Ashok Kumar Mathur, C.J. - (1.) This is an appeal directed against an order passed by the learned Single Judge dated 20th April, 2001 whereby the learned Single Judge has dismissed the writ petition filed by the appellants. The brief facts which are necessary for disposal of this appeal are that an advertisement was published by the Public Service Commission for recruitment of members of Judicial Service, by which applications were invited from Advocates ha-three years practice to their credit. The petitioners in this case were enrol- as Advocates in the role of Bar Council of West Bengal from time to time and they were also enrolled as trainees from various dates, particulars where or will appear from the annexures to the writ petition. After completion of training under Rules 15A to 15C of the Bar Council of India Training Rule 1995, which required that an applicant for enrolment has to undergo a training of one year after he obtains law degree from a recognised University India. In the said rule it was also mentioned that the period undergone training would be deemed as period spent on practice and the period of training to be counted as period of practice. But, the said date was no described as the date of enrolment but the date of enrolment have been specified at a later date. By virtue of the notification issued by the Public Service Commission, the petitioners were held to be ineligible to apply because they are not having three years enrolment, therefore, the petitioner prayed that their enrolment date may be anti-dated i.e. from the date when they were enrolled for training. The petitioners also prayed that they maybe permitted to appear in the recruitment for the post of Civil Judge, Junior Division treating the period of their training as period spent by them in practice.
(2.) It was also contended on behalf of the petitioners that the Bar Council of India Training Rules, 1995, under which the training was required to be undergone by the candidate for enrolment as an Advocate after obtaining the law degree from a recognised University was declared to be ultra vires. The Rules framed by the Bar Council of India was found to be beyond the legislative competence of the Bar Council of India by the Apex Court in the case of V. Sudeer v. Bar Council of India reported in AIR 1999 SC 1167. It was also held by the Apex Court that the Bar Council of India Training Rules, 1995 is ultra vires of the Advocate's Act and beyond legislative competence of the Bar Council of India as the Advocates Act does not empower the Bar Council of India to lay down such rules. Therefore, the petitioner prayed that they should be treated to have been enrolled on the date when they were enrolled for training and that period is to be counted and they should be deemed to have completed three years of practice and thus would be eligible for competing for recruitment to the post of Judicial Officer undertaken by the Public Service Commission.
(3.) The learned Single Judge after considering the matter did not find any merit in the matter and dismissed the writ petition. Their Lordships of the Hon'ble Supreme Court in V. Sudeer's Case (supra) held as under:- "The Rule making power contemplated by the legislature under Section 49(1 )(ag) K being exercised by the Bar Council of India was pertaining to only those classes or categories of persons who thought fit to be enrolled as Advocates though they might not be eligible to be enrolled under Section 24(1) of the Act as it stood on the statute book. In other words, this enabling rule making power only by which the Bar Council of India could add to the category of eligible persons for enrolment which would have otherwise remained outside the sweep of the statutory scheme of eligibility for enrolment for enrolment as laid down by Section 24(1), did not contemplate any power to curtail the existing eligibility of applicants under Section 24(1) for enrolment as Advocate. It is only for such additional class or category or persons that the enabling provision as per the said rule making power could be available to the Bar Council of India. It is difficult to appreciate how by any process of interpretation an enabling provision can be treated as a restrictive one. In fact, on a conjoint reading of Section 24(3)(d) and Section 49(1)(ag) the conclusion becomes inevitable that the Bar Council of India in exercise of its statutory function entrusted to it under sub-section (3)(d) of Section 24(1) can frame suitable rule for bringing in the umbrella of enrolment provision those who otherwise would have remained outside. The rule making power under Section 49(1)(ag) has to take colour from the statutory function entrusted to the Bar Council of India by Section 24(3)(d). As we have already held that Section 24(3)(d) does not enable the Bar Council of India to impose additional restriction on the eligibility of an applicant who seeks enrolment as per Section 24(1) by necessary implication power under Section 49(1)(ag) also cannot enable such an impermissible exercise. The rule making power under Section 49(1)(ag) is ancillary to the statutory function entrusted to the Bar Council of India by' Section 24(3)(d) and it cannot travel beyond the staid statutory sphere.";