Rashtrasant Tukdoji Maharaj & Anr. vs State of Maharashtra, Department & Anr.

In the High Court of Judicature at Bombay, Nagpur Bench
Writ petition no.2966/2011
Petitioner
Rashtrasant Tukdoji Maharaj & Anr.
Respondent
1. State of Maharashtra, Department of Higher and Technical Education
2. Bar Council of India
Date of Judgement
8th April 2020
Bench
Justice A.S. Chandurkar; Justice Amit Borkar

Facts of the Case

• The Petitioner no. 1 is a State University governed by the Maharashtra Public Universities Act, 2016 which conducts the Law College i.e. the Petitioner no. 2. The Law college has been given the status of “Permanent Approved College” by the Bar Council in 1995 and the same has been communicated to the college on 30^th November 1995.
• The Bar Council of India framed the Rules of Legal Education, 2008 and these were to replace all the previous rules, notifications and resolutions etc with matters covered by the Rules. Rule 2(xxiv) which is “regular approval” means approval not exceeding 5 years and this includes the permanent approval granted before the rules came into force.
• It was necessary for the Law Colleges to get themselves approved as per the of Rules, 2008 according to the Bar Council. The law college was seen to be approved till the year of 2010-11, as shown in the list of colleges having the approval of affiliation published by the Bar Council on 1^st January 2013.
• The Directorate of Higher Education called al the principals to comply with the requirements by 31^st August 2016 to be included in the academic process for the year 2016-17.
• The Law College accordingly remitted the required fees and furnished the required information by 26^th July 2016 for seeking approval for the year 2016-17.
• The Bar Council remanded an amount of Rs. 21,50,000/- for it to get a no objection in that regard. The parties entered into communication for the same.
• The State Bar Council because of absence of affiliation, refused to enrol graduates who completed their education from the college.
• The Bar Council on 9^th January 2019 asked the Law College to deposit the entire amount.
• The Law colleges filed the writ petition challenging the validity of Rule 2(xxiv) of 2008 Rules and to be declared that they do not require fresh approval as the Bar Council already granted them permanent approval. Alternatively, it has been prayed that the Law College only needs to seek permission from academic session 2014-2015 and onwards.

Issues

• Whether the Rule 2 (xxiv) of Rules of Legal Education, 2008 were valid?

Arguments Advanced

Arguments in favour of the Petitioner

• They contended that the Rule of 2(xxiv) was not valid as the Advocates Act, 1961 did not confer any power to the Bar Council to frame rules which would have retrospective effect.
• The inclusion of permanent approval in the term “regular approval” under Rule 2 could not take away a right which has been vested in the college by virtue of a grant. Since the college has been given this status the same could not be taken away retrospectively.
• The Rules are applicable to institutions which have been established after 2008 and will not affect those which came into force before the Rules of 2008 and have been permanently approved.
• In the case of K. Sakthi Rani v. Secretary, Bar Council of Tamil Nadu, Chennai[1] it stated that the Rules of 2008 being a subordinate legislation needs to be construed as a prospective and unless the Act of 1961 has given such a power, no retrospective effect should be given.
• The case of Chairman, Railway Board & Others v. C.R. Rangadhamaiah & Others[2] was used to states that the permanent approval was a vested right and could not have been taken away retrospectively.
• The Law College taking steps to seek approval based on the Rules, will not preclude it from challenging the validity of Rule 2.
• Rule 45 states that any decisions prior to the Rules of 2008 would not bind the Bar Council of India and Rule 46 states that all directions given prior to the Rules of 2008 would be in force notwithstanding anything contained in Rules of 2008.
• Thus, only such Rules that were legally framed by the Bar Council of India would be saved and Rule 2(xxiv) could not be applied by relying upon Rule 45 of the Rules of 2008.
• Without prejudice, assuming that the Rules of 2008 to be valid for the academic yar 2009-10, the college would have to apply on expiration of 5 years and thus the Rules would apply from 2014-15 and not academic year 2009-10.
• It also stated that Rule 14 would not be applicable to an existing college which has been permanently approved and the power to frame rules retrospectively has not been inflicted by the Bar Council of India.

Arguments in favour of the Respondents

• The Bar Council contended that the Rule 2(xxiv) of the 2008 Rules were valid and within the powers of the Bar Council of India. They also states that the Law College initially followed the procedure under the Rules of 2008 and only challenged its validity as an afterthought.
• Section 7(1)(h) and (i) of the Act of 1961 states that the function of Bar Council is to lay down standards of legal education in consultation with the Universities and State Bar Councils. As per Rule 49(1)(d) the Bar Council of India has the power to make rules for discharging its functions.
• The Rule 1(c) of the Rules of 2008 states that it replaces all past rules regarding the matters covered by the Rules.
• The Law College being in the list of recognised colleges and being referred to as permanently approved law college would not mean that it is exempted from seeking regular approval as per Rules of 2008. The Law College also did not submit any document which states that the Bar Council of India granted permanent approval to it.
• Rule 16 states that the Rules would apply to already existing law colleges. There was no question of any vested right being taken away inasmuch as the approval granted earlier was not being withdrawn.
• The Law college was required to comply with the requirements to main standards of legal education on basis of which the approval would be continued.
• It is also stated that Rules of 45 and 46 should be read harmoniously and it would indicate that what was inconsistent with the Rules of 2008 and done prior to the Rules of 2008 would not be binding while whatever was consistent with the Rules of 2008 would be saved.
• With respect to the alternate submission made, the Rules would be applicable from 2009-10 and there is nothing in the Rules which would make seeking regular approval from 2014-15.

Held

• Upon reading the provisions of the Act of 1961 especially sections 7(1)(h), 24(1)(c)(iii) and (iii-a) along with section 49(1)(af)(ag) the Bar Council of India for the purpose of imparting legal education has been given  the necessary power to prescribe rules to be observed by the Universities. This rule will include the power to modify existing rules to maintain and improve legal education standards.
• The Bar Council of India function are bound to evolve with the passage of time. e. Advocacy being a professional skill and the Bar Council of India being conferred the duty it has to take steps from time to time. The power conferred as per Section 49(1) of the Act of 1961 is to prescribe standards of legal education to Universities. Thus, Rule 2(xxiv) of the Rule of 2008 cannot be said to be beyond the powers of the Bar Council of India.
• It is a settled principle that there is no vested right in matters of procedure. There is also a presumption against retrospectivity in procedural matters.
• The permanent approval was an existing right conferred by the Bar Council of India in its power of making rules and would not give effect to granting a vested right as per Act of 1961. An existing right of to impart legal education cannot be treated as a right in perpetuity.
• In the case of E.K. Chako v. The Provident Investment Company[3] it was held that in case if the legislation forms a new procedure, the alteration of the procedure will be retrospective unless there is a good reason that it shouldn’t be. It should also be noted that the Law College who have received permanent are not required to go through the whole procedure required to gain initial procedure, but they are subject to inspection and other procedures for continuation of the earlier procedure.
• Rule 2 also includes permanent approval granted before and is not treated as a regular approval which is subject to complying with necessary procedure. Approval being procedural in nature, it would have to yield to the requirements as per Rules of 2008 for regular approval. Thus, as there is absence of any vested right in procedural matter, the provisions, the inclusion of permanent approval will not become invalid on basis of retrospectivity.
• Sections 45 and 46 should be read harmoniously, and there is no inconsistency when read together.
• Any decision or action taken by the Bar Council of India would not encompass a grant of approval. Permanent approval is based on a passing of a resolution by the Bar Council of India or the Legal Education Committee. Thus, even this way it would not be saved.
• The view that Rule 14(1) is not applicable cannot be accepted as it takes within its meaning all existing Centres of Legal Education, both existing and proposed. An existing Centre has to seek regular approval under Rule 2(xxiv) as per the procedure prescribed.
• Unless regular approval as given under the Rules of 2008 is received by a Centre, notwithstanding that it has a prior permanent approval, the Centre would not be in a position to admit any student from 2009-10 onwards.
• Thus, the Rule 2(xxiv) is not ultra vires the power of the Bar Council of India, and the writ petition is dismissed.

Edited by Sree Ramya

Approved & Published – Sakshi Raje

Reference

[1] 2010 ( 4) MLJ 849

[2] 1997 6 SCC 623

[3] AIR 1976 SC 2610