Yogendra Prakash Jauhari vs Bar Council Of India & Ors.
2010 Latest Caselaw 830 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   Reserved on: 25th January 2010
                                   Decision on: 15th February 2010

                        W.P.(C) No. 7406 of 2009

         YOGENDRA PRAKASH JAUHARI                 ..... Petitioner
                     Through: Mr. Manoj Sharma, Advocate.

                        versus

        BAR COUNCIL OF INDIA & ORS.            ..... Respondents
                     Through: Mr. Sanjeev Sachdeva with Mr. Preet
                     Pal Singh, Advocates for BCI.
                     Mr. Sudhanshu Batra with Mr. Bhuvan Gugnai,
                     Advocates for R-2.
                     Mr. Gagan Gupta, Advocate for R-5.
                     Mr. Vivekanand Rana, Advocate for R-4 &
                     R-7.

        CORAM:
        HON'BLE DR. JUSTICE S. MURALIDHAR

          1. Whether reporters of the local newspapers
             be allowed to see the judgment?                          No

          2. To be referred to the Reporter or not?                  Yes

          3. Whether the judgment should be reported in the Digest? Yes

                                 JUDGMENT

1. The challenge in this petition is to the orders dated 19th July 2008, 12th

October 2008 and 24th December 2008 passed by the Bar Council of

India („BCI‟) as well as to the decision dated 27th November 2005 of the

Bar Council of Punjab & Haryana („BCPH‟) and the resolution dated

11th/12th February 2006 of the BCI concerning the enrolment of the

Petitioner as an Advocate.

2. In 1992 the Petitioner was appointed as a steno-typist in the court of

the Sessions Judge at Gurgaon, Haryana. In 1997 the Petitioner was WP(C) No.7406 of 2009 page 1 of 14 attached to the court of the Judicial Magistrate 1 st Class („JMIC‟), Nuh. It

is alleged by the Petitioner that he suffered harassment at the hands of the

JMIC and requested for a transfer on 17th September 1997. However

certain orders adverse to the Petitioner were passed by the JMIC which

according to the Petitioner were set aside by the Sessions Judge,

Gurgaon. It is stated that an FIR No. 3 dated 2nd April 1991 under the

Prevention of Corruption Act, 1988 („PCA‟) was registered against the

Petitioner on false pretexts. He was granted bail on 7th April 1999. It is

not denied that ultimately the Petitioner was convicted in the said case

and his services were terminated. However his termination order was

made conditional upon the outcome of the appeal filed by the Petitioner

in the High Court of Punjab & Haryana. The High Court, while admitting

his appeal, suspended the sentences awarded to the Petitioner.

3. It is stated that while being posted in the Court of the District and

Sessions Judge, at Ferozpur Jhirka, during the session 1992-95 the

Petitioner sought permission of the competent authority and applied for a

three-year regular degree course in law from D.S. College, Aligarh. He

claims that the classes for the course at the said college used to be held in

the evening/late evening hours. On 13th May 2005 the Petitioner filed an

application for enrolment before the BCPH. However the Petitioner

claims to have "got hints from certain sectors" that his application for

enrolment would be turned down on account of the pressure brought on

the BCPH by the JMIC. Accordingly, the Petitioner applied to the Bar

Council of Delhi („BCD‟) on 30th June 2005. The BCD enrolled the

Petitioner as an Advocate with effect from 7th July 2005 and he was

WP(C) No.7406 of 2009 page 2 of 14 allotted Enrolment No.D-519/05. After his enrolment with the BCD, the

Petitioner wrote to the BCPH seeking withdrawal of his application.

4. On 16th September 2005 the Bar Association of Nuh through Shri

Zakir Hussain, Advocate lodged a complaint against the Petitioner with

the BCD in which it was stated that pursuant to his arrest in the PCA

case, the Petitioner remained in judicial custody for one month and upon

completion of trial he was convicted. The Petitioner had obtained law

degree during the period of his suspension from service. The BCPH had

refused to enroll him as he was convicted in the aforementioned case.

Moreover the Petitioner had concealed before the BCD that he had

applied to the BCPH earlier.

5. On 27th November 2005 the BCPH by a resolution (which has been

challenged in this petition) proposed to the BCI that the Petitioner‟s

enrolment should be refused. On this basis by a resolution dated 11th/12th

February 2006, the BCI passed a resolution accepting the

recommendation of the BCPH. Two more complaints dated 13th and 14th

February 2008 were filed against the Petitioner with the BCPH. Since

these complaints could not be decided within the stipulated period, they

were transferred to the BCI. On 19th July 2008 the Disciplinary

Committee of the BCI proposed the removal of the Petitioner‟s name

from the rolls of the BCD. Thereafter by an order dated 12th October

2008 passed in Removal Proceedings No. 4/2008, the BCI directed

removal of the Petitioner‟s name from rolls of the BCI. The petitioner‟s

Review Petition was dismissed on 24th December 2008. All of the WP(C) No.7406 of 2009 page 3 of 14 aforementioned resolutions and orders have been challenged by the

petitioner in this petition.

6. Pursuant to the notice issued in the petition, replies have been filed by

both the Chairman of the Committee of the BCI, Respondent No.5 and

the BCI. It is pointed out by the BCI that right to enrolment is only a

statutory right and is not a fundamental right. It is not automatically

granted upon a person merely fulfilling the eligibility conditions. This is

made clear in Section 24 of the Advocates Act, 1961 (AA). It is

emphasized that attendance of lectures and tutorials in the law degree

course is an essential part of the training of a law student as pointed out

by the Supreme Court in Satish Kumar Sharma v. Bar Council of H.P.

(2001) 2 SCC 365. It is submitted that a comprehensive reading of the

Sections 24 and 49 of the Act read with Rules 1(i)(c) and Rule 4 in part 4

of the Bar Council of India Rules („BCI Rules‟) showed that the BCI as

the apex professional body is concerned with the standards of the legal

profession. It prescribes norms for those seeking entrance to the

profession. It is submitted that the college in which the Petitioner claims

to have been admitted is in Aligarh which is at least 170 km from the

place of his posting at Firozpur Jhirka. Since the travel time between the

place of work and the college would take four hours one way and since

the Petitioner was a full time employee who was not given leave to attend

classes, it is obvious that the LL.B degree obtained by the Petitioner was

without attending regular classes. Therefore the Petitioner was not

entitled to be enrolled as an Advocate.

WP(C) No.7406 of 2009 page 4 of 14

7. More seriously it is pointed out that in the enrolment form filed with

the BCD the Petitioner did not disclose the details of his conviction in a

criminal case. Further in his enrolment application form submitted to the

BCD, the Petitioner did not disclose that he had already applied for

enrolment with the BCPH and that his application there was pending. He

in fact made a misdeclaration in this regard in Column 20 of the

enrolment form. It is submitted that this was misdeclaration of an

essential particular within the meaning of the proviso to Section 26 AA

and therefore for the above reasons the Petitioner‟s name was rightly

removed from the BCD.

8. In his rejoinder the petitioner has placed a copy of the attendance

certificate issued by the D.S. College at Aligarh in which it is mentioned

that the Petitioner had completed the requisite attendance as per the rule

of the University i.e. 75% as per college record. It is then pointed out that

there were other people who were employees of the judicial department

of the Government of Haryana posted in Gurgaon and during their

posting they completed their three years‟ LL.B in like manner. It is

submitted that while no action was taken against those persons, the

Petitioner was being singled out for discriminatory treatment.

9. Mr.Manoj Sharma, learned counsel for the Petitioner, submitted that

there is no provision in the AA which prevents a person from applying

for enrolment simultaneously to two different State Bar Councils.

Reference is made to Rules 1 and 2 of Chapter II Part V of the BCI

Rules. Secondly, it is submitted that non-furnishing of information to the

WP(C) No.7406 of 2009 page 5 of 14 BCD about having filed an application for enrolment before the BCPH

was not a material concealment warranting the recall of his enrolment. It

is submitted that if at all a person is enrolled in two State Bar Councils,

the Rules require that he has to surrender the enrolment certificate of one

of them. The petitioner had after being enrolled with the BCD,

withdrawn his application before the BCPH. There was therefore no

concealment of any material facts warranting the resolution of the BCPH

and the impugned decision of the BCI. Without prejudice to these

contentions it is submitted that the punishment of removal from the rolls

was disproportionate and harsh. It is further urged that the Petitioner‟s

written brief of arguments was not considered when his case was

finalized by the BCI at the meeting held on 12th October 2008. The

notings in the file show that the decision to remove the Petitioner from

the rolls was taken on 12th September 2008 itself.

10. On behalf of the BCI, Mr. Sanjeev Sachdeva, learned counsel

submits that there was no question of the Petitioner having 75%

attendance and therefore such a law degree obtained by the Petitioner

could not be acted upon. It is further submitted that the Petitioner far

from giving a satisfactory explanation for suppressing the material facts

before the BCD both as regards his conviction in a criminal case as well

as an application made before the BCPH which was pending as on that

date, made wild allegations against the Chairman of the Disciplinary

Committee of the BCI, i.e. Respondent No.5 herein.

11. This Court has considered the above submissions. The scheme of the

WP(C) No.7406 of 2009 page 6 of 14 AA indicates that there is a central body known as the BCI and there are

different State Bar Councils. As far as Delhi is concerned, it initially was

a Union Territory and Section 3(i)(f) of the AA provided that for the

Union Territory of Delhi there would be separate Bar Council which

would for all purposes be a state Bar Council. One of the functions of the

State Bar Council under Section 6(1)(a) is to admit persons as Advocates

on its rolls. The other functions include entertaining and determining

cases of misconduct against Advocates and to do all other things

necessary for the discharge of its functions. As far as the BCI is

concerned among its principal functions is to lay down standards of

professional conduct for the Advocates and to lay down the procedures

for its Disciplinary Committee and the Disciplinary Committee of each of

the State Bar Councils. The composition of the Disciplinary Committee

is set out under Section 9 of the AA. Section 17 requires the State Bar

Council to maintain a roll of Advocates. Under Section 18 a person

whose name is entered as an Advocate in the roll of any State Bar

Council can make an application to the BCI for transfer of his name

"from the roll of that Bar Council to the roll of any other Bar Council"

and on receipt of such application, the BCI shall direct that the name of

such person shall be removed from the first mentioned State Bar Council

and enrolled to the other Bar Council and the State Bar Council shall

comply with this direction. Under the proviso to Section 18, the BCI has

the power to reject any application if it has not been made bonafide, or by

a person against whom any disciplinary proceedings is pending, after

complying with the principles of natural justice. Under Section 24 of the

AA, for being admitted to as an Advocate on a State roll, a person has to

WP(C) No.7406 of 2009 page 7 of 14 be a citizen of India, has to have completed 21 years of age, has to have

obtained a degree in law and should fulfill other conditions as may be

prescribed in the rules made by the State Bar Council. Section 24A

stipulates that no person shall be admitted as an Advocate on a State roll

if he is convicted of an offence involving moral turpitude of if he is

convicted of an offence under the provisions of the Untouchability

(Offences) Act, 1955 provided that the disqualification shall cease to

have effect after a period of two years has elapsed since his release.

12. Sections 26 and 27 of the AA which are material for the purposes of

the present case read as under:

"26. Disposal of application for admission as an Advocate.__ (1) A State Bar Council shall refer every application for admission as an advocate to its enrolment committee, and subject to the provisions of sub-sections (2) and (3), [and to any direction that may be given in writing by the State Bar Council in this behalf] such committee shall dispose of the application in the prescribed manner:

[Provided that the Bar Council of India may, if satisfied, either on a reference made to it in this behalf or otherwise, that any person has got his name entered on the roll of advocates by misrepresentation as to an essential fact or by fraud or undue influence, remove the name of such person from the roll of advocates after giving him an opportunity of being heard.]

(2) Where the enrolment committee of a State Bar Council proposes to refuse any such application, it shall refer the application for opinion to the Bar Council of India and every such reference shall be accompanied by a statement of the grounds in support of the refusal of the application.

WP(C) No.7406 of 2009 page 8 of 14 (3) The enrolment committee of a State Bar Council shall dispose of any application referred to the Bar Council of India under sub-section (2) in conformity with the opinion of the Bar Council of India.

(4)Where the enrolment committee of a State Bar Council has refused any application for admission as an advocate on its roll, the State Bar Council shall as soon as may be, send intimation to all other State Bar Councils about such refusal stating the name, address and qualification of the person whose application was refused and the grounds for the refusal.

27. Application once refused not to be entertained by another Bar Council except in certain circumstances- Where a State Bar Council has refused the application of any person for admission as an advocate on its roll, no other State Bar Council shall entertain an application for admission of such person as an advocate on its roll, except with the previous consent in writing of the State Bar Council which refused the application and of the Bar Council of India."

13. What calls for determination in the first place is whether the

Petitioner could make an application to the BCD for enrolment as

Advocate even while a similar application made to the BCPH was

pending and further that still he was mandatorily required to disclose this

fact in his application filed with the BCD. As far as the factual matrix is

concerned, there is no denial that in the application filed before the BCD

in Column 20 the Petitioner wrote „N.A.‟ („not applicable‟) against the

column seeking information whether he had made a previous application

for enrolment as an Advocate. He also wrote „No‟ in the same column.

The date of application with the BCD was 5th July 2005. On that day the

Petitioner‟s application with the BCPH was pending consideration.

WP(C) No.7406 of 2009 page 9 of 14 Clearly, therefore, the Petitioner consciously sought to mislead the BCD

by holding out that he had in fact not made any application previously to

a State Bar Council.

14. This Court is unable to agree with the contention of the learned

counsel for the Petitioner that the above was at best a concealment and

not a misdeclaration as to an "essential" fact as contained in provision to

Section 26. If the Petitioner had not written anything at all in the said

column it could still be argued that it was perhaps only a concealment

and not a misdeclaration. However, the Petitioner has deliberately written

„N.A.‟ and „No‟ and therefore there can be no doubt that it is a

misdeclaration. Further giving the context of Section 27 where it is

important for a State Bar Council to know of the status of the application

made by the same person before any other State Bar Council, this fact is

no doubt an „essential‟ fact within the meaning of the proviso to Section

26 of the AA. Even where such earlier application before another State

Bar Council is pending, there can be developments that might take place

between the making of the subsequent application and its being taken up

for consideration and such development may have a material bearing on

the decision of the State Bar Council to which the subsequent application

is made. Further, the Petitioner furnished to the BCD an affidavit dated

14th June 2005 undertaking to disclose all the information asked in the

application form. Therein the Petitioner stated that any omission to

disclose or any misrepresentation "shall render my application invalid

and liable to be cancelled." For all of the above reasons, this Court fully

concurs with the findings of the BCI that the Petitioner is guilty of WP(C) No.7406 of 2009 page 10 of 14 suppression of an „essential‟ fact in the application made by him to the

BCD.

15. There is merit in the contention of the counsel for the BCI that the

LL.B degree obtained by the Petitioner was not accepted since the BCI‟s

Rules concerning attendance were not fulfilled. Under Rule 1(i)(c)

Section B, Part IV of the BCI Rules, an applicant has to fulfill the

condition of „regular attendance‟. Rule 3 of Section B, Part IV of the BCI

Rules reads as under:

"3. The students shall be required to put in a minimum attendance of 66% of the lectures on each of the subjects as also at tutorials, moot courts and practical training course:

Provided that in exceptional cases for reasons to be recorded and communicated to the Bar Council of India, the Dean of the Faculty of Law and the Principal of Law Colleges may condone attendance short of those required by the Rule, if the student has attendance 66% of the lectures in aggregate for the semester or examination as the case may be."

The letter dated 25th August 2005 from the Office of the District &

Sessions Judge, Gurgaon showed that during 1992 to 1995 the Petitioner

did not avail of any study leave. The service record of the Petitioner

showed that he availed of 12 days‟ leave between 1992 and 1995.

Although before the BCI shows the Petitioner did not place any

document of the law college showing that it was working during summer

vacations, the Petitioner has sought to produce along with the present WP(C) No.7406 of 2009 page 11 of 14 petition an attendance certificate issued by the Dharam Samaj College,

Aligarh. The certificate raises more questions than it answers because it

asserts that the Petitioner completed the requisite attendance as per the

rules of the University i.e. 75% as per the college record. It is indeed

surprising that while his service record shows that he availed of only 12

days‟ leave altogether, the above certificate asserts that he had 75%

attendance. It is plain, therefore, that the Petitioner was unable to satisfy

the BCI that he in fact, attended the minimum number of classes at a

college in Aligarh in UP 170 km away while working in the District &

Sessions Court at Ferozpur Jhirka, Haryana. The decision of the BCI to

strictly enforce the above rules of attendance is consistent with the

decisions of the Supreme Court in Baldev Raj Sharma v. Bar Council of

India 1989 Supp. (2) SCC 91; Bar Council of India v. Aparna Basu

Mallick (1994) 2 SCC 102 and by this Court in S. N. Singh v. Union of

India 2003 (106) DLT 329. If certain others were granted enrolment

wrongly despite not fulfilling the attendance requirement, it is for the

concerned State Bar Council to take corrective action. It by no means can

give a right to the Petitioner to seek parity with such persons.

16. The third difficulty in the way of the Petitioner is his having been

convicted in a criminal case involving moral turpitude. The fact of the

matter is that the Petitioner was convicted by the order dated 25 th

February 2005 of the Special Judge, Chandigarh under Section 7 of the

PC Act and sentenced to imprisonment for one year with a fine of

Rs.500/- and in default of payment of fine to further imprisonment of two

months. A similar sentence has been passed upon his conviction under WP(C) No.7406 of 2009 page 12 of 14 Section 13(1)(d) read with Section 13(2) PC Act. The Punjab & Haryana

High Court when admitting the appeal on 15th March 2005 only granted

him bail but did not suspend the conviction itself. Under Section 24A no

person shall be admitted as an Advocate on a State roll, if convicted of an

offence involving moral turpitude. Two years have not elapsed since his

release. That event is yet to occur. Therefore, the Petitioner was not

entitled to be enrolled even on this ground.

17. For all the aforementioned reasons, this Court finds no ground having

been made out for interference with the decision of the BCI. The petition

is accordingly dismissed with costs.

18. Before concluding this, the Court would like to emphasise that it is

important for the State Bar Councils to deal with applications made for

enrolment of a person as an Advocate with care and attention. Possessing

a law degree from a recognized institution although mandatory will by

itself not suffice. The State Bar Council or the BCI as the case may be

will, apart from verifying with the concerned University the authenticity

of the certificate, also call for a copy of the record of the applicant‟s

attendance. Further, each State Bar Council should preferably maintain a

website on which details of all pending applications for enrolment and

their current status should be posted. This will enable any other State Bar

Council to immediately verify if the applicant seeking enrolment has in

fact applied to any other State Bar Council. Secondly, in the application

for enrolment, certain columns must be made mandatory for being filled WP(C) No.7406 of 2009 page 13 of 14 up by applicants including Column 20. An applicant must be made to

disclose whether the application made to any other State Bar Council is

pending and if disposed of, with what result. These are suggestions to

the BCI and the State Bar Council who may suitably incorporate the

changes by amending the forms and the applicable rules.

19. A certified copy of this order be sent to the Secretary, BCD, the

Secretary BCPH and the Secretary of the BCI within a period of seven

days.

S. MURALIDHAR, J.

FEBRUARY 15, 2010
dn




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