IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :: 26-03-2014
CORAM
THE HONOURABLE MR.JUSTICE V.DHANAPALAN
W.P.Nos.311,312 & 313 OF 2014
B.Murugan ... Petitioner in W.P.No.311 of 2014
V.Karthikeyan ... Petitioner in W.P.No.312 of 2014
M.Radhika ... Petitioner in W.P.No.313 of 2014
vs-
1.The Secretary,
The Bar Council of India,
21, Rouse Avenue, Institutional Area,
Near Bal Bhavan,
New Delhi 110 002.
2.The Secretary,
The Bar Council of Tamil Nadu,
High Court Campus,
Chennai 600 104.
3.The Principal,
Saveetha School of Law,
Saveetha University,
162, Poonamallee High Road,
Thiruverkadu,
Chennai 600 077. ... Respondents in all W.Ps.
Petitions under Article 226 of the Constitution of India.
For petitioners : Mr.S.Prabakaran
for Mr.T.P.Senthil Kumar.
For respondent 1 : Mr.S.R.Raghunathan,
for Mr.S.R.Rajagopal.
For respondent 2 : Mr.S.Y.Masood
For respondent 3 : Mr.R.Muthukumaraswamy,
Senior Counsel,
for Mr.S.Saravanan.
COMMON ORDER
The prayer in all these Writ Petitions is for a mandamus, directing the respondents to allow the petitioners to continue their 3rd year B.A.,B.L.(Hons.) course in the third respondent college.
2. According to the petitioners, they got admissions in the third respondent college in the year 2011 for the Law Course B.A., B.L.(Hons.) and now they are to join 3rd year course; their college informed them that they are short of attendance in two subjects and hence they have not been allowed to do their 3rd year course; they got above 80% attendance in all the subject classes except one or two subjects, but the college authorities have on their own fixed the minimum attendance in each subject at 80% and they were not allowed to write the examination in the subjects, which lack the required percentage of attendance. Their further case is that the minimum attendance fixed by the third respondent college is against the Bar Council of India Rules (Under the Advocates Act 1961), as per which rules, the minimum required attendance is 66%; if they are not permitted to do their third year course, they will be put to great hardship and loss and that they also submitted representations to the third respondent in this regard, but there is no response. Hence, these Writ Petitions.
3. Stand of the respondents in their counter affidavit is as under :
3.1 As per Regulation 13 of the third respondent University, no candidate shall be permitted to write any trimester examination unless he has attended the course in the subject for the prescribed period and produces the necessary certificate of study, attendance and conduct from the Head of the Institution; a candidate is required to put in a minimum of 80% attendance in all internal subjects/written, practical and clinical separately in each subject before admission to the examination; if the candidate is lacking in attendance in any one of the subjects, he/she will be detained from writing the examination in the subject in which he/she lacks attendance, but will be permitted to appear for the rest of the subjects in which the candidate is having minimum required percentage of attendance; however, the candidate cannot progress to the next academic year/semester and will be detained in the same year/semester until he/she fulfils the required attendance percentage by attending classes during the extension/detention period in the said subjects and passes the examination.
3.2. The petitioners, after getting admission by agreeing to abide by the regulations of the University, had undergone course for 1st year of the 5 year integrated B.A., B.L.(Hons.) course during the year 2011-2012; during the 2nd year of study 2012-2013, they fell short of 80% of attendance in the 6th trimester, which ended on 14.08.2013, because of which they were not allowed to write the examination of 6th trimester and to proceed to 7th trimester during the academic year 2013-2014, which commenced on 16.09.2013 and ended on 09.12.2013, as per the regulations framed by the university for law course.
3.3. Unless a student has 80% of attendance in each subject, he/she cannot get through the continuous internal assessment which includes three monthly tests, group discussion, seminar and paper presentation conducted only once on the scheduled date and each student has to obtain 18 marks out of 50 marks to make himself eligible to sit for the university examinations. Only continuous uninterrupted attendance in classes will help the students in scoring the minimum required percentage of attendance or otherwise they would find it difficult to fulfil this requirement in view of trimester pattern where students cannot waste time. If any student fails to attain 80% attendance in each subject, there is every possibility that the student may miss any one of the aforesaid tests and may not be able to secure 18 marks in the continuous internal assessment. Only after taking the said aspect into consideration, the university has prescribed minimum of 80% attendance in each subject. Accordingly, they prayed for dismissal of the writ petitions.
4. Contention of the learned counsel for the petitioner is that the shortage of attendance of the petitioners in particular subjects is neither wilful nor wanton, but only due to unavoidable circumstances, like falling ill, and further the percentage of attendance prescribed by the third respondent is against the Bar Council of India Rules and, hence, the lack of attendance in the said subjects cannot be put against the petitioners from joining the third year course.
5. On the other hand, the contention of learned Senior Counsel for the third respondent is that the rule framed by the Bar Council of India in respect of attendance is only a minimum which cannot be reduced further and the University can prescribe higher percentage of attendance to attain academic excellence and higher standards and, as such, the action of third respondent in not permitting the petitioners to third year of law course cannot be interfered with. He would cite a decision of the Supreme Court in State of T.N. v. S.V.Bratheep, (2004) 4 SCC 513, which is not on the point in issue in the present case.
6. I have heard the learned counsel for the parties.
7. On going through the records, what comes to be known is that the petitioners were admitted to third respondent college for B.A., B.L. (Hons.) course during the academic year 2011-2012 and they continued the said course for two years. However, in second year i.e., 2012-2013, for the VI trimester, the petitioners had shortage of attendance in some subjects and, therefore, they were not permitted to continue the third year course. The attendance details are as under :
Name of the candidate
Subject
Attendance for particular subject
Shortage of attendance
Overall attendance
B.Murugan
(Petitioner in W.P.311/2014)
Jurisprudence-II
0.83
-
Motor Vehicles and Consumer Protection Act
0.75
0.05
Constitutional Law-III
0.76
0.04
Special Contracts
0.76
0.04
78.70%
V.Karthikeyan (Petitioner in W.P.312/2014)
Jurisprudence-II
0.85
-
Motor Vehicles and Consumer Protection Act
0.76
0.04
Constitutional Law-III
0.81
-
Special Contracts
0.76
0.04
0.00
M.Radhika
(Petitioner in
W.P.313/2014
Jurisprudence-II
0.95
-
Motor Vehicles and Consumer Protection Act
0.84
-
Constitutional Law-III
0.76
0.04
Special Contracts
0.86
-
0.00
8. In this context, it is necessary to refer to Part-4, Chapter-2, Rule-12 of the Bar Council of India Rules , which reads as under :
Part 4 - Chapter 2 Standards of Professional Legal Education :
"12. End Semester Test. No student of any of the degree program shall be allowed to take the end semester test in a subject if the student concerned has not attended minimum of 70% of the classes held in the subject concerned as also the moot court room exercises, tutorials and practical training conducted in the subject taken together:
Provided that if a student for any exceptional reasons fail to attend 70% of the classes held in any subject, the Dean of the University or the Principal of the Centre of Legal Education, as the case may be, may allow the student to take the test if the student concerned attended at least 65% of the classes held in the subject concerned and attended 70% of classes in all the subjects taken together. The similar power shall rest with the Vice Chancellor or Director of a National Law University, or his authorized representative in the absence of the Dean of Law:
Provided further that a list of such students allowed to take the test with reasons recorded be forwarded to the Bar Council of India."
9. The above Rule makes it clear that the students must have an attendance of a minimum of 70% of the classes held in the subject concerned as also the moot court room exercises, tutorials and practical training conducted in the subject taken together, to take the end semester test in a subject. The proviso clause to the Rule also provides that if a student for any exceptional reasons fails to attend 70% of the classes held in any subject, the Dean of the University or the Principal of the Centre of Legal Education, as the case may be, may allow the student to take the test if the student concerned attended at least 65% of the classes held in the subject concerned and attended 70% of classes in all the subjects taken together. Similar power shall also rest with Vice-Chancellor or Director of a National Law University, or his authorised representative, in the absence of Dean of Law, and that a list of such students allowed to take the test with reasons recorded be forwarded to the Bar Council of India.
10. Keeping the above rule position in mind, if we see the present cases, as could be seen from the table drawn by me as above, the petitioner in W.P.No.311 of 2014, namely, B.Murugan, has 83% of attendance in Jurisprudence-II; 75% in Motor Vehicles and Consumer Protection Act; 76% in Constitutional Law-III and 76% in Special Contracts. Though this petitioner has a shortage of attendance of 5%,4% and 4% in three subjects, his overall attendance is 78.70%. With regard to the petitioner in W.P.No.312 of 2014, namely, V.Karthikeyan, he has 85% of attendance in Jurisprudence-II; 76% in Motor Vehicles and Consumer Protection Act; 81% in Constitutional Law-III and 76% in Special Contracts. While this petitioner has a shortage of attendance of 4% and 4% in two subjects, his overall attendance is 78.90%. Coming to the petitioner in W.P.No.312 of 2014, namely, M.Radhika, she has 95% of attendance in Jurisprudence-II; 84% in Motor Vehicles and Consumer Protection Act; 76% in Constitutional Law-III and 86% in Special Contracts. This petitioner has a shortage of attendance of 4% in only one subject; however, her overall attendance is 84.87%.
11. Though these petitioners have a shortage of attendance in some subjects, they fulfil the criterion of having 70% attendance overall as prescribed by Bar Council of India, in which event, as per the above rule, the Dean of the University or the Principal of the College, who is the third respondent herein, may very well allow the petitioners to take the end semester tests and also to third year course.
12. At this point, it is also relevant to have a look at Regulation 13 of the third respondent University Regulations, which enunciates as follows :
"13. Attendance required for admission to the examination :
(a) No candidate shall be permitted to write any trimester examination unless he has attended the course in the subject for the prescribed period and produces the necessary certificate of study, attendance and conduct from the Head of the Institution.
(b) A candidate is required to put in a minimum of 80% of attendance in all internal subjects/written, practical and clinical separately in each subject before admission to the examination.
(c) A candidate lacking in the prescribed attendance in theory and practical/clinical, in any one subject, in the first appearance shall not be allowed to write the entire examinations.
13. It is true, as contended by the learned Senior Counsel for the third respondent and also as per Regulation 13 of the third respondent University, the University can prescribe higher percentage of attendance to maintain academic excellence and higher standards. But, the said prescription cannot be a stumbling block to the educational career of the students.
14. Even as per Regulation 12 of the third respondent Regulations, the candidates shall not be admitted in the fourth year without clearing all the examinations of the previous three years and the students will be allowed to carry over the papers in which they have failed in the previous examinations till the end of the third year.
15. In the case on hand, the prayer of the petitioners is to permit them to continue their third year degree course and not the fourth year course. Therefore, on this score also, denial of admission for third year to the petitioners by the third respondent is against the own regulations of the third respondent university itself.
16. Indisputably, the third respondent College comes under the purview and control of the Bar Council of India. When that is so, the third respondent cannot frame the rules for its own, against the rules framed by the Bar Council of India.
17. This Court, in Vanniyar Educational Trust v. State of Tamil Nadu, 2011 (6) CTC 55, has held that legal education in India refers to education of lawyers before entry into practice. Under the Advocates Act,1961, Bar Council of India is the supreme regulatory body to regulate the legal profession in India and also to ensure the compliance of the laws and maintenance of professional standards by the legal profession in the country. Bar Council of India prescribes the minimum curriculum required to be taught in order for an institution to be eligible for grant of a law degree. BCI also carries on a periodical supervision of the institutions conferring the law degree and evaluates their teaching methodology and curriculum and, having determined that the institution meets the required standards, recognises the institution and the degree conferred by it.
18. Education has wider implication. It stands for development. Education makes men perfect. Again, legal education makes men law-abiding and socially conscious. Legal education helps in bringing and establishing socio-economic justice. Change is the law of nature and law is the regulator of social change. It is a sine qua non for the development of rule of law and a sustainable democratic order. In other words, legal education is the heart and the very soul of the society for administering rule of law in a democratic country, like ours.
19. In order that an institution achieves higher standards and academic excellence, the institution has to respond to changing social realities through the development and application of knowledge, towards creating a people-centred society. The institution has to work towards its vision of to be a respected and sought-after educational institution engaged in equipping individuals capable of building, learning and organising, through creation and provision of socially relevant and high quality professional education in a wide range of inter-disciplinary areas to a larger number of students from all sections of the society in the country. At the same time, the institution should also have a mission to develop competencies of students with good value system to face challenges of the continuously changing world. Likewise, keeping the above guidelines in mind, the institution of law, with a great vision of academics and legal luminaries of their knowledge and wisdom on legal education, has to aim to bring excellence in legal education, after heeding to the principles set out by its controlling organs.
20. Various law universities and law schools in India, after their establishment, have aimed to achieve excellence in legal education, but, they are within the parameters of the rule of law and the dictum laid down in this regard by the controlling organisations. As far as education in general and higher education in particular is concerned, it is for the University Grants Commission to formulate and fix the guidelines as to what would be the minimum of attendance for the students. Imparting teaching and learning process, including teaching hours, are the basic requirements. The experience of this Court with University Grants Commission Rules would show that they have a minimum of 75% of attendance. So far as the legal education is concerned, as already stated above, the controlling body is the Bar Council of India, whose rules contemplate a minimum of 70% of attendance, which was earlier 66%. When that is the position, the third respondent/University, under the guise of achieving higher standards and excellence, is usurping the power of BCI and insisting on certain standards beyond what is contemplated under the rules and regulations of the controlling body. Anyone can achieve excellence in the manner as he likes, but, the same should be within the rule of law. If it goes beyond that, it will result in anarchism in doing the things, which are not permissible under law.
21. In the instant case, it could be seen, that, though the third respondent/University Regulations are not under challenge before this Court, the claim made by the third respondent for fixing the higher percentage of attendance, that too subject-wise, would definitely give a clear impression that it is not within the ambit of law and, therefore, I am constrained to find fault with the act of the third respondent in applying 80 percentage of attendance to the students who are aiming to become legal practitioners after their education. Often, it is also noticed that students have been dragged on to this Court for questioning such act of the Universities and the law colleges, which is not appreciable, as it would not only affect their education but would also cause much difficulty to the parents in getting a fair approach to their wards.
22. In the given situation, if the petitioners are not allowed to continue their studies, it would be a denial of justice and also spoiling of their career. For all the above factors and on analysing the issue involved, I am of the considered opinion that the act of the third respondent is not in accordance with law.
23. Accordingly, the Writ Petitions are allowed, directing the third respondent to allow the petitioners to continue their third year B.A., B.L. (Hons.) course in the institution forthwith. No costs. Consequently, the connected M.P.Nos.1 of 2014 are closed.
Index : Yes 26-03-2014
Internet : Yes
dixit
To
1.The Secretary,
The Bar Council of India,
21, Rouse Avenue, Institutional Area,
Near Bal Bhavan,
New Delhi 110 002.
2.The Secretary,
The Bar Council of Tamil Nadu,
High Court Campus,
Chennai 600 104.
V.DHANAPALAN,J.
dixit
W.P.Nos.311 TO 313/2014
26-03-2014
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