ORDER
K. Chandru, J.
1. Heard both sides.
2. This writ petition arose out of O.A. No. 2260 of 1998 filed by the petitioner before the Tamil Nadu Administrative Tribunal. In view of the abolition of the Tribunal, it was transferred to this Court and was renumbered as W.P. No. 34558 of 2006.
3. The petitioner sought for the calling of the records in respect of the G.O.Ms. No. 45, dated 4.2.1991 and letter No. 7872/Sa (Aa.Mo.P)98, dated 12.3.98 of the respondent and to quash the same and to assign proper seniority to the applicant and forthwith promote him as an Assistant Secretary in Law (O.L.W) Department.
4. The petitioner was working as a Special Grade Translator in the Law Department at the Government Secretariat. She filed OA No. 2260 of 1998, seeking to challenge the order of the Government, dated 4.2.91 made in G.O.Ms. No. 45, Law Department.
5. By the said impugned order, the Government introduced amendments to adhoc rules for the post of Assistant Secretary, State Official Language (Legislative) Commission. In respect of earlier Rule 4, the following Rule 4 was substituted:
4. Qualification: No person shall be eligible for appointment to the post, by direct recruitment unless he is practising as an Advocate in any High Court or enrolled as an Advocate in any of the Bar Council of the Indian Union with not less than 3 years standing at the Bar and has not completed 32 years of age on the first day of July of the year in which selection for appointment is made.
(b) No person shall be eligible for appointment to the post by recruitment by transfer from among the holders of the post of Translators in the State Official language (Legislative) Commission unless he/she holds a degree in Bachelor in Law.
6. The petitioner, who is aspiring to get into the post of Assistant Secretary Law (Official language Commission) sent a representation dated 17.2.1998 to the Government. Subsequently, on 23.2.1998, she also addressed to the Hon'ble Minister for Law, asking to reconsider their decision in prescribing a decree in Bachelor of Law for persons who are holding the posts of Translators as a prerequisite. Since the petitioner did not have the degree in Bachelor of Law, she was informed that as she did not possess the educational qualifications required to hold the post of an Assistant Secretary and hence, her name cannot be considered. It is this order which is under challenge in the O.A.
7. On notice from the tribunal, the State Government had filed a reply affidavit, dated 29.5.1998. In the reply affidavit, it was stated that the petitioner was appointed as a Translator in the Official Language (Legislative) Commission on 17.8.1976 and at the time of her appointment, the qualification prescribed for the post of Translator was M.A. Degree in Tamil or Degree in Law. She got subsequently upgraded as a Special Grade Translator on 16.8.1996. Since the petitioner was in possession of a B.A.L. Degree (Annamalai University) and B.G.L. Degree (Madurai-Kamarajar University) and they were not considered equivalent to the Bachelor of Degree and hence she was not considered for the said post.
8. In paragraph 6 of the reply affidavit, it was further asserted, which is as follows:
6. ...it is submitted that the applicant is possessing B.A.L. Degree (Annamalai University) and B.G.L. Degree from Madurai University which are not equivalent to Bachelor of Law degree.
9. The petitioner placed reliance upon G.O.Ms. No. 1995, Public (Services-J) Department, dated 17.6.1974, wherein it was stated that B.G.L. Degree awarded by the Madras University can be taken while considering for appointment to the post which requires B.L. Degree but when the holders were not required to appear before Courts. In response to the said averment, the Government stated that the order of the Government was only an executive order, which will not prevail over the statutory rule prescribed by the Government for the said post.
10. In paragraph 8 of the reply affidavit, it was further asserted in the following lines:
8. ...It is submitted that the contention of the petitioner that the B.A.L. and B.G.L. Degree is equal to B.L. Degree is not correct....
11. The learned Counsel appearing for the petitioner stated that the impugned order was erroneous. It is not open to the respondent to prescribe such a qualification. However, it must be noted that it is open to the respondent State being an authority to frame rules under Article 309, to prescribe eligible qualifications for holding a particular post. It is not open to the petitioner to argue that the Government should recognize a particular degree in a particular fashion, so that she may get an higher post. The rules framed under Article 309 are legislative in character. Therefore, they can be challenged only under the touchstone of Articles 14 and 16 of the Constitution.
12. Learned Counsel for the petitioner further stated that it is not as if B.A.L. Degree granted by the Annamalai University and B.G.L. Degree granted by Madurai Kamarajar University were not taken into account as equivalent qualifications for a degree in Law. In this context, a reference was made to the Madras High Court Service Rules. The relevant service rule relating to the appointment to the service in categories 1 to 5 of Division I reads as follows:
6(b) No person shall be eligible for appointment to the service in categories 1 to 5 of Division I, unless he-
(1) is an Advocate or Attorney or is duly qualified for admission as an Advocate or Attorney of the High Court, or
(2) holds a Law Degree of any of the Universities in the Indian Union and a B.A., or B.Sc., or B.Com., or B.A. (Honours) or B.Sc.(Honours) or B.Com. (Honours) degree of a University in the Indian Union and has also passed the examination in Law of Practice and Procedure, Civil and Criminal or the Pleadership Examination in the first grade.
Provided that members of the service holding a law degree granted by a recognized Indian University but not recognized by Bar Council of India for admission as Advocate or Attorney of an Indian Court, may also be considered for appointment by promotion for the categories 3 to 5 of Division-I excluding the post of Deputy Registrar (Original Side, Appellate Side and Judicial) in category 3 and the post of Assistant Registrar (Original side-I and II) in category 5, if otherwise eligible and subject to seniority, but their strength in the cadre/sub cadre posts shall not increase more than twenty five percentage of the cadre/sub cadre posts:
Provided further that such members of the service holding a law degree granted by a recognized Indian University but not recognized by Bar Council of India for admission as an Advocate or Attorney of an Indian Court shall not be considered for appointment by promotion against more than twenty five percentage of the vacancy of the aforesaid cadre/sub cadre posts as may fall vacant in a calendar year.
Notwithstanding anything contained in the aforesaid provision, the Chief Justice may vary the percentage of vacancy or cadre/sub-cadre posts to be filled up by promotion from one or other category of eligible employees holding such law degree.
The above amendments shall come into force with effect from 1st March 2007.
13. It is a paradox to hold that there can be a law degree but which need not be recognized by the Bar Council of India. Further the High Court Staff Rules in the definition chapter under Rule 1(g) defines a law degree as follows:
(g) A- 'Law Degree' means a Law Degree granted by a recognised University in India and recognised by the Bar Council of India for admission as an Advocate or an Attorney of an Indian Court.
Having defined so, in the rules a diametrically opposite provision has been made. Further even the ration for promotion can be varied at discretion.
14. Therefore, learned Counsel stated that when the High Court Rules made by the Government in consultation with the High Court can recognize even the general degree in Law not recognized by the Bar Council of India at least from 1.3.2007, there is no reason why the State Government should not accept the said degree.
15. Therefore, the question arises for consideration is whether it is open to any authority including the State to prescribe educational qualifications, providing for Degrees which are not recognized by the appropriate statutory authorities created for the said purpose?
16. In view of the stand taken by the respondent, it is necessary to refer to the argument in detail and to see whether the B.A.L. Degree given by Annamalai University and B.G.L. Degree given by Madurai Kamarajar University or Madras University can be held to be equivalent to be a degree in Law.
17. Therefore, it is necessary to go into the history of establishment of a Degree in Law, which is found in the report of Professor Upendra Baxi and others of the Curriculum Development Centre in Law-Volume II by the University Grants Commission (UGC). The relevant portions found in pages 748 to 750 reads as follows:
Under the Advocates Act, 1961, it is the Bar Council of India which is empowered to promote legal education and to lay down the standards of such education for purposes of admission to the Bar. Accordingly, the Bar Council has stipulated the subjects to be studied in a three-year LL.B. course which would entitle a qualified person to obtain a license for the practice of law. These subjects include both compulsory and optional.
Rule 12(2) of the Bar Council of India Rules, framed under Section 7(h) and (i) of the Advocates Act, provides for the following 12 compulsory subjects:.
By virtue of amendments to the Bar Council of India Rules, Part IV, (vide circular No. 3/1985), dated 1st August, 1985 - Appendix I), to the above noted 12 compulsory subjects two more are added. One relates to Legal Language including Legal Writing (one Paper), and the other deals with the History of Courts, Legislature and Legal Profession in India (one Paper).
In addition to 14 (12+2) compulsory subjects, under Rule 12(3) of the Bar Council of India Rules there are to be not less than six more subjects which may be chosen from the list hereunder and from amongst such other law subjects locally relevant as may be prescribed by the Universities at their option:.. it appears that the respective Universities, or in the absence of any guidelines from the Universities the respective colleges, are intended to have absolute freedom to provide content and context to the assigned subjects.
18. The Advocates Act, 1961 received the assent of the President on 19 May, 1961. It is for the first time under the Advocates Act, 1961 the responsibility of restructuring the professional legal education on a sound footing has been indicated as a mandatory duty. Under the Advocates Act, Section 7(h) ordains as one of the functions of Bar Council of India to promote legal education, to lay down standards of such education in consultation with the universities of India imparting such education and the State Bar Councils. It has been laid down under Section 24(1)(c) that a person to be qualified for admission as an advocate, should fulfil the conditions of obtaining a degree in law after undergoing a course of study in law, the duration of which is not less than two academic years. Again under Section 49 the Bar Council of India has been charged with power to make rules relating to the standards of legal education to be observed by universities in India and the inspection of universities for that purpose.
19. In exercise of the powers conferred under Section 7(h) and (i), Section 21(1)(c) and (iii) and (iii-a) and Section 49(1)(d) of the Act, the Bar Council of India has framed the rules prescribing the standards of legal education. Originally it was specified that a degree in law obtained from any university after 12 March, 1967 shall not be recognised for the purpose of admission as advocate on state rolls unless certain conditions are fulfilled. In that the law degree obtained after undergoing a course of study in law for a minimum period of three years as provided in the said rules and that the said course of study in law has been by regular attendance as the requisite number of lectures, tutorial and moot courts in a college recognized by a university have been prescribed. Thereafter the said rules have been amended adding a further clause that the law degree should be obtained without undergoing any other course of instruction simultaneously during the period of three years of study in law. And there is no amendments regarding the course of instruction.
20. It must be noted that the Advocates Act, 1961 and the rules framed, namely Bar Council of India rules there under, undoubtedly cover the field of legal education. Therefore, it can never be contended that the Annamalai University or Madurai-Kamarajar University or the Madras University having been recognized by the UGC and therefore, the degrees of Law given by them also should be accepted, cannot be countenanced by the court.
21. On the contrary, Entry 66 List I under the VII schedule provides for coordination and determination of standards in higher education and Entry 25 of list III deals with broader subject, namely Education. On a conjoint reading of both entries, there cannot be any doubt that whatsoever that although the State has a wide legislative field to cover the same is subject to Entries 63, 64, 65 and 66 of list I. Once it is found that any State legislative does not entrench upon the legislative field set apart by Entry 66, List I of the VII schedule, the State Act cannot be invalidated.
22. Since under the Advocates Act, 1961, it has powers to regulate legal education is referable to Entry 66 of list I of VII Schedule of the Constitution and it will certainly prevail over the State Universities Acts, namely Annamalai University Act, Madras University Act and Madurai Kamarajar University Act. It can never be contended that they operate on different areas.
23. When a question as to whether the degree granted under the Open University system can apply was considered by the Supreme Court in Annamalai University represented by Registrar v. Secretary to Government, Information and Tourism Department and Ors. reported in : 2009 (4) SCC 590. After reviewing all the previous case laws, the Supreme Court held in paragraphs 50 and 51 which is as follows:
50. The UGC Act, thus, having been enacted by Parliament in terms of Entry 66 of List I of the Seventh Schedule to the Constitution of India would prevail over the Open University Act.
51. With respect, it is difficult to accept the submissions of the learned Solicitor General that the two Acts operate in different fields, namely, conventional university and open university. The UGC Act, indisputably, governs open universities also. In fact, it has been accepted by IGNOU itself. It has also been accepted by the appellant University.
24. Though it was contended that the Government can frame special rules under Article 309 of the Constitution and therefore, it has got autonomy to prescribe even educational qualification of its choice, the said argument was rejected by the Supreme Court vide its decision in Dr. Preeti Srivastava and Anr. v. State of M.P. and Ors. reported in : 1999 (7) SCC 120. It is therefore relevant to extract the following passages found in paragraphs 36 and 52 of the said judgment, which is as follows:
36. It would not be correct to say that the norms for admission have no connection with the standard of education, or that the rules for admission are covered only by Entry 25 of List III. Norms of admission can have a direct impact on the standards of education. Of course, there can be rules for admission which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List I. For example, a State may, for admission to the postgraduate medical courses, lay down qualifications in addition to those prescribed under Entry 66 of List I. This would be consistent with promoting higher standards for admission to the higher educational courses. But any lowering of the norms laid down can and does have an adverse effect on the standards of education in the institutes of higher education. Standards of education in an institution or college depend on various factors. Some of these are:
(1) the calibre of the teaching staff;
(2) a proper syllabus designed to achieve a high level of education in the given span of time;
(3) the student-teacher ratio;
(4) the ratio between the students and the hospital beds available to each student;
(5) the calibre of the students admitted to the institution;
(6) equipment and laboratory facilities, or hospital facilities for training in the case of medical colleges;
(7) adequate accommodation for the college and the attached hospital; and
(8) the standard of examinations held including the manner in which the papers are set and examined and the clinical performance is judged..
52. Mr. Salve, learned Counsel appearing for the Medical Council of India has, therefore, rightly submitted that under the Indian Medical Council Act of 1956 the Indian Medical Council is empowered to prescribe, inter alia, standards of postgraduate medical education. In the exercise of its powers under Section 20 read with Section 33 the Indian Medical Council has framed regulations which govern postgraduate medical education. These regulations, therefore, are binding and the States cannot, in the exercise of power under Entry 25 of List III, make rules and regulations which are in conflict with or adversely impinge upon the regulations framed by the Medical Council of India for postgraduate medical education. Since the standards laid down are in the exercise of the power conferred under Entry 66 of List I, the exercise of that power is exclusively within the domain of the Union Government. The power of the States under Entry 25 of List III is subject to Entry 66 of List I.
25. It is not clear as to how even the Government made rules recognizing Law degrees, which are not recognized by the Bar Council of India. The binding decision of the Division Bench of this Court in Meenakshi Sundaram, President, National Union of Journalist, Madras v. The Director of Legal Studies, Madras Law College, Madras and Ors. reported in 1981 (2) MLJ 141 might not have been noticed by the rule making authorities, where an identical question came to be considered by this Court. Therefore, it is necessary to refer to the following passages found in paragraphs 10 and 13 from the said judgment, which are as follows:
10. Regarding the first contention that the rules framed by the Bar Council of India are outside the scope of its powers under the statute itself, we have already extracted the provisions of Sections 7(1)(h) and (t), 10(2), 24(1)(c)(iii) and (iii-a) and 49(1)(d) of the Act. The argument of the appellant is that Section 7(1) merely states that the functions of the Bar Council of India shall be to promote legal education and to lay down standards of such education, and that laying down of standards for such education will not include the power to prescribe that the course undergone should be regular and not by correspondence or prescribe a minimum percentage of attendance at the classes. According to the appellant, the expression 'standards of such education' occurring in Section 7(1)(h) will only refer to the excellence of the standard aimed at, and it will not take in any other matter, such as, whether the course should be a regular one or may be by correspondence, or how much attendance a candidate should have put in. The appellant also contended that Section 24(1)(a)(iii) merely referred to a three year course of study in law and that it did not refer to a three year regular course of study, attending classes in a college, and that therefore in making the rules in question the Bar Council of India went beyond its powers conferred by the relevant statutory provisions. We are unable to accept this argument. The expression 'to lay down standards of such education' occurring in Section 7(1)(h) is capable of taking in every ingredient which will go to constitute the end or ultimate level of education that is expected of a candidate who applies for enrolment as an advocate under the Act. As a matter of fact, the appellant relied upon the meaning of the word 'standards' given in the Shorter Oxford English Dictionary and Chamber's Twentieth Century Dictionary. We have gone through those meanings, and we are not satisfied that there is anything therein which will have the effect of narrowing down the scope of the expression 'standards' occurring in Section 7(1)(h), as contended by the appellant. The Shorter Oxford English Dictionary, relied on by the appellant, gives the meaning of the word 'standard' as follows-
A definite level of excellence, attainment, wealth or the like, or a definite degree of any quality viewed as a prescribed object of endeavour or as the measure of what is adequate for some purpose.From this meaning we are unable to hold that the prescription that the course, namely, attending lectures in a college, or that a candidate must have put in a particular percentage of attendance before obtaining a degree, can be said to fall outside the scope of the expression 'standard'. As a matter of fact, Section 7(1)(i) refers to the qualification for enrolment as an advocate, and the meaning of the word 'qualification' given in the same dictionary is as follows-
A necessary condition, which must be fulfilled before a certain right can be acquired, an office held, or the like.Consequently the necessary condition contemplated will take in attendance at regular classes in a college or school and also a particular percentage of attendance. Therefore, we are unable to agree with the appellant that the expression 'standards of such education' occurring in Section 7(1)(h) of the Act in any way whittles down or narrows down the scope of the functions of the Bar Council of India, so as to take away from such functions the right to lay down a prescription, that the course, in the sense that the students are required to attend regular classes and to put in certain percentage of attendance..
13. ...We are clearly of the opinion that the degree obtained after pursuing the correspondence course cannot be equated, in all circumstances, and in all respects with a degree obtained after attending regular classes.....
Having regard to this factual position as stated by the University of Madras, it is not possible to hold that there is no difference between the B.G.L. degree of Madurai Kamaraj University obtained after pursuing the correspondence course and the degree obtained after attending regular classes. If so, there is absolutely no scope for the invocation of Article 14 of the Constitution at all, because, from the very nature of the case, the two degrees are not identical or equal, and therefore, it is not open to the appellant to contend that these unequal degrees must be treated as equals.
26. Though in this case, this Court was not called upon to consider the validity of the rules of the Madras High Court Service, yet some reliance was placed upon those rules and hence it became relevant to refer to the legal provisions, which have a bearing on this issue. It is for the rule making authorities to ponder over the validity of prescribing such rules.
27. However, in the present case, there is no doubt that the stand taken by the respondent is consistent with the provisions of the Advocates Act, 1961 and the UGC Act and therefore, no one can find fault with it. Further, this Court has no hesitation to uphold the contentions put forth by the respondent State. Hence this writ petition stands dismissed. However, there will be no order as to costs.