b.balakrishna pillai vs the bar council of india on 10 january, 2011

Madras High CourtMadras High CourtB.Balakrishna Pillai vs The Bar Council Of India on 10 January, 2011

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 10/01/2011

CORAM

THE HONOURABLE MR. JUSTICE S. MANIKUMAR

W.P.(MD) No.7936 of 2006

M.P.(MD)No.1 of 2006

B.Balakrishna Pillai

... Petitioner

Versus

1. The Bar Council of India,

rep. by its Secretary,

Rouse Avenue,

Institution Area, Near Bal Bhavan,

New Delhi 110 002.

2. The Bar Council of Tamil Nadu,

rep. by its Secretary,

High Court Campus, Chennai 600 104. ... Respondents

Writ Petition is filed under Article 226 of the Constitution of India praying for a Writ of Declaration,declaring that the removal proceedings No.12/2000 pending before the 1st respondent herein, has deemed tohave been concluded in favour of the petitioner and consequently, not to give effect to the suspension order ofthe second respondent in ROC.No.1070/2001, dated 29.08.2001.

!For Petitioner ... Mr.D.Rajagopal

^For 1st Respondent ... Mrs.J.Nisha Banu

For 2nd Respondent ... Mr.S.Muthukrishnan

:ORDER

B.Balakrishna Pillai vs The Bar Council Of India on 10 January, 2011

Indian Kanoon - http://indiankanoon.org/doc/311315/ 1

The petitioner has sought for a Writ of Declaration, declaring that the removal proceedings No.12/2000pending before the Bar Council of India, rep. by its Secretary, New Delhi, 1st respondent herein, as deemed tohave been concluded in favour of the petitioner and consequently, not to give effect to the suspension order ofthe second respondent in ROC.No.1070/2001, dated 29.08.2001.

2. It is the case of the petitioner that he had completed B.A., Degree Economics in April 1981 in First Class.Thereafter, he registered his educational particulars with the Employment Exchange, Nagercoil, which herenewed till January' 1994. As he did not get any suitable job, he was forced to work as an Advocate Clerk in1993-94 and having gained experience as an Advocate Clerk, he intended to study law course andaccordingly, on 14.06.94, he joined the LLB course (evening class) in SLSRC Havanur College of Law,Bangalore, a recognised college, affiliated to Bangalore University.

3. The petitioner has further submitted that he

regularly attended the classes during the Academic years 1994-95, 1995-96 and 1996-97 and completed LLBDegree in April 1997. A Provisional Degree certificate was issued on 15.10.1997 by the Principal, SLSRCHavanur Collage of Law, Bangalore and thereafter, he was issued a convocation certificate on 03.03.1998, bythe Bangalore University and that the same approved by Bar Council of India. On completion of LLB Course,he applied for enrolment as an Advocate before the Bar Council of Tamil Nadu and that he was admitted as aPre- enrollment Trainee on 24.11.1997. He was assigned Trainee No.2250.

4. The petitioner has further submitted that his

Enrollment application was duly attested by the President of Nagercoil Bar Association, Mr.P.Selvaraj. Oncompletion of one year of Pre-enrolment training in the District Court and Subordinate Courts in Nagercoil,due paper publication was effected on 04.12.1998 in Dinakaran Tamil Daily, calling for objections, if any, tohis enrolment as an Advocate. As no objection was received, he enrolled as an Advocate on 29.01.1999, aftercomplying with the mandatory requirements contemplated under law. His enrolment number is 41/1999.Thereafter, he also became a member of the Bar Association, Nagercoil and started practicing as an Advocateand also exercised his vote in the Bar Council Elections.

5. While that be so, after 3 years of completion of

his Degree course, a complaint has been given on 26.08.2000 to the Bar Council of Tamil Nadu against fourAdvocates, including the petitioner, alleging that during our course of study, they did not regularly attend theLLB Course and that they were working as Advocate Clerks, attached with the Counsel, practising inNagercoil courts and attended the courts. The complainant also requested the Bar Council of Tamil Nadu totake necessary action. Pursuant to the said complaint, the Bar Council of Tamil Nadu issued a notice underROC No.1185/2000, dated 05.09.2000 to the petitioner, to show cause, as to why, his name should not bestruck off from the rolls of the Bar Council of Tamil Nadu and why action should not be initiated against thepetitioner and some others, under the rules of the Bar Council and in this regard, directed the petitioner tosubmit his explanation on or before 20.09.2000.

6. The petitioner has further submitted that on

receipt of the show cause notice, he submitted his explanation on 18.09.2000 and the same was forwarded tothe Bar Council of India for further action. An enquiry was ordered to be conducted by the State Bar Councilof Tamil Nadu, by the Bar Council of India under Removal proceedings No.12/2000. Similar Removalproceedings were also ordered to be initiated in respect of three others, under Removal Proceedings No6/2000, 10/2000 and 11/2000 respectively. The Bar Council of Tamil Nadu, referred the matter to theEnrollment Committee and under a common notification in ROC No.1070/2001, dated 29.08.2001, thepetitioner and three others were placed under suspension, till the disposal of the removal proceedings.



7. The petitioner has further submitted that the

Disciplinary Committee of Bar Council of Tamil Nadu conducted an enquiry into the allegations levelledagainst them. The petitioner pleaded before the said committee that he was working as an Advocate clerk, atNagercoil under one Mr.G.Ramakrishnan, Advocate from 1981 to 1994 and that he joined SLSRC HavanurCollege of Law, at Bangalore in the year 1994 and completed the course in 1997 and obtained LLB Degree.He also submitted that while he was undergoing the course of study, he was staying at Hosur near Bangalorewith his younger sister, Mrs.V.Lakshmi. He also produced the attendance certificate issued by SLSRCHavanur Collage of law to prove that he attended the classes regularly and that he did not work as anAdvocate clerk during that period and therefore, pleaded to drop the removal proceedings.

8. The petitioner has further submitted that the Bar Council of Tamil Nadu submitted a common report, dated07.06.2003, in all the Removal Proceedings, including Removal Proceedings No.12/2000, initiated against thepetitioner, holding that the LLB Degree obtained by him and others may be valid for any other purpose, butthat will not entitle them to enrol as Advocates and since they have already been enrolled by the Bar Councilof Tamil Nadu, as Advocates, they are liable to be removed from the rolls of Bar Council of Tamil Nadu.

9. Pursuant to the said enquiry report, the Bar

Council of India issued a notice, dated 25.09.2003/26.09.2003 to show cause as to why, petitioner's nameshould not removed from the Rolls of the State Bar Council of Tamil Nadu and called upon him to send areply, by 23.10.2003. Accordingly, he submitted a reply dated 17.10.2003 to the Bar Council of India. Onreceipt of the same, the Bar Council of India directed him to appear before the Council on 09.11.2003, whichwas subsequently postponed to 22.02.2003. He appeared before the Bar Council of India on 22.02.2004 andthereafter, nothing had happened.

10. In the meanwhile, an advocate against whom,

similar Removal proceedings were initiated, has approached this Court and obtained stay of the suspensionorder, dated 29.08.2001, in W.A.M.P.No.2991/2003 in W.A.No.2127/2003. Yet another person againstwhom, similar removal proceedings were initiated, has filed Writ Petition in W.P.No.3005/04, to issue a Writof Declaration, declaring that the removal proceedings No.11/2000, pending before the Bar Council of India,as deemed to have been concluded, in his favour and consequently, not to give effect to the order ofsuspension, made in ROC.No.1070/2001, dated 29.08.2001. This Court, by an order, dated 26.07.2006, hasquashed the removal proceedings and permitted the Writ Petitioner therein to continue the legal profession.

11. In these circumstances, the petitioner has come up with the present Writ Petition, contending inter alia thathe had attended the classes regularly, during the years 1994-95, 1995-1996 and 1996-97, as per therequirement of the Bangalore University. It is his further submission that regarding academic matters, theCollege is the authority to say, as to whether, the petitioner had attended the classes regularly, during thecourse period. He further submitted that Section 24 of the Advocates Act 1961, prescribes the conditions andqualification of a person to be admitted as an Advocate on the State roll. But the said Section is silent aboutthe minimum attendance of the lectures on each of the subjects and also at tutorials, moot courts and practicaltraining course. However the Bar Council of India Rules, Part IV, Section B Rule 3 prescribes the requirementof minimum attendance of 66% of the lectures, on each of the subjects, as also at tutorials, moot courts andpractical training course. He therefore submitted that the rules, being procedural, shall not take away thesubstantial rights conferred on him to claim the benefit under section 24 of the Advocates Act.

12. The petitioner has further submitted that on securing LLB Degree, application for his enrolment as anAdvocate was made as per the provisions of section 25 and 26 of the Act and on due enquiry and scrutiny ofthe same, he was enrolled as an Advocate and even, the Bar Council of India, at its meeting held on 1st and2nd April 2001, has considered the question of eligibility of those students for enrolment as Advocates, who



have completed the LLB Degree and decided that students who have obtained LLB Degree from SLSRCCollege of Law Bangalore, prior to the academic year 1998-99 may be allowed to be enrolled as Advocates.

13. The petitioner has further contended that under section 36-B of the Advocates Act, any disciplinaryproceedings initiated by the State Bar Council shall be concluded, within a period of one year from the date ofreceipt of the complaint or the date of initiation of the proceedings, at the instance of the State Bar Council,failing which, such proceedings shall stand transferred to the Bar Council of India. The said Section prescribesno time limit for the conclusion of the proceedings. But the same should be completed expeditiously. It is thegrievance of the petitioner that eventhough the 1st Respondent has conducted the enquiry on 22.02.2004, tilldate no orders have been passed. In such circumstances, as per the orders of this Court made in W.P.No.3005of 2004, he is entitled to seek for a similar relief granted in the above writ petition. According to him, hecannot be kept under suspension for a prolonged period. For the abovesaid reasons, he has prayed for therelief as stated supra.

14. Though notice has been served on both the

respondents, no counter affidavit has been filed. However, Mrs.Nisha Banu, learned counsel for the firstrespondent, Bar Council of India, submitted that the Secretary of the Nagercoil Bar Association has filed acomplaint on 26.08.2000 to the Secretary, Bar Council of Tamil Nadu against four lawyers that they havebeen working as advocate clerks and finished law degree without attending the class. The said complaintalong with the explanation given by the applicants, including the petitioner, were forwarded to the BarCouncil of India for taking necessary action. The Bar Council of India, vide its letter, dated 02.05.2001, hadremanded the matter back to the Bar Council of Tamil Nadu for conducting a detailed enquiry.

15. Learned counsel for the first respondent further

submitted that the Secretary of the Nagercoil Bar Association, in his complaint, dated 25.08.2001, hasrequested the Enrolment Committee to suspend the advocates, against whom enquiries were pending till theenquiry was over. The Enrolment Committee of the Bar Council of Tamil Nadu accepted the request of theSecretary of the Nagercoil Bar Association and suspended the following four advocates from practice: -

1. Mr.E.Chithambarahanu Pillai

2. Mr.J.Parameswaran Thambi

3. Mr. R. Subramonia Pillai

4. Mr.B.Balakrishna Pillai (Petitioner herein)

Thereafter, the Enrolment Committee has sent a recommendation to the Bar Council of India, through the BarCouncil of Tamil Nadu, vide its letter in R.O.C.No.1060/2001, dated 28.08.2001.

16. Learned counsel for the first respondent further submitted that in continuation of the above mentionedletter, the Secretary of the Bar Council of Tamil Nadu, through his letter in R.O.C.No.1073/2001, dated30.08.2001, has informed the Bar Council of India that the four advocates, including the petitioner, have beensuspended from practice as advocates, till the proceedings are over and also requested the Bar Council ofIndia to ratify the action of the Enrolment Committee in this regard. In the mean while, the Bar Council ofTamil Nadu, has requested the Bar Council of India to give some more time to file the enquiry report andfinally, submitted its enquiry report, vide letter No.R.O.C.No.379/2003, dated 10.06.2003. The said EnquiryReport was placed before the Bar Council of India, at its meeting held on 24.08.2003. After consideration ofthe same, the Council issued Show Cause Notices to the concerned advocates.



17. She further submitted that on receipt of the show cause notices, the abovesaid four advocates, includingpetitioner submitted their replies. Thereafter, the Bar Council of India directed them to appear in person orthrough their Counsel before the Bar Council of India, at its meeting on 22.02.2004. In the meantime, the BarCouncil of Tamil Nadu, by letter No.R.O.C.No.305/2006, dated 18.04.2006, has informed the Bar Council ofIndia that Mr.E.Chithambarahanu Pillai, Mr.J.Parameswaran Thambi and Mr.R.Subramonia Pillai filed WritPetitions in Madurai Bench of this Court and obtained interim stay. It was also informed that in respect of thepetitioner herein, no case was pending at that time.

18. Learned counsel for the first respondent, Bar Council of India further submitted that the Bar Council ofIndia, vide its letter No.BCI:D:81/2007, dated 05.01.2007, has directed the petitioner to appear before theCouncil on 22.01.2007. In response to the same, the petitioner also sent a reply to the Bar Council of Indiathat he has obtained interim stay on 19.01.2007 before the Madurai Bench, in this Writ Petition. Therefore, theBar Council of India, at its meeting held on 20/21.01.2007, after considering Removal ProceedingNo.12/2000, in respect of the petitioner and also the letter received from his Counsel, has decided as follows: -

"Ms A.Sumathi, advocate appeared on behalf of

shri.S.Balarkrishna Pillai and informed the Council that Shri Balakrishna Pillai had filed a Writ Petitionchallenging the removal proceedings pending before the Bar Council of India and it is informed that a stay ofthe proceedings has been obtained by Shri Balakrishna Pillai and therefore he wants the proceedings to bedeferred till the Writ petition is decided. Accordingly, the removal proceedings No. 12 / 2000 Is deferredpending disposal of the writ petition filed by him in the Madras High Court (Madurai Bench)."

19. Learned counsel for the first respondent submitted that in view of the pendency of the Writ Petition, nofurther action could be pursued in the Removal Proceedings. She further submitted that as there is no specifictime limit prescribed under Section 36 of the Advocate's Act for conclusion of the removal proceedings, thesame cannot be declared as deemed to have been concluded in favour of the writ petitioner.

20. Learned counsel for the first respondent further

submitted that the order made in W.P.No.3005/04, dated 26.07.2006, cannot be cited as a precedent, for thereason that the contention that Section 36 of the Act does not impose any time restriction in concluding theremoval proceedings, has not been adverted to by this Court. It is her further contention that in the above WritPetition, earlier, the petitioner therein had filed a Writ Petition in W.P.No.11004 of 2002, challenging theorder of Bar Council of Tamil Nadu and this Court, by an order, dated 02.12.2003, directed the Bar Council ofIndia to pass orders on the removal proceedings No.11 of 2000, pending against the petitioner therein, withina period of two months from the date of passing of the order and since no orders were passed for nearly twoyears, this Court has declared that the removal proceedings pending against the petitioner therein as deemed tohave been concluded. For the above said reasons, she prayed for dismissal of the Writ Petition.

21. Before adverting to the facts of this case, it is relevant to have a cursory look at the provisions relating tothe qualifications prescribed for enrolment as an Advocate under the Advocates Act, 1961 and Bar Council ofIndia Rules.

22. Advocates Act, 1961, was enacted to have a conslidated law relating to legal practitioner and to providefor the constitution of Bar Councils and an All India Bar Council. Among other main features of the Act, oneof the main feature of the Act is that the prescription of a uniform qualification for admission of persons to beenrolled as advocates. Chapter 2 deals with Bar Councils. Section 3 of the Act deals with State Bar Councils.Section 4 of the Act deals with Bar Council of India and as per the said Section, there shall be a Bar Councilfor the territories, to which, the Act extends, to be known as the Bar Council of India. The functions of the BarCouncil of the State are enumerated in Section 6 of the Act, which includes, "(a) to admit persons asadvocates on its roll.



(b) ...............

(c) to entertain and determine cases of misconduct against advocates on its roll.

(d) .........

(e) ........

(f) .........

(g) .........

(h) to perform all other functions conferred on it by or under this Act."

23. The relevant clauses in Section 7(c) of the Act are extracted hereunder:

"c. To lay down the procedure to be followed by its

disciplinary committee and the disciplinary committee of each State Bar Council. d. To safeguard the rights,privileges and interest of advocates

e. To promote and support law reform

g. To exercise general supervision and control over State Bar Councils

h. To promote legal education and to lay down standards of such education in consultation with theUniversities in India imparting such education and the State Bar Councils

(ic) to recognise on a reciprocal basis foreign qualifications in law obtained outside India for the purpose ofadmission as advocate under this act.

l. to perform all other functions conferred on it by or under this Act

m. to do all other things necessary for discharging the aforesaid functions."

24. Section 24 of the Advocates Act, speaks about persons, who may be admitted as advocates in the Staterolls and the same is extracted hereunder:

"24. Persons who may be admitted as advocates on a State roll:-

(1) Subject to the provisions of this Act. And rules made thereunder, a person shall be qualified to be admittedas an advocate on a State roll, if he fulfills the following conditions, namely:- a. he is a citizen of India:

Provided that subject to the other provisions contained in the Act, a national of any other country may beadmitted as an advocate on a State roll, if citizens of India, duly qualified, are permitted to practice law in thatother country.

b. he has completed the age of twenty-one years.

c. he has obtained a degree in law-



i. before the [(Note:- Subs. by Act 60 of 1973, sec.18, for the words "28th day of February,1963" 12th day ofMarch, 1967] from any University in the territory of India, or

ii. before the 15th August, 1947, from any University in any area which was comprised before that date withinIndia as defined by the Government of India Act, 1935, or

iii. [Note:- Subs. by Act 60 of 1973, sec.18, for clause (iii)) after the 12th day of March, 1967, save asprovided in sub clause after undergoing a three years course of study in law from any University in Indiawhich is recognised for the purpose of this Act by the Bar Council of India, or (iiia) after undergoing a courseof study in law, the duration of which is not less than two academic years commencing from the academicyear 1967-98 or any earlier academic year from any University in India which is recognised for the purpose ofthis Act by the Bar Council of India, or] [(Note:- Subs. by Act 60 of 1973, sec.18, for the words "he is abarrister".) he is barrister and is called the Bar and on before the 31st day of December, 1976

[(Note:- Ins. by Act No.107 of 1976, sec.6) "or has passed the articled clerks" examination or any otherexamination specified by the High Court at Bombay or Calcutta for enrolment as an attorney of that HighCourt] or has obtained such other foreign qualification in law as is recognised by the Bar Council of India forthe purpose of admission as an advocate under this Act.] iv. (Note:- Ins. by Act 21 of 1964 sec.13) In anyother case, from any University outside the territory of India, if the degree is recognised for the purpose of thisAct by the Bar Council of India or (d) (Note:- Clause (d) omitted by Act 60 of 1973, sec.18) e. he fulfills suchother conditions as may be specified in the rules made by the State Bar Council under this Chapter. f. [(Note:-Clause (f) subs. by Act 60 of 1973, sec.18) he has paid, in respect of the enrolment, stamp duty, if any,chargeable under the Indian Stamp Act, 1899, and an enrolment fee payable to the State Boar Council of[(Note:- Subs. by Act 70 of 1993, sec.6) six hundred rupees and to the Bar Council of India, one hundred andfifty rupees by way of a bank draft drawn in favour of that Council.]

Provided that where such person is a member of the Schedule Castes or the Scheduled Tribes and produces acertificate to the effect from such authority as may be prescribed, the enrolment fee payable by him to theState Bar Council shall be [(Note:- Subs. by Act 70 of 1993, sec.6) one hundred rupees and to the Bar Councilof India, twenty-five rupees.] [Explanation - (Note:- Ins. by Act 14 of 1962, sec.2) For the purpose of thissub-section, a person, shall be deemed to have obtained a degree in law from a University in India on the dateon which the results of the examination for that degree are published by the University on its notice-board orotherwise declaring him to have passed that examination.] (2) Notwithstanding anything contained insub-section (1) [(Note:- Subs. by Act 21 of 1964, sec.13, for certain words.) a vakil or a pleader who is a lawgraduate] may be admitted as an advocate on a State roll , if he-

a. makes an application for such enrolment in accordance with the provisions of this Act, not later than twoyears from the appointed day, and b. fulfills the conditions specified in clauses (a), (b) and (f) of sub-section(1).

(3) [(Note:- Sub-sections (3) and (4) ins. by Act 21 of 1964, sec.13) Notwithstanding anything contained insub-section (1) a person who- a. (Note:- The words "before the 31st day of March,1964 and then in force"omitted by Act 33 of 1968, sec.2) has, for at least three years, been a vakil or a pleader or a mukhtar or wasentitled at any time to be enrolled under any law (Note:- The words "before the 31st day of March,1964 andthen in force" omitted by Act 33 of 1968, sec.2) as an advocate of a High Court (including a High Court of aformer Part B State) or of a Court of Judicial Commissioner in any Union territory, or

aa. [(Note:- Sub-clause (aa) ins. by Act 60 of 1973, sec.18) before the 1st day of December, 1961 was entitledotherwise than as an advocate to practice the profession of law (whether by way of pleading or acting or both)by virtue of the provisions of any law, or who would have been so entitled had he not been in public serviceon the said date or.



a. [(Note:- Sub-clause (b) omitted by Act 60 of 1973, sec.18)].

b. Court in any area which was comprised within Burma as defined in the Government of India Act, 1935 or

c. is entitled to be enrolled as an advocate under any rule made by the Bar Council of India in this behalf, maybe admitted as an advocate on a State roll if he-

(i) makes an application for such enrolment in accordance with the provision s of this Act, and

i. fulfills the conditions specified in clauses (a), (b), (e) and (f) of sub-section (1).

1. [(Note:- Sub-section (4) omitted by Act 107 of 1976, sec.6)]"

25. Section 36-B deals with the disposal of the disciplinary proceedings and it reads as follows:

"36B. Disposal of disciplinary proceedings- (1) The disciplinary committee of a State Bar Council shalldispose of the complaint received by it under Section 35 expeditiously and in each case the proceedings shallbe concluded within a period of one year from the date of the receipt of the complaint or the date of initiationof the proceedings at the instance of the State Bar Council, as the case may be, failing which such proceedingsshall stand transferred to the Bar Council of India which may dispose of the same as if it were a proceedingwithdrawn for inquiry under sub section (2) of section 36. (2) Notwithstanding anything contained in subsection (1) where on the commencement of the Advocates (Amendment) Act, 1973, any proceedings inrespect of any disciplinary matter against an advocate is pending before the disciplinary committee of a StateBar Council, that disciplinary committee of the State Bar Council shall dispose of the same within a period ofsix months from the date of such complaint, or, as the case may be, the date of initiation of the proceedings atthe instance of the State Bar Council, whichever is later, failing which such other proceeding shall standtransferred to the Bar Council of India for disposal under sub-section."

26. The disciplinary committee of the Bar Council shall have the same powers, as are vested in a civil courtunder the Code of Civil Procedure, 1908 (5 of 1908), in respect of the matters enumerated in Section 42 of theAct. Section 49 of the Act deals with general power of the Bar Council of India to make rules for dischargingits functions under the Act and in particular, such rules may prescribe,

"a. (Note:- Clause (a) subs. by Act 21 of 1964, sec.20) the conditions subject to which an advocate may beentitled to vote at an election to the State Bar Council, including the qualifications or disqualification ofvoters, and the matter in which an electoral roll of voters may be prepared and revised by a State Bar Council.

.................

(af) [(Note:- Clause (af) subs. by Act 60 of 1973, sec.38) the minimum qualification required for admission toa course of degree in law in any recognized University.]

(ah) the conditions subject to which an advocate shall have the right to practice and the circumstances underwhich a person shall be deemed to practice as an advocate in a court.

..........

c. The standards of professional conduct and etiquette to be observed by advocates.

d. The standards of legal education to be observed by university in India and the inspection of Universities forthat purpose."



27. Bar Council of India Rules have been framed in exercise of rule making powers under Advocate's Act,1961. Part IV of the Rules deals with the courses leading to grant of LLB Degree. As per the rules, there shallbe two streams of law courses leading to LL.B. Degree viz. a five year and a three year law course for thepurposes of enrolment as advocates as prescribed under the Rules contained in Section-A and Section-Brespectively. As per Clause 2(b) and (c) of Section-A of the Rules contained in Part-IV, pertaining to five yearcourse of law after 10+2 or 11+1, the law degree has been obtained after undergoing a regular course of studyin a duly recognised law college under these rules for a minimum period of five years, out of which the firsttwo years shall be devoted to study of pre-law courses as necessary qualifications for admission to three yearcourse of study in law to be commenced thereafter. The last six months of the three years of the law courseshall include a regular course of practical training. That the course of study in law has been by regularattendance for the requisite number of lectures, tutorials, moot courts and practical training given by a collegeaffiliated to a University recognised by the Bar Council of India.

28. As per Clause (4) of the Rules, the students shall be required to put in a minimum attendance of 66% ofthe lectures on each of the subjects as also at the moot courts and practical training course. Provided that inexceptional cases, for reasons to be recorded and communicated to the Bar Council of India, the Dean of theFaculty of Law or Principal of law colleges may condone attendance short of those, if the students haveattended 66% of the lectures in the aggregate for the semester or annual examination, as the case may be.

29. Section B to Part IV of the abovesaid Rules deals with Three year law course, after graduation. Similar toLLB course, this course of study in law should be by regular attendance with the requisite number of lectures,tutorials or moot courts in a college recognised by a University.

30. The core issue centres around the contention as to whether the petitioner had attended regular classes atBangalore and satisfied the important criteria, viz., regular course with the minimum attendance in thesubjects, as per the statutory rules. The petitioner has also submitted that rule 24 of the Bar Council of IndiaRules, cannot override the statutory provision contained in the Act. Therefore, it is necessary to consider someof the cases on this aspect.

31. In L.Meenakshi Sundaram v. Director of Legal Studies reported in 1981 (II) MLJ 141, a Division Benchof this Court considered a case, as to whether a student, who had completed correspondence course in BGLdegree conducted by Kamaraj University is eligible to pursue the third year B.L., Degree course. Hechallenged the rejection of his candidature, on the ground that acquisition of BGL degree, throughcorrespondence, would not be considered as equivalent to pursue B.L. Degree course in the University, is notcorrect. The rejection made by the Registrar of University of the Madras, was based on a resolution of theSyndicate of the University, which referred to a letter of the Bar Council of India. While considering thepowers of the Bar Council of India to frame rules, to promote legal education and to lay down the standards ofeducation, for the purpose of recognition of the course, eligible for admission to the rolls of the Bar Council, apre-requisite to practise as an Advocate, the Division Bench, at Paragraphs 10, 11, 13, 15 & 16, held asfollows:

"The expression "to lay down standards of such education" occurring in Section 7(1)(h) of the Advocates Actis capable of taking in every ingredient which will go to constitute the end or ultimate level of education thatis expected of a candidate who applies for enrolment as an advocate under the Act.

The Court was unable to agree that the expression "standards of such education" occurring in Section 7(1)(h)of the Act in any way whittles down or narrows down the scope of the functions of the Bar Council of India,so as to take away from such functions the right to lay down a prescription that the course must be a regularcourse in the sense that the students are required to attend regular classes and to put in certain percentage ofattendance. The argument that "standards of such education" occurring in Section 7(1) refers only to theexcellence of the education aimed at and will not take in any other matter such as whether the course shouldbe a regular one or may be by correspondence or how much attendance a candidate should have put in cannot



be accepted. (Para 10)

Section 24(1) of the Advocates Act opens by saying that the provisions contained therein shall be subject tothe provisions of this Act and the rules made thereunder. Consequently, the expression "a three year course ofstudy in law", occurring in Section 24(1)(c)(iii), has to be read subject to the rules framed by the Bar Councilof India, and if so read, there is absolutely no inconsistency between the rules framed by the Bar Council ofIndia and the statutory provisions contained in Section 24 (1)(c)(iii) of the Act. (Para 11)

It is not possible to hold that there is no difference between the B.G.L.Degree of the Madurai KamarajUniversity obtained after pursing the correspondence course and the degree obtained after attending regularclasses. If so, there is absolutely no scope for the invocation of Article 14 of the Constitution at all, because,from the very nature of the case, the two degrees are not identical or equal.

(Para 13)

The Constitution itself provides that any law relating to professional qualifications necessary for practisingany profession or carrying on any occupation, trade or business will be valid and not in any way derogatory tothe right of a citizen under Article 19(1)(g). (Para 16)

The prescription made by the Bar Council of India in the rules framed by them regarding attendance in aregular course in a college or the prescription regarding a particular percentage of attendance at such lecturersin law relating to professional qualification necessary for practising the profession of an advocate isconsequently saved by Article 19(6) of the Constitution of India. (Para 15)"

32. As regards the contention of the petitioner that since the removal proceedings have not been completedwithin one year from the date of institution and therefore, it should be deemed to have been completed infavour of the petitioner, it is relevant to consider some of the decisions. In Karnataka State Bar Council v.H.Subramanya Jois reported in AIR 1993 Kar 7 (DB), the respondent therein sought for quashing a resolutionof the Bar Council of Karnataka, by which, the case of the respondent was referred to a DisciplinaryCommittee. The Disciplinary Committee took the case on file. An objection was made by therespondent-Advocate that the complaint ought to have been disposed of within a period of one year from thedate of receipt of the complaint by the Bar Council and therefore, the Bar Council had no competence to referthe complaint to the disciplinary committee. The objection of the respondent was rejected by the disciplinarycommittee. Thereafter, a Writ Petition was filed, challenging the same. A learned Single Judge accepted thepetitioner's contention, by holding that the purpose of the period of limitation prescribed under the AdvocatesAct, 1961 is to require an early and expeditious disposal of the complaints against an Advocate and therefore,the period of one year prescribed under Section 36-B of the Act has to be computed from the date of thereceipt of complaint by the Bar Council and not from the date of the reference of complaint to the DisciplinaryCommittee. Rejecting the contentions of the respondent therein, the Division Bench of Karnataka High Court,at Paragraphs 7, 8, 9 and 10, held as follows:

"7. The disposal of the complaint referred here is to be by the Disciplinary Committee; the mandate of theprovisions of Section 36(1) is clearly directed to the Disciplinary Committee requiring it to dispose of thecomplaint. However, the petitioner's contention was that the words -- "in each case the proceeding shall beconcluded within a period of one year from the date of receipt of the complaint" --in Section 36(1) are to beunderstood, as referring to the complaint received by the Bar Council, and not by the Disciplinary Committee.This overlooks the content of Section 36(1); subject matter of Section 36(1) is the disposal of the case may bythe Disciplinary Committee. Case may be referred to the Disciplinary Committee, either on receipt of thecomplaint by the Bar Council or by the Bar Council suo motu. When a case is referred by the Bar Council suomotu (without any complaint being received by it), then, certainly the Disciplinary Committee is given anyear's time from the date of reference to conclude the proceedings before it; this is very clear from the words"shall be concluded within a period of one year from..... the date of initiation of the proceedings at the



instance of the State Bar Council". If so, naturally, a different period of limitation to conclude the proceedingsby the Disciplinary Committee, when it is a case of a reference of a complaint, could not have been thoughtof. At any rate, a plain reading of Section 36(1) conveys the meaning that the period of one year, is the periodprovided to consider the proceedings by the Disciplinary Committee and, therefore, such a period wouldcommence only when the proceedings of the Disciplinary Committee are initiated and not earlier. 8. Rule17(2) makes the position further clear. It reads :

"The date of receipt of the complaint or the date of the initiation of the proceedings at the instance of the StateBar Council shall be the date on which the State Bar Council refers the case for disposal to its DisciplinaryCommittee under Section 35(1)."

Confining the above words to the instant case, Rule 17(2) would read: "The date of receipt of thecomplaint..... shall be the date on which the State Bar Council refers the case for disposal to the DisciplinaryCommittee under Section 35(1)."

9. Rule 17(2) actually identifies the relevant date. It points out that in the case of a complaint, the date of itsreceipt is not the actual date when the Bar Council received it, but, it is the date on which the case is referredto the Disciplinary Committee for disposal. It is impossible to understand this Rule in any other manner.

10. If the case is not disposed of within the prescribed period, proceedings are to be transferred to the BarCouncil of India under Section 36(1). For this purpose, Rule 17(1) requires the Secretary of every State BarCouncil to furnish the relevant particulars to the Bar Council of India. It is in this context Rule 17(2) clarifiesthat the "date of receipt of the complaint" shall be the date on which the case is referred to the DisciplinaryAuthority, so that if proceedings are not completed within one year from the said date, the case shall standtransferred to the Bar Council of India."

It is to be noted in the above reported case that even if the proceedings referred to the Disciplinary Committeewere not completed within one year, the case has to be transferred to the Bar Council of India and it iscategorically held that the proceedings cannot be declared as abated.

33. In Rattan Singh, I.A.S. v. Bar Council of India

and others reported in 1994 (2) SCC 102, a Civil Appeal and a Writ Petition were disposed of by a commonorder. Facts of the Civil Appeal are that the first respondent therein was a post-graduate in Political Scienceand Modern History, undertook studies in LL.B. course in Calcutta University, as a non-collegiate womancandidate under Regulation 35 of the Calcutta University, First Regulations, 1951 framed under the CalcuttaUniversity Act, 1951. She was conferred a law degree in terms of Regulation 35 by the Calcutta Universityand she applied to the Bar Council of West Bengal, for enrolment as an Advocate. However, she wasinformed by the Assistant Secretary of the Bar Council that she was not entitled to be enrolled, as she did notfulfil the condition of Rule 1(1)(c) of Part IV of the Bar Council of India Rules, 1975. Coming to know ofrejection of her application for enrollment, she challenged the vires of the rule itself.

34. Insofar as the writ petition is concerned, the Writ Petitioner therein, passed his Bachelor of Artsexamination in 1953 and acquired a Master's degree in Economics in 1956 and joined the Punjab CivilService, Executive Branch, on May 8, 1957. As a member of the civil service, he exercised quasi-judicialpowers in different capacities for some time and on the basis of a resolution of the Executive Council of theKurukshetra University and the Academic Council, vide resolutions Nos.30 and 33 respectively, datedSeptember 15, 1973, the petitioner had undertaken a three year L.L.B (Professional) course and secured adegree in 1978. He decided to quit the Government service and thereafter, applied for enrolment as anAdvocate paying the fee of Rs.250 for such enrolment. In that application, he made it clear that he wouldresign from government service, as soon as his eligibility for enrolment as an Advocate was determined. Thiscase was referred to the Bar Council of India and the decision was awaited from the latter. However, there



was no response. When he came to know that no non-collegiate degree-holder had ever been enrolled, sinceSeptember 6, 1975, the date on which the Rules came into force, as an Advocate, he thought it futile to awaitand filed a petition under Articles 32 and 19(1)(g) of the Constitution of India. On the above facts of bothcases, the Supreme Court, at Paragraphs 11 to 17, held as follows: "11. We may now reproduce Sub-rule (1)of Rule 1 of Part IV of the Rules as it stood at all material times."

1 (1) Save as provided in Section 24(1)(c)(iiia) of the Act, a degree in law obtained from any University in theterritory of India after the 12th day of March, 1967 shall not be recognised for purposes of Section24(1)(c)(iii) of the Act unless the following conditions -are fulfilled: (a) That at the time of joining the courseof instruction in law for a degree in law, he is a graduate of a University, or possesses such academicqualifications which are considered equivalent to a graduates' degree of a University by the Bar Council ofIndia;

(b) that the law degree has been obtained after undergoing a course of study in law for a minimum period ofthree years as provided in these rules;

(c) that the course of study in law has been by regular attendance at the requisite number of lectures, tutorialsand "moot courts in a college recognised by a University",

Rule 2 required the Council to publish by a notification in the Gazette of India and prominent newspapers, thenames of Universities whose degrees are recognised under the rules and forward copies thereof to theconcerned Universities. Thus, under Rule 1(1) after March 12, 1967, a degree of law obtained from anyUniversity shall not be recognised for the purpose of Section 24(1)(c)(iii) of the Act unless the conditionsstated in Clause (c) are satisfied. Under the said clause the degree of law was not to be recognised unless thecourse of study in law has been by regular attendance at the requisite number of lectures, tutorials and mootcourts in a college recognised by a University. The respondent No. 1 of the first mentioned appeal admittedlyappeared and passed the three law examinations as non-collegiate student without attending lectures, tutorialsand moot courts. Her contention is that before she started the study of law she was aware of the requirementof Regulation 35 and had obtained the Law Degree in compliance therewith. It is not disputed that the provisowas added to the said Regulation on December 14, 1979 before she passed the final examination in 1980. Thisproviso was added to make the Regulation consistent with the Rules. It may here be mentioned that theCalcutta High Court in her case by the impugned judgment reported in AIR1983Cal461 struck down the saidrule as ultra vires the provisions of the Act. It may also be stated that in the case of the Kurukshetra Universitystudent also it is an admitted fact that he did not attend the course and passed as a non-collegiate.

12. We may at this stage notice decision of this Court rendered in Baldev Raj Sharma v. Bar Council of Indiaand Ors (1989 Supple. (2) SCC 91) The factual background in which that decision was rendered was that thepetitioner therein had obtained the LL.B. degree (academic) as a private candidate from the KurukshetraUniversity. That was a course of two years duration. He thereafter joined the LL.B. (professional) course inthe third year as a regular student of Kanpur University. After obtaining the degree, he sought enrolment as anadvocate which was refused by the Bar Council of Punjab & Haryana on the ground that he did not fulfil therequirements of Rule 1 (1)(c) fad Section 24(1)(c)(iii) or (iii-a) of the Act. The petitioner thereupon movedthis Court under Article 32 of the Constitution. This Court after referring to the relevant provisions namely,Sections 7(h) and (i), Section 24(1)(c)(iii) and (iii-a) and Section 49(1)(b) of the Act read with Rule 1 (1)(c) ofthe Rules held that the said Rule envisaged regular attendance of the student for the entire period of the lawcourse before he can seek enrolment as an advocate. This Court further observed that the Rules merelyamplified what was intended by Section 24(1)(c)(iii) namely, the three years course of study in law must bepursued by maintaining regular attendance. The court clearly negatived the suggestion that there was anyinconsistency between the provisions of the Act and the Rules. This was because in the opinion of the Courtthere was a substantial difference between the course of studies pursued as a regular student and the course ofstudy pursued as a private candidate. The policy underlying the provisions of the Rules makes it clear thatconsiderable emphasis is laid on regular attendance at the law classes and this is manifest from the plain



language of the provisions referred to earlier. Since the petitioner had failed to show that he had compliedwith the requirements of the said Rules, the Court observed that the action refusing to enrol him wasunassailable.

13. In view of the ratio of this decision, the conclusion of the Calcutta High Court that Rule 1 (1)(c) was ultravires Section 7(i), 24(1)(c)(iii) or Section 49(1)(d) stands overruled by necessary implication. Once this Courthas observed that the requirements of Rule 1 (1)(c) merely amplify the requirements of the relevant provisionsof the Act and do not run counter thereto, the vires of the said Rule vis-a-vis, provisions of the Act standssettled in favour of the validity of Rule 1 (1)(c). Therefore, both the grounds on which the Calcutta HighCourt struck down the validity of Rule 1 (1)(c) stand negatived. The impugned decision of the Division Benchof the Calcutta High Court therefore cannot be sustained.

14. Now under Section 7, one of the functions of the Bar Council of India is to recognise Universities whosedegree in law shall be qualification for enrolment as an advocate and for that purpose to visit and inspect theUniversities. This power of recognition of Universities conferred where the degree of law of that Universitiesis conferred where the degree 15 of law of the University entitles the degree-holder for enrolment as anadvocate. Under Section 24(1)(c)(iii) which is relevant for this purpose, a person shall be qualified to beadmitted as an advocate on a State roll if he fulfils the conditions of having undergone a three year course ofstudy in law from any University in India which is recognised by the Bar Council of India. Sub-section 3 ofSection 24 is an exception clause to Sub-section 1 as it begins with a non obstante clause which entitles aperson to be enrolled as a advocate under special rule made in that behalf. No such Rule was relied upon ashaving been made under Sub-section 3 of Section 24. Section 49(1)(d) empowers the Bar Council of India tomake rules which may prescribe the standards of legal education to be observed by Universities in India andthe inspection of Universities for that purpose. If the acquisition of a degree in law is essential for beingqualified to be admitted as an advocate on a State roll, it is obvious that the Bar Council of India mast havethe authority to prescribe the standards of legal education to be observed by Universities in the country. On aconjoint reading of these provisions of the Act with Rule 1 (1)(c) in Part- IV of the Rules which prescribe thestandards for legal education and recognition of degrees in law as well as admission as advocates, it isdifficult to understand how one can say that the said Rule is inconsistent with any of the provisions of the Act.What Rule 1(1) (c) requires is that the course of study in law must be completed by regular attendance at therequisite number of lectures, tutorials and moot courts in a college recognised by a University. As pointed outearlier, this Court in Ballav Raj Sharma's case pointed out that there was a substantial difference between acourse of studies pursued as a regular student and the course of studies pursued as a private candidate. Thepolicy underlying the relevant provisions of the Rules is to lay emphasis on regular attendance of the lawclasses. It is, therefore, clear that a candidate desiring enrolment as an advocate must fulfil the conditions setout under the relevant clause of Section 24 read with Rule 1 (1)(c) of the Rules. In the present case since boththe candidates admittedly did not pursue any regular course of study at any college recognised by theUniversity by attending the law classes, lectures, tutorials and moot courts, they cannot be said to havecomplied with the requirements for enrolment as an advocate. In that view of the matter we think that the viewtaken by the Calcutta High Court reported in Aparna Basumallkk v. Bar Council of India (AIR1983Cal461) iserroneous.

15. Our attention was then invited to the decision taken by the Bar Council of India in the case of one GulwantSingh who had joined the course of instruction for first LL.B. in the academic year 1967-68 as a privatecandidate and obtained a law degree of three years from the Punjab University as a private candidate. On areference being made to the Bar Council of India, the latter opined that he was entitled to be enrolled eventhough he had passed the law degree as a private candidate. On the analogy of this candidate, it was submittedthat both the candidates before us were also entitled to be enrolled as advocates. We do not think that thesubmission is well founded for the simple reason that the case of Gulwant Singh fell within the scope ofSection 24(1)(c)(iia) since he had commenced the study in law from the academic year 1967-68 and not after12th March, 1967.



16. It was lastly submitted that so far as the Calcutta student was concerned, her cause was governed byRegulation 35 which specifically permitted a woman candidate to appear as non-collegiate student. ThisRegulation underwent a change on the addition of the proviso by the Resolution of December 7, 1979 whichrequired the University to inform the woman candidate in advance that she will not be eligible for enrolmentas an advocate and the degree to be awarded shall bear an inscription to the effect that it was obtained as anon-collegiate student. Regulation 35 could not hold the field unless it was consistent with the provisions ofthe Act and the Rules. That is why the proviso was required to be added to the regulation. But if theUniversity had omitted to insert the proviso that would not have entitled a woman candidate for enrolment asan advocate on securing a degree as a non- collegiate. Unless the degree of law was secured consistently withthe requirements of the provisions of the Act and the Rules would not serve as a qualification for enrolment.The proviso was added to Regulation 35 by way of extra caution. After the incorporation of Rule 1 (1)(c) inits present form, Regulation 35 could not entitle a woman candidate to be enrolled as an advocate if shesecured the degree as a non-collegiate.

17. For the above reasons, we are of the opinion that Civil Appeal No. 8816 of 1983 deserves to be allowed.We allow the same, reverse the decision of the Division Bench of the Calcutta High Court and restore thedecision of the learned single Judge dismissing the Writ Petition which decision is reported as AparnaBasumallick v. Bar Council of India (AIR1983Cal37). For the same reasons, Writ Petition No. 1153 of 1991must also fail and shall stand dismissed. The C.M.Ps and the T.A. will also stand disposed of. There will,however, be no order as to costs in both the matters."

35. In Baldev Raj Sharma v. Bar Council of India and Ors., reported in AIR 1989 SC 1541, the petitioner fileda Writ Petition before the Supreme Court against an order of the Bar Council of Punjab and Haryana, rejectinghis application for enrolment as an advocate. After acquiring Bachelor of Arts degree from the PunjabUniversity, Patiala, the petitioner therein joined the Bachelor of Laws (Academic) course in KurukshetraUniversity. The course is of two years' duration. Thereafter, he joined the LL.B. (Professional) course in thethird year in Kanpur University as a regular student. The Kanpur University confers two distinct degrees,LL.B. (General), which is a two year course, and LL.B. (Professional), which is a three year course. As perthe University Regulations, a person who has been awarded LL.B. (General) degree is eligible for admissionto the LL.B, (Professional) three year. The petitioner attended classes as a regular student of the LL.B.(Professional) Course-third year of the Kanpur University, as required by the Rules and Regulations framedby that University and thereafter, applied to the State Bar Council of Punjab and Haryana with the necessaryenrolment fee for enrolment as an advocate under the Advocates Act, 1961. The Bar Council of Punjab andHaryana denied enrolment to the petitioner as an advocate on the ground that the petitioner has not fulfilledthe conditions laid down in Rule 1(1)(c) of the Rules of the Bar Council of India framed under Section 7(h)and (i), Section 24(1)(c)(iii) and (iiia) and Section 49(1)(d). The main objection of the Punjab and HaryanaBar Council was that the petitioner had obtained LL.B. (Academic) degree (two years' study course) as aprivate candidate. When the rejection of the Bar Council of Punjab and Haryana was challenged, the SupremeCourt, after referring to Section 24 of the Advocates Act and the Rules framed thereunder, at Paragraph 3,held as follows:

"The Bar Council of India has framed Rules under the Advocate Act, 1961. Rule 1(1)(c) of Part IV of the BarCouncil of India Rules, 1975 provides that except as provided in Section 24(1)(c)(iiia) of the Advocates Act adegree in law obtained from any University in the territory of India after 12th March, 1967 shall not berecognised for the purposes of Section 24(1)(c)(iii) of the Act unless the conditions specified there arefulfilled, including the condition "that the course of study in law has been by regular attendance at therequisite number of lectures, tutorials and moot courts in a college recognised by a University". These ruleswere replaced by a fresh set of rules in 1984 and the new Rule 1(1)(c) is almost identical. The Rule clearlyrequires that the course of study in law should have been by regular attendance for the requisite number oflectures, tutorials and moot courts and practical training. The Rule envisages that for the entire period of thelaw course there must be a regular attendance of the student before he can satisfy the conditions necessary forenrolment as an advocate under the Advocates Act. 1961. The Rules amplify what is intended in Section



24(1)(c)(iii) of the Act. The three years' course of study envisaged by that sub clause in the Act intends thatthe three years' course of study in law must be pursued by maintaining regular attendance. We are unable tosay that there is any inconsistency between the Act and the Rule. So also in a case falling under Clause (iiia)of Section 24(1)(c) of the Act, a course of study in law must be pursued for not less than two academic yearsin terms of that sub-clause and Rule 1(1)(c) will apply to such a case also. There is a substantial differencebetween a course of study pursued as a regular student and a course of study pursued as a private candidate.The policy underlying the relevant provisions of the Bar Council Rules indicates the great emphasis laid onregular attendance at the law classes. The conditions are specifically spelt out when the Act is read along withthe Rules. When so read, it is plain that a candidate desiring enrolment as an advocate under the AdvocatesAct must fulfil the conditions mentioned in Section 24(1)(c)(iii) or Section 24(1)(c)(iiia) read with Rule1(1)(c) of the Bar Council of India Rules, 1975. In the present case the petitioner failed to do so. Hisapplication for enrolment was rightly rejected."

36. On the duties and responsibilities of the State Bar Councils and Bar Council of India, in Indian Council ofLegal Aid v. Bar Council of India reported in 1995 (1) SCC 732, the Supreme Court, at Paragraph 3, 4 and 6,held as follows:

"3. It will be seen from the above provisions that unless a person is enrolled as an advocate by a State BarCouncil, he shall have no right to practise in a court of law or before any other Tribunal or authority. Once aperson fulfills the requirements of Section 24 for enrolment, he becomes entitled to be enrolled as an advocateand on such enrolment he acquires a right to practise as stated above. Having thus acquired a right to practisehe incurs certain obligations in regard to his conduct as a member of the noble profession. The Bar Councilsare enjoined with the duty to act as sentinels of professional conduct and must ensure that the dignity andpurity of the profession are in no way undermined. Its job is to uphold the standards of professional conductand etiquette. Thus every State Bar Council and the Bar Council of India has a public duty to perform,namely, to ensure that the monopoly of practice granted under the Act is not misused or abused by a personwho is enrolled as an advocate. The Bar Councils have been created at the State level as well as the Centrallevel not only to protect the rights, interests and privileges of its members but also to protect the litigatingpublic by ensuring that high and noble traditions are maintained so that the purity and dignity of theprofession are not jeopardized. It is generally believed that members of the legal profession have certain socialobligations, e.g., to render 'pro bono publico' service to the poor and the under-privileged. Since the duty of alawyer is to assist the court in the administration of justice, the practice of law has a public utility flavour and,therefore, he must strictly and scrupulously abide by the Code of Conduct behoving the noble profession andmust not indulge in any activity which may tend to lower the image of the profession in society. That is whythe functions of the Bar Council include the laying down of standards of professional conduct and etiquettewhich advocates must follow to maintain the dignity and purity of the profession.

4. ........Section 49(1) confers power on the Bar Council of India to make rules, inter alia, for discharging itsfunctions under the Act. Section 49(1)(ag) when read with Section 24 of the Act confers wide powers on theBar Council of India to indicate the class or category of persons who may be enrolled as advocates whichpower would include the power to refuse enrolment in certain circumstances. The obligation to maintain thedignity and purity of the profession and to punish erring members carries with it the power to regulate entryinto the profession with a view to ensuring that only profession-oriented and service-oriented people join theBar and those not so oriented are kept out.

6. We have briefly noticed the relevant provisions of the Act in the earlier part of this judgment. We may nowbriefly indicate the scheme. Before we do so it may not be out of place to mention that the profession of law isone of the oldest professions and was practised in one form or the other in the honorary post. After the adventof the British in India, certain rules in regard to the practise of law were introduced. Before independencethere were Mukhtars and Vakils who were permitted to practise law in moffusil courts even though not all ofthem were Law graduates. However, slowly and gradually they were allowed to wither away and their placewas taken by Pleaders who were, after securing a degree in law permitted to practise at the district level.



Those who were enrolled as advocates could practice in any court subordinate to the High Court including theHigh Court. The difference between a Pleader and an advocate was merely on account of the fee charged forenrolment. After independence, came the Act which was enacted 'to amend and consolidate the law relating tolegal practitioners and to provide for the Constitution of Bar Councils and an all-India Bar'. The Act creates anall-India Bar with only one class of legal practitioners, namely, advocates, who of course are classified assenior advocates and other advocates (Section 16). The general superintendence of ethics and etiquette of theprofession is the responsibility of the Bar Councils created under the Act and they have been charged with theduty to punish their members for misconduct. The Act envisages the existence of a Bar Council for everyState. The function of admission of persons as advocates is entrusted to every State Bar Council which isrequired to prepare and maintain a roll for that purpose. While disciplinary jurisdiction is conferred on theState Bar Councils to punish its members for misconduct, it is at the same time charged with the duty tosafeguard their rights, privileges and interest. They must perform all the functions conferred on them by orunder the Act and do everything that is necessary to discharge the functions set out in Section 6. So far as theBar Council of India is concerned, its functions are of a more general nature, e.g., to lay down standards ofprofessional conduct and etiquette for advocates, to safeguard their rights, privileges and interests, tosupervise and control the working of the State Bar Council, to promote legal education, to recogniseuniversities, to organise legal aid to the poor and to perform all other functions conferred by or under the Actand do everything that may necessary to discharge the functions enumerated in Section 7. Besides the above ittoo is required to exercise discipline and control over the members of the profession. Thus the functions aredivided between the State Bar Councils and the Bar Council of India, although for obvious reasons overlapsare unavoidable. The rule making power has been conferred on the State Bar Councils under Sections 15 and28 and on the Bar Council of India under Section 49 of the Act."

37. Reverting back to the case on hand, material on record shows that a complaint, dated 26.08.2000, has beenlodged by the Bar Association, Nagercoil to take action against four lawyers, including the petitioner, who hasbeen alleged to have been working as an Advocate's Clerk in Nagercoil and did not attend the law courseregularly, as regular attendance is necessary for the course of study for obtaining a law degree. The BarCouncil of India, by proceedings, dated 31.01.2001, has instructed the Bar Council of Tamil Nadu to take allthe facts into consideration and pass a detailed order. Pursuant to the same, the Bar Council of Tamil Nadu,after providing an opportunity to the Advocates, has sent a report to the Bar Council of India, videproceedings in R.O.C.No.1060 of 2001, dated 28.08.2001 in Removal Proceedings No.6 of 2000. Thepetitioner along with three others have been placed under suspension and thereafter, ratification has beensought for, by the Secretary, Bar Council of Tamil Nadu. The Bar Council of India, has requested the StateCouncil to submit a report by 15th February' 2002. The Disciplinary Committee No.2 of the Bar Council ofTamil Nadu, in its report, dated 7.06.2003, after considering the case of the petitioner, has recorded asfollows: "PW.1, Ashok Padmaraj is the Secretary of the Complainant Association. He has filed the proofaffidavit stating the facts of the case of the complainant. He was thoroughly cross examined by therespondents' counsels. PW.2, G.Nagendran the Secretary of the Advocate Clerks Association, Nagercoil hasdeposed for the complainant. He has produced the registers of his Association in Ex.C1 to C4. The variousentries in these documents show that the respondent B.Balakrishna Pillai was a member of the ClerksAssociation. PW.2 has also stated that during the relevant period the respondent B.Balakrishnan Pillai was amember of the Advocate Clerks Association and he was working as a Advocate Clerk at Nagercoil.

The respondent B.Balakrishna Pillai was examined as RW.3. Only the most relevant portion in his evidence isbeing considered. Admittedly, he was working as advocate clerk at Nagercoil under G.Ramakrishnan,advocate from 1981 to April 1994. During 1994 to 1997, he did his law course in the S.S.L.R.C. HavanurCollege of Law at Bangalore. He has stated that his younger sister V.Lakshmi was living at Hosur nearBangalore and he was staying with her when he was studying his law course. Ex.R34 is the AttendanceCertificate issued to him by his college. He studied his law course properly and obtained his law degree in aproper manner. His enrolment was duly done."



38. All the four Lawyers, including the petitioner, against whom, removal proceedings were initiated, haveobtained law degrees from colleges outside the State of Tamil Nadu. The disciplinary committee, whileconsidering as to whether the petitioner and others have satisfied the minimum attendance of 66% of thelecturers, on each of the subjects, as also the tutorials, moot courts and practical training, has observed that thedistance between the Nagercoil and Bangalore is 650 Kms. To prove that it is not possible for the writpetitioner and others to attend regular course in college at Bangalore, the complainant, the Secretary,Nagercoil Bar Association, has examined PW.2, Mr.G.Nagendran and marked exhibits, C1 to C4, Registersand Minutes Book maintained by the Advocate Clerks's Association, in which, it has been found that three ofthem were members of the Advocate Clerk Association and they were paying their subscription.

39. Out of the four Advocates against whom, removal

proceedings have been initiated, except, Mr.E.Chithambarahanu Pillai, who had claimed to have worked inN.S.K. Polytechnic, Kanyakumari, others were Advocate Clerks. To sustain the avernments that they have notattended regular courses and satisfied the minimum attendance as required under the rules, the Committee,after considering the evidence, has observed that they have not furnished any material records, precisely toprove that they had put in 66% of the lectures, on each of the subjects, as also at tutorials, moot courts andpractical training course. Before the Committee, the petitioner and others have relied on Exs.R14, 24 and 34,said to be the Attendance Certificates issued by the respective colleges. Ex.R14 is the Attendance Certificateissued by the SLSRC Havanur College of Law, Bangalore, to Mr.J.Parameswaran Thambi (R.P.No.10 of2000). Ex.R24, Attendance Certificate issued by Islamiah College of Law in respect of Mr.P.SubramoniaPillage (R.P.No.11 of 2000). Ex.P34 is the Attendance Certificate issued by the S.L.S.R.C. Havanur Collegeof Law, Bangalore, to the petitioner (R.P.No.12 of 2000). Upon consideration of the same, the EnquiryCommittee has observed that,

"All these three documents relied on by the respondent to prove their attendance as required under the Ruleare totally silent as to how many lecturers, tutorials, moot courts and practical training courses were requiredto be attended and how many of them were attended by the respondents. In the absence of those particulars inthese three documents and in view of the facts that they have been issued after four or five years after thecompletion of the law course, we are not inclined to place any reliance on these three documents in Ex.R14,R24 and R34."

40. Thus, it is seen from the report of the State Bar Council that though the petitioner and two others havecontended that they have stayed in the same place, near to the Law Colleges in Bangalore, they have notexamined anyone to corroborate the same. Again, the contents of the supporting affidavits of the advocatesunder whom, they claimed to have worked as Advocate Clerks, have not been proved by examining thembefore the Committee. Therefore, in these circumstances, the Enquiry Committee has observed that, "all thethree respondents have not discharged their burden of proof and they have failed to prove that they havecomplied with the condition laid down in Rule 1(i)(c) Section B Part IV of the Bar Council of India Rules."

41. Placing reliance on a decision of Division Bench of Punjab and Haryana High Court in Janak Raj v. BarCouncil of India reported in AIR 2001 P & H 374, the Enquiry Committee, has further observed that, "theLLB Degrees held by the respondents in Removal

Proceedings No.06/2000, 10/2000, 11/2000 and 12/2000 may be valid for any other purpose but will notentitle them to enroll as advocates and since they have been already enrolled by the Bar Council of TamilNadu as advocates they are liable to be removed from the Bar Council of Tamil Nadu."

42. The facts of the above reported judgment are as follows: The petitioner therein joined the Office of theDeputy Commissioner, Ferozepur in the year 1962 and after attaining the age of superannuation, he retiredfrom service on October, 31, 1997. He passed B.A., in the year 1971, while in service and in the year 1995, hejoined the Three Years' LL.B. (Professional) course "as a regular student in Faculty of Law, Shia Degree



College, Lucknow", affiliated to University of Lucknow. He claimed that in August 1996, he had taken upL.L.B., examination, subject to the condition that no leave would be granted. He completed the course in theyear 1998. A provisional certificate, dated November 29, 1999, was issued by the University, certifying thatthe petitioner had passed the Degree of Bachelor of Law in the Second Class. The Principal of the Collegealso certified that the petitioner had passed the examination as a regular student from the institution and thathis attendance was as per norms prescribed by Lucknow University. Thereafter, the petitioner had submittedthe forms along with the requisite fee for enrolment as a trainee to the Bar Council. As the Training ServiceRules were struck down by the Supreme Court in V.Sudeer v. Bar Council of India, the petitioner approachedthe Bar Council for enrolment as an Advocate. On receipt of the application, the Bar Council asked thepetitioner to furnish following information along with the supporting documents :--

(i) "Place of posting during law course 1995-1998.

(ii) Distance (one side) from place of posting to place of Law College.

(iii) Proof of leave or study leave from your Department duly obtained for the purpose of at tending theregular classes from the date of admission till the date of retirement. The details should be yearwise andmonthwise.

(iv) Copy of permission order to join LL.B. classes at Lucknow."

43. The petitioner submitted a reply on July 14, 1999. The distance between the office of the DeputyCommissioner, Ferozepur and the College was 720 kms. He had obtained 143 days' earned leave during theperiod from May 15, 1995 to July 21, 1997. Besides, he also claimed to have availed casual leave. For theproof of leave, having been obtained for the purpose of attending regular classes and copy of the order,granting permission to join LL.B. classes at Lucknow, the petitioner has contended that he had alreadysubmitted the same. The Bar Council, vide letter, dated August 1, 2000, rejected his application for enrolment.Assailing the correctness of the order of rejection, the petitioner inter alia contended that the action of therespondents in rejecting his claim was arbitrary and discriminatory, as the attendance given by the college hadnot been properly considered. It was also contended that no action for the cancellation of the degrees awardedby the respective Universities had been taken by the Bar Council. According to him, other persons who hadobtained degrees, in a similar manner had been enrolled. While considering the above submissions, theDivision Bench, at Paragraphs 11, 12, 13 and 14, held as follows:

"11. The Advocates Act, 1961 embodies the law relating to the legal practitioners. Section 24 of the Act laysdown the conditions which a person has to fulfil before he can be considered as "qualified to be admitted as anAdvocate on a State roll". One of these conditions is that he should have "obtained a degree in law afterundergoing a three years' course of study in law from any University in India which is recognised for thepurposes of this Act by the Bar Council of India". It has been further provided that he should fulfil "such otherconditions as may be specified in the rules made by the State Bar Council under this chapter".

12. In exercise of the powers under the Act, Rules have been framed by the Bar Council of India. These laydown the standards of legal education as required under the Act. In Section 'B' which is applicable in the caseof persons obtaining a degree of Law on the completion of three years of study, Rule 1(1) (b & c) provide thata degree in law shall not be recognised for the purposes of Section 24(1)(c)(iii) unless the followingconditions are fulfilled:--

(b) that the law degree has been obtained after undergoing a course of study in law for a minimum period ofthree years as provided in these rules.

(c) that the course of study in law has been by regular attendance at the requisite number of lectures, tutorialsor moot Courts in a college recognised by a University.



13. Rule 3 requires that the students shall be required to put in a minimum attendance of 66% of the lecturesin each of the subjects as also at tutorials, moot Courts and practical training course.

14. What is the position in the present cases? The petitioners were admittedly employed in the office of theDeputy Commissioner, Ferozpur when they had joined the course. They have not been able to show as to howmany lectures had been delivered and that they had actually attended the requisite percentage thereof. In thissituation, it is apparent that the petitioners did not fulfil the conditions prescribed under the Act and the Rules.

44. As regards the contention that some other persons were permitted to enrol themselves as Advocates, atParagraph 24, the Division Bench held as follows:

"24. The onus of proving that equals have been treated unequally lay on the petitioners. They have not shownthat the persons who were similarly situate have been treated differently. Still further, even if it is assumedthat the respondents have enrolled certain persons despite the fact that they did not fulfil the prescribedconditions of eligibility, this Court cannot compel the respondents to repeat the wrong. No direction to act inviolation of a rule can be Issued by the Court. Resultantly, the plea of discrimination cannot be sustained."

45. As per the rules, the students shall be required to put in a minimum attendance of 66% of the lectures oneach of the subjects, as also at tutorials, moot courts and practical training course. Only in exceptional cases,for reasons to be recorded and communicated to the Bar Council of India, the Dean of the Faculty of Law andthe Principal of law colleges may condone attendance short of those required by the Rule, if the student hadattendance 66% of the lectures in the aggregate for the semester or examination as the case may be.

46. Regular attendance of the lecturers, tutorials, moot courts and practical training given by the college,affiliated by the University and recognised by the Bar Council of India is a mandatory requirement forsecuring a law degree and it is to be noted that a bachelor of academic laws, now afforded by manyUniversities through distant education is not recognised for enrolment as an advocate. Part IV of the BarCouncil of India Rules prescribe minimum lecture hours for certain papers, such as, (1) Moot Courts,Pre-Trial Preparation, Participation in the Trial Proceedings, (2) Public Interest, Loitering, Legal andPara-Legal Services and (3) Other Papers.

47. Thus, it is mandatory requirement under the Act and the rules framed that a person, who seeks forenrolment, should attend regular classes and satisfy the minimum percentage of attendance of the lectures, oneach of the subjects, as also at tutorials, moot courts and practical training course. In the case where a personis employed, it is also a mandatory requirement that to prove that permission has been granted by theemployer for the purpose of admission and attending the regular classes. One cannot simultaneously work inan office or establishment, earn salary and claim to be a regular student of a Law College, for the purpose ofenrolment. He cannot be omnipresent both in the college and in the Office/establishment, simultaneously. Ifany records are produced by such persons, to satisfy that he was on leave, during the period of study, dulygranted by the employer, with the necessary permission to pursue the regular course, then the case would bedifferent. It cannot be contended that the Bar Councils are powerless to enquire as to whether the applicanthas satisfied the requirement under the provisions of the Act and the rules, prescribed for enrolment. It cannotalso be contended that merely because, a University or the College has given an attendance certificate, the BarCouncils should be refrained from examining the veracity of the same and find out whether the applicant hassatisfied the mandatory requirement as to whether, he has put in the required attendance.

48. As held in various decisions stated supra, unless the applicant satisfies that he had underwent the regularcourse with the regular attendance, the State Bar Council or the Bar Council of India is empowered to takeappropriate action, even to remove the lawyer from the rolls. While doing so, the Bar Council of the State orBar Council of India, as the case may be, is empowered to consider the evidence on record. In Janak Raj'scase, though the petitioner therein has produced a certificate from the college, stating that he had undergoneregular course of study, the Bar Council of Punjab and Haryana independently considered the same, with



other evidence and came to the conclusion that the petitioner therein did not satisfy the requirement forenrolment. Bar Council of the State and the Bar Council of India, statutory bodies under the Advocate's Actare empowered to examine as to whether the requirements for enrolment as an advocate are satisfied. Merelybecause, a person has already been admitted to the rolls of the State Bar Council, that would not preclude theCouncils to examine the complaints and pass necessary orders under the provisions of the Act and the rules.

49. Material on record shows that on receipt of the enquiry report of the Bar Council of Tamil Nadu, dated07.06.2003, the petitioner has been called upon to appear before the Bar Council of India on 9th November'2003 at the premises of Bar Council of India, New Delhi. In response to the notice, the petitioner has sent areply, dated 17.10.2003 to the Bar Council of India and prayed to reverse the finding of the EnquiryCommittee. He has also prayed for permission to practice as an Advocate. Subsequently, on 01.11.2003,another show cause notice has been issued by the Bar Council of India, directing the petitioner to appear on22nd February' 2004 at New Delhi. When the Bar Council of India, vide order, dated 05.01.2007, has directedthe petitioner to appear on 20.01.2007, a reply has been sent, stating that he has obtained interim stay of theremoval proceedings in the present Writ Petition. The interim stay and the pendency of this writ petition arecited as reasons for not concluding the removal proceedings. The contention of the petitioner that he is entitledto similar relief granted to the writ petitioner in W.P.No.3005 of 2004, dated 26.07.2006 and that the removalproceedings pending against him, before the Bar Council of India are deemed to have been concluded, cannotbe countenanced for more than one reason.

50. Facts of the judgment made in W.P.No.3005 of 2004 are that earlier, the petitioner therein had filedW.P.No.11004 of 2002, questioning the order of Bar Council of Tamil Nadu. In the said Writ Petition, byorder, dated 02.12.2003, this Court has directed the Bar Council of India to pass orders on the removalproceedings No.11 of 2000, within a period of two months from the date of passing of the order in the WritPetition. Thereafter, the petitioner received a telegram from the Secretary, Bar Council of India, intimatingthat the hearing in the removal proceedings has been fixed on 22.02.2004. Though he had attended enquiryand pleaded his case, no orders were passed. In such circumstances, this Court, by observing that inspite ofspecific instructions made in W.P.No.11004 of 2002, the Bar Council of India has not passed any orders fornearly two years and on that basis, quashed the removal proceedings.

51. As rightly contended by the learned counsel for the Bar Council of India, when there is no specific timelimit provided under Section 36 of the Advocate's Act, for the Bar Council of India to pass orders, either of itsown motion or on the report, by any State Bar Council, the removal proceedings initiated by the State BarCouncil cannot be declared as deemed to have been concluded in favour of the writ petitioner. Reading ofSection 36-B of the Advocate's Act, 1961, makes it clear that the disciplinary committee of a State BarCouncil shall dispose of the complaint received by it, under Section 35 expeditiously and in each case, theproceedings shall be concluded within a period of one year from the date of the receipt of the complaint or thedate of initiation of the proceedings, at the instance of the State Bar Council, as the case may be, failingwhich, such proceedings shall stand transferred to the Bar Council of India which may dispose of the same, asif it were a proceeding withdrawn for inquiry under sub section (2) of section 36 of the Act.

52. The contention that the College is the authority to say about the attendance and the Bar Council of Statecannot examine the same, cannot be countenanced, for the reason, the Bar Council of the State or the BarCouncil of India, being the disciplinary authority under the Act, has every authority to verify the details, forthe purpose as to whether, the applicant satisfies the mandatory requirement of attending a regular course,with the required percentage of attendance in the subjects. If the contentions of the petitioner are to beaccepted, then no disciplinary action can be taken against any advocate, who secures a law degree and enrolsas advocate, dehors the statutory requirement. Power of the Councils cannot be severed, considering their roleunder the Act to maintain discipline and for the enforcement of the principles of the Act and the rules framedthereunder. Material on record shows that the writ petitioner has also submitted his reply to the show causenotice offering his explanation on the enquiry report. All that remains now, is only passing of appropriateorders, in accordance with the provisions of the Bar Council of India Rules.



53. With the mushroom growth of Institutions in neighbouring States, offering legal education, sitting in thehome State and being engaged in some avocation, securing law degrees, has become easier. Judicial noticecan also been taken, the number of advocates enrolled in the State Bar Council has exceeded the sanctionedstrength in the law colleges in the State of Tamil Nadu. The Bar Council of the State and the Bar Council ofIndia have a statutory duty to uphold high standards of legal education. On the one hand, Governmentestablishes School of Excellance with high degree in standards of legal education and simultaneously, there isan enormous increase in the number of persons, who secure law degrees, from the neibourhood States. Therecannot be a restriction in pursuing legal education from other States, but at the same time, for the purpose ofenrolment as an advocate, a noble profession, the Bar Councils should thoroughly examine the applicationssubmitted for enrolment at the threshold and take appropriate action against those, who acquire law degreeswithout satisfying the mandatory conditions under the Act and the rules framed thereunder and practice asadvocates. If the exercise is not taken up by the Bar Councils, then the institution would in a way beresponsible for allowing persons not qualified for enrolment to practice the noble profession of law and publicinterest would be affected.

54. In the light of the above discussion and the judicial pronouncements stated supra, this Court is of theconsidered view that when the removal proceedings are pending before the Bar Council of India and afterhaving submitted the reply to the show cause notice, it is not open to the petitioner to seek for a declaration, asprayed for. Hence, the Writ Petition is dismissed. Interim stay granted is vacated.

55. The Bar Council of India, New Delhi, is directed to pass orders as expeditiously as possible, not later thanfour months from the date of receipt of a copy of this order. It is made clear that the petitioner, who hasalready submitted his reply to the proceedings, shall not protract. It is sincerely hoped that the Bar Council ofIndia, New Delhi, would comply with the orders within the stipulated time on the basis of the materialsavailable on record. No costs. Consequently, connected Miscellaneous Petition is also closed.

skm

To

1. The Secretary,

Bar Council of India,

Rouse Avenue,

Institution Area, Near Bal Bhavan,

New Delhi 110 002.

2. The Secretary,

Bar Council of Tamil Nadu,

High Court Campus, Chennai 600 104.�



b.balakrishna pillai vs the bar council of india on 10 january, 2011

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