Orissa High Court
L. Dimple Rani vs Director on 3 October, 2023
ORISSA HIGH COURT: CUTTACK
AFR
W.P(C) NO. 24648 OF 2023
In the matter of an application under Articles 226 and 227
of the Constitution of India.
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L. Dimple Rani ..... Petitioner
-Versus-
Director, Higher Secondary
Education, Odisha and others ..... Opp. Parties
For petitioner : M/s. T.K. Biswal, S. Mohanty,
R.K. Pattnaik and S.K. Lenka,
Advocates.
For opp. parties : Mr. L. Samantaray,
Addl. Government Advocate
[O.P.1]
Mr. T. K. Satapathy, Advocate
[O.Ps. 2 and 3]
M/s. A.P. Bose, D.J. Sahu and
S.S. Swain, Advocates
[O.P.4]
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
AND
THE HONOURABLE MR JUSTICE MURAHARI SRI RAMAN
DECIDED ON :: 03.10.2023
DR. B.R. SARANGI, J. The petitioner, by means of this writ petition,
seeks direction to opposite parties no.2 and 3 to allow her
to get admission in five years integrated B.A.LL.B.
(Honours) Course in Madhusudan Law University, Cuttack
within a stipulated time.
2. The factual matrix of the case, in brief, is that
the petitioner, who is a 20 year scheduled caste girl, after
completion of her +2 Science under National Institution of
Open Schooling, was interested to take admission in five
years integrated B.A.LL.B. (Honours) Course in
Madhusudan Law University, Cuttack. Pursuant to the
advertisement issued, she applied for the said course and
as per the schedule she appeared in the entrance test
conducted by the University and became successful
securing her rank at sl. no. 21 of the list of SC candidates.
The counselling was fixed to 31.07.2023 at the campus of
opposite party no.3. Though the petitioner got requisite
qualification, but she was denied admission to five years
integrated law course since she has completed her +2 from
National Institute of Open Schooling. Hence, this writ
petition.
3. Mr. T.K. Biswal, learned counsel appearing for
the petitioner contended that the petitioner, having
acquired +2 qualification from National Institute of Open
Schooling (NIOS), appeared in the entrance examination
held for five years integrated B.A.LL.B. (Honours) Course in
Madhusudan Law University, Cuttack. Although she got
qualified in the said entrance examination and placed at
sl.no.21 of the merit list, she was denied admission into the
said course on the ground that she has acquired +2
qualification from NIOS. He brought to our notice the
eligibility criteria contained in the Prospectus for Academic
Session 2023-24 issued by the Madhusudan Law
University, Cuttack, which has been placed on record as
Annexure-3, and contended that when the petitioner
submitted her application for appearing in the entrance
test, the petitioner had disclosed her qualification as +2
from NIOS and, as such, there is no restriction imposed in
the eligibility criteria with regard to certificate issued by
NIOS to get admission into the course. Therefore, once the
petitioner is qualified in the entrance test, at the time of
admission she cannot be denied to prosecute her studies,
merely because she has obtained +2 qualification from
NIOS. He also drew our attention to the notification dated
23.07.2015 issued by the Council of Higher Secondary
Education, Odisha under Annexure-6, wherein it has been
specifically mentioned that, in pursuance of the resolution
no.01 of the Equivalent Committee Meeting of the Council
of Higher Secondary Education, Odisha, Bhubaneswar held
on 21.07.2015 at 4.00 P.M., it is notified that the Senior
Secondary School Examination conducted by the National
Institution of Open Schooling, New Delhi is equivalent to
the Higher Secondary Examination conducted by the
Council of Higher Secondary Education, Odisha, provided
that the students have five subjects (with minimum one
language paper) and, as such, the said notification
superseded the previous notification no.1063 dated
29.01.2015. Thus, it is contended that the petitioner,
having satisfied the eligibility criteria, as per the prospectus
of the University as well as the notification issued by the
Council of Higher Secondary Education, Odisha, should not
have been denied to get admission in 5 years integrated law
course.
3.1 Learned counsel for the petitioner further
contended that a similarly situated person, having secured
+2 qualification from National Institute of Open Schooling,
has got admission to five years integrated B.A.LL.B.
(Honours) Course, whereas the petitioner has been denied
such admission, which amounts to discrimination,
therefore, the petitioner has approached this Court by filing
the present writ petition.
4. This Court issued notice to the opposite parties,
pursuant to which Mr. T.K. Satapathy, learned counsel
appearing on behalf of Madhusudan Law University
produced before this Court a copy of the Rules of Legal
Education, 2008 issued by the Bar Council of India (Part-
IV), wherein under Rule-5 the eligibility for admission has
been provided. The explanation to clause-5 (b) states that
the applicants who have obtained 10+2 or graduation/ post
graduation through open Universities system directly,
without having any basic qualification for prosecuting such
studies, are not eligible for admission in the law courses.
Therefore, it is contended that in view of such explanation
since the petitioner has acquired 10+2 qualification from
NIOS, even if he qualifies for admission to 5 years
integrated law course, he has not been given admission. It
is further contended that since Bar Council of India has put
a restriction, the petitioner has been denied admission.
5. In course of hearing, this Court thought it proper
to implead Bar Council of India as a party so that the
position can be clarified for all time to come. Accordingly,
on the prayer of the petitioner, this Court impleaded the
Secretary, Bar Council of India as opposite party no.4 and
issued notice to the said opposite party. Pursuant thereto,
learned counsel Mr. A.P. Bose entered appearance and
contended that Madhusudan Law University has
misconstrued the explanation to clause-(b) of Rule-5, which
made it clear that the applicants, who have obtained 10+2
or graduation/ post graduation through open Universities
system directly without having any basic qualification for
prosecuting such studies are not eligible for admission in
the law course. The term "basic qualification" appearing in
the said explanation was interpreted by the High Court of
Judicature of Bombay Bench at Aurangabad in W.P.(C) No.
6752 of 2021 (Vishnu v. Bar Council of India and
others), which was disposed of vide judgment dated
04.05.2022. The said judgment clarifies the "basic
qualification" as contemplated under explanation to clause-
(b) of Rule-5, which supports the case of the petitioner.
Therefore, he contended that since the petitioner possesses
the requisite qualification, denial of admission to her by the
University is absolutely misconceived, which cannot be
sustained in the eye of law.
6. Mr. L. Samantaray, learned Addl. Government
Advocate appearing for opposite party no.1 contended that
since the matter relates to admission of a student in
Madhusudan Law University, the State has no objection if
any decision is taken at the level of the University. But it is
contended that by virtue of the notification issued on
23.07.2015 under Annexure-6, the Council of Higher
Secondary Education, Odisha has already notified that the
Senior Secondary School Examination conducted by the
NIOS, New Delhi is equivalent to the Higher Secondary
Examination conducted by the Council of Higher Secondary
Education, Odisha. Therefore, the question of denial of
admission to the petitioner on the ground of acquisition of
+2 qualification from NIOS does not arise.
7. This Court heard Mr. T.K. Biswal, learned
counsel appearing for the petitioner; Mr. L. Samantaray,
learned Addl. Government Advocate appearing for the State,
Mr. T.K. Satapathy, learned counsel appearing for opposite
parties no.2 and 3 and Mr. A.P. Bose, learned counsel
appearing for opposite party no.4-Bar Council of India in
hybrid mode and perused the records. Taking into
consideration the urgency involved, since the career of a
student is at stake, this Court disposes of the matter at the
stage of admission.
8. So far as factual matrix is concerned, there is no
dispute that the petitioner applied to take admission in five
years integrated B.A.LL.B. (Honours) Course in
Madhusudan Law University, pursuant to the
advertisement issued by the University and participated in
the process of selection. The petitioner was selected and
ranked at sl. no. 21 of the merit list. However, she was
denied to take admission on the ground that she had
acquired her +2 qualification from NIOS. Whether such
denial of admission to the petitioner is tenable in the eye of
law, is the sole question to be decided by this Court in this
case.
9. To answer the above question effectively, it is
profitable to refer to the prospectus issued by the opposite
party-Law University, which has been annexed as
Annexure-3 to the writ petition. The said prospectus
prescribes the eligibility criteria for five years Integrated
B.A.LL.B. (Hons) course to the following effect:-
"An applicant who has successfully
completed Senior Secondary School Programme
(10+2)/ or appearing in +2 or equivalent from a
recognised University of India or from a Senior
Secondary Board or equivalent, constituted or
recognised by the Union or by the State
Government, shall be eligible for entrance
examination in to 5 year B.A. LL.B. (Honours)
Course.
The Candidate belonging to the general
(Unreserved) category shall have to secure at least
45 % of the total marks in aggregate and the
candidates belonging to SC/ST category shall have
to secure at least 40% of the total marks in
aggregate for admission in to the course (original
certificates along with photo copies to be submitted
at the time of the counselling.
There shall be no relaxation of marks in
minimum eligibility for admission. Such minimum
qualifying marks shall not automatically entitle a
person to get admission."
10. The petitioner, having satisfied the eligibility
criteria mentioned in the prospectus, applied for the said
course as against 120 seats and also produced all the
certificates and documents as required in the prospectus.
On scrutiny of the documents filed by the petitioner, the
petitioner was called upon to appear in the entrance test
conducted for admission to the course. The petitioner
appeared in the entrance test and having become
successful her name was found place in the select list at sl.
no. 21. Therefore, a right accrued in her favour to get
admission in the course. As such, the question now raised
with regard to acquisition of her +2 qualification from NIOS
cannot stand on her way to get admission in the course.
Furthermore, there is no such restriction in the prospectus,
referred to above, that if a candidate qualified from NIOS
he/she will be debarred from getting admission. In absence
of any such restriction, when the University being satisfied
with the documents submitted allowed the petitioner to
participate in the selection process and the petitioner
having participated in the selection process got selected,
she cannot be denied to take admission in the course.
11. The contention of Mr. T.K. Satpathy, learned
counsel appearing for the University is that because of the
restriction imposed by the Bar Council of India in the
explanation to Rule-5 dealing with the eligibility for
admission under Chapter II of the Rules of Legal
Education-2008, the petitioner has been denied to take
admission. The said Rules framed under Section 7 (1)(h)
and (i), 24 (1)(c)(iii) and (iiia), 49 (1) (af), (ag) and (d) of the
Advocates Act, 1961 have statutory force. The eligibility for
admission, as has been provided under Rule-5 of the said
Rules, reads as follows:-
"5. Eligibility for admission:
(a) Three Year Law Degree Course: An applicant
who has graduated in any discipline of knowledge
from a University established by an Act of
Parliament or by a State legislature or an
equivalent national institution recognized as a
Deemed to be University or foreign University
recognized as equivalent to the status of an Indian
University by an authority competent to declare
equivalence, may apply for a three years' degree
program in law leading to conferment of LL.B.
degree on successful completion of the regular
program conducted by a University whose degree
in law is recognized by the Bar Council of India for
the purpose of enrolment.
(b) Integrated Degree Program: An applicant who
has successfully completed Senior Secondary
School course ('+2') or equivalent (such as 11+1, 'A'
level in Senior School Leaving certificate course)
from a recognized University of India or outside or
from a Senior Secondary Board or equivalent,
constituted or recognized by the Union or by a State
Government or from any equivalent institution from
a foreign country recognized by the government of
that country for the purpose of issue of qualifying
certificate on successful completion of the course,
may apply for and be admitted into the program of
the Centres of Legal Education to obtain the
integrated degree in law with a degree in any other
subject as the first degree from the University
whose such a degree in law is recognized by the
Bar Council of India for the purpose of enrolment.
Provided that applicants who have obtained + 2
Higher Secondary Pass Certificate or First Degree
Certificate after prosecuting studies in distance or
correspondence method shall also be considered as
eligible for admission in the Integrated Five Years
course or three years' LL.B. course, as the case
may be.
Explanation: The applicants who have obtained
10 + 2 or graduation / post graduation through
open Universities system directly without having
any basic qualification for prosecuting such studies
are not eligible for admission in the law courses."
12. To deny admission to the petitioner, emphasis
has been laid on the explanation to Rule-5, which clearly
speaks that the applicants who have obtained 10+2 or
graduation/ post graduation through open Universities
system directly without having any basic qualification for
prosecuting such studies are not eligible for admission in
the law courses. The very same Rule-5 was under
consideration by the High Court of Judicature of Bombay
Bench at Aurangabad in W.P.(C) No. 6752 of 2021, which
was disposed of vide judgment dated 04.05.2022. In the
said judgment, at paragraphs 23, 24 and 26 it was
observed/ held as follows:-
"23. The words "basic qualification" appearing in
the explanation to Rule 5 is the subject matter of
consideration. "Basic qualification" is not defined
under the Rules or the Act. In an Open University,
for an admission to the Commerce graduation
course, the criterion are provided. A person having
qualification of H.S.C. or equivalent examination or
is 11th Standard Passed, or a Government
recognised certificate/ diploma of two years after
S.C.C., are eligible for admission, and a person
who had undergone a preparatory programme of
Yashwantrao Chavan Maharashtra Open
University, Nashik with minimum 40 marks is also
eligible for admission to the first year degree
certificate course. Equivalence is provided to the
said courses.
24. Under Government Resolution dated
20/5/2011, the Government of Maharashtra has
granted equivalence of 10th and 12th to those who
have passed preparatory programme and first year
of graduation. The preparatory programme would
be the basic course for securing admission to the
first degree course in an open University. The basic
course for first degree certificate would be different
for different institutions. The Bar Council has not
restricted the admission to the law degree course to
the students passing from a regular University
only. Even a student graduating in any discipline of
knowledge from a equivalent national institution
recognised as a deemed to be University or even a
foreign University recognised as equivalent to the
status of an Indian University by an authority
competent to declare equivalence can apply for
three year degree programme in law. It is not
necessary that a foreign University recognised as
equivalent to the status of an Indian University
may require 10 + 2 as a basic qualification for the
first degree course. A person who has completed 10
+ 2 or equivalent is also considered eligible for
admission to the five year integrated law degree
course as per Rule 5(b).
26. If such a restricted meaning is given to the
words "basic qualification", the very purpose of
proviso would stand frustrated. Proviso has
clarified that an applicant, who has passed the
first degree certificate after prosecuting studies in
distance or correspondence method, shall also be
considered as eligible for admission. The
explanation cannot be interpreted in a manner it
would negate the proviso and the main section. The
explanation cannot take away the statutory right
with which a person is bestowed with under the
rule. For explanation to harmoniously survive with
the proviso and the main rule will have to be
interpreted in a manner that the basic qualification
would mean the basic qualification as provided by
that University for obtaining admission to the
graduation/ post graduation or 10 + 2 course. Any
other interpretation would lead to an anomalous
situation and would render the Rule 5 and the
proviso otiose and superfluous.
13. In view of such position, since the petitioner
acquired the basic qualification by prosecuting her higher
study of +2 from NIOS, it cannot be construed that she is
not eligible to take admission. That apart, the said Rule-5
was under consideration by the Legal Education Committee
of Bar Council of India in its meeting held on 30.04.2017,
wherein it was resolved as follows:-
"The committee considered the matter in respect of
basic qualification referred in the explanation to
Rule - of Legal Education Rules-2008. There are
two aspects for consideration; one is proviso of this
rule dealing with distance and correspondence
course of +2 and first degree certificate through
distance and correspondence. The Committee finds,
there is no difficulty which correctly recorded as
per the policy of the Bar Council of India. So far
explanation to this section is also correctly
describes that applicant must obtain basic
qualification for admission to 5 year degree course
which shall be 10th and or for admission in 3 year
law course basic qualification should be 12th (+2)
because unless he passed these basic qualification
he could not have got admission in (intermediate)
+2 or graduation, hence Committee finds no reason
to delete the explanation."
14. Therefore, the stand taken by the University has
no leg to stand. As a consequence thereof, the petitioner
cannot be deprived of getting admission in the course, for
which she has been selected by following due procedure of
selection and placed at sl. no. 21 of the merit list. It is also
brought to the notice of this Court that admission process
has already been over. Be that as it may, since the
petitioner has secured higher rank, she cannot be denied
admission in the course.
15. Apart from the above, the Council of Secondary
Education has also issued a notification on 23.07.2015, in
pursuance of the Resolution No.01 of the Equivalent
Committee Meeting of the Council of Higher Secondary
Education, Odisha, Bhubaneswar held on 21.07.2015, that
Senior Secondary School Examination conducted by the
National Institution of Open Schooling, New Delhi is
equivalent to the Higher Secondary Examination conducted
by the Council of Higher Secondary Education, Odisha,
provided that the students have five subjects (with
minimum one language paper). The said notification has
superseded the previous notification dated 29.01.2015. As
such, the petitioner, having satisfied the notification dated
23.07.2015 by which equivalency has been granted, the
question of denial of admission to her in the course does
not arise at this stage.
16. In view of such position, this Court directs
opposite parties no.2 and 3 to admit the petitioner in
Madhusudan Law University, Cuttack in five years
integrated B.A.LL.B. (Honours) Course for the session
2023-24 within a period of seven days from today without
creating any further hindrance. If the classes have already
been started, since the petitioner has missed the same
because of inaction of the opposite parties no.2 and 3, they
shall take necessary steps to cover up the courses by
imparting extra classes to the petitioner, so that the
education of a student will not be jeopardized.
17. It is made clear that this Court, vide order dated
09.08.2023, directed that one seat shall be kept reserved
for the petitioner, which will be subject to result of the writ
petition. In spite of above order, if there will be no seat for
the petitioner, then the opposite parties no.2 and 3 shall
create a seat for the petitioner and allow her to prosecute
her study in Madhusudan Law University, Cuttack. Under
no circumstances, the admission can be denied to the
petitioner.
18. The writ petition is thus allowed. However, there
shall be no order as to costs.
(DR. B.R. SARANGI)
JUDGE
M.S. RAMAN, J. I agree.
(M.S. RAMAN)
JUDGE
Orissa High Court, Cuttack
The 3rd October, 2023, Arun
Signature Not Verified
Digitally Signed
Signed by: ARUN KUMAR MISHRA
Designation: ADR-cum-Addl. Principal Secretary
Reason: Authentication
Location: High Court of Orissa
Date: 05-Oct-2023 17:55:21
