not arm the Bar Council of India to incorporate
the provisions in the Rules like clause 28 concerning the age on
admission to L.L.B. Course. Likewise, Section 24(i)(c) deals with
person who may be admitted as an Advocate on a State roll. It
has got nothing to do with the age on admission and cannot be
construed to have conferred power on the Bar Council of India to
prescribe the maximum age for the purposes of admission to
L.L.B. Five years' Course or L.L.B. Three Years' Course.
10.

We are left to deal with Section 49(1)(af) and (ag) of the

Advocates Act. The aforesaid clause (af) deals with the minimum
qualification required for admission to a course of degree in law
in any recognized University and clause (ag) deals with the class
or category of the persons entitled to be enrolled as Advocates.
Clause (d) of Section 49 (i) of the Advocates Act deals with the
standards of legal education to be observed by universities in
India and the inspection of universities for that purpose. We are
afraid that even this Clause would not extend to grant competence
to Bar Council of India to incorporate a provision concerning the
maximum age for admission to L.L.B. Course. The matter has
been discussed in detail in Indian Council of Legal Aid and Advice's
case (supra) by Hon'ble the Supreme Court. It is also relevant to
mention that a similar view was taken by a Division Bench of
Madras High Court in the case of M. Radhakrishnan v. The
Secretary, the Bar Council of India, AIR 2007 Madras 108.
Therefore, we find that the provisions of Clause 28 of ScheduleIII appended to the Rules are beyond the legislative competence
of the Bar Council of India. Clause 28 ultra vires the provisions of
Sections 7(1)(h) and (i), 24(1)(c) (iii) and (iiia) or Section
49(1)(af) (ag) and (d) of the Advocate Act. Even otherwise, the
Rule is arbitrary as it introduces an invidious classification by
dividing one Class of student into two artificial and irrational
Classes by prescribing the maximum age for admission to law
courses.

12 (sic 11).

As a sequel to the above discussion, the writ

petitions are allowed. The petitioners who have been admitted on


the basis of the interim order would continue and their admissions
should not be cancelled on the ground that they did not fulfill the
criteria of maximum age."
Hence it can be seen that on 20.10.2011 the Honble Punjab and
Haryana High Court held that clause 28 of Schedule-III appended to the
Legal Education Rules 2008 (relating to maximum age limit for
admission to law course) is beyond the legislative competence of the
Bar Council of India and that clause 28 ultra vires the provisions of
Sections 7(1)(h) and (i), 24(1)(c) (iii) and (iiia) or Section 49(1)(af)
(ag) and (d) of the Advocate Act. Even otherwise, the Rule is arbitrary
as it introduces an invidious classification by dividing one Class of
student into two artificial and irrational classes by prescribing the
maximum age for admission to law courses. True copy of the judgment
of the Honble Punjab and Haryana High Court in CWP No. 20966 of
2010 & connected petitions dated 20.10.2011 (downloaded from
https://www.phhc.gov.in/ )

is produced herewith and marked as

Exhibit P2.

5.

As against Exhibit P2, the Bar Council of India preferred Special

Leave Petitions to Appeal before the Supreme Court in SLP(C) Nos.


26958 to 26962 of 2013. The aforementioned SLPs were however
withdrawn by the BCI thus rendering a finality to Exhibit P2 judgment.
True copy of the judgment of the Supreme Court in SLP(C) Nos. 26958
to 26962 of 2013 dated 5.1.2015 is produced herewith and marked as
Exhibit P3.

6.

Even before withdrawing the SLPs filed before the Honble

Supreme Court and inviting Exhibit P3 order, the BCI had in compliance
with the directions contained in Exhibit P2 withdrew clause 28 of
Schedule III of the Legal Education Rules 2008 vide notification dated
28.9.2013. True copy of the Notification dated 28.9.2013 issued by the
first respondent is produced herewith and marked as Exhibit P4.

7.

Exhibit P4 was challenged before the Madurai Bench of the Madras

High Court in W.P.(MD)No.9533 of 2015. The aforesaid writ petition was


filed praying for

a writ of Certiorari, calling for the records of the

notification of the first respondent, dated 28.09.2013 and consequently


entrust the function stated in the Legal Education Rule, 2008 either on
the Legal Education Committee of the Bar Council of India or on the
National Legal Knowledge Council. The Honble Division Bench of the
Madurai Bench of the Madras High Court by judgment dated 7.8.2015
quashed Exhibit P4 notification.

8.

As against the judgment dated 7.8.2015 passed by the Honble

High Court of Madras the BCI filed Petition for Special Leave to Appeal
(C)No.33742 of 2015 before the Honble Supreme Court of India. The
said SLP was dismissed as per judgment dated 11.12.2015. True copy
of the judgment of the Honble Supreme Court dated 11.12.2015 in
Petition for Special Leave to Appeal (C)No.33742 of 2015 is produced
herewith and marked as Exhibit P5.

9.

Pursuant to the judgment dated 7.8.2015 passed by the Honble

High Court of Madras and the affirmation thereof by Exhibit P5


judgment, the BCI issued Circular No.BCI:D-1519 (LE:Cir.)-6 dated
17.9.2016 the subject of which is Revive of age restriction under
Clause 28 of Legal Education Rules 2008. The operative portion of the
Circular is extracted below for ready reference:It is to inform you that Clause 28 of Schedule Ill of Legal
Education Rules 2008 which deals with age restriction for taking
admission in LL.B course was notified in the Gazette of India vide
Part-111, Section 4, New Delhi on 21-27 March, 2009. As per
Clause 28, upper age limit for admission in LL.B three year course
was 30 years and for LL.B five year course was 20 years. The
relevant clause is given below:Age on admission:

10

"(a) Subject to the condition stipulated by a University on


this behalf and the high degree of professional commitment
required, the maximum age for seeking admission into a
stream of integrated Bachelor of law degree program, is
limited to twenty years in case of general category of
applicants and to twenty two years in case of applicants
from SC, ST and other Backward communities.
(b) Subject to the condition stipulated by a University, and
the general social condition of the applicants seeking legal
education

belatedly,

the

maximum

age

for

seeking

admission into a stream of Three Year Bachelor Degree


Course in Law, is limited to thirty years with right of the
University to give concession offive further years for the
applicant belonging to SC or ST or any other Backward
Community. "
Subsequently, Bar Council of India has withdrawn Clause 28 vide
resolution No. 200/2013 thereby age restriction was removed for
admission in LL.B three year and five year course. Later on,
withdrawal of Clause 28 was challenged before the Madurai Bench
of the Hon'ble High Court of Madras in WP No. 9533/2015. The
Hon'ble High Court was pleased to allow the petition and held that
withdrawal of Clause 28 by the Bar Council of India was illegal.
Subsequently, Bar Council of India challenged the aforesaid
decision of the High Court of Madras before the Hon'ble Supreme
Court of India and Hon'ble Supreme Court dismissed the Special
Leave Appeal (Civil) 33742 of 2015 by its Order dated
11.12.2015.
Resultantly, after the order of Hon'ble High Court and
Hon'ble Apex Court, the rule under Clause 28 of Legal Education
Rules 2008 has been restored.
Therefore, you are requested to kindly comply with the
provision of Clause 28 of Legal Education Rules 2008.
This is for your information and necessary action.

11

True copy of the Circular No.BCI:D-1519 (LE:Cir.)-6 dated 17.9.2016


issued by the first respondent (downloaded from internet) is produced
herewith and marked as Exhibit P6.

10. Meanwhile, the Commissioner for Entrance Examination issued the


prospectus for admission to five year LL.B and three year LL.B course
2016-17 which was approved vide Government Orders dated 27.7.2016
and 10.8.2016. Clause 6(iii) of the said prospectus explicitly stated that
there was no upper age limit for admission to integrated five year LL.B
and three year LL.B course. True copy of relevant pages containing
clause 6 (iii) of the prospectus for admission to integrated five year LL.B
course 2016-17 is produced herewith and marked as Exhibit P7.

10.

Following

Exhibit

P7

the

Government

issued

order

dated

21.10.2016 amending the prospectus for the admission to five year LL.B
and three year LL.B course 2016-17. By the amendments carried out,
clause 6(iii) of the said prospectus was amended in tune with the preamended clause 28 of the Legal Education Rules as it stood in April 2009
fixing the maximum age limit for admission to five year LL.B course at
20. True copy of G.O.(Ms)No.213/2016/H.Edn dated 21.10.2016 issued
by the third respondent is produced herewith and marked as Exhibit
P8.
11.

Following Exhibit P8 the Commissioner of Entrance Examinations

on 22.10.2016 issued the following notification in their website


http://www.cee-kerala.org/index.php/llb-5-year/llb-5-2016.

Upper Age limit reinstated for Admissions


Following

the

reinstatement

of

upper

Age

Limit

for

admissions by the Bar Council of India, the Government have


amended the prospectus to that effect.

12

Upper age limit is 20 Yrs as on 28.7.2016, with relaxation


of 2 Yrs for SEBC/SC/ST categories.
The ranklist published on 08.09.2016 has become invalid
and the new rank list in compliance with the Upper Age Limit
criterion will be prepared and published.
Candidates who have not submitted any valid age proof
along with their applications, satisfying the above upper age limit
should upload proof of age on or before 25.10.2016, 5 PM. The
upload facility is available in the candidate portal in the website
cee.kerala.gov.in.
True copy of the screen shot of the website http://www.ceekerala.org/index.php/llb-5-year/llb-5-2016 showing the reinstatement
of upper age limit on 22.10.2016 is produced herewith and marked as
Exhibit P9. As the petitioner is now aged 52, he cannot join the five
year LL.B course as things stand today. The said stand adopted by the
Bar Council of India and followed by the State Government as well as
the Commissioner for Entrance Examination is erroneous for reasons
more than one.

12.

It has been held by the Honble Supreme Court in the decision in

Kusum Ingots & Alloys Ltd., vs. Union of India, reported in 2004
(6) SCC 254 thus:A parliamentary legislation when receives the assent of the
President of India and published in an Official Gazette, unless
specifically excluded, will apply to the entire territory of India. If
passing of a legislation gives rise to a cause of action, a writ
petition questioning the constitutionality thereof can be filed in
any High Court of the country. It is not so done because a cause
of action will arise only when the provisions of the Act or some of
them which were implemented shall give rise to civil or evil
consequences to the petitioner. A writ court, it is well settled
would not determine a constitutional question in vacuum.

13

The court must have the requisite territorial jurisdiction. An


order passed on writ petition questioning the constitutionality of
a Parliamentary Act whether interim or final keeping in view the
provisions

contained

in

Clause

(2)

of Article

226 of

the

Constitution of India, will have effect throughout the territory of


India subject of course to the applicability of the Act.
Hence it can be seen that once the validity of a central enactment is
tested, doctrine of comity comes into effect and therefore, it is binding
on other High Courts. As Exhibit P2 judgment of the Punjab and Haryana
High Court relate to Central law and the rules framed thereunder and
considering that uniformity has to be followed throughout the country,
it is binding on all the High Courts in the country. It is especially so when
the Petition for Special Leave to Appeal filed against Exhibit P2 judgment
was dismissed as withdrawn by the Honble Supreme Court on 5.1.2015
vide Exhibit P3. The effect of the withdrawal is acceptance of Exhibit P2
by the first respondent.

13.

PartIV Rules of Legal Education Rules on standards of legal

education and recognition of degrees in law for the purpose of enrolment


as advocate and inspection of Universities for recognizing its degree in
law

under

Sections

7(1)(h)

and

(i),

24(1)(c)(iii),

and

(iiia),

49(1)(af),(ag),and (d) of the Advocates Act, 1961 was made by the Bar
Council of India in consultation with Universities and State Bar Councils.
Hence it can be seen that these Rules are subordinate legislation having
been framed under the delegation so given by the parent Act of the Bar
Council of India.

14.

The Honble Supreme court in Civil Appeal No.3844 of 2011

(Arising out of SLP(C) No.27814 of 2008) (The Joint Action Committee


of Airlines Pilots Associations of India &Ors. V. The Director General of
Civil Aviation &Orsheld in paragraph 23 as follows:23. This Court in State of U.P. &Ors. v. Hirendra Pal Singh etc.,
JT (2010) 13 SC 610, considered a large number of
judgments particularly in Firm A.T.B. Mehtab Majid & Co. v.

14

State of Madras &Anr., AIR 1963 SC 928; B.N. Tewari v.


Union of India &Ors., AIR 1965 SC 1430; Indian Express
Newspapers (Bombay) Private Ltd. &Ors. v. Union of India
&Ors., AIR 1986 SC 515; 1West U.P. Sugar Mills Association
&Ors. v. State of U.P. &Ors., AIR 2002 SC 948; Zile Singh
v. State of Haryana &Ors., (2004) 8 SCC 1; and State of
Kerala &Anr. v. Peoples Union for Civil Liberties, Kerala
State Unit &Ors., (2009) 8 SCC 46, and came to the
conclusion that once the old rule has been substituted by
the new rule, it stands obliterated, thus ceases to exist and
under no circumstance, can it be revived in case the new
rule is held to be invalid and struck down by the Court,
though position would be different in case a statutory
amendment by the Legislature, is held to be bad for want of
legislative competence. In that situation, the repealed
statutory provisions would revive automatically.
True copy of the judgment of the Supreme Court in The Joint Action
Committee of Airlines Pilots Associations of India &Ors. V. The Director
General of Civil Aviation &Ors (downloaded from internet) is produced
herewith and marked as Exhibit P10.

15.

The Supreme Court again held in State Of U.P. &Ors vs Hirendra

Pal Singh Etc(Arising out of SLP (C) Nos.14992-93 of 2010 )as follows:-

24. In Firm A.T.B. Mehtab Majid and Co. v. State of Madras &Anr.,
AIR 1963 SC 928, this Court while dealing with a similar issue
held:
"Once the old rule has been substituted by the new rule, it
ceases to exist and it does not automatically get revived
when the new rule is held to be invalid."
Therefore, it is evident that under certain circumstances, an Act
which stood repealed, may revive in case the substituted Act is
declared ultra vires/unconstitutional by the court on the ground of

15

legislative competence etc., however, the same shall not be the


position in case of subordinate legislation. In the instant case, the
L.R. Manual is consisted of executive instructions, which can be
replaced any time by another set of executive instructions. . . . .
True copy of the judgment in State Of U.P. & Ors vs Hirendra Pal
Singh Etc (Arising out of SLP (C) Nos.14992-93 of 2010) downloaded
from internet is produced herewith and marked as Exhibit P11.

16.

Hence it can be seen that Bar Council of India incorporated the

Rules of Legal Education, 2008, in Part IV of the Bar Council of India


Rules, by exercising the powers, under Section 7(1)(h) and (i),
24(I)(c)(iii) and (iiia), 49(1)(af), (ag) and (d) of the Advocates Act,
1961. These rules have been framed by the Bar Council of India, in
consultation with the Universities and the State Bar Councils and are in
the nature of delegated legislation and is thus nothing but subordinate
to the parent legislation of the Bar Council of India Act. After due
approval, the Bar Council of India, adopted the same, in its meeting held
on 14.09.2008, vide resolution No.110 of 2008. Clause 28 of the Rules
was struck down by Exhibit P2 judgment and the special leave petition
filed against Exhibit P2 judgment was withdrawn by the first respondent
as is evident from Exhibit P3. Clause 28 of the Rules being statutory in
nature, will not revive automatically as was attempted to be projected
in Exhibit P6 even after the Madras High Court quashed the notification
dated 28.9.2013 issued by the first respondent. Exhibits P10 and P11
make this position in law amply clear.

17.

The question whether fixation of an upper age limit for admission

to five year LL.B is violative of Articles 14 and 19(1)(g) is no more res


integra. The decision in K.A.Babu and others v. State of Kerala and
others (1987(1)K.L.T.730) held that prescription of a maximum age
limit for admission to five year course in law college is violative of
Articles 14 and 19(1)(g) of the Constitution of India.

16

18.

Clause 28 of Chapter III, Legal Education Rules 2008 dealing with

the age on admission occurring in Schedule-III appended to the Rules


have been framed under Section 7(1)(h) and (i) and 24(1)(c)(iii) and
(iiia), 49(1)(af), (ag), and (d) of the Advocates Act. Section 7 of the
Advocates Act deals with the function of the Bar Council of India and
Clause 7(1)(h) and (i) only deals with such functions of the Bar Council
of India, which are aimed at promoting to legal education and to lay
down standards of such education in consultation with the Universities
in India imparting such education and to recognize the Universities
whose degree in law shall be a qualification for enrolment as an
Advocate. Therefore, this clause would not arm the Bar Council of India
to incorporate the provisions in the Rules like clause 28 concerning the
age on admission to L.L.B. Course. Likewise, Section 24(i)(c) deals with
person who may be admitted as an Advocate on a State roll. It has got
nothing to do with the age on admission and cannot be construed to
have conferred power on the Bar Council of India to prescribe the
maximum age for the purposes of admission to L.L.B. Five years' Course
or L.L.B. Three Years' Course.

19.

It is submitted that in Exhibit P7 prospectus for the Entrance

Examination for Admission to Integrated Five Year LL.B Courses 201617 published on 28.7.2016, the column regarding age was thus:Age: The applicant should have completed 17 years of age, as on
31.12.2016.There is no upper age limit for admission to the
integrated five year LLB Course.
Entrance examination was conducted and rank list was published on
8.9.2016. The selection procedure was initiated with the publication of
the prospectus on 28.7.2016. Selection process was also commenced
on that basis and rank list was also published which as stated above
included the petitioner as well at rank No.148. It is at a time, when the
petitioner was expecting an allotment on the basis of options to be
submitted, were the impugned orders issued. Now at this point of time
amending the prospectus with retrospective effect by introducing the
upper age limit in the prospectus which was published on 28.7.2016 is
impermissible. This is so for the rules of the game cannot be changed

17

once the selection process has commenced. It is submitted in this


context that the Honble Supreme Court has held thus in Parmender
Kumar v. State of Haryana, (2012) 1 SCC 177:Government orders in force before issuance of prospectus prevail
but rules of game cannot bechanged after admission process had
already begun.
A change in the prospectus cannot be made at the final stage, especially
after the selection process is over: (See Dr. Jayakumar, E.K. v. Director
of Medical Education and others {ILR 2003 (3) Ker. 46), Charles K.
Skaria v. Dr. C. Mathew (AIR 1980 SC 1230), K. Manjusree v. State of
A.P. {(2008) 3 SCC 512}, Hemani Malhotra v. High Court of Delhi
{(2008) 7 SCC 11}, Dr. Preeti Srivastava and another v. State of M.P.
and others {(1999) 7 SCC 120}, P.V. Indiresan (2) v. Union of India
and others {(2011) 8 SCC 441} and Parmender Kumar and others v.
State of Haryana and others {(2012) 1 SCC 177). The impugned orders
now issued is grossly inconsistent with the declaration of law in the
aforesaid

precedents.

Even

assuming

that

the

age

restriction

contemplated in clause 28 would apply, the same having been sought


to be enforced only after the publication of the rank list, cannot be made
applicable at least for this academic year. The respondents have without
understanding these crucial legal aspects mechanically issued Exhibits
P6, P8 and the direction evidenced in Exhibit P9 screen shot. Being
highly aggrieved by Exhibits P6 and P8 and left with no other efficacious
or alternate remedy, the petitioner begs to prefer this Writ Petition
(Civil) under Article 226 of the Constitution of India on the following,
among, other:GROUNDS:A.

It is submitted that Exhibit P6 is per se bad in law, violative of the

basic fundamental rights guaranteed under Article 19(1)(g) of the


Constitution of India and thus void ab initio and the same is being used
as a tool for impediment and to deprive any interested person of his
constitutional rights so guaranteed to him and which cannot be taken
away at the whims and fancies of the said professional body. i. e. first
respondent.It is submitted that the said act of the first respondent is
discriminatory in nature as it is suppressing the opportunity to the

18

upliftment to a better quality of life for aspirants who are desirous of


joining the legal profession and having the means and capability to do
the same on merits.

B.

The first respondent has acted arbitrarily, unjustly and

contrary

to the fundamental rights and constitutional guarantees enshrined in the


Constitution of India for the citizens of India.

C.

in the instant case, it is apparent that the first respondent has

unilaterally restored this rule without due consultation as required with


the concerned bodies and foisted the same upon the Universities and
Principals of law colleges.

D.

The first respondent by restoring this rule, is once again depriving

deserving and meritorious persons from pursuing further education at a


later stage in life which perhaps they could not do earlier due to financial
or other constraints and which now they could pursue due to changed
circumstances.

E.

The first respondent is suppressing the opportunity to the

upliftment

to

better

quality

of

life

for

aspirants

who

are

desirous of joining the legal profession and having the means and
capability to do the same on merits at a later stage in life.

F.

The first respondent by this restored Rule/Clause No. 28, is once

again curbing the benefit which would accrue to persons in different


occupations and in public life to advance their occupational goals on the
one hand and assist the rule of law and constitutional government on
the other.

19

G.

The first respondent who is well versed with the provisions of law

and due to their presumed vast experience have been elected and
selected as the committee members of the Apex governing body of the
legal fraternity, strangely enough, the acts of these very upholders and
up keepers of law are grossly violative of the very fundamental rights
enshrined in the Constitution of India, having scant regard for the said
Judgment passed by the High Court of Punjab & Haryana which have
attained finality, and of which first respondent is very well aware.

H.

The first respondent is acting contrary to the very spirit of the

statutory and constitutional provisions by being restrictive in once again


imposing unjustifiable conditions of age limitation, the same being
without rational criteria for such restrictive classification and highly
discriminatory thus being against the very grain of fundamental rights
and directive principles enshrined in the Constitution of India.

I.

The first respondent has tried to justify the re- imposition of the

Rule/Clause No.28 by stating that the same is being done due to the
Orders passed by the Madurai Bench of the Madras High Court in W.P.
No. 9533 of 2015 when the entire matter before the Madurai Bench of
the Madras High Court was on the ground that the constitution of the
Single man Committee was contrary to the provisions of the Rules
requiring a proper procedure to be followed for appointment of a multi
member committee of experts from the profession.

J.

The first respondent has acted unilaterally in restoring the said

Rule/Clause No. 28 without involving the affected parties i.e. the Law
colleges or Universities in this process of reintroducing the said
Rule/Clause, thereby restoring the said rule without debate on or
consensus from the affected parties.

K.

The first respondent has once again struck a fatal blow to the

future aspirants seeking to enter the legal profession after a period of

20

time for compelling reasons beyond their control which deprived them
of the said legal education in their student days and who now having
the means to pursue the same are being deprived of it by this said
restored rule.

L.

It is submitted that clause 28 of Schedule III of Legal Education

Rules, 2008 creates an artificial distinction between students below the


age of 20 years and above the age of 20 years so far as the eligibility to
law courses is concerned. The only classification permissible under
Article 14 is that having an intelligible differentia and rational nexus with
the object of differentiation. Creation of two classes of students one
below the age of 20 years and one above the age of 20 years to
determine eligibility to the 5 year LLB Course does not satisfy the
touchstone of intelligible differentia or rational nexus.

M.

There is no rational object in adversely classifying the students

above the age of 20 years and holding them as ineligible for undertaking
the 5-year law course even if they meet the requirements on merit. The
law cannot make such arbitrary distinctions based on age.

N.

The right to acquire legal education and to be legally literate is a

basic fundamental right of every citizen of India as ignorance of law is


not considered a defence in the Court of law, one cannot be denied an
opportunity from undertaking legal education.

O.

Courses in legal education cannot be equated with other

professional courses, as legal literacy is essential for the very survival


of an individual.

Further, in any case if any person who is otherwise

meritorious and eligible to undertake education cannot be denied the


opportunity to do so. At the very best, the Bar Council of India could
have introduced threshold for enrollment in the Bar to maintain
standards of legal service in the country. Thus, age cannot be criterion
of eligibility for pursuing legal education.

21

P.

It is submitted that clause 28 is per se bad in law, violative of the

fundamental rights to undertake legal education guaranteed under the


Constitution of India more specifically Article 21 and thus void ab initio
and the same is being used as barrier and to deprive interested person
of his Fundamental Right guaranteed to him and the same cannot be
taken away at the whims and fancies of the first respondent.

Q.

It is submitted that the opportunity to obtain legal education and

develop ones advocacy skills to be able to join the profession which


makes the highest intelligentsia in the country, cannot be denied to
meritorious students,as it would amount to depriving them of an
opportunity to better their lives.

R.

The Madras High Court judgment has not considered the issue of

intelligible differential and violation of Article 14 and is at the same time


perin curium being in ignorance of the fundamental right to legal literacy
and the Supreme Court judgment in the matter of Indian Council of
Legal Aid & Advice v. Bar Council of India reported in (1995) 1 SCC 732.

S.

The Madras High Court judgment is in contravention to the Apex

Court judgment in the matter of Indian Council of Legal Aid & Advice v.
Bar Council of India reported in (1995) 1 SCC 732 which unequivocally
holds that age as an eligibility criterion for enrollment is arbitrary and
violative of Article 14. The Supreme Court was considering a challenge
to the provision of bar to enrolment of persons who have completed 45
years of age was challenged. The rationale for the rule was to maintain
the dignity and purity of the profession. It was held that this rule is
clearly discriminatory, unreasonable and arbitrary as the choice of the
age of 45 years is made keeping only a certain group in mind ignoring
the vast majority of other persons who were in the service of
Government or quasi Government or similar institutions at any point of

22

time. Thus, impugned clause violates the principle of equality enshrined


in Article 14 of the Constitution and was struck down.

T.

The clause 28 is arbitrary as it introduces

an invidious

classification by dividing one class of students into two artificial and


irrational classes by prescribing the maximum age for admission to Law
courses. The clause 28 would be unfair and unjust to the students above
the age of 20 years, without there being any rational ground for holding
them as ineligible.

U.

Rule 28 is arbitrary and violative of Article 14 of the Constitution

of India. The provisions of Rule 28 is beyond the legislative competence


of the Bar Council of India. Bar Council of India cannot suppress
upliftment of better quality of life for aspirants who are desirous of
joining the legal profession and having the means and capability to do
the same on merits. Right to Legal literacy is Fundamental Right
guaranteed under Article 21 of the Constitution of India.

V.

The prayer before the Madras High Court was to issue a writ of

Certiorari, calling for the records of the impugned notification of the


fourth

respondent,

G.O.(Ms)No.194,

dated

Law

(LS)

28.09.2013
Department,

and
dated

the

impugned

03.06.2015

and

consequential admission notification of the eighth respondent, dated


04.06.2015 and quash the same and consequently entrust the function
stated in the Legal Education Rule, 2008 either on the Legal Education
Committee of the Bar Council of India or on the National Legal
Knowledge Council. The operative portion of the judgment of the
Madras High Court reads thus:-

218. For the reasons, stated supra, the impugned notification of


the Bar Council of India, dated 28.09.2013 and G.O.(Ms)No.194,
Law (LS) Department, dated 03.06.2015 are quashed and the
consequential

admission

notification

of

the

Registrar,

23

Dr.Ambedkar Law University, Chennai, dated 04.06.2015, is


quashed, insofar as three year degree course is concerned.
219. Hence,

Writ Petition is allowed. No costs. Consequently,

connected Miscellaneous Petition is also closed.


It is most respectfully submitted that the Special Leave Petition filed
against the judgment of the Madras High Court was dismissed by the
Supreme court. By no stretch of imagination it can be postulated that
on the quashing of the notification dated 28.9.2013, Rule 28 will be
restored. A perusal of Exhibits P10 and P11 shows that on the
quashing of the notification dated 28.9.2013, the age restriction
contained in clause 28 will not be restored as it is admittedly a
subordinate legislation. As the relevant precedents cited above hold,
that the quashing of an amended subordinate legislation would not
revive the pre-amended subordinate legislation, quashing of the
amendment taking away the age restriction would not result in these
restrictions being revived. This is all the more so for Exhibit P2 judgment
specifically frowned upon the laying down of such age restrictions.
Exhibit P2 was accepted by the BCI as manifested in their act of
withdrawing the SLP filed thereagainst. Hence Exhibit P6 cannot stand
scrutiny of law and requires to be quashed. Exhibits P10 and P11 make
this position in law amply clear.

W.

The main case projected before the Madras High Court was that

the withdrawing of the age limit was done without following the proper
procedure. That it is so can be seen from the following passage from the
judgment:217. In the light of the discussion and decisions, we are of the
view that Clause 28 under Schedule-III to Rule 11 of the Rules of
Legal Education, 2008, has been amended, without following the
provisions of the Act and the Rules made thereunder. . . . .
It was on the reason that clause 28 was amended without following the
provisions of the Act and the Rules made thereunder that the notification
dated 28.9.2013 was quashed. This judgment of the Madras High Court
was affirmed by the Supreme court by dismissing the special leave

24

petition. What ought to have been done by the first respondent was to
follow the procedure required for amending clause 28. Instead of that,
the first respondent chose to issue Exhibit P6 which cannot stand on the
face of Exhibits P10 and P11.

X.

The Punjab and Haryana High Court in Exhibit P2 considered the

validity of the Rules, with reference to the provisions of the Advocates


Act, 1961 and taking note of the decision of the Hon'ble Apex Court in
Indian Council of Legal Aid and Advice and others v. Bar Council of India
and another reported in (1995) 1 SCC 732, held that the Bar Council of
India is not armed with any power to incorporate a provision in the rules,
like clause 28, concerning the age on admission to law degree course.
Having filed special leave petition before the Supreme Court and having
got it dismissed as withdrawn, judgment of the Punjab and Haryana
High Court has become final. Hence it is not open for the first respondent
to issue Exhibit P6 and restore the age restriction again.

Y.

The question whether fixation of an upper age limit for admission

to five year LL.B is violative of Articles 14 and 19(1)(g) is no more res


integra as far as this Honble Court is concerned. The decision in
K.A.Babu

and

others

v.

State

of

Kerala

and

others

(1987(1)K.L.T.730) held that prescription of a maximum age limit for


admission to five year course in law college is violative of Articles 14
and 19(1)(g) of the Constitution of India.

Z.

The impugned Clause 28 dealing with the age on admission

occurring in Schedule-III appended to the Rules have been framed


under Section 7(1)(h) and (i) and 24(1)(c)(iii) and (iiia), 49(1)(af),
(ag), and (d) of the Advocates Act. Section 7 of the Advocates Act deals
with the function of the Bar Council of India and Clause 7(1)(h) and (i)
only deals with such functions of the Bar Council of India, which are
aimed at promoting to legal education and to lay down standards of
such education in consultation with the Universities in India imparting
such education and to recognize the Universities whose degree in law

25

shall be a qualification for enrolment as an Advocate. Therefore, this


clause would not arm the Bar Council of India to incorporate the
provisions in the Rules like clause 28 concerning the age on admission
to L.L.B. Course. Likewise, Section 24(i)(c) deals with person who may
be admitted as an Advocate on a State roll. It has got nothing to do with
the age on admission and cannot be construed to have conferred power
on the Bar Council of India to prescribe the maximum age for the
purposes of admission to L.L.B. Five years' Course or L.L.B. Three Years'
Course.

AA.

Entrance examination was conducted and rank list was published

on 8.9.2016. The selection procedure was initiated with the publication


of the prospectus on 28.7.2016. Selection process was also commenced
on that basis and rank list was also published which as stated above
included the petitioner as well at rank No.148. It is at a time, when the
petitioner was expecting an allotment on the basis of options to be
submitted, were the impugned orders issued. Now at this point of time
amending the prospectus with retrospective effect by introducing the
upper age limit in the prospectus which was published on 28.7.2016 is
impermissible. This is so for the rules of the game cannot be changed
once the selection process has commenced. It is submitted in this
context that the Honble Supreme Court has held thus in Parmender
Kumar v. State of Haryana, (2012) 1 SCC 177:Government orders in force before issuance of prospectus prevail
but rules of game cannot be changed after admission process had
already begun.
A change in the prospectus cannot be made at the final stage, especially
after the selection process is over: (see Dr. Jayakumar, E.K. v. Director
of Medical Education and others {ILR 2003 (3) Ker. 46), Charles K.
Skaria v. Dr. C. Mathew (AIR 1980 SC 1230), K. Manjusree v. State of
A.P. {(2008) 3 SCC 512}, Hemani Malhotra v. High Court of Delhi
{(2008) 7 SCC 11}, Dr. Preeti Srivastava and another v. State of M.P.
and others {(1999) 7 SCC 120}, P.V. Indiresan (2) v. Union of India
and others {(2011) 8 SCC 441} and Parmender Kumar and others v.
State of Haryana and others {(2012) 1 SCC 177).

26

For these and other grounds to be submitted at the time of hearing


it is most humbly prayed that this Honble Court may be pleased to:i.

issue a writ of certiorari or any other appropriate writs,


directions or orders calling for the records leading upto Exhibits
P6 and P8 and quash the same.

ii.

Issue a writ of declaration or any other appropriate writ, order


or direction declaring that the age restriction in clause 28 of
the Legal Education Rules are no longer in the statute and are
hence unenforceable.

iii.

Issue a writ of mandamus or any other appropriate writs,


directions or orders commanding the second respondent to
finalise the admission to the integrated five year LL.B 2016
without taking into account Exhibits P6 and P8 and in terms of
the rank list already published within such time as this Honble
Court may deem fit in the facts and circumstances of the case.

iv.

Issue such other orders as are deemed fit and proper in the
circumstances of the case.

Interim relief

i.

This Honble Court may be pleased to stay the operation of and


all further proceedings pursuant to Exhibits P6 and P8;

v.

This Honble Court may be pleased to further direct the second


respondent to include the petitioner in the rank list prepared
for admissions to the integrated five year LL. B course and to

27

effect the admission of the petitioner to the integrated five year


LL.B course on that basis
Provisionally, pending disposal of the above Writ Petition
(Civil).

Dated this the 23rd October, 2016

N.Prakash
Party-in-person

28

Presented on:24.10.2016

Subject:-

Mahatma Gandhi University matter-Challenging Exhibit P6


issued by the first respondent reviving age limit of 20 years
and 30 years for admission to five year and three year LL.B
course and Exhibit P8 Government Order issued by the third
respondent.

Before the Honble High Court of Kerala at Ernakulam


W.P.C.No.

34023 of 2016

N.Prakash

Petitioner

The Bar Council of India and others

Respondents

Writ Petition (Civil) filed under Article 226 of the Constitution of India

Cf Rs.100/- paid

N.Prakash
Party-in-person

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