D.K. Seth, J. - (1.) An advertisement has been published by the Public Service Commission purporting to recruit members of the Judicial Service, in which applications have been invited from advocates having three years practice in their credit. The petitioners in this case were enrolled as advocates in the role of the Bar Council of West Bengal. In the certificates issued, the date of enrolment was mentioned a date after completion of their training under Rule 15A to 15C of the Bar Council of India Training Rules, 1955, which required that an applicant for enrolment has to undergo a training of one year after he obtains a law degree from a recognised university in India. In the said certificate it was also mentioned that the period undergone in training shall be deemed as period spent on practice and the period of training to be counted as period of practice. But the said date has not been described as the date of enrolment and the date of enrolment having been specified a later date, in terms of the notification issued by the Public Service Commission, the petitioners are not being held to be eligible to apply having three years practice in their credit. Therefore, they have prayed for the relief that they may be deemed to have been enrolled from the date when they were enrolled for training and be permitted to appear in the recruitment test for the post of Civil Judge, Junior Division, treating the period of training as period spent in practice.
(2.) The learned counsel Mr, Bikash Ranjan Bhattacharya for the petitioners had contended that the rules, under which the training was made a condition precedent for enrolment as an advocate after a candidate obtains law degree from a recognised university, was framed beyond the legislative competence of the Bar Council of India as has been held in the decision in the case of V. Sudeer v. Bar Council of India, 1999 (3) SCC 176 . The rules framed, under Section 24 sub-Section 1 of the Advocates Act, after having been so held, was struck down with effect from the date of the judgment. The rules having been declared beyond the legislative competence of the Bar Council of India and as such ultra vires and having been struck down, the said rules had no existence or in other words it was a still-born one for those who might be affected by reason of such enactment. As such in view of the ratio laid down in the case of State of Gujarat v. Sri Ambikc Mills, AIR 1974 SC 1300 , the petitioners having been eligible for enrolment and the rules for training being void and a nullity, they should be treated to have been enrolled on the date when they were enrolled for training. The Bar Council has accepted the said proposition but had not correctly issued the certificate.
(3.) Elaborating his submission he contended that when the rule is struck down on account of legislative incompetence, there was no existence of such rule at any point of time. As such no one can be affected by reason of such enactment. In the present case the petitioners are being affected on account of such exactment. The Apex Court in the judgment in the case of V. Sudeer, (supra) was pleased to provide a saving clause in paragraph 37, which according to him, is not a part of the judgment and is in conflict which the ratio decidendi. He contends that it is the ratio which is to be attracted. The clarification if contradicts the ratio the same has to be treated to be an orbiter. It is only the ratio that governs the field and is the law declared by the Court which is binding. The orbiter cannot bind the application of the law declared by the Apex Court. Then again such orbiter if violates the fundamental principles of law particularly if it is opposed to conscience. Justice and equity and equality clause particularly Article 14, in that event, the same is to yield to the ratio of the decision. As soon it violates the fundamental right of the citizen violating Article 14 or 19 (1)(g) of the Constitution of India, the same is to be ignored and cannot be given effect to. At the same time he further contended that the same principle of interpretation as are applicable for interpreting an enactment may also be applied while interpreting a judgment of the Apex Court which is in fact a law laid down and binding on all Courts. According to him legislature cannot give some right or benefit by one hand and take away the same by another. If two parts are repugnant to each other and are irreconcilable in that event the part which violates ihe fundamental principles of law and takes away or abridges the right it has to be interpreted in a manner so as to reconcile with the ratio decidendi. Similarly, the Apex Court while striking down the rules cannot take away the benefit from a particular class of people. Inasmuch as Rule 24(1) provides that a candidate having obtained law degree from a recognised university in India is entitled and eligible to be enrolled as an Advocate. Such enrolment is necessary for carrying on the profession of a lawyer since been protected as a fundamental right under Article 19(1 )(g). The same cannot be taken away by the other hand through incorporation of a saving clause. The saving clause also affects Article 14 by meeting out different treatment to different person belonging to the same class. As such the same should be treated as an orbiter.;