Beruflich Dokumente
Kultur Dokumente
of 2016
N.Prakash
Petitioner
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withdrawn.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
W.P.C.No.
of 2016
PETITIONER:-
N.Prakash
PrajithVihar
Ayini Nada Road
Maradu P.O.
Ernakulam District
Vs
RESPONDENTS:-
1.
2.
3.
Government Secretariat,
Thiruvananthapuram-695001
4.
Writ Petition (Civil) filed under Article 226 of the Constitution of India
2.
was
conducted
at
Thiruvananthapuram,
Ernakulam,
3.
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
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.
enrolment
can
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
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).
Exhibit P2.
5.
6.
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.
8.
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.
10
belatedly,
the
maximum
age
for
seeking
11
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.
the
reinstatement
of
upper
Age
Limit
for
12
12.
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
contained
in
Clause
(2)
of Article
226 of
the
13.
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.
14
15.
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
16.
17.
16
18.
19.
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
precedents.
Even
assuming
that
the
age
restriction
18
B.
contrary
C.
D.
E.
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.
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.
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.
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
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.
M.
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.
O.
21
P.
Q.
R.
The Madras High Court judgment has not considered the issue of
S.
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
T.
an invidious
U.
V.
The prayer before the Madras High Court was to issue a writ of
respondent,
G.O.(Ms)No.194,
dated
Law
(LS)
28.09.2013
Department,
and
dated
the
impugned
03.06.2015
and
admission
notification
of
the
Registrar,
23
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.
Y.
and
others
v.
State
of
Kerala
and
others
Z.
25
AA.
26
ii.
iii.
iv.
Issue such other orders as are deemed fit and proper in the
circumstances of the case.
Interim relief
i.
v.
27
N.Prakash
Party-in-person
28
Presented on:24.10.2016
Subject:-
34023 of 2016
N.Prakash
Petitioner
Respondents
Writ Petition (Civil) filed under Article 226 of the Constitution of India
Cf Rs.100/- paid
N.Prakash
Party-in-person