- (1.) This Civil Appeal and Writ Petition raise common questions which are capable of being disposed of by a common judgment. The facts in their abridged form may be noticed at the outset. Facts of Civil Appeal No. 8816 of 1988.
(2.) The respondent No. 1, a post-graduate in Political Science and Modern History, undertook studies in LL. B. course of the Calcutta University as a non-collegiate woman candidate under Regn. 35 of the Calcutta University, First Regulations, 1951 framed under the Calcutta University Act, 1951. The said Regulation may be extracted at this stage "A woman candidate may be allowed to appear as non-collegiate student (1) at the preliminary Law Examination one year after her graduation from this University, (2) at the Intermediate Law Examination one year after passing the Preliminary Law Examination, and (3) at the Final Law Examination one year after her passing the Intermediate Law Examination of this University. There is no prescribed application Form for this purpose. Intending candidates must apply in plain sheet of paper, together with the usual non-collegiate students' Fee of Rs. 30/- and the B.A./B.Sc./B.Com. diploma or Mark Sheet in original." On December 14, 1979, a proviso was added to the said Regulation in following terms: "Provided that the women candidates allowed to appear as non-collegiate students at the LL. B. Examination shall be informed in advance that they shall not be eligible for enrolment as advocates and the degree to be awarded to them shall bear an inscription to the effect that they have obtained the degree as non-collegiate students." The respondent No. 1 passed the Preliminary Law Examination in 1977, the Intermediate Law Examination in 1979 and the Final Law Examination in 1980. On the successful completion of the course she was conferred the law degree in terms of Regn. 35 by the Calcutta University. Soon thereafter she applied to the Bar Council of West Bengal, for enrolment as an Advocate and paid the fee of Rs. 250. However, she was informed by the Assistant Secretary of the Bar Council that she was not entitled to be enrolled as she did not fulfil the condition of R. 1( 1)(c) of Part IV of the Bar Council of India Rules, 1975, hereafter called 'the Rules', which were brought into force w.e.f. September 6, 1975, framed under the provisions of the Advocates Act, 1961, hereinafter called 'the Act'. On learning of the rejection of her application for enrolment she moved the High Court of Calcutta by a Writ Petition under Art. 226 of the Constitution. It was inter alia contended that R. l(1)(c) was ultra vires Arts. 14 and 19(1)(g) of the Constitution and consequently the rejection of her application for enrolment was also illegal and invalid and hence the Bar Council of West Bengal should be directed to enrol her. The Writ Petition was contested by the Bar Council of India as well as the Bar Council of West Bengal which filed a counter affidavit in support of the validity of the rule as well as its action based thereon. It is, however, significant to note that the University of Calcutta supported the petition.
(3.) When the Writ Petition came up for hearing before the learned single Judge, the attack on R. l(l)(c) of Part IV was two-fold, namely, that it violated Arts. 14 and 19(1)(g) of the Constitution and was ultra vires S. 49(l)(d) of the Act and since it was framed without consulting the University it was invalid and could not impinge on Regn. 35. The learned single Judge overruled all the aforesaid contentions and discharged the Rule Nisi. Against the said decision an appeal came to be preferred. The Division Bench held that R. 1(l)(c) did not lay down any standard of legal education but provided that after March 12, 1967 a law degree obtained from any University in India shall not be recognised for the purpose of S. 24(l)(c)(iii) of Act unless the conditions specified in clauses (a) to (d) were satisfied. It further held that section 49(1)(d) of the Act did not confer power to lay down conditions for enrolment, neither could such conditions be imposed under Ss. 7(i) and 24(l)(c)(iii) of the Act. Indeed, the Court held, it was not the function of the Bar Council of India to lay down such conditions for recognition of the law degree. It further pointed out that the purport of R. 1(1) was to amend S. 24(l)(c)(iii) and S. 7(i) of the Act which was clearly illegal. Thus the Division Bench held R. l(l)(c) ultra vires Ss. 7(i), 24(1)(c)(iii) and 49(l)(d) of the Act. On the plea that the rule was illegal as it was framed without prior consultation with the University, it declined to express any view. The appeal was thus allowed and hence this appeal by special leave.;