D.H. Shukala, J.
1. These two Special Civil Applications have been filed against the same respondents and acknowledgedly, both of them raise issues identical in nature, and consequently, therefore, they were heard together, and are being disposed of by this common judgment.
2. Before referring to the precise controversies involved in these two petitions, it is necessary to have a factual background of the circumstances in which they have been required to be filed. Special Civil Application No. 1089 of 1985.
The Petitioner, Shri Jayesh Hemchandra Belsare, is a student of Sheth H.J. Law College, Bhavnagar, affiliated with Bhavnagar University, Bhavnagar, studying in the First Year of Five Year Degree Course of Law. He claims to have filed this petition in a representative capacity ;'. e. to say on his behalf and on behalf of other students studying in the same Five Year Degree Course of Law at Sheth H.J. Law Collage.
3. The Bar Council of India had addressed a letter dated 12-5-1982 to the Registrars of all the Universities imparting legal education, to Deans of the Faculties of Law of all the Universities, to Principals of all the Law Colleges and to Secretaries of all the State Bar Councils about the proposed introduction of the new course for professional legal education which was to come into effect from 1-6-1982. It was stated in that letter, inter alia, that some Universities had already taken steps to implement the scheme, whereas the difficulties of others in starting the course in time were appreciated, and it was decided to give two years time for the change-over. The petitioner submits that thereafter the Registrar, Bhavnagar University (Respondent No. 1 herein) addressed a letter to Principal, Sheth H.J. Law College, that a meeting of the Executive Council of Bhavnagar University was held on 17-7-1982 wherein the Executive Council of the Bhavnagar University had resolved after consultation, to adopt in principle the new professional course in the 10+2+5 pattern and had resolved that the concerned college be informed accordingly. A further letter was addressed by the Registrar to the Principal, Sheth H.J. Law College dated 7/14-5-1984 that the Academic Council held its meeting on 12/20-1-1984 and 16-2-1984 and by Resolution No. 9 approved the 10+2+5 course in law, prescribed by the Bar Council of India and the Ordinances/ Regulations were prepared by the University for the same. The Principal was requested by that letter to take necessary action and to inform the office about the same. The Principal was also intimated by the same letter that the said new course shall be introduced from June, 1984. A Post Script was added that the copy of the syllabus for the new LL. B. Course and the Ordinances/Regulations for the said new course had already been sent to him earlier. A copy of the said letter is at Annexure 'G' to the petition.
4. The Principal received a further letter from the Registrar dated 19-7-1984 inquiring as to whether the Law College had started the new course in L.L.B. from June 1984, as per the Resolution passed by the Academic Council for introducing the said course from June 1984. A true copy of the said letter is at Annexure 'H' to the petition.
5. The petitioner states that respondent No. 3, Govind Madhav Akolkar, Principal, Sheth H.J. Law College, Bhavnagar had issued a pamphlet (Annexure 'A' to the Petition), in the nature of a prospectus, inviting the students who had passed the 12th Standard Examination to join a Five Year Degree Course of Law prescribed by the Bar Council of India, respondent No. 5 herein. In response to this pamphlet the petitioner and other students made inquiries from the College in respect to the said course and they were told that the said course was recommended, and as a matter of fact a resolution to that effect had been passed in 1982 by the Syndicate giving sanction to the College to start the same course. The petitioner and others thereafter obtained admission to the said degree course in Sheth H.J. College, Bhavnagar, and started attending the classes regularly. In all 36 students were admitted by the College for the said course in that year.
6. It was declared on the completion of the first term that the examination will be held in November 1984. However, not only that the examinations were not held, but also that the students received a Postcard intimation from the Principal, the respondent No. 3, that the Bhavnagar University had given a direction by its letter dated 17-10-1984 to close down these classes of the said Five Year Course of Law. The petitioner and others met the Principal, and they were informed by him that by letter dated 17-10-1984 the Bhavnagar University had informed him that the statutes of the University were required to be amended in order to adopt the said Five Year Degree Course of Law and that they were sent to the Chancellor, respondent No. 4 herein, for his approval. They were further informed that the said statutes were returned by the respondent No. 4 to the University without his sanction. They were further informed that a meeting of the Vice Chancellor of various Universities was held under the Chairmanship of the Education Minister, in which meeting a decision was taken that the scheme of the said Five Year Degree Course of Law should not be introduced and that the State Government would consider the matter after consultation with the Ministry of Law, Union of India, Ministry of Education and University Grants Commission. A copy of the letter dated 17-10-1984 addressed to the Principal of H.J. Law College is to be found at Annexure 'B' to the petition. The petitioner has also produced at Annexure 'C' a copy of the letter dated 7-11-1984 addressed to Brahmbhatt Mukesh Prabhudas stating that as per letter dated 17-10-1984 from the Bhavnagar University a hitch had cropped up for continuing the said course and in order to remove the said hitch permission of the State Government was necessary. It was, therefore, decided to call upon the Hon'ble Minister for Education along with the Office Bearers of the Kelawani Mandal, parents, students, Hon'ble Members of the Assembly and other leaders. In the meantime, the law course was continued, subject to the said approval of the State.
7. The aforesaid circumstances make it clear that the Bhavnagar University had implemented the Five Year Degree Course and had given written permission to the College to embark upon it. It is submitted that it was not open to the respondents now to go back from the same. It is submitted that it was clear that if the respondent-University would not have granted permission to the College, the College authorities would not have started the said degree course. It is necessary to realise that the stalemate created by the letter dated 17-10-1984 ('Annexure-B') has put in jeopardy valuable year of 36 students who had joined the law course in response to the pamphlet issued by the College, vide Annexure 'A'. It is submitted that the statutes were referred to the Chancellor for his sanction and the University permitted the College to run the classes for the said degree course. By the withholding of the necessary sanction, the Chancellor has created a distressing situation which involves a danger of waste of one year of the students. The petitioner has also alleged that the State Government is making delay on the one or the other grounds in granting its affiliation to the College for the New Course.
8. The petitioner has advanced several submissions in his petition to show that the Chancellor is not justified in withholding his sanction to the relevant statutes submitted for his sanction for the introduction of the New Five Year Degree Course as well as that the State of Gujarat is also not justified in refusing affiliation to the college to the new course in question. These submissions shall be summarised and discussed after factual background of the Second Special Civil Application, namely, Special Civil Application No. 3439 of 1985 filed by Sheth H.J. Law College, Bhavnagar and others, is considered.
Special Civil Application No. 3439 of 1985:
9. The petitioners are Sheth H.J. Law College, Bhavnagar; the Principal Shri G.M. Akolkar, Sheth H.J. Law College, Bhavnagar; Bhavnagar Kelawani Mandal, Bhavnagar, being a Trust registered under the Bombay Public Trusts Act, 1950; and the Chairman of the said Trust. The petitioners seek to challenge by this petition the inaction on the part of the concerned respondents in not granting affiliation to Petitioners No. 1 College in running the new degree course in law and the decision of the concerned respondents not to permit the petitioners to run the aforesaid new course. The petitioners have given the history of the institutions, namely, the Kelawani Mandal and the H.J. Law College and as to how was the college granted affiliation first with Gujarat University and then with Saurashtra University from time to time. The same history is not quite relevant for our purpose. Suffice it to say that the Senate of the Bhavnagar University had resolved at its meeting held on 27-11-1983 to recommend to the State of Gujarat to continue the affiliation of the petitioner College for running the Three Year Degree Course and the Courses in Taxation and Labour Law for the Academic Years 1983-84 and 1984-85. The petitioner College however, did not receive any communication from the State of Gujarat in that behalf.
10. The Bar Council of India had, on the basis of the recommendations of the Legal Education Committee and in consultation with the Universities and the State Bar Councils framed a set of rules, the effect of which is to change the old Three Year Degree Course in Law after graduation to be replaced by a Five Year Degree Course immediately after Higher Secondary Examination. Such a new course was to come into effect from 1-6-1982 and the Three Year Degree Course was to be discontinued after the acadmic year 1985-86. Some Universities immediately implemented the new scheme, but appreciating the difficulties of other Universities, the Bar Council of India decided to give them time upto 2 years for the changeover.
11. Pursuant to the aforesaid development, the Executive Council of the Bhavnagar University at its meeting on 17-7-1982 resolved to accept in principle the new degree course prescribed by the Bar Council of India, namely, 10+2+5 pattern professional course. The petitioner-college was very keen and willing to introduce the aforesaid new Five Year Degree Course and therefore it wrote a letter dated 15-11-1983 to the Registrar of the Bhavnagar University informing him about its decision to introduce the Five Year Degree Course from 1984, as per the rules framed by the Bar Council of India, with a request to take appropriate steps for its affiliation for the said course. The necessary correspondence is on the record at different annexures. In reply to the aforesaid letter, the Registrar informed the petitioner No. 1 to send an application for affiliation to the Bar Council of India through the Registrar of the Bhavnagar University. Although in the opinion of the petitioner-College it was not necessary to apply for affiliation to the Bar Council of India since in its opinion it applied only to new Colleges and not to existing Law Colleges, nevertheless in order to avoid any delay and unnecessary objection, the petitioner-College submitted an application dated 8-12-1983 for its affiliation to the Bhavnagar University with effect from June 1984 for imparting instruction in the New Five Year Degree Course. The said application was forwarded by the Registrar to the Secretary, Bar Council of India, with a letter (Annexure 1/1) wherein the Registrar had stated that the Ordinances/Regulations which were approved by the Board of Studies in due course be approved by the Faculty and the Academic Council.
12. The Executive Council of the Bhavnagar University at its meeting held on 21-12-1983 passed Resolution No. 21 authorising the Vice-Chancellor to take appropriate action for appointing a Local Inspection Committee for the purpose of granting affiliation to petitioner No. 1-College for the aforesaid Five Year Law Course. The Vice-Chancellor accordingly appointed a Local Inspection Committee and requested it to make local inspection and to submit its report at an early date to the Universities. The petitioners are not informed about its report, but the petitioners believe that the Local Inspection Committee had submitted a report in favour of the petitioner No. 1 College. In the meantime, the Bar Council of India had communicated to the petitioner-College, vide its letter dated 23-4-1984, inter alia, that the new law course of Five Years was evolved in consultation with the Universities and that it continued to be effective and that the rules framed by the Bar Council of India in that regard remain in force. The Bar Council also impressed upon all the Universities and College that as per the rules the Universities were given sufficient time for the change over and that under Rule 23(2), such Universities desiring time were required to intimate to the Bar Council of India their decision to change over latest by the academic year 1984-85 and that they were required to discontinue admission to the old course beyond 1985-86 as per Rule 24(2).
13. The petitioner College was informed by the respondent No. 1 University that the Academic Council of the Bhavnagar University had by its Resolution No. 9 discussed and passed at its meetings held on 12/27th January 1984 and 16th February 1984 had approved the 10+2+5 Years Law Course as prescribed by the Bar Council of India and had also approved the ordinance and Regulations for introducing the said course. It was specifically mentioned that the new course had to be introduced from June 1984 (Vide Annexure L).
14. In view of the above, the petitioner No. 1 started the new Five Year Law Course from the commencement of the academic year 1984-85. In fact, the Registrar of the Bhavnagar University called upon the petitioner No. 2 to reply whether petitioner No. 1 College had started the new Law Course from June 1984 (Vide Annexure 'M'). Thus, the petitioners had already introduced the new Five Year LL. B. Degree Course from the academic year 1984-85 with the strength of about 40 students in the first year of the said Five Year Degree Course. The Second Year was to be started from the academic year 1985-86 and the third year from 1986-87 and so on and so forth.
15. The petitioners, however, were shocked and surprised to receive a letter dated 17-10-1984 from the Registrar of the Bhavnagar University informing them that when the amended statutes for the Five Year Law Course were sent to the Chancellor for his approval, the same were returned by the Secretary to the Chancellor with a reference to the decision taken at the meeting of the Vice-Chancellors presided over by Shri Prabodhbhai Raval, the then Hon'ble Minister for Education for the Gujarat State. The said decision reached at the meeting of the Vice-Chancellors was to the effect that the new Five Year Law Course should not be introduced at that stage, but the State Government should consider the matter in consultation with the Ministry of Law and the University Grants Commission. A letter dated 22nd/23rd January 1985 from the Registrar followed informing the petitioner-college that since the Chancellor of the University had not granted approval to the statutes for the new law course, it was not possible to take any action on the application of the petitioner-College for affiliation to the University for the new law Course. Another letter dated 6-3-1985 from the Registrar followed informing the petitioner-College to the said effect and for the same reasons. Being aggrieved by the aforesaid decision of the authorities conveyed to the petitioner-College vide the letter dated 17-10-1984, the petitioner-College has also challenged the said decision of the authorities not to implement the new Five Year Degree Course in law on several counts, which as stated above, are identical in nature to the contentions raised by the petitioner in Special Civil Application No. 1089 of 1985.
16. The respondent No. 1 Registrar of the Bhavnagar University, has filed an affidavit-in-reply dated March 1985 in Special Civil Application No. 1089 of 1985. The following are the main contentions raised therein:
17. It is submitted that the amendments made by the Bhavnagar University in its relevant statutes to enable itself to consider at a suitable time to provide for introduction of professional course in law are not assented to, but are referred back by the Chancellor. The Bhavnagar University was, therefore, disabled to process the application of H.J. Law College to get affiliation for the Pre-Law Professional course in law. It is contended that H. J. Law College is not granted affiliation for teaching of Pre-Law Professional Course in law and hence admission of students in the said course are both illegal, unauthorised and against relevant provisions of the Bhavnagar University Act, 1978. It is also contended that other Universities in the State of Gujarat are proper parties to this petition in view of the general nature of the matter. It is contended that the University was prepared to allow the first term of the Pre-Law Course as deemed to have been granted for such faculty to which the students are eligible so that their current year may not be wasted. This contention, it may be noted, is not strictly relevant so far as the substantial merit of the two petitions is concerned. It is contended that no insistence can be made for the holding of the examination in Pre-Law Course as the College is not duly affiliated. It is further contended that the University had in fact made academic preparation for the introduction of the new course under a bona fide belief that the statutes submitted for approval would be assented to and did not object to the college imparting teaching to the students. But as soon as the Chancellor referred back the amended statutes and did not give his assent to the same the University had categorically informed the College authorities to discontinue to impart teaching to the students of Pre-Law and that the University would be willing to accommodate them in other faculties as requested. But the Principal remained adament and instead of closing down the course of Professional Law, continued the same even during the second term.
18. In Special Civil Application No. 3439 of 1985, the Registrar raised the following contentions in his affidavit in reply, dated 15-7-85. Substantially, the same facts have been repeated to the effect that the Academic Council resolved on 21-11-1984 that affiliation may be recommended and that thereafter the matter was placed before the executive Council and the Executive Council authorised the Vice-Chancellor to do the needful. In the meantime, statutes were referred back by the Chancellor. It is submitted that unless the statutes are duly amended and brought into force, the mere amendment of Ordinance and Regulation cannot help the University. On perusal of this affidavit, I found that substantially it is in the same vein as the affidavit-in-reply filed in the other Special Civil Application. Neither of these affidavits-in-reply filed by the Registrar raised any substantial question of law, excepting that without the due amendment of the statutes, the New Law Course cannot be implemented and that without the due affiliation given to the College, it cannot run the classes for the New Law Course. This is of course evident even from the petition, but the grievance of the petitioners in both these Special Civil Applications is that under the facts and circumstances of the case, the statutes must be amended and affiliation must be granted, to which there is no satisfactory reply in these two affidavits.
19. One Mr. K.B. Makwana, Under Secretary to the Government of Gujarat, Education Department, has filed his affidavit-in-reply on behalf of the State Government to both these Special Civil Applications. Both the affidavits-in-reply raise identical contentions. It is submitted that there is no conflict regarding the decision taken by the Bar Council of India in respect of Five Year Degree Course in Law and its implementation by various Universities of the State of Gujarat, since the State Government and the various Universities are acting within the time limit prescribed by the Bar Council of India itself. The grievances made in the petitions, therefore, are purely academic and hypothetical. It is further submitted that the State Government decided not to introduce the new course at present, but the same may be considered by the State Government and taken up with Government of India in Ministry of Law, Ministry of Education and University Grants Commission. This decision was taken in the Conference of the Vice-Chancellors of the Universities under Education Department held in June 1984. The Vice-Chancellor of the Bhavnagar University was also present at the said conference and under the circumstances the Bhavnagar University was clearly aware of the above decision of the. Government of Gujarat. A reference is made to a letter written by the Minister of Education and Culture, Government of India, wherein it is stated that the Government of India is seized of the matter and the decision taken will be intimated to all concerned. It is submitted on the basis of this letter that the question of introduction of 10+2+5 Year Degree Course of Law was still under the consideration of the Government of India.
20. It is further contended that the College was not affiliated with Bhavnagar University for imparting education of so-called Five Year Degree Course of Law and that it is only the State Government which has power to grant affiliation to any college to Bhavnagar University. It is contended that merely because the Bar Council had given direction to all the State Governments for introduction of Five Year Degree Course, the new law course has not come into operation at once. In fact, the Bar Council of India has given a deadline date for admission to old course upto 1985-86. It is further contended that till the Central Government and the University Grants Commission do not intimate the final decision, the State Government is not willing to take any decision in the matter at present.
21. In the affidavit-in-reply filed in Special Civil Application No. 3439 of 1985, it is contended that the introduction of the Five Year Degree Course involved several considerations, including huge financial implications. It is further contended in this affidavit-in-reply that the Bar Council of India is not a legislative body having any plenary rights of legislation regarding legal education. The State Legislature and the legislation made by it in respect of education are not subject to the decision of the Bar Council of India, if the decision of the Bar Council of India is sought to be given an overriding effect over the legislative action of State Government and the executive action of the State Government taken in pursuance of the validly enacted provision of law, it would amount to a breach of the provision of the Constitution. The Bar Council of India Is not sought to be given powers of veto over the legislative powers of State Legislature. The standards laid down by the Bar Council of India are merely meant for governing the enrolment of Advocates for practice. It is, however, submitted that the question of conflict between the powers of the Bar Council of India on the one band and the powers of the State Legislature on the other hand does not arise because Bar Council of India itself has given a time limit for introduction of Five Year Degree Course.
22. The aforesaid were the main contentions raised in the affidavit-in-reply filed on behalf of the State of Gujarat.
23. Mr. G.M. Akolkar, Principal, Sheth H.J. Law College, Bhavnagar, the Respondent No. 3 (Petitioner No. 2 in Special Civil Application No. 3439 of 1985) has filed his affidavit-in-reply in Special Civil Application No. 1089 of 1985. We do not deal with it in detail because it supports the petitioners. He has also filed an affidavit in the nature of rejoinder to the affidavit filed by Mr. Makwana on behalf of the State of Gujarat. He has justified the course adopted by the College ill implementing the new Law Course as permission to do so was granted by the University. One Shyam Mohan Srivastav has filed an affidavit-in-reply on behalf of the Bar Council of India. He was working as the Secretary of the Bar Council of India and as such he has filed affidavit-in-reply. By and large the Bar Council of India has supported the petitioners. It appears that the Bar Council of India has not filed its affidavit-in-reply in Special Civil Application No. 3439 of 1985. It also appears that the Bar Council of Gujarat has also not filed its affidavit-in-reply in either of the petitions. It is very pertinent to note that the Chancellor (Respondent No. 4 in Special Civil Application No. 1089 of 1985 and Respondent No. 3 in Special Civil Application No. 3439 of 1985) has not filed his affidavit-in-reply in either of these Special Civil Applications.
24. Whom the hearing of the petitions was commenced before us, the learned Advocates, appearing for the petitioners, had formulated their contentions as under:
(1) In view of the fact that the Bar Council of India had prescribed the Five Year Law Course in the exercise of its powers conferred upon it by the Advocates Act, 1961 and the Rules made thereunder, it is imperative upon the Chancellor to grant approval to the amendment of the statute for introducing the Five Year Law Course as prescribed by the Bar Council of India and that he has no authority or jurisdiction to refuse to accord his approval to it.
(2) The decision of the Chancellor or withhold the approval to the introduction of the New Law Course is not a speaking order and is based on an extraneous and irrelevant consideration.
(3) Since the Executive Council and the Academic Council have resolved to introduce the Five Year Law Course and have passed the necessary resolutions for the amendment of the statutes to implement the said course, it is not open to the Chancellor to abdicate his jurisdiction or power or refuse to exercise the jurisdiction vested in him more so on the ground of some purported decision alleged to have been taken at the meeting of the Vice-Chancellors.
(4) As a matter of fact, the New Law Course could have been adopted and implemented by the University by passing a necessary Ordinance to that effect which would not have required the approval of the Chancellor.
(5) In view of the fact that the competent authorities in Bhavnagar University have made necessary ordinance and statute in respect of the introduction of the new course, it is not open now to the University or for that matter the State of Gujarat to refuse affiliation to H.J. Law College for the New Law Course and that to do so would be without authority or jurisdiction, possibly on the ground of some vague decision of the Vice-Chancellors, particularly because the authority of the State Government to grant or refuse the application for affiliation under Section 35(4) of the Bhavnagar University Act, 1978 is confined to the considerations stated in Section 35(1) from Clauses (a) to (1).
Contention No. 1:
25. In order to appreciate the contention raised by the petitioners, it is necessary to refer to the relevant statutory position under the Bhavnagar University Act, 1978 (hereinafter referred to as 'the University Act') as well as to the Constitution of India and the Advocates Act, 1961 and the Rules made thereunder. Under Section 8(1) of the University Act, the Chancellor is an officer of the University, and under Section 9(1), it is prescribed that the Governor of Gujarat shall be the Chancellor of the University. It is provided in Section 9(2) of the University Act, that the Chancellor by virtue of his office, be the head of the University and the President of the Court and shall, when present, provide at the meetings of the Court and at any convocation of the University.
26. Section 14 of the University Act prescribes several authorities of the University amongst which include the Court, the Executive Council, the Academic Council and others. Section 15 of the University Act provides for the membership of the Court, whereas Section 17 provides for the powers and duties of the Court. Section 17(vi) relates to the powers of Court to make, amend or repeal Statutes. Chapter V deals with statutes, Ordinances and Regulations. Section 30 deals with the matters in regard to which the statutes may be passed by the Court, and Section 31 deals with making amendment, operation and repeal of statutes.
27. Section 31(6) which is material for the present petitions lays down that 'Every statute passed by the Court shall be submitted to the Chancellor who may give or withhold his assent thereto or refer it back to the Court for consideration.' Section 31(7) of the University Act provides that no statute passed by the Court shall have validity until assented to by the Chancellor. Similarly, Section 19 deals with the powers and duties of the Executive Council and Section 32 provides the matters in regard to which the Executive Council may make Ordinances and Section 33 provides for making of Ordinances. The Ordinances passed by the Executive Council is required to be laid before, the Court and the Court has the power by a Resolution to cancel or to refer back but not to amend any such Ordinance. Section 20 deals with the Academic Council and Section 21(1) of the University Act deals with the powers and duties of the Academic Council. Section 34 provides for the passing of Resolutions by the Academic Council to provide for all matters which by this Act, the statutes or the Ordinances are to be provided for by Regulations and the Regulations are required to have the approval of the Executive Council.
28. These are the relevant provisions so far as the contentions raised in the petitions before us are concerned. The petitioners have stressed on the provision in Section 31(6) and (7) of the University Act to point out that although every statute passed by the Court is required to be submitted to the Chancellor, who may give or withhold his assent thereto, or refer it back to the Court for reconsideration, yet his power to do either of them is not unfettered and unlimited. To construe it otherwise would render the impugned provision as beyond the legislative competence of the State. It was urged before us that the power of the Vice-Chancellor under Section 31(6) and (7) is, therefore, required to be read down so as to put it beyond the pale of challenges. We shall return to this contention after examining the legal effect of the relevant provisions made in the Advocates Act and the Rules made thereunder regarding implementation of the New Law Course.
29. Part XI of the Constitution of India deals with the relations between the Union and the States. Article 246 of the Constitution of India runs as under:
246. Subject-matter of laws made by Parliament and by the Legislatures of States.-
(1) Notwithstanding anything in Clauses (2) and (3) Parliament has exclusive power to make laws with respect to any of the matters, enumerated in List I in the Seventh Schedule (in this Constitution referred to as the 'Union List)'.
(2) Notwithstanding anything in Clause (3) Parliament and subject to Clause (1), the Legislature of any State also have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the 'Concurrent List').
(3) Subject to Clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the 'State List')
(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included (in a State) notwithstanding that such matter is a matter enumerated in the State List.
It may be emphasised that under Article 246(1), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule, referred to in the Constitution as the Union List. The Entries 66, 77 and 78 of List I-Union List, runs as under:
66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.
77. Constitution, organisation, jurisdiction and powers of the Supreme Court (including contempt of such Court), and the fees taken therein, persons entitled to practice before the Supreme Court.
78. Constitution and organisation (including vacations) of the High Court except provisions as to officers and servants of High Courts; persons entitled to practice before the High Courts,
Entry 11 in List II-State List, dealt with education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of Labour, but by the Constitution (Forty-second Amendment) Act, 1976, Section 57 with effect from 3-1-1977, the same Entry has been deleted from the State List and placed in the concurrent List as Entry 25. The petitioners urge that the Advocates Act, 1961 and the Rules made thereunder are covered by Entries 66 and 77 of the Union List in regard to which under Article 246(1), the Parliament has exclusive power to make laws and even if for an arguments sake it is assumed that the provision for technical education, and further assuming that legal education can be included in the term 'technical education', falls in Entry 25, it is a part of the concurrent List and the matter no longer falls within Entry II of the State List after the passing of the Constitution (Forty-second Amendment) Act, 1976. Under Article 246(2) of the Constitution, the State can only deal with the subject enumerated in List III, subject to Sub-clause (1) of Article 246. In other words, even if the question of legal education is covered by the concurrent List, the Legislation passed by the Parliament shall prevail over the Legislation, if any, passed by the State. We were referred to the judgment of the Supreme Court in O. N. Mohindroo v. Bar Council of Delhi and Ors. A.I.R. 1968 Supreme Court, 888, in order to bring home this point canvassed by the petitioners. Shelat, J., speaking for the Court observed as under:
Entries 77 and 78 in List I apart from dealing with the Constitution and Organisation of the Supreme Court and the High Courts also deal with persons entitled to practice before the Supreme Court and the High Courts. This part of the two entries shows that to the extent that the persons entitled to practice before the Supreme Court and the High Court are concerned, the power to legislate in regard to them is carved out from the general power relating to the professions in Entry 26 in List III and is made the exclusive field for Parliament. Barring those entitled to practice in the Supreme Court and the High Courts, the power to legislate with respect to the rest of the petitioners would still seem to be retained under Entry 26 of List III.
It is further observed therein as under:
Though the Advocates Act relates to the legal practitioners, in its pith and substance it is an enactment which concerns itself with the qualifications, enrolment, right to practice and discipline of the Advocates. As provided by the Act once a person is enrolled by any one of the State Bar Councils, he becomes entitled to practice in all courts including the Supreme Court. The Act creates one common Bar, all its members being of one class, namely, advocates. Since all those who have been enrolled have a right to practice in the Supreme Court and the High Courts, the Act is a piece of legislation which deals with persons entitled to practice before the Supreme Court and the High Courts. Therefore, the Act must be held to fall within Entries 77 and 78 of List 1. As the power of legislation relating to those entitled to practice in the Supreme Court and the High Courts is carved out from the general power to legislate in relation to legal and other professions in Entry 26 of List III, it is an error to say that the Act is a composite legislation partly falling under Entries 77 and 78 of List I and partly under Entry 26 of List III.
This judgment, therefore, settles the question that the Advocates Act, 1961 is passed by the Parliament under Entries 77 and 78 of List I, in regard to which only the Parliament has power to make laws.
30. In the aforesaid constitutional background, we may now examine certain relevant provisions of the Advocates Act, 1961 and the Bar Council of India Rules made there under Section 4 of the Advocates Act, 1961 mandatorily provides for the creation of the Bar Council of India and its constitution. Section 4(1) states that there shall be a Bar Council for the territories to which the Act extends to be known as the Bar Council of India. The Bar Council of India thus is a statutory creation of the Advocates Act, which is a Central legislation.
31. Section 7(1) of the Advocates Act, 1961, prescribes the functions of the Bar Council of India. It, inter alia, provides, Section 7(1)(h), to promote legal education to lay down standards of such education in consultation with the Universities in India imparting such education and the State Bar Councils. Section 7(1)(i) provides, 'to recognise Universities whose degree in law shall be qualification for enrolment as an advocate and for that purpose to visit and inspect Universities.'
32. Section 24(1) of the Advocates Act, 1961, provides that 'subject to the provisions of this Act, and the rules made thereunder, a person shall be qualified to be admitted as an advocate on a state roll, if he fulfils the following conditions, namely:
(a) x x x x(b) x x x x(c) he has obtained a degree in law-
(i) before the (12th day of March, 1967) from any University in the territory of India, or
(ii) before the 15th day of August, 1947, from any University in any area which was comprised before that date within India as defined by the
Government of India Act, 1935; or
(iii) after the 12th day of March, 1967, save as provided in sub-clause,
(iii) after undergoing a three-year course of study in law from any University in India which is recognised for the purposes of this Act by the Bar Council of India;
(iv) x x x x(e) he fulfils such other conditions as may he specified in the rules made by the State Bar Council under this Chapter.(f) x x x x
Section 49 of the Advocates Act, 1961 deals with general power of the Bar Council of India to make rules. Section 49(1) runs as under:
49(1). The Bar Council of India may make rules for discharging its functions under this Act, and, in particular, such rules may prescribe-
(af) the minimum qualifications required for admission to a course of degreein law in any recognised University;
(ag) the class or category of persons entitled to be enrolled as advocates;
(d) the standards of legal education to be observed by Universities in India and the inspection of Universities for that purpose.
Under the powers thus given to the Bar Council of India under Section 7 (1)(h) and Section 24 (1)(c) Sub-clause (iii) and Section 49 (1)(af), (ag) and (d) of the Advocates Act, 1961, the Bar Council of India has made rules in relation to the standards of legal education and recognition of degrees in law for admission as Advocates. In the preamble of the Rules of the Bar Council of India. Part-IV, it is stated, inter alia, as under:
'Whereas there is almost complete unanimity of opinion in the Country that legal Education needs to be drastically altered and improved.
And whereas piecemeal changes introduced from time to time have not brought about any significant raising of standards and improvement in the quality of new entrants to the Bar.
And whereas it is the statutory obligation of the Bar Council of India to promote Legal Education and to lay down standards of such education for purposes of admission to the Bar.
And whereas the Legal Education Committee of the Bar Council of India has examined the problem in great depth in consultation with the Universities and State Bar Councils and made its proposals,
And whereas the Bar Council of India has considered the implications and merits of the said proposals.
And whereas it is now recognised the world over that apart from technical knowledge of law a liberal education involving exposure to other disciplines and fields of knowledge in particular the humanities is essential to enable a lawyer to make a useful contribution to social change and development.
This Council in exercise of its powers under Section 7(h), and (i), 24 and 49(1) of the Advocates Act, 1961 and all other powers enabling it so to do, make the following rules.
(emphasis supplied)
Thus, it will be seen that the Bar Council of India has made rules for introducing a New Law Course after ponderous consideration by virtue of its statutory powers, Rule 1 of the Bar Council of India Rules runs as under:
1.(1) Save as provided in Rules 23, 24 and 25 of the Rules hereunder, a degree in law obtained from any University in the territory of India shall not be recognised for purposes of enrolment as advocate under the Advocates Act, 1961 from June 1, 1982 unless the following conditions are fulfilled:
(a) that the time of joining the course of instruction in law for a degree in law the person concerned has passed an examination in 10+2 course of schooling recognised by the educational authority of the Central or the State Governments or possesses such academic qualifications which are considered equivalent to such 10+2 courses by the Bar Council of India.
(b) The law degree has been obtained after undergoing a regular course of study in a duly recognised law college under these rules for a minimum period of five years, out of which the first two years shall be devoted to study of pre-law courses as necessary qualification for admission to three year course of study in law to be commenced thereafter. The last six month of the three years of the law course shall include a regular course of practical training,
(c) That the course of study in law has been by regular attendance for the requisite number of lectures, tutorials, moot courts and practical training given by a college affiliated to a University recognised by the Bar Council of India.
33. Rules 23, 24 and 25 of the Bar Council of India Rules run as under:
23(1) Those Universities and Colleges which are approved by the Bar Council of India as professional institutions under the new rules will commence professional legal education according to these rules from the academic year 1982-83. However, Universities wanting more time for changing over to the new scheme may be allowed permission by the Council to run the existing three-year LL.B. Course for a period not more than two academic years. If such permission is granted they may continue to admit graduates for the existing LL.B. Course till and inclusive of the academic year 1983-84.
(2) Such Universities seeking time for the change-over must declare their intention to switch over to legal education under these rules latest by the academic year 1984-85 and send a report within a year from June 1, 1982 to the Bar Council of India on the steps adopted for the purpose.
24. (1) Students have joined the first year of the graduate course (B.A, B.Sc, B. Com. etc.) in 1982-83 or earlier will be eligible to pursue legal education under the old rules. The LL.B. Course under the old rules may admit such students till the beginning of the academic year 1985-66.
(2) Admission to the LL.B. Course under the old rules will, however, be totally discontinued in such institutions after the academic year 1985-86.
Provided that such Universities may conduct examination in 1st, 2nd or 3rd year LL.B. Courses to clear of the incumbents till such time the Universities may deem fit.
25. (1) If Universities located in States where the 10+2 school system is not yet in vogue propose to start the LL.B. Course under the New rules they will be free to do so.
34. Thus, it becomes clear that a degree in law obtained from any University in the territory of India shall be recognised for purposes of enrolment as an Advocate under the Advocates Act, 1961 from June 1982 only if it complies with Rule 1, barring the exceptions stated in Rules 23, 24 and 25. The petitioners have, therefore, merit in their submissions when they state that in the legal background, the rules framed by the Bar Council of India have a mandatory effect so far as the qualifications for admission to the roll of Advocate is concerned. Mr. Vin, the Government Pleader, submitted that the Bar Council cannot act as a super-legislative body and interfere with the autonomy of the University. His submission is misconceived. Nobody questions the autonomy of the University in this case, but what is urged is that it is open to the University to run a law course purely for an academic purpose, but if it proposes to run a professional law course, it has no option but to implement the new law course, provided by the Rules framed by the Bar Council of India. In the present case, if the new law course is not adopted and implemented, it can be so done only at the pains of the students who may be exposed to disqualification for enrolment on the roll of advocates.
35. Mr. Vin made a further submission that Section 24(1)(c) of the Advocates Act, 1961 prescribes the qualification for the purpose of admission as an Advocate on a state roll and that to prescribe anything further under the rules would only mean that such further qualifications go counter to the qualifications provided under Section 24 in general and 24(1)(c) in particular. Here also, with respect, the submission of Mr. Vin is misconceived. It is necessary to read in this context Section 24(1)(e) which expressly authorises the Bar Council to add such other conditions by making appropriate rules. Mr. Vin submitted that since qualification is already prescribed in the preceding clause of Section 24 no further condition can be prescribed under such omnibus clause. In other words, no further qualifications can be added by framing of the Rules under Section 24(1)(e) of the Advocates Act, 1961. We are unable to read such a limitation on the power of the Bar Council for two obvious reasons. Firstly, because the purpose of Section 24(1)(e) is to authorise the Bar Council to elaborate the qualifications since it is Bar Council of India which is the most knowledgeable and competent authority to decide about the standards of legal education. In fact, the Bar Council has pondered over the subject in depth and has added a New Law Course by way of a qualification for any enrolment to the roll of an Advocate, after considering the implications and merit of such addition and after having examined the problem in great depth in consultation with the Universities and State Bar Councils. Secondly, because the conditions prescribed in and under the section are to be satisfied cumulatively for being eligible for enrolment.
36. The contention raised by Mr. Makwana in the affidavit-in-reply that the Bar Council of India is not the legislative body having any plenary rights of legislation regarding legal education is also not correct, in view of the settled legal position which we have given above. It is not correct to say, as Mr. Makwana says, that the Bar Council is not sought to be given powers of veto over the legislative powers of the State Legislature and that the standards laid down by the Bar Council of India are merely meant for governing the enrolment of Advocates for practice. As noted above, the Advocates Act, 1961 empowers the Bar Council of India to prescribe necessary measures to promote legal education and to lay down standards of such education in consultation with the State Bar Councils and Universities in India imparting such education and whose degrees in law qualify for enrolment as an Advocate, etc. The contention that to give such powers to Bar Council of India would amount to a breach of the provisions of the Constitution has no merit.
37. It is in this background that the petitioners have urged before us that once the Bar Council of India has prescribed the Five Year Course in the exercise of the powers conferred upon him by the Advocates Act, 1961, it is not open to the Chancellor to act in excess of his jurisdiction or power and to fail to perform his duty, more so when the University of Bhavnagar has on the recommendation of the Academic Council and the Executive Council resolved to introduce the Five Year Law Course as prescribed by the Bar Council of India with effect from June, 1984 and since the said statutory authorities have passed the necessary resolutions for amendment of the statutes in order to implement the said course. It is thus imperative upon the Chancellor to grant approval to the amendment of the Statutes for introducing the Five Year Law Course and that he has no authority or jurisdiction to refuse to implement it. Therefore his action would be vulnerable to the charge of being arbitrary. It is urged that Section 31(6) & (7) of the University Act does not purport to give such an unlimited and uncharactered discretionary power to the Chancellor to give or withhold his assent to a statute passed by the Court. It is urged that if such an unlimited jurisdiction is sought to be vested in the Chancellor, it would render the very statutory provision, namely Section 31(6) of the University Act, unconstitutional as being violative of Articles 14 & 19(1)(g) of the Constitution of India or against academic standards since it would mean that this provision confers upon the executive or administrative authority an unguided and uncontrolled discretionary power which when exercised improperly may result into permanent detriment to the students in a case such as this, wherein the students of the new course are in the danger of being deprived of an opportunity to practice as advocates before the Supreme Court and the High Courts. It is also pointed out that the section is without any guidelines as to how the discretion is to be exercised.
38. On consideration of the matter, we are of the view that unless Section 31(6) of the University Act is appropriately read down, the petitioner's submission about its unconstitutionality would have substance. We are, however, not accepting the whole charge about the unconstitutionality of Section 31(6) of the University Act as being violative of Articles 14 & 19(1)(g) of the Constitution of India, only as the power which is sought to be vested under it is vested in the highest dignitary of the State, since it is provided by Section 9(1) of the University Act that the Governor of Gujarat shall be the Chancellor of the University. There is an implied assumption in the statutory provision that the power, though vested in absolute terms, shall only be exercised appropriately and on rational and reasonable basis in the light of the facts and circumstances of each case. In other words, the concept of reasonableness is implied in the provision. The reasonableness would mean that the discretion shall be exercised not as a veto to set at naught what is properly done by the Court, but as a controverly jurisdiction to keep the other authorities of the Universities within their respective bounds. The power is conferred upon the Chancellor to advise and to give a proper direction to the Court of which he is the president. It is expected that a patria protest as would take all the relevant considerations into account before exercising his power under Section 31(6) of the University Act, and that what shall be kept uppermost in his mind is the ultimate interest of the alumni of the University. The Chancellor being official of the University is duty bound to grant his approval to the decision of the University authorities unless such decision is not in the interest of the academic community or against academic standards, or in excess of the power of the respective authority or impinges upon the power of another authority. It is unnecessary to list the relevant factors which would be taken into consideration by him since each case would predicate different and diverse considerations. By and large, the interests of the students, the maintenance of scholastic standards, the statutory and constitutional bounds of the powers of the respective authorities in particular and that of the University in general and such other relevant and material considerations would govern the field of his discretion.
39. The next contention of the petitioners is strictly in relation to the impugned decision of the Chancellor to withhold his approval to the amended statute for the introduction of the New Law Course and to refer it back to the Court for further consideration, in the submission of the petitioners, the said decision is palpably wrong on several counts. It is contended that the Academic Council of the Bhavnagar University had by its Resolution No. 9 at its meetings held on 12-2-1984 and 16-2-1984 approved the 10+2+5 Year Law Course as prescribed by the Bar Council of India and the Executive Council of the Bhavnagar University has also resolved to accept the New Law Course and the proposal in the nature of an amended statute was forwarded for the Chancellor's approval. The Registrar had addressed a letter (Vide Annexure 1/1) to the Secretary, Bar Council of India stating inter alia that 'In connection with acceptance of the new professional Degree Course (10+2+5) we have framed ordinance and regulations (copy enclosed) which are approved by Board of studies and will in due course be approved by faculty and academic council'. By the said letter, the Registrar has also forwarded an application of H.J. Law College for getting affiliation for the new course. A copy of the' letter written by the Registrar to the Principal H. J. Law College (Annexure 'L') speaks about the fact that the Academic Council at its meeting held on 12-2-1984 and 16-2-1984 had by Resolution No. 9 approved the 10+2+5 Course in Law prescribed by the Bar Council of India and the Ordinance/Regulations prepared by the University for the same. A copy of the letter dated 17-10-1984 (Annexure 'O') written by the Registrar to the President, Bhavnagar Kelawani Mandal, and the Principal, Law College, Bhavnagar, also speaks about the fact that the University had made appropriate modifications in the concerned statutes for the LL.B. Professional Course and that such statutes with modifications were sent to the Chancellor of the University for approval. It is further stated in that letter (Annexure 'O') that the said statutes have been referred back by the Secretary to the Chancellor and a reference is made to the decision of the Vice-Chancellors of the Universities in this behalf. At the said meeting of the Vice-Chancellors, presided over by Shri Prabodhbhai Raval, the then Hon'ble Education Minister, State of Gujarat, decided to the effect that the new Five Year Law Course should not be introduced now, but the State Government should consider the matter in consultation with the Ministry of Law and the University Grants Commission.
40. The petitioners in the light of this evidence on record urge that the Chancellor has failed to exercise the statutory power vested in him on extraneous considerations. Not only that the decision of the Chancellor is not a speaking decision, but that it is based on extraneous and irrelevant considerations.
41. It need hardly be stated that we have given serious and anxious consideration to the various grounds urged in support of the challenge to the impugned back reference by the Chancellor. We are of the opinion that the back reference is vitiated for following reasons. In the first place, no material is placed before us in nature of the affidavit by or on behalf of the Chancellor to show to us that what reasons weighed with him in making the back reference. Secondly, no order ordecision, speaking or otherwise, of the Chancellor has been placedbefore us except the one contained in the letter dated February 19, 1985 of the Deputy Secretary to the Governor. The only reason given in the said letter to the Registrar of Bhavnagar University, Bhavnagar was that the Government of Gujarat had not till then decided to accept the proposal of the Bar Council of India to introduce the Five Year Degree of Law instead of Three Year at that time. It is further stated in the said letter that, 'the Chancellor is, therefore, pleased to refer back the statutes Nos. 104(1), 105(4), 161(2) and 161(5) to the Bhavnagar University'. Thus, we are given to understand that the decision of the Chancellor under Section 31(5) of the Universities Act is influenced by the decision of the State Government to defer the acceptance of the proposal of the Bar Council of India. In that case, the decision is doubtlessly based on extraneous considerations not relevant and germane to his decision for not exercising discretion to grant approval to the amended statutes since the State Government is not competent to direct the University not to implement the statutory recommendations of the highest profession body for improvement of the standards of legal education with ultimate purpose of obtaining better equipped, educated and trained Law Graduates for the profession.
42. As stated earlier, we do not know what has exactly prevailed over the Chancellor, but if one of the considerations is as suggested in the affidavit-in-reply of Mr. K. B. Makwana, that the introduction of the Five Year Degree Course involves huge financial implications, it would also be an extraneous consideration in the light of the fact that the course prescribed by the Bar Council of India is mandatory in nature, if the Bhavnagar University proposes to prepares law students for a professional career. Similarly, if a further consideration is the fact that a decision was taken in the conference of the Vice-Chancellors of the Universities not to introduce the law course at that point of time, that would also be an extraneous consideration. The fact that the Vice-Chancellor of the Bhavnagar University was present at the said conference makes no difference. It should have gone into the consideration of the Chancellor that notwithstanding such conference, the Executive Council and the Court of the Bhavnagar University had taken a decision to implement the course since it had on its affiliation a College having law students who had taken law for their professional career. It would be a necessary factor which should enter into the consideration of the Chancellor. It is true that the Bar Council of India had given some further time to the Universities for switching over to the new course, but that would not compel any University to wait till then. If Bhavnagar University decided to implement the course early, since the law course had got to be adopted sooner or later, it could hardly be accused of any premature decision and it would be virtually negativing the autonomy of the University to say that since the State Government had decided to wait till the time limit was over, the Bhavnagar University was not free to adopt the course earlier. In this contest, it would be necessary to recall the correspondence which took place between the Bhavnagar University and the College. In fact, the University has urged the College to go along with the New Law Course and to enrol students for undergoing the said course, and we have no reason to believe that in doing so the University was in any way not justified.
43. In the case of Hardwari Lai, Rohtak v. G. D. Tapase, Chandigarh and Ors. , Prem Chand Jain, J. speaking for the Full Bench, observed as under:
Under the scheme of the Act and the Statutes, in the University affairs there cannot be any interference from the State Government. The State Government is an authority quite distinct from the authority of the Chancellor. The State Government cannot advise the Chancellor to act in a particular manner. The University is a statutory body, autonomous in character. Under the Act and the Statutes, the Chancellor has been given certain powers exercisable by him in his absolute discretion without any interference from any quarter. For the appointment of the Vice-Chancellor or the Pro Vice-Chancellor, he is not required to consult the Council of Ministers It is correct that by virtue of his office the Governor becomes the Chancellor of the University, but while discharging the functions of his office he does not perform any duty or exercise any power of the office of the Governor. While discharging the functions of the office, the Chancellor does not act on the aid and advice of the Council of Ministers. It would not be correct to say that as the Governor holds the office of the Chancellor of the University by virtue of his office, therefore, the powers and duties of his office as Governor. The Governor is vested with certain powers and duties under the Constitution that normally are exercised or performed on the aid and advice of Council of Ministers and, therefore, it becomes necessary to give immunity to such person in the discharge of the duties of his office. But this is not the position in the case of the Chancellor as he, under the Act, has his own independent existence and exercises his power without any interference from any quarter. The office he holds is a statutory office and is quite distinct from the office of the Governor. If immunity is extended to the Chancellor also, then it would lead to anomalous results that is, that in respect of action of the Governor as the Head of the State executive, appropriate proceedings against the State would be open, while it would not be permissible for any person to question the action of the Chancellor in any proceedings, for the reason that the Chancellor's action not being the action of the Governor as the Head of the State executive, the second proviso of Article 361(1) would have no applicability. In this view of the matter, there is no escape from the conclusion that the powers and duties exercised and performed by the Chancellor under the Act or Statutes of the University have absolutely no relation to the exercise and performance of the powers and duties of the office of Governor.
It is further observed therein as under:
In such a case, the distinction between the two modes of appointment, that is, where the Governor of a State shall be the Chancellor of the University and where the Governor by virtue of his office or as ex-officio shall be the Chancellor, would not make any difference. The real test to be seen is whether while holding the office of the Chancellor, is the Governor performing any duties or is exercising any power relating to his office? Further, it has also to be seen whether by holding the office of the Chancellor, is the Governor not holding entirely a different office and in a different capacity? As the answer to these two questions is in the negative, then the Governor as Chancellor would not be exercising or performing any power or duty in his capacity as Governor nor would the exercise or performance of the power or duty of the office of the Chancellor would have any relation to the exercise or performance of the duty of the office of the Governor.
We are in respectful agreement with the above view. Thus, the petitioners are right in urging that the Chancellor appears to have been influenced by the decision of the State Government not to implement the Five Year Law Degree Course, as disclosed by the letter of Mr. J.M. Ruparel dated 19-2-1985, and if that be so, the Chancellor has failed to take a decision as a Chancellor, as a statutory authority created under the statute and is moved by extraneous considerations.
Mr. Vin urged that the Chancellor had referred back the statute in the interest of uniformity amongst the Universities and in that case, can we say that he had not applied his mind or that it is unreasonable. There are a few impediments in the way of this submission. In the first place, the Chancellor himself has not stated that his decision to refer back the statutes was based to bring about uniformity amongst the Universities in Gujarat in regard to the implementation of the New Law Course. Such a hint is not provided even by the letter of Mr. Ruparel, dated 8-10-1984 or the one dated 19-2-1985. Secondly, the Chancellor himself has not chosen to file an appearance, and Mr. Vin, at any rate, has no authority to speak on his behalf. Even in the affidavit filed by the State, there is reference only to financial implications and not to this principle of uniformity amongst the Universities in Gujarat. The submission, therefore, appears to be an after-thought on the part of Mr. Vin to justify the Chancellor's decision.
44. In our considered opinion, there is merit in the second and the third contention of the petitioners. The decision of the Chancellor to withhold his approval to the introduction of the New Law Course clearly appears to have been based on extraneous and irrelevant considerations. We also accept the contention of the petitioners that since the Executive Council and the Academic Council have resolved to introduce the Five Year Law Course and have passed the necessary resolutions for the amendment of the statutes to implement the said course, the Chancellor could not have exercised his jurisdiction to veto such a decision without disclosing a convincing reason to do so. At any rate, it was certainly not open to him to fail to exercise his jurisdiction vested in him. If he was moved on the ground of some purported decision taken in the meetings of the Vice-Chancellor's.
45. The petitioners have contended that as a matter of fact, the New Course could have been adopted and implemented by the University by passing the necessary Ordinance to that effect, which would not have required the approval of the Chancellor. It is submitted that the Surat University has gone on similar lines. We need not answer these contentions since the Bhavnagar University has proposed to pass an amendment to the statute to bring in the necessary change and we have no business to express ourselves whether Bhavnagar University should have adopted another course of passing a necessary Ordinance for adopting and implementing the New Law Course.
46. petitioners have also challenged the power of the State Government to withhold affiliation to the College for the order Law Course to the amended statute under Section 35(4) of the University Act. It was urged before us that the State Government's power under Section 35(4) of the University Act is circumscribed by the circumstances stated in Section 35(1)(a) to (1) of the University Act and that the State Government cannot refuse affiliation on any other extraneous ground. This contention is indeed a ponderous one and prima facie appears to have force in it, but at this juncture we do not need to pronounce our judgment on it, since this contention is raised at a premature stage. Such a question may arise after the Chancellor accords his permission to the amended statute and the application of the College is forwarded for affiliation to the State Government under Section 35 of the University Act. Although we do not decide the contention raised by the petitioners about the circumscribed jurisdiction of the State Government we may only point out that the contention is indeed a serious caveat and may appropriately be taken into account by the State at the proper stage. We may also point out that while dealing with the question of granting affiliation to the College, the State will take into consideration several aspects of the matter which we have referred to above in our judgment, and particularly the mandatory nature of the relevant Bar Council Rules and the consequences flowing from the refusal to grant affiliation, viz. trying to achieve the same purpose indirectly which cannot be done directly, and its ultimate impact on the professional career of the law students of this State.
47. In the result, for the reasons recorded as aforesaid, we allow both the petitions to the following extent.
48. We hold that Section 31(6) of the University Act is required to be read down with the effect that although it is couched in absolute terms, the Chancellor has to bring into his consideration the factors relevant for a particular decision and that his decision must be based on reasonable grounds. We do not propose at present to express our opinion about the validity of Sub-sections (4) & (5) of Section 31 of the University Act. We accordingly direct the Bhavnagar University to place the relevant amended statutes Nos. 104(1), 105(4), 161(2) and 168(5) which are passed for the purpose of implementation of the New Law Course with effect from June, 1984 for the reconsideration of the Chancellor who, we hope, shall take a decision on the lines suggested by us in our judgment. Since this is a matter which needs urgent attention of the Chancellor, we wish that he takes a proper decision in the matter within two weeks hereof.
49. In order to save time, we direct the Bhavnagar University to process and forward the application with the necessary recommendation for grant of affiliation to the H.J. Law College, Bhavnagar, for New Law Course, to the State Government within one week of the accord of approval by the Chancellor to the amended statues. We further direct the State Government to consider the recommendation for affiliation and decide the same within one week of the receipt of the same from the University according to the correct legal principles. We direct further that the Bhavnagar University shall conduct the examination of the petitioners and other students, who have completed their term in the college conducted by the respondent No. 3, within four weeks hereof, if by that time the Chancellor and/or the Bhavnagar University or the State Government has not taken a decision as directed aforesaid, and thereafter to declare the results of the said examination.
50. Rule is made absolute accordingly in both the petitions with no order to costs.