Bombay High Court
Ajim Pashalal Kani vs Bar Council Of India Through ... on 17 August, 2021
Bench: R.D. Dhanuka, R. I. Chagla
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Sharayu Khot.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3019 OF 2021
Azim Pashalal Kani ...Petitioner
Versus
Bar Council of India & Ors. ...Respondents
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Mr. Chetan G. Patil a/w Mr. Mandar G. Bagkar for the Petitioner.
Mr. Amit D. Sale for the Respondent No. 1.
Mr. Makarand Bakore for the Respondent No. 2.
Mr. Abhijeet Adgule for the Respondent No.3.
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CORAM : R.D. DHANUKA &
R.I. CHAGLA, JJ.
DATE : 17 August 2021
ORDER :
1. Rule.
2. Learned Counsel for Respondent No. 1 waives
service.
3. By consent of parties, the Petition is heard fnally.
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4. By this Petition fled under Article 226 of the
Constitution of India, the Petitioner seeks order and direction
against the Respondent Nos. 1 and 2 for quashing and setting
aside the communication dated 14th January 2019 and a
direction against Respondent Nos. 1 and 2 to forthwith process
the Enrollment Application preferred by the Petitioner and
enroll him as an Advocate at the earliest.
5. The Petitioner appeared for the Higher Secondary
Certifcate Examination in the year 2013 and has secured
44.67% marks. The Petitioner thereafter, secured admission in
the Respondent No. 3-College of law in the Shivaji University,
Kolhapur and passed Degree of Bachelor of Social Laws in the
month of October 2016 and obtained Degree of Bachelor of Laws
(Five Years) in the month of March 2018. The Petitioner
thereafter, applied for enrollment as an Advocate under the
Advocates Act, 1961 with the Bar Council of Maharashtra &
Goa.
6. On 25th September 2018 the Bar Council of
Maharashtra & Goa informed the Bar Council of India that the
Petitioner belonged to open category and had secured 44.67%
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marks in the Higher Secondary Certifcate examination.
According to the Bar Council of Maharashtra & Goa, as per the
Legal Education Rules of Bar Council of India, the candidate
from open category should possess minimum 45%. It was
stated that the Committee of the Bar Council of Maharashtra &
Goa, in view of the subject being related to Legal Education
Rules of Bar Council of India, it shall be referred to the Bar
Council of India.
7. The Bar Council of India vide letter dated 14th
January 2019 to the Petitioner adverted to Rule 7 of the Legal
Education Rules 2008 and rejected the Application for
Enrollment made by the Petitioner on the ground that the
Petitioner had secured less than 45% marks in the Higher
Secondary Certifcate Examination. Being aggrieved by the
said decision, the Petitioner fled this Petition.
8. Mr. Patil, learned Counsel for the Petitioner invited
our attention to the certifcates issued by the Maharashtra
State Board and Higher Secondary Education, degree conferred
by the Shivaji University, Kolhapur in the month of October
2016 for Bachelor of Social Laws and for the examination held
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in March 2018 in Bachelor of Laws (Five Years). It is submitted
by the learned Counsel that the Bar Council of India has
rejected the application for enrollment of the Petitioner by
relying upon Rule 7 of the Legal Education Rules 2008. Though
the said Rule 7 empowers the Bar Council of India to stipulate
minimum percentage of marks not below 45% of the total
marks in case of general category applicants, no circular was
issued by the Bar Council of India, by exercising said powers.
Bar Council of India has refused to grant enrollment without
issuing any circular clarifying that minimum percentage of
marks below 45% in the Higher Secondary Certifcate
Examination would not be accepted while granting admission
in the fve years course of LL.B.
9. It is submitted by the learned Counsel for the
Petitioner that the Petitioner who was granted admission to the
fve years course by the Respondent No. 3-College affliated to
Shivaji University, Kolhapur has been already granted Degree
of Bachelor of Laws in the said fve years course in the month of
March 2018. He invited our attention to the Circular dated
27th August 1998 issued by the Bar Council of India addressed
to the Principal of N.S. Law College, Sangli stating that the Bar
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Council of India has opined that 0.5% or above can be rounded
off to make it 1% to enable a student to qualify for education.
10. Learned Counsel placed reliance on the
judgment of the Supreme Court in case of Poonam Rani Sharma
Vs. University of Bikaner & Ors.1 in support of the submission
that rounding of the marks in graduation is permissible. He
also relied upon the judgment of this Court in case of Syeda
Aufya Ahmad Vs. Rashtrasant Tukadoji Maharaj Nagpur
University & Ors.2 in support of submissions that once the
Petitioner was granted admission in the law college by
accepting the marks obtained by the Petitioner below 45% and
was conferred degree in law, enrollment by the Bar Council of
India cannot be refused on the ground that the Petitioner has
secured less than 45% marks.
11. Mr. Sale, learned Counsel for the Bar Council
of India strongly placed reliance on Rule 7 of the Legal
Education Rules 2008 and submitted that under the said Rule
it was clearly provided that Bar Council of India is empowered
1 Writ Petition No. 7470 of 2010 Order dated 13.07.2011
2 2013(1) Mh.L.J. 185
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to stipulate minimum percentage of marks not below 45% of
the total marks in general category applicants for the
qualifying examination such as plus two examinations in place
of integrated fve years course or degree course in any
discipline for three years LL.B. course, for the purpose of
applying for and getting admitted into a law degree program of
any recognized University in either of the streams subject to
proviso inserted therein. He further states that Bar Council of
India informed by all the Universities and all the Colleges that
the direction to comply with mandatory requirement of Rule 7
of the Legal Education Rules 2008. He submits that in view of
such circular already issued by the Bar Council of India, the
Respondent No. 3-College at the frst instance has not granted
admission.
12. Learned Counsel for Respondent No. 3 states
that no such circular referred by the learned Counsel for Bar
Council of India was received by Respondent No. 3 at any point
of time prior to date of appointment to the Petitioner.
Statement is accepted. His client also did not receive any other
communication from the Bar Council of India conveying that no
fraction in marks can be rounded off to one for considering
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the 45% marks.
13. It is not in dispute that the Petitioner had
secured 44.67% marks in Higher Secondary Certifcate
Examination held in the month of May 2013. The Petitioner
was issued such certifcate by the Maharashtra State Board of
Secondary and Higher Secondary Education dated 30th May
2013.
14. The Petitioner was granted admission by the
Respondent No. 3-College in the fve year's course in the open
category in the year 2013. The Petitioner completed his studies
in the fve years LL.B. course in the year 2018 and was
conferred with the Degree of Bachelor of Laws (fve years) in
the month of March 2018. The Bar Council of India has refused
to enroll the Petitioner vide letter dated 14th January 2019 on
the ground that the Petitioner having secured 44.67% marks
could not be treated as 45% since the Legal Education
Committee in the meeting held on 12th September 2018 had
refused to round off 44.50% marks to 45%.
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15. Though the learned Counsel appearing for the
Bar Council of India made a statement that the Bar Council of
India had issued a circular under Rule 7 of the said Legal
Education Rules, 2008 informing the University and the Law
Colleges not to grant admission to the students having secured
less than 45% marks, no such circular has been produced
before this Court. Learned Counsel for the Respondent No. 3-
College on instructions made statement that no such circular
from Bar Council of India had been received not to grant
admission to the students who had secured less than 45%
marks.
16. Though the Bar Council of India has referred
to a decision alleged to have been taken in the Legal Education
Committee in its letter dated 12th September 2018 refusing to
round off 44.5% marks to 45%, neither such decision came to
be produced before this Court nor any proof of communication
of the decision to any of the colleges. We accept the statement of
the learned Counsel for the Respondent No. 3 that neither copy
of such decision nor copy of the circular having been received
by the Respondent No. 3, at any time prior to the admission of
the Petitioner to fve year LL.B course in the Respondent No. 3-
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College.
17. A Division Bench of this Court in case of Syeda
Aufya Ahmad (supra) has held that the Petitioners therein
having completed substantial part of their course, admission
could not be cancelled at the fag end on the ground of not
completing the eligibility criteria of admission in terms of
Ordinance 16 of 2009. In that matter, the Petitioner was
admitted to MCA course in a college, possessing post graduate
diploma in Computer Science and Applications, though not
securing 50% at graduate level. This Court after adverting to
large number of judgments of Supreme Court and this Court
held that the Petitioner having secured admission after
verifying the Petitioner's eligibility, it was the bounden duty of
the University to verify the question of eligibility of the
Petitioner at the very threshold. It is not as if the Petitioners
have withheld material documents regarding their eligibility.
On account of misdeed or negligence on the part of the
respondent College or University, the Petitioners, who have
undergone substantial part of their course, cannot be penalised
at the fag end of their course. In our view, the facts before this
Court in the said judgment apply to the facts of this case. It is
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not the case of the Respondent No. 3 that the Petitioner has
suppressed that the Petitioner had secured less than 45%
marks in Higher Secondary Certifcate Examination. No such
objection about eligibility of the Petitioner to get admission was
raised by the Respondent no. 3-College or by the Shivaji
University, Kolhapur at any point of time before completion of
the entire course of the said fve years by the Petitioner. The
said objection regarding the eligibility of the Petitioner has
been raised for the frst time by the Bar Council of India after
more than a year of the Petitioner having conferred with the
fve years LL.B course degree. In our view, on this ground also
the Bar Council of India could not have refused the enrollment
of the Petitioner as an advocate.
18. A perusal of the communication dated 27th
August 1998 issued by the Bar Council of India to one of the
Colleges would clearly indicate that 0.5% or above could be
rounded off to make it 1% to enable a student to qualify for
education. No contrary decision of the Bar Council of India has
been brought to our notice or was communicated to the
Respondent No. 3-College before admitting the Petitioner to the
said fve years course about seven years back. The Petitioner
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who seeks enrollment as an Advocate has been deprived of his
right to practice as an advocate after possessing requisite
qualifcation by the Bar Council of India under Article 19(1)(g)
of the Constitution of India. The impugned decision taken by
the Bar Council of India thus, deserves to be quashed and set
aside.
19. We pass the following order:-
(i) Impugned communication dated 14th January 2019
issued by the Bar Council of India is quashed and set
aside.
(ii) Respondent Nos. 1 and 2 are directed to process the
Enrollment Application fled by the Petitioner and to
enroll the Petitioner as an Advocate within a period of
four weeks from today.
(iii) We direct the Bar Council of India to inform all the
Universities and all the Law Colleges about the
circular, if any, issued by the Bar Council of India
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qualifying the admission criteria under Rule 7 of the
Legal Education Rules 2008 within a period of eight
weeks from today.
(iv) Writ Petition is disposed of in the aforesaid terms.
(v) Rule is made absolute accordingly.
(vi) Parties to act upon authenticated copy of this order.
[R.I. CHAGLA J.] [R.D. DHANUKA, J.]
