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CASE NO.: Appeal (civil)  5301-5302 of 2001

PETITIONER: BAR COUNCIL OF INDIA

RESPONDENT: BOARD OF MANG. DAYANAND COLL. OF LAW AND ORS

DATE OF JUDGMENT: 28/11/2006

BENCH: H.K. SEMA & P.K. BALASUBRAMANYAN

JUDGMENT: J U D G M E N T  

P.K. BALASUBRAMANYAN, J.

1.              The Bar Council of India challenges the  judgments of the High Court of Allahabad in two Writ  Petitions holding that the appointment of respondent No.  5 in these appeals as the Principal of the Dayanand  College of Law was valid and within the competence of the  State of Uttar Pradesh and the Chhatrapati Shri Sahu Ji  Maharaj Kanpur University, Kanpur.  Respondent No. 5   was appointed Principal of the said Law College on  11.12.1995.  On an inspection, the Bar Council of India  found that respondent No. 5 did not possess a  qualification in law and hence withdrew its recognition to  the College.  At that stage, the Management of the College  filed Civil Miscellaneous Writ Petition No. 48183 of 2000  questioning the validity of the appointment of respondent  No. 5 as the Principal of the College.  Meanwhile,  respondent No. 5 was transferred as the Principal of  Nagrik Degree College and he challenged the said order of  transfer on the ground that he was competent to hold the  post of Principal of the Law College and the reason for his  transfer was unsustainable and that a Principal could not  be transferred to another College as sought to be done.   The bone of contention in the Writ Petitions was whether a  person who did not possess a degree or a postgraduate  degree in law and was not qualified to practise law, could  be appointed as the Principal of a Law College and  whether it was not essential to have a degree in law before  one could be appointed as Principal of a Law College.  The  Bar Council of India was not a party to the Writ Petitions.   The High Court took the view that going by the Uttar  Pradesh State Universities Act, 1973 (hereinafter referred  to as, "the University Act"), such an appointment could be  made notwithstanding anything contained in the  Advocates Act, 1961 or in the Rules framed by the Bar  Council of India.  The High Court proceeded on the basis  that there was a conflict between the two enactments,  namely, the University Act and the Advocates Act and in  terms of Article 254(2) of the Constitution of India, the  University Act, the later State Act with the assent of the  President, would prevail over the Advocates Act and since  appointment to the post of a Principal of a College  affiliated to a University was governed by the University  Act,  the appointment of respondent No. 5 as Principal of  the Law College was liable to be upheld.   It was also held

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that the Bar Council of India did not have any control  regarding legal education.  The order transferring  respondent No. 5 away from the post of Principal of the  Law College was consequently set aside.  No notice was  also issued to the Bar Council of India, the apex  professional body of Advocates, before taking such a  decision.  However, taking note of the consequences of the  decision rendered by the High Court, the Bar Council of  India has filed these appeals challenging the decision of  the High Court with the leave of this Court.   

2.              The appointments to Higher Educational  Institutions in the State of Uttar Pradesh including Degree  Colleges is done by the Higher Education Services  Commission constituted under the Uttar Pradesh Higher  Education Services Commission Act, 1980 (hereinafter  referred to as, "the Act") and in terms of Uttar Pradesh  Higher Education Services Commission (Procedure for  selection of teachers) Regulations, 1983.  Section 12 of the  Act insists that every appointment of a teacher shall be in  terms of the Act and a teacher is defined to include a  Principal.  Section 12(1) provides that any appointment  made in contravention of the Act would be void.  On the  basis of the relevant Regulations framed under Section 31  of the said Act, advertisements are to be issued inviting  applications for appointment of Principals to various  degree colleges that had made requisitions in that behalf  or had reported vacancy and on the basis of the procedure  for selection, a list is to be prepared of the candidates  eligible for appointment as Principals.  The appointments  to various Colleges are made from the said panel  depending on circumstances including the preference of  the candidates.  Statute 11.14 provides the qualification to  be possessed for the post of Principal in the colleges  affiliated to the Kanpur University.  Prior to 13.1.1995,  Statute 11.14 (i)(b) provided that the Principal must  possess "a doctorate degree in one of the subjects taught  in the college, with 7 years’ experience of teaching degree  class".   With effect from 13.1.1995, the said Statute was  amended and clause (b) thereafter read, "a doctorate  degree, with 7 years’ experience of teaching degree class".   In other words, the requirement that the appointee must  have a doctorate degree in one of the subjects taught in  the College was done away with.  Until 13.1.1995, a  person could be appointed Principal of a Law College only  if he possessed a doctorate degree in law or in one of the  branches of law taught in that College.  But after  13.1.1995, on an ordinary literal interpretation of the  amended clause, a person possessing a doctorate degree  in a subject wholly unrelated to law could also be  appointed the Principal of a Law College.  Respondent No.  5 herein, who was one among the candidates selected and  included in the panel and who was appointed as Principal  of the Dayanand Law College had a doctorate in  Philosophy and had no degree or qualification in law.  

3.              The management initially accepted the  appointment of respondent No. 5 as Principal.  It is said  that he was teaching Ethics and Ancient Law in the  College.  As noticed earlier, on an inspection made by the  Bar Council of India, it came out that the Principal did not  have any qualification in law.  The Bar Council of India,  therefore, withdrew the recognition granted to the College.   This placed the students coming out of the College in  jeopardy since the Bar Council of India could deny them

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enrolment and entry into the profession on the ground  that the Institution in which they studied did not have  recognition.  It was then, that the management, acting  through its Secretary, filed the Writ Petition praying for  the issue of a writ of quo warranto, calling upon  respondent No. 5 to show on what authority he was  holding office.  In that situation, respondent No. 5 was  transferred as Principal of another College.  It is the case  of respondent No. 5 that he could not join that post since  an interim order was passed by the High Court   restraining him from taking charge as Principal of that  College and this compelled him to file a writ petition  questioning his very transfer.  It is in that context that the  High Court held that the appointment of respondent No. 5  was consistent with the University Act and since that Act  prevailed over the Advocates Act and the relevant rules of  the Bar Council of India, the status of respondent No. 5  could not be questioned.  Based on that decision, the High  Court also set aside the order transferring respondent No.  5.  No doubt, it also took the view that such a transfer of  Principal was not contemplated by the University Act or  the Regulations thereunder.  

4.              There is no doubt that the University Act, 1973  had the assent of the President of India and it was an  enactment later in point of time to the Advocates Act,  1961.  According to the High Court, since the appointment  of the Principal of the Law College was made on the basis  of the relevant provisions of the University Act, and the  Regulations framed thereunder and based on the  qualification prescribed by the Statute 11.14 as it stood on  the date of appointment, the provisions of the Advocates  Act or the rules of the Bar Council of India could not be  invoked to nullify his appointment or to question his  authority as Principal.  Thus, the High Court postulated a  conflict between a State Law that had the assent of the  President and a prior Central enactment and based on  Article 254(2) of the Constitution granted relief to  respondent No. 5.   

5.              The High Court also observed that the Bar  Council of India had no role in legal education as such  and that its role was confined to controlling the profession  of Advocates and the commencement of the profession,  that is, enrolment as an Advocate and hence the Bar  Council of India could not make any prescription  regarding legal education or about those who are to teach  law, or who are to be the Principal of a College of Law.  It  also proceeded on the basis that the Advocates Act is a  legislation under Entry 25 or 26 of List III of the Seventh  Schedule to the Constitution of India and since the State  law is under Entry 25 of List III of the Seventh Schedule to  the Constitution, the State law would prevail in the  context of Article 254 (2) of the Constitution.  The Bar  Council of India feels aggrieved by these findings of the  High Court and is before this Court with these appeals.   

6.              Learned counsel for the Bar Council of India  submitted that the High Court was first of all in error in  holding that the legislative power for enacting the  Advocates Act is traceable to Entry 26 of List III of the  Seventh Schedule to the Constitution.  Learned counsel  relied on the decision of the Constitution Bench in O.N.  Mohindroo vs. The Bar Council of Delhi & Ors. [(1968)  2 S.C.R. 709] to contend that the said legislation falls

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under Entries 77 and 78 of List I of the Seventh Schedule  to the Constitution.  Learned counsel also sought to derive  support from the decision in The Bar Council of Uttar  Pradesh Vs. The State of U.P. & Anr. [(1973) 2 S.C.R.  1073] in that regard.  With reference to the decision in  M/s Ujagar Prints & Ors. Vs. Union of India & Ors.   [(1989) 3 S.C.C. 488], learned counsel reemphasized that  pith and substance rule had to be applied and even if the  law is traceable to more than one entry, it would still  continue to be a legislation under Entries 77 and 78 in  List I.  He further submitted that the High Court was in  error in proceeding on the basis that both the legislations  fell under List III of the Seventh Schedule and  consequently the University Act would prevail.  This was  sought to be met by learned counsel for respondent No. 5  and for the State by contending that the Advocates Act  could only be traced to Entry 26 of List III of the Seventh  Schedule and the High Court was right in finding that the  University Act would prevail.

7.              The Bar Council of India is constituted under  Section 4 of the Advocates Act.  It consists of the Attorney  General of India, the Solicitor General of India, both in  their ex officio capacities and one member elected by each  State Bar Council from amongst its members.  It is a body  corporate. The functions assigned to it are enumerated in  Section 7 of the Act.  The functions relevant for our  purpose are contained in Section 7(1) (h) and Section  7(1)(i).  They read: "7(1)(h)        to promote legal education and to  lay down standards of such  education in consultation with the  Universities in India imparting  such education and the State Bar  Councils;"

7(1)(i) to recognize Universities whose  degree in law shall be a  qualification for enrolment as an  advocate and for that purpose to  visit and inspect Universities or  cause the State Bar Councils to  visit and inspect Universities in  accordance with such directions as  it may give in this behalf;"

The duty of admission and enrolment of Advocates is  entrusted to the State Bar Council except in the case of  Supreme Court advocates which is with the Bar Council of  India.  After 12.3.1967, a person may be admitted as an  advocate on a State roll only if he has obtained a degree in  law from a University recognized by the Bar Council of  India.  Section 24, to the extent it is relevant here, reads: "24.    Persons who may be admitted as  advocates on a State roll. \026 (1)  Subject to  the provisions of this Act, and the rules  made thereunder, a person shall be  qualified to be admitted as an advocate on a  State roll, if he fulfills the following  conditions, namely:- (a)     \005\005\005\005\005\005\005\005\005\005. (b)     \005\005\005\005\005\005\005\005\005\005\005 (c)     he has obtained a degree in law-- (i)     before the 12th day of March,  1967 from any University in the

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territory of India; or (ii)    before the 15th  of August, 1947,  from any University in any area  which was comprised before that  date within India as defined by  the Government of India  Act,  1935; or (iii)   after the  12th  day of March,  1967, save as provided in sub- clause (iiia) after undergoing a  three years course of study in law  from any University in India  which is recognized for the  purposes of this Act by the Bar  Council of India; or (iiia) after undergoing a course of  study in law, the duration of  which is not less than two  academic years commencing from  the academic year 1967-68 or any    earlier academic year from any  University in India which is  recognized for the purposes of  this Act by the Bar Council of  India; or (iv)    in any other case, from any  University outside the territory of  India, if the degree is recognized  for the purposes of this Act by the  Bar Council of India] or;   he is a barrister and is called to  the Bar on or before the 31st day  of December, 1976 or has passed  the articled clerks" examination  or any other examination  specified by the High Court at  Bombay or Calcutta for enrolment  as an attorney of that High Court;  or has obtained such other  foreign qualification in law as is  recognized by the Bar Council of  India for the purpose of  admission as an advocate under  this Act;"   Section 49 confers the power to make rules for discharging  the functions of the Bar Council of India.  Relevant topics  for our purposes are set down hereunder: "49(1)(af)      the minimum qualifications  required for admission to a course  of degree in law in any recognised  University;"  and  "49(1)(d).      the standards of legal education  to be observed by Universities in  India and the inspection of  Universities for that purpose;"   

8.              The Bar Council of India Rules are framed by the  Bar Council of India in exercise of its rule making power.   Part IV thereof deals with legal education, the duration of  it, the syllabi etc.  Section A deals with five-year law  course and Section B deals with three-year law course.    

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Under Section A Rule 2, a degree in law obtained from a  University shall not be recognized for the purpose of  enrolment as an advocate under the Advocates Act unless  the conditions laid down therein are fulfilled.  Only then a  student coming out of that University could get enrolled as  an advocate.  Provision has also been made regarding  teachers of law.  Rule 12 reads: "12.    Full-time teachers of law  including the Principal of the College  shall ordinarily be holders of a  Master’s degree in law and where the  holders of Master’s degree in law are  not available, persons with teaching  experience for a minimum period of 10  years in law may be considered.  Part- time teachers other then one with  LL.M. degree shall have a minimum  practice of five years at the Bar."   9.              Rule 17(1) stipulates that no college after the  coming into force of the Rules shall impart instruction in a  course of study in law for enrolment as an advocate unless  its affiliation has been approved by the Bar Council of  India.  Thus, though the Bar Council of India may not  have been entrusted with direct control of legal education  in the sense in which the same is entrusted to a  University, still, the Bar Council of India retains adequate  power to control the course of studies in law, the power of  inspection, the power of recognition of degrees and the  power to deny enrolment to law degree holders, unless the  University from which they pass out is recognized by the  Bar Council of India.  

10.             The first task of a court confronted with a set of  parallel provisions relating to the appointment of a  principal of a law college like the one in the amended  provision of the Statute under the University Act and the  Rules made by the Bar Council of India which could  ultimately refuse to admit a graduate of law coming out of  the University to enrolment as an advocate, which alone  would entitle him to practice, is to see whether the  provisions could not be reconciled or harmoniously  construed so as to achieve the object of both the  enactments.   Prior to 13.1.1995, there was no conflict  between Statute 11.14 and Rule 12 of the Rules of the Bar  Council.  In 1995, in the University Statutes, the  requirement of the Principal having to be the holder of a  doctorate in one of the subjects taught in the College, was  done away with.  Obviously, such a provision could not be  understood as controlling fully professional education like  that in Medicine, Engineering or Law.  No doubt, the  University has not made a distinction in that regard in  this context.   But obviously, it does not appeal to  common sense to say that an engineer could be appointed  the Principal of a Medical College or a Great Physician  could be appointed as the Principal of an Engineering  College.  Same is the position regarding the appointment  of a doctorate in Science or a doctorate in Philosophy as  the Principal of a law college.   

11.             The aim of most of the students who enter the  law college, is to get enrolled as Advocates and practice  law in the country.  To do that, they have necessarily to  have a degree from a University that is recognized by the  Bar Council of India.  Therefore, the court, in a situation

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like the present one, has to ask itself whether it could not  harmoniously construe the relevant provisions and reach  a conclusion consistent with the main aim of seeking or  imparting legal education.  So approached, nothing stands  in the way of the court coming to the conclusion that  though under the relevant Statute of the University as  amended, theoretically, it may be possible to appoint a  Doctor of Philosophy or a Doctor of Science as the  Principal of a Law College, taking into account the  requirements of the Advocates Act, the Rules of the Bar  Council of India and the main purpose of legal education,  the Court would be justified in holding that as regards the  post of the Principal of a Law College, it would be  necessary for the proposed incumbent also to satisfy the  requirements of the Rules of the Bar Council of India.   Such a harmonious understanding of the position  recognizing the realities of the situation, would justify the  conclusion that a Doctorate holder in any of the law  subjects could alone be appointed as the Principal of a  Law College.  The High Court, in our view, made an error  in not trying to reconcile the relevant provisions and in not  making an attempt to harmoniously construe the relevant  provisions so as to give efficacy to all of them.  A  harmonious understanding could lead to the position that  the Principal of a Law College has to be appointed after a  process of selection by the body constituted in that behalf,  under the University Act, but while nominating from the  list prepared, and while appointing him, it must be borne  in mind that he should fulfill the requirements of the  Rules of the Bar Council of India framed under the  Advocates Act and it be ensured that he holds a Doctorate  in any one of the branches of law taught in the law college.   We do not see anything in the University Act or the  Statutes framed thereunder, which stands in the way of  the adopting of such a course.  Therefore, when a request  is made for selection of a Principal of a law college, the  University and the Selection Committee has to ensure that  applications are invited from those who are qualified to be  principals of a law college in terms of the Rules of the Bar  Council and from the list prepared, a person possessing  the requisite qualification, is nominated and appointed as  the Principal of a law college.  

12.             It is clear from the decision of the Constitution  Bench in O.N. Mohindroo vs. The Bar Council of Delhi  & Ors. (supra) that in pith and substance, the Advocates  Act falls under Entries 77 and 78 of List I of the Seventh  Schedule.  That apart, it is not necessary to postulate a  conflict of legislation in this case as we have indicated  earlier.  It is true that under the University Act, the  selection of a Principal of a College affiliated to the  concerned University has been left to a Higher Education  Services Commission and respondent No. 5 was included  in the panel of selected candidates pursuant to a due  selection by that Commission.  It is also true that  theoretically the State Government on the  recommendation of the Director of Higher Education could  appoint any one from that list as Principal of any College  including a Law College.  But when concerned with the  appointment of a Principal of the Law College, there  cannot be any difficulty either in the Recommending  Authority or in the State Government recognizing the fact  that a person duly qualified in law is required to be the  Principal of that Law College in the interests of the  students coming out of that College in the light of the

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Advocates Act, 1961 and the rules framed by the Bar  Council of India governing enrolment of Advocates and  their practice.  It must be the endeavour of the State and  the Recommending Authority to ensure that the students  coming out of the College are not put to any difficulty and  to ensure that their career as professionals is in no way  jeopardized by the action of the Government in appointing  a Principal to a Law College.  Therefore, even while  adhering to its process of selection of a Principal, it  behoves the State to ensure that the appointment it makes  is also consistent with the Advocates Act and the rules  framed by the Bar Council of India.  It may not be correct  to say that the Bar Council of India is totally unconcerned  with the legal education, though primarily legal education  may also be within the province of Universities.  But, as  the apex professional body, the Bar Council of India is  concerned with the standards of the legal profession and  the equipment of those who seek entry into that  profession. The Bar Council of India is also thus  concerned with the legal education in the country.   Therefore, instead of taking a pedantic view of the  situation, the State Government and the Recommending  Authority are expected to ensure that the requirement set  down by the Bar Council of India is also complied with.     We are of the view that the High Court was not correct in  its approach in postulating a conflict between the two laws  and in resolving it based on Article 254(2) of the  Constitution.  Of course, the question whether the assent  to the Act would also extend to the statute framed under it  and that too to an amendment made subsequent to the  assent are questions that do not call for an answer in this  case in the light of the view we have adopted.  

13.             According to us therefore, notwithstanding the  procedure to be followed under the University Act and  Statute 11.14 as amended, it is necessary for the  Recommending Authority and the State Government when  concerned with the appointment of a Principal of a Law  College, also to adhere to the requirements of the  Advocates Act and the rules of the Bar Council of India.   This would ensure a harmonious working of the  Universities and the Bar Council of India in respect of  legal education and the avoidance of any problems for the  students coming out of the Institution wanting to pursue  the legal profession.  We therefore hold that the State  Government and the Recommending Authority were not  justified in recommending and appointing respondent No.  5 as the Principal of the Dayanand Law College.   

14.             It is somewhat difficult to appreciate why clause  (b) of Statute 11.14 (ii) was amended by dropping the  requirement that the Principal should hold a doctorate  degree in one of the subjects taught in the college.  Does  the State and the University want a square peg in a round  hole?  Is it consistent with good educational policy to  appoint a Scientist as the Principal of an exclusive Art or  Commerce College or a Doctor of Literature or History, as  the Principal of an exclusive Science College?  It is,  therefore, necessary for the concerned authorities to look  into this aspect and consider whether clause (b), as it  stood prior to 13.1.1995, should be not restored in the  interests of education in general.

15.             It was stated during the course of arguments  that the Bar Council of India itself has watered down the

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requirement that the Principal of a Law College must have  a Postgraduate degree in law and has now provided that it  is enough if he has a mere degree in law.  This again is a  matter for the Bar Council of India to ponder over and to  consider whether there is any justification in watering  down the qualification for a Principal as either a doctorate  in law or a postgraduate degree in law.  We are sure that  what was envisaged as the body of Peers would seriously  consider this question.  Similarly, the argument by  learned counsel for the respondents that the Bar Council  of India takes no interest in legal education or in keeping  up the standards of the profession, is something that the  Bar Council of India should take note of so that it could  take steps to rectify the situation, if there is any substance  in that submission.  

16.             We find that consistent with the Advocates Act  and the rules of the Bar Council of India, respondent No. 5  could not have been appointed as the Principal of a Law  College, however, eminent he might be as a philosopher,  friend and guide to the students and his competence to  teach Ethics could be recognized.  It is submitted on  behalf of the respondent No. 5 that he was not responsible  for his appointment as the Principal of the Law College  and he has suffered because of this controversy which is  not of his making and since he was relieved from the post  of the Principal of the Law College subsequent to the  interim order passed by this Court in these appeals.  It is  submitted that though he was transferred as the Principal  of another Institution, he could not take charge because of  some interim orders passed by the High Court in a Writ  Petition filed by some interested persons.  Now, that we  have clarified the position, we have, no doubt, that the  authorities that be and the High Court will deal with the  grievances of respondent No. 5 regarding his status and  posting in an expeditious manner, if moved in that behalf  and take an appropriate decision consistent with what we  have stated in this judgment.   

17.             The appeals are thus allowed, the judgments of  the High Court are set aside.  The Writ Petition filed by the  management is allowed and the Writ Petition filed by  respondent No. 5 is dismissed.  The parties are directed to  suffer their respective costs.