Vimlesh Kumar Shukla, J. - (1.) Mrs. Nandini Upadhyay performing and discharging her duties as officiating Principal of Dayanant College of Law, Civil Lines, Kanpur is before this Court assailing the validity of the communication order dated 8th June, 2010 (contained as Annexure No. 7 to the writ petition) wherein petitioner has been asked to hand over charge of Principal of College to Dr. Varsha Sharma on account of the fact that petitioner does not fulfil the requisite minimum qualification prescribed for the post of Principal of Law College.
(2.) Brief background of the case, as is emanating in the present writ petition in question, is that in the district of Kanpur, there is a Law College known as 'Dayanand College of Law'. The said Law College is affiliated to Chatrapati Sahuji Maharaj University and the affairs of the said college are to be run and managed as per the provisions as contained under 'U.P. State Universities Act, 1973' read with 'First Statutes' of the aforementioned University.
(3.) It so happened that post of Principal of Law College was lying vacant and said vacancy in question has been notified to U.P. Higher Education Commission Allahabad and U.P. Higher Education Service Commission, Allahabad, in its turn, proceeded to recommend name of one M.P. Singh as Principal of the aforementioned Institution in question. The selection and appointment of Shri M.P. Singh has been subjected to challenge before this Court on the premises that he was not having to his credit requisite qualification, then by no stretch of imagination, he could have been offered appointment as Principal of a Law College, as he was not having concern with the concerned subject. This Court proceeded to approve the appointment of Shri M.P. Singh as Principal keeping in view the statutory provisions that have been holding the field but the said judgment of this Court has been subjected to challenge in Special (Leave to appeal) before the Apex Court and the Apex Court in the case of Bar Council of India v/s. Board of Management, Dayanand College of Law and others decided on 28th November, 2006 proceeded to set -aside the judgment of this Court on the premises that Shri M.P. Singh did not possess qualification of Law and hence he was not entitled to be appointed as Principal of Law College. Relevant paragraphs of the aforementioned judgment is being extracted below: - - "11. Rule 17(1) stipulates that no college after the coming into force of the Rules shall impart instruction in a course of study in law for enrolment as an advocate unless its affiliation has been approved by the Bar Council of India. Thus, though the Bar Council of India may not have been entrusted with direct control of legal education in the sense in which the same is entrusted to a University, still, the Bar Council of India retains adequate power to control the course of studies in law, the power of inspection, the power of recognition of degrees and the power to deny enrolment to law degree holders, unless the University from which they pass out is recognized by the Bar Council of India. 12. The first task of a court confronted with a set of parallel provisions relating to the appointment of a principal of a law college like the one in the amended provision of the Statute under the University Act and the Rules made by the Bar Council of India which could ultimately refuse to admit a graduate of law coming out of the University to enrolment as an advocate, which alone would entitle him to practice, is to see whether the provisions could not be reconciled or harmoniously construed so as to achieve the object of both the enactments. Prior to 13.1.1995, there was no conflict between Statute 11.14 and Rule 12 of the Rules of the Bar Council. In 1995, in the University Statutes, the requirement of the Principal having to be the holder of a doctorate in one of the subjects taught in the College, was done away with. Obviously, such a provision could not be understood as controlling fully professional education like that in Medicine, Engineering or Law. No doubt, the University has not made a distinction in that regard in this context. But obviously, it does not appeal to common sense to say that an engineer could be appointed the Principal of a Medical College or a Great Physician could be appointed as the Principal of an Engineering College. Same is the position regarding the appointment of a doctorate in Science or a doctorate in Philosophy as the Principal of a law college. 13. The aim of most of the students who enter the law college, is to get enrolled as Advocates and practice law in the country. To do that, they have necessarily to have a degree from a University that is recognized by the Bar Council of India. Therefore, the court, in a situation like the present one, has to ask itself whether it could not harmoniously construe the relevant provisions and reach a conclusion consistent with the main aim of seeking or imparting legal education. So approached, nothing stands in the way of the court coming to the conclusion that though under the relevant Statute of the University as amended, theoretically, it may be possible to appoint a Doctor of Philosophy or a Doctor of Science as the Principal of a Law College, taking into account the requirements of the Advocates Act, the Rules of the Bar Council of India and the main purpose of legal education, the Court would be justified in holding that as regards the post of the Principal of a Law College, it would be necessary for the proposed incumbent also to satisfy the requirements of the Rules of the Bar Council of India. Such a harmonious understanding of the position recognizing the realities of the situation, would justify the conclusion that a Doctorate holder in any of the law subjects could alone be appointed as the Principal of a Law College. The High Court, in our view, made an error in not trying to reconcile the relevant provisions and in not making an attempt to harmoniously construe the relevant provisions so as to give efficacy to all of them. A harmonious understanding could lead to the position that the Principal of a Law College has to be appointed after a process of selection by the body constituted in that behalf, under the University Act, but while nominating from the list prepared, and while appointing him, it must be borne in mind that he should fulfill the requirements of the Rules of the Bar Council of India framed under the Advocates Act and it be ensured that he holds a Doctorate in any one of the branches of law taught in the law college. We do not see anything in the University Act or the Statutes framed thereunder, which stands in the way of the adopting of such a course. Therefore, when a request is made for selection of a Principal of a law college, the University and the Selection Committee has to ensure that applications are invited from those who are qualified to be principals of a law college in terms of the Rules of the Bar Council and from the list prepared, a person possessing the requisite qualification, is nominated and appointed as the Principal of a law college. 14. It is clear from the decision of the Constitution Bench in O.N. Mohindroo v/s. The Bar Council of Delhi & Ors. (supra) that in pith and substance, the Advocates Act falls under Entries 77 and 78 of List I of the Seventh Schedule. That apart, it is not necessary to postulate a conflict of legislation in this case as we have indicated earlier. It is true that under the University Act, the selection of a Principal of a College affiliated to the concerned University has been left to a Higher Education Services Commission and respondent No. 5 was included in the panel of selected candidates pursuant to a due selection by that Commission. It is also true that theoretically the State Government on the recommendation of the Director of Higher Education could appoint any one from that list as Principal of any College including a Law College. But when concerned with the appointment of a Principal of the Law College, there cannot be any difficulty either in the Recommending Authority or in the State Government recognizing the fact that a person duly qualified in law is required to be the Principal of that Law College in the interests of the students coming out of that College in the light of the Advocates Act, 1961 and the rules framed by the Bar Council of India governing enrolment of Advocates and their practice. It must be the endeavour of the State and the Recommending Authority to ensure that the students coming out of the College are not put to any difficulty and to ensure that their career as professionals is in no way jeopardized by the action of the Government in appointing a Principal to a Law College. Therefore, even while adhering to its process of selection of a Principal, it behooves the State to ensure that the appointment it makes is also consistent with the Advocates Act and the rules framed by the Bar Council of India. It may not be correct to say that the Bar Council of India is totally unconcerned with the legal education, though primarily legal education may also be within the province of Universities. But, as the apex professional body, the Bar Council of India is concerned with the standards of the legal profession and the equipment of those who seek entry into that profession. The Bar Council of India is also thus concerned with the legal education in the country. Therefore, instead of taking a pedantic view of the situation, the State Government and the Recommending Authority are expected to ensure that the requirement set down by the Bar Council of India is also complied with. We are of the view that the High Court was not correct in its approach in postulating a conflict between the two laws and in resolving it based on Article 254(2) of the Constitution. Of course, the question whether the assent to the Act would also extend to the statute framed under it and that too to an amendment made subsequent to the assent are questions that do not call for an answer in this case in the light of the view we have adopted. 15. According to us therefore, notwithstanding the procedure to be followed under the University Act and Statute 11.14 as amended, it is necessary for the Recommending Authority and the State Government when concerned with the appointment of a Principal of a Law College, also to adhere to the requirements of the Advocates Act and the rules of the Bar Council of India. This would ensure a harmonious working of the Universities and the Bar Council of India in respect of legal education and the avoidance of any problems for the students coming out of the Institution wanting to pursue the legal profession. We therefore hold that the State Government and the Recommending Authority were not justified in recommending and appointing respondent No. 5 as the Principal of the Dayanand Law College. 17. It was stated during the course of arguments that the Bar Council of India itself has watered down the requirement that the Principal of a Law College must have a Postgraduate degree in law and has now provided that it is enough if he has a mere degree in law. This again is a matter for the Bar Council of India to ponder over and to consider whether there is any justification in watering down the qualification for a Principal as either a doctorate in law or a postgraduate degree in law. We are sure that what was envisaged as the body of Peers would seriously consider this question. Similarly, the argument by learned counsel for the respondents that the Bar Council of India takes no interest in legal education or in keeping up the standards of the profession, is something that the Bar Council of India should take note of so that it could take steps to rectify the situation, if there is any substance in that submission.";