"We find that the provisions of Clause-28 of Schedule-III appended to the Rules are beyond the legislative competence of the Bar Council of India. Clause-28 is ultra vires the provisions of Section 7 (1) (h) and (I), 24 (I) (C) (iii) and (iiia) or Section 49 (I) (af) and (d) of the Advocates Act. Even otherwise, the Rule is arbitrary as it introduces and invidious classification by dividing one Class of student into two artificial and irrational Classes by prescribing the maximum age for admission to law courses.
As a sequel to the above discussion, the writ petitions are allowed. The petitioners who have been admitted on the basis of the interim order would continue and their admissions should not be cancelled on the ground that they did not fulfill the criteria of maximum age."
24. The High Court of Punjab & Haryana at Chandigarh also held in the case of Rajan Sharma Vs. The Bar Council of India and another in Writ Petition No. 20966 of 2010 as follows;
"9. The impugned clause 28 dealing with the age on admission occurring in schedule-iii appended to the rules have been framed under section 7(1)(h) and (i) and 24(1)(c)(iii) and (iiia), 49(1)(af), (ag), and (d) of the Advocates Act. section 7 of the Advocates Act deals with the function of the Bar Council of India and clause 7(1)(h) and (i)
only deals with such functions of the Bar Council of India, which are aimed at promoting to legal education and to lay down standards of such education in consultation with the universities in India imparting such education and to recognize the universities whose degree in law shall be a qualification for enrolment as an advocate. therefore, this clause would not arm the Bar Council of India to incorporate the provisions in the rules like clause 28 concerning the age on admission to LLB course. likewise, section 24(i)(c) deals with person who may be admitted as an advocate on a state roll. it has got nothing to do with the age on admission and cannot be construed to have conferred power on the Bar Council of India to prescribe the maximum age for the purposes of admission to LLB five years' course or LLB three years' course.
10. We are left to deal with section 49(1)(af) and (ag) of the Advocates Act. the aforesaid clause (af) deals with the minimum qualification required for admission to a course of degree in law in any recognized university and clause (ag) deals with the class or category of the persons entitled to be enrolled as advocates. clause (d) of section 49 (i) of the Advocates Act deals with the standards of legal education to be observed by universities in India and the inspection of universities for that purpose. we are afraid that even this clause would not extend to grant competence to Bar Council of India to incorporate a provision concerning the maximum
age for admission to LLB course. the matter has been discussed in detail in Indian Council of Legal aid and Advice's case (supra) by Hon'ble the Supreme Court. it is also relevant to mention that a similar view was taken by a Division Bench of Madras High Court in the case of M. Radhakrishnan v. the Secretary, the Bar Council of India AIR 2007 Madras 108.
Therefore, we find that the provisions of clause 28 of schedule-iii appended to the rules are beyond the legislative competence of the Bar Council of India. clause 28 ultra vires the provisions of sections 7(1)(h) and (i), 24(1)(c) (iii) and (iiia) or section 49(1)(af) (ag) and (d) of the advocate act.
even otherwise, the rule is arbitrary as it introduces an invidious classification by dividing one class of student into two artificial and irrational classes by prescribing the maximum age for admission to law courses.
12. As a sequel to the above discussion, the writ petitions are allowed. the petitioners who have been admitted on the basis of the interim order would continue and their admissions should not be cancelled on the ground that they did not fulfill the criteria of maximum age.""
165. Though the learned Advocate General, as well as the learned counsel for the Bar Council of India placed reliance on a decision in Kusum Ingots & Alloys Ltd., vs. Union of India, reported in 2004 (6) SCC 254 and contended that an order passed in a writ petition questioning the
constitutional validity of the central enactment or the rules framed thereunder has to be followed and binding on any other courts throughout the territory of India, in view of the provisions contained in clause 2 of Article 226 of the Constitution of India and sought to apply the doctrine of comity, there is no reason as to why the Hon'ble Division Bench decision of the Madras High Court in K.Sakthi Rani's case, was not taken note of and applied in proper perspective. When the Bar Council of India, sustained the rules of legal education 2008 in K.Sakthi Rani's case and having defended the rules in Santhosh Antony Vareed's case, before the Hon'ble Supreme Court by filing a detailed counter affidavit, as set out in the foregoing paragraphs, the Bar Council of India ought to have considered the decision on the point of law, where rules have been sustained. Even taking it for granted that there are divergent views, it ought not to have ignored the decision in K.Sakthi Rani's case. When the competence of the Bar Council of India, in framing the Rules of Legal Education, 2008, has been sustained in entirety, including Clause 28, it cannot be argued that it is not a precedent.
166. At this juncture, this Court deems it fit to consider few
decisions of the Hon'ble Apex Court, on the aspect, as to when, a judgment could treated as Judicial Precedent, binding on Courts.
(i) In State of Orissa vs. Sudhansu Sekar Misra, reported in AIR 1968 SC 647, the Hon'ble Supreme Court explained as to when a decision can be taken as a precedent, which as
follows:-“A decision is only an authority for what it actually decides. What is of the essence of a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. On this topic, this is what Earl of Halsbury LC said in Quinn v.
Leathem, reported in 901 AC 495.
'Now before discussing the case of Allen vs. Flood, reported in 1898 AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically
from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.”
It is not profitable task to extract a sentence here and there from a judgment and to build upon it.”
(ii) In Union of India Vs. Dhanwanti Devi, reported in 1996 (6) SCC 44 = 1996 (7) Supreme 51, the Supreme Court has explained, what constitutes a precedent, which as
follows:-"Before adverting to and considering whether solatium and interest would be payable under the Act, at the outset, we will dispose of the objection raised by Shri Vaidyanathan that Union of India v. Hari Krishan Khosla reported in 1993 Supplement (2) SCC 149, is not a binding precedent nor does it operate as ratio decidendi to be followed as a precedent and is per se per incuriam. It is not everything said by a Judge while giving judgment that constitutes a precedent.
The only thing in theory of precedents, every decision contains three basic postulates— (i) findings of material facts, direct and inferential. A inferential finding of facts is the inference which the Judge draws from the direct, or perceptible
facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides.
What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found.
It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which
a question before a court has been decided is alone binding as
a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract
ratio decidendi. ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a
question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare
decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, Judges arc to employ an intelligent technique in the use of precedents.
(iii) In State of Punjab v. Devans Modern Breweries Ltd., reported in (2004) 11 SCC 26, the Hon'ble Supreme Court explained the doctrine of precedents and when a judgment becomes
per incuriam.
Paragraphs 334 to 336, 339 and 343, of the judgment are relevant and they are as
follows:-Precedent
334. The doctrine of precedent is a well-accepted principle. A ruling is generally considered to be binding on
lower courts and courts having a smaller bench structure:
“A precedent influences future decisions. Every decision is pronounced on a specific set of past facts and from the decision on those facts a rule has to be extracted and projected into the future. No one can foresee the precise situation that will arise, so the rule has to be capable of applying to a range of broadly similar situations against a background of changing conditions. It has therefore to be in general terms and ‘malleable’ … No word has one proper meaning, nor can anyone seek to fix the meaning of words for others, so the interpretation of the rule remains flexible and open-ended. (See Dias Jurisprudence, 5th Edn., p. 136.)”
335. However, although a decision has neither been reversed nor overruled, it may cease to be “law” owing to changed conditions and changed law. This is reflected by the principle “cessante ratione cessat ipsa lex”.
“… It is not easy to detect when such situations occur, for as long as the traditional theory prevails that judges never make law, but only declare it, two situations need to be carefully distinguished. One is where a case is rejected as being no longer law on the ground that it is now thought never to have represented the law; the other is where a case, which is acknowledged to have been the law at the time, has ceased to have that character owing to altered circumstances. (See Dias Jurisprudence, 5th Edn., pp. 146-47.)”
336. It is the latter situation which is often of relevance. With changes that are bound to occur in an evolving society, the judiciary must also keep abreast of these changes in order that the law is considered to be good law. This is extremely pertinent especially in the current era of globalisation when the entire philosophy of society, on the economic front, is undergoing vast changes.
339. Judicial discipline envisages that a coordinate Bench follow the decision of an earlier coordinate Bench.
If a coordinate Bench does not agree with the principles of law enunciated by another Bench, the matter may be referred only to a larger Bench. (See Pradip Chandra Parija v. Pramod Chandra Patnaik, reported in 2003 (7) SCC 01, SCC at paras 6 and 7; followed in Union of India v. Hansoli Devi, reported in 2002 (7) SCC 01, SCC at para 2.) But no decision can be arrived at contrary to or inconsistent with the law laid down by the coordinate Bench. Kalyani Stores, reported in AIR 1966 SC 1686 and K.K. Narula, reported in AIR 1967 SC 1368, both have been rendered by the Constitution Benches. The said decisions, therefore, cannot be thrown out for any purpose whatsoever; more so when both of them if applied collectively lead to a contrary decision proposed by the majority.
343. It is also trite that the binding precedents which are authoritative in nature and are meant to be applied should not be ignored on application of the doctrine of sub
silentio or
per incuriam without assigning specific reasons therefor. I, for one, do not see as to how Kalyani Stores and K.K. Narula read together can be said to have been passed sub silentio or rendered per incuriam.
167. The Hon'ble Apex Court on consideration of the substantial questions of law raised in M.Santhosh Antony Vareed's case, in its discretion, has refused to grant even leave. Indisputably, the decision in M.Santhosh Antony Vareed's case is sustained, wherein, a learned single Judge has considered the rules of Legal Education 2008. Though as contended by the learned Advocate General, as well as learned counsel for the Bar Council of India that the rules were not tested in the abovesaid judgment, the fact remains that rules were considered and applied. But the said contention cannot be made in respect of the decision in K.Sakthi Rani's case decided as early as on 16.04.2010 which the Bar Council of India has conspicuously omitted to take note of, while revisiting the upper age limit for admission.
168. In exercise of the powers, under Section 7(1)(h) and (i), 24(I)(c)(iii) and (iiia), 49(1)(af), (ag) and (d) of the Advocates Act, 1961,
Rules of Legal Education, 2008, have been framed. Exercise of power has to be done in the manner provided therefor. As per the scheme of Advocates Act, 1961 and the Bar Council of India Rules, Bar Council of India is entrusted with the function to promote legal education and to lay down standards of such education in consultation with the Universities in India and the State Bar Councils. Thus, the State Bar Councils are also entrusted with a duty and task of promoting legal education. Eligibility for admission to law courses is also one of the factors, in the Rules of Legal Education, 2008.
169. Therefore, as rightly pointed out by the learned counsel for the petitioner, when the rules of Legal Education 2008 have been framed in consultation with the Universities and the State Bar Councils, The Bar Council of Tamil Nadu and Puducherry, has simply disowned its responsibility, when clause 28 of the Legal Education Rules 2008 was withdrawn by the Bar Council of India on its own, forgetting for a moment that the function of the Bar Council of India, as per Section 7(1)(h) of the Advocates Act, is to promote legal education and to lay down standards of such education in consultation with the Universities in India imparting
such education and the State Bar Councils. Taking note of the decision in Rajan Sharma Vs. The Bar Council of India and another (order dated 20.10.2011, made in C.W.P.No.20966 of 2010 etc) the Bar Council of India has withdrawn Clause 28 and thereafter, withdrawn the SLP.
170. Again, as against the decision in Lohiya National Law University vs. Devasheesh Pathak and others, against W.C.No.5219/2015 passed by the Allahabad High Court, the Vice Chancellor/Chancellor Dr.Ram Manohar has withdrawn the SLP, reserving liberty to move the appropriate court, either to recall or review the impugned order. While granting permission, the Hon'ble Apex Court said that if such an application/petition is moved by the petitioner, the High Court shall consider the same and pass order in accordance with law. Withdrawal has been made in the year 2015. Order made in M.Santhosh Antony Vareed's case is merged with the judgment of the Hon'ble Supreme Court in SLP.No.13846 of 2010. There is nothing on record to indicate that the order made in Sakthi Rani's case has been challenged on appeal. From the available materials on record, it could be deduced that it has reached
finality.
171. In Gangadhara Palo v. Revenue Divisional Officer, reported in (2011) 4 SCC 602, at Paragraphs 5 and 6, the Apex Court held as follows:
“5. We regret, we cannot agree. In our opinion, it will make no difference whether the review petition was filed in the High Court before the dismissal of the special leave petition or after the dismissal of the special leave petition.
The important question really is whether the judgment of the High Court has merged into the judgment of this Court by the doctrine of merger or not.
6. When this Court dismisses a special leave petition by giving some reasons, however meagre (it can be even of just one sentence), there will be a merger of the judgment of the High Court into the order of the Supreme Court dismissing the special leave petition. According to the doctrine of merger, the judgment of the lower court merges CIVIL APPEAL NO.5280 OF 2006 into the judgment of the higher court.
Hence, if some reasons, however meagre, are given by this Court while dismissing the special leave petition, then by the doctrine of merger, the judgment of the High Court merges into the judgment of this Court and after merger there is no judgment of the High Court. Hence, obviously, there can be no
review of a judgment which does not even exist.”
172. Files produced by the Bar Council of India shows that Item No.36/2009 (LE) is to consider clarifications sought for by various Universities/law colleges, regarding the implementation of the new revised rules of the Bar Council of India in Part IV relating to “Standards of Legal Education and Recognition of Degrees in Law” for the purpose of
172. Files produced by the Bar Council of India shows that Item No.36/2009 (LE) is to consider clarifications sought for by various Universities/law colleges, regarding the implementation of the new revised rules of the Bar Council of India in Part IV relating to “Standards of Legal Education and Recognition of Degrees in Law” for the purpose of