5TH ANNUAL RATIONIBUS JURE NATIONAL MOOT COURT COMPETITION,

25TH ANNUAL RATIONIBUS JURE NATIONAL MOOT COURT COMPETITION,

CLINICAL COURSE – IV (INTERNAL) MOOT COURT EXERCISE AND INTERNSHIP
2020K;N;N;
5TH ANNUAL RATIONIBUS JURE NATIONAL MOOT COURT COMPETITION, 2020

5TH ANNUAL RATIONIBUS JURE NATIONAL MOOT COURT COMPETITION, 2020

BEFORE

THE HON’BLE SUPREME COURT OF INDIA

Original Writ Jurisdiction

WRIT PETITION____/2023

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

IN THE MATTER OF

THE MAHAPRADESH LAW COLLEGES MANAGEMENT ASSOCIATION PETITIONER

THE BAR COUNCIL OF MAHISHMATI RESPONDENT

THE STATE OF MAHAPRADESH

UPON SUBMISSION TO THE HON’BLE JUDGES OF THE SUPREME COURT OF INDIA

TABLE OF CONTENTS

TABLE OF CONTENTS
MEMORANDUM ON BEHALF OF PETITIONER
TABLE OF CONTENTS

TABLE OF CONTENTS……………………………………………………………………...1

TABLE OF ABBRIVATIONS………………………………………………………………..2

INDEX OF AUTHORITIES…………………………………………………………………..3

STATEMENT OF JURISDICTION…………………………………………………………..5

SUMMARY OF FACTS………………………………………………………………………6

ISSUES RAISED……………………………………………………………………………...9

SUMMARY OF ARGUMENTS…………………………………………………………….10

ARGUMENTS ADVANCED………………………………………………………………..12

PRAYER……………………………………………………………………………………..23

-Memorandum on Behalf of the Petitioner- 1

TABLE OF ABBREVATIONS

AIR ALL INDIA REPORTER

MCET MAHAPRADESH COMMON ENTERENCE TEST

CLAT COMMON LAW ADMISSION TEST

BCM THE BAR COUNCIL OF MAHISHMATI

SC SUPREME COURT

DLU DELHI LAW UNVIRESITY

SSC SECONDARY SCHOOL CERTIFICATE

LL. B. LEGUM BACCALAUREUS

SOP STANDARD OPORATIVE PROCEDURE

HC HIGH COURT

NET NATIONAL ELIGIBILITY TEST

GO GOVERNMENT ORDER

MH THE COURT OF ARBITRATION FOR SPORT

Art, ARTICLE

u/a UNDER ARTICLE

-Memorandum on behalf of Petitioner- 2

CASES CITED:

• Rashtrasant Tukdoji Maharaj Nagpur University V. Bar Council of India.

• K. Sakthi Rani V. Secretary, Bar Council of Tamil Nadu, Chennai (Madras)

[2010(4) MLJ 849]

• Chairman, Railway Board & Others V. C.R. Rangadhamaiah & Others [(1997) 6
SCC 623]

• State of Maharashtra V. Dr.Praful Desai [2003(2) Mh.L.J. 868]

• E.K. Chako V. The Provident Investment Company [AIR 1976 SC 2610]

• Inamdar Vahab Badsha & Others V. Symbiosis Society’s Law College, Pune
[1985 Mh.L.J. 438]

• Bar Council of India V. Aparna Basu Mallick [AIR 1994 SC 1334]

• V. Sudeer v. Bar Council of India (1999) 3 SCC 176

• Ravindra K. Rai Vs. State of Maharashtra, (1998) 3 SCC 183

• Christian Medical College Vellore Association Vs. Union of India & Ors., (2020)
8 SCC 705

• State of Bihar & Ors. Vs. Bihar State Plus -2 Lecturers Association and Ors.,
(2008) 7 SCC 231

• Aneesh Haridas Vs. University of Kerala, Trivandrum & Ors., 2007 SCC Online
Ker.22

-Memorandum on behalf of Petitioner- 3

 • Rakesh Kumar Agarwalla & Anr. vs. National Law School of India University,
Bengaluru & Ors. (2021) 1 SCC 539.

• Anubha Shrivastava Sahai & Ors. vs. Union of India.

• Union of India & Ors. vs. M.Selvakumar & Anr., (2017) 3 SCC 504

• Viraj Maniar vs. State of Maharashtra & Ors., in Writ Petition No.1086 of 2009.

• State of Bihar & Ors. Vs. Bihar State Plus - 2 Lecturers Association and Ors.

• Association of Medical Superspeciality Aspirant and Residents and Ors.

WEBSITES:

• http://www.findlaw.com

• http://www.casemine.org

• https://thelawdictionary.org

• http://www.swarajyamag.com

• http://www.indiankanoon.com

• http://www.judis.nic.in

• http://www.manupatra.co.in

• https://www.legalindia.com

-Memorandum on behalf of Petitioner- 4

 • https://www.lexisnexis.com

• http://www.legalservicesindia.com

• https://www.lexology.com/

STATUES AND INTERNATIONAL INSTITUTIONS:

• CONSTITUTION OF INDIA

• CONSTITUTION OF INDIA

• THE ADVOCATES ACT, 1961

• RULES OF LEGAL EDUCATION, 2009

• MAHAPRADESH UNIVERSITIES ACT, 1994

• MAHAPRADESH PUBLIC UNIVERSITIES ACT, 2016

-Memorandum on behalf of Petitioner- 5

STATEMENT OF JURISDICTION

The Mahapradesh Law Colleges managements Association has filled a Writ Petition before
the judicature of Supreme Court against the circular directing all Law Colleges to obtain
necessary approval from the BCM by remitting the prescribed inspection fee and to refund
the inspection fee collected by the BCM and also to declare that ‘no approval is needed’
which violates the Art. 14 of the Constitution of India. Thus herein submitting Petitioner side
memorial to the same that it is un-constitutional through writ petition filed under Art. 32 of
the Constitution of India.

-Memorandum on behalf of Petitioner- 6

STATEMENT OF FACTS:

Prologue:

Mahapradesh is one of the States of the Union of Mahishmati, governed by Constitution

similar to that of The Constitution of India.

The State government decided to conduct CET for admission in to Law courses from the
academic year 2016-17 onwards through Government Resolution No. 111 dated 01-01-
2016 and informed all law colleges/Universities, which are offering law courses stating that
the admission process for 1st year of 3 and 5 year LL.B Courses will be done through the
CET known as ‘Mahapradesh Common Entrance Test-Law’.

The State Govt. also informed that the law colleges/Universities which are having
Government Permission, University Affiliation and the Approval of The Bar Council of
Mahishmati (hereinafter referred as BCM) are only be allotted candidates.

The government directed through its circular directed all law colleges to obtain the
necessary approvals from the respondent No.1, i.e., the BCM by remitting the prescribed
inspection fee within the specified time.

Grievances on the case:

Being aggrieved by these conditions, The Mahapradesh Law Colleges Managements

Association filed a Writ Petition in the Hon’ble Supreme Court against BCM and the State
of Mahapradesh and sought the relief of allotment of candidates to all Law Colleges which
were duly permitted by the Government and Universities and further prayed to direct the
BCM, and the State Government to refund the inspection fee collected by the BCM with
interest and to declare that ‘no approval is needed’ from the BCM.

-Memorandum on behalf of Petitioner- 7

Contentions of Petitioner:

The petitioner association contended that its Law Colleges cannot be compelled to get
approval of BCM as there is no such statutory compulsion either under Mahishmati
University Grants Commission Act, The Advocates Act, 1961 or Mahapradesh Universities
Act, 1994 subsequently replaced with Mahapradesh Public Universities Act, 2016.

Further the BCM is not entitled to fix and collect the inspection fee without consulting the
stakeholders. The petitioner’s association expressed its serious concerns about the
competency, integrity and honesty of Inspection Teams of BCM. Further it has contended
that the statutory duties/functions of the BCM are to regulate the legal profession only.

Statement by Respondent-1:

The respondent BCM has stated that it has derived the authority from The Advocates Act,
1961 and the Rules framed there under from time to time to regulate and maintain the
standards of legal education. The respondent BCM further submitted that the students who
are admitted and passed out from such colleges without approval from BCM will not be
eligible or permitted to enroll as Advocates. It further stated that the petitioner and the State
Government will have to face severe consequences for such unlawful admissions.

Statement by Respondent-2:

The second respondent State Government categorically submitted its say stating that the
respondent no.1 has no role to play except to confine to its functions as per Sec.7 (1) (h) (i)
of The Advocates Act,1961. Further it has stated that during the pendency of the present
Writ it has withdrawn the circular compelling the Law Colleges to obtain approval from the
BCM.

-Memorandum on behalf of Petitioner- 8

ISSUES RAISED

ISSUE-1:

Whether the Rules of Legal Education, 2009 framed by the BCM be declared null and void
to the extent that they are in contradiction with the provisions of The Advocates Act, 1961.

ISSUE-2:

Whether the BCM’s denial of enrolment of any candidate as an Advocate, who passed out
from any Law College without its approval of affiliation is constitutionally valid?

ISSUE-3:

Whether the BCM and Government of Mahapradesh are liable to refund the inspection fee
collected with interest?

-Memorandum on behalf of Petitioner- 9

SUMMARY OF ARGUMENTS

ISSUE-1:

Whether the Rules of Legal Education, 2009 framed by the BCM be declared null and
void to the extent that they are in contradiction with the provisions of The Advocates
Act, 1961.

Yes, The Rules of Legal Education, 2009 framed by the BCM is un-constitutional and
nowhere is related to the provisions of the Advocates Act,1961. Law Colleges cannot be
compelled to get approval of BCM as there is no such statutory compulsion either under
Mahishmati University Grants Commission Act, The Advocates Act, 1961 or Mahapradesh
Universities Act, 1994.

The Sec 7 (1) (h)&(i) provision of Advocates Act, 1961, is simply to promote legal education
and to lay down standards of such education in consultation with the Universities in India
imparting such education and the State Bar Councils and to recognise Universities whose
degree in law shall be a qualification for enrolment as an advocate and for that purpose to
visit and inspect Universities. Thus it is not to collect an inspection fee or to make any
condition on law colleges to mandate an affiliation approval to be obtain from council.+

ISSUE-2:

Whether the BCM’s denial of enrolment of any candidate as an Advocate, who passed
out from any Law College without its approval of affiliation is constitutionally valid?

No, The BCM’s denial of enrolment of any candidate as an Advocate, who passed out from
any Law College without its approval of affiliation is not constitutionally valid as the
respondent no.1 has not treated two equals or similarly situated unequally. The denial of
enrolment of student who had completed his law degree in non-approval obtained college
will effect the future carrier of students and in the opinion of student who had followed all the
rules and regulations framed by the UGC and the Advocates Act shall be allowed to enter
name in enrolment.

-Memorandum on behalf of Petitioner- 10

Also the BCM conducts the examinations to law degree holder and when they pass shall be
permanently allowed to enrolment. So, the condition upon law colleges in short span of time
to fulfil the new requirements is not valid and imposing such regulation which is not
permitted in any provision of act governing colleges shall be declared void-ab-initio.

ISSUE-3:

Whether the BCM and Government of Mahapradesh are liable to refund the
inspection fee collected with interest?

Yes, the BCM and Government of Mahapradesh are liable to refund the inspection fee
collected from colleges with interest as the Colleges are not liable to be forced to pay
inspection fee as it’s the duty specified in Advocates Act that BCM can inspect but it cannot
as for fee for doing such inspection and the same is nowhere mentioned in the Act.

And the BCM has no powers granted under the Advocates Act, 1961 for collecting any kind
of fees from the University or Law Colleges. Therefore, there is a straight use of excess
jurisdiction of powers made by BCM on matters related to collection of amount for
performing their duties.

The using of excess jurisdiction is unconstitutional and its only powers is to promote legal
education and to lay down standards of such education in consultation with the Universities
in India, and to recognise Universities whose degree in law shall be a qualification for
enrolment as an advocate and for that purpose to visit and inspect Universities. Hence to
collection of the fees can only be made by the regulating authority such as UGC under whom
supervision the colleges function and not the BCM whose work is to just promote legal
education and to recognize the qualified university to stop the malicious practice.

-Memorandum on behalf of Petitioner- 11

ARGUMENTS ADVANCED

ISSUE-1:
Whether the Rules of Legal Education, 2009 framed by the BCM be declared null and void
to the extent that they are in contradiction with the provisions of The Advocates Act, 1961?

1. It is humbly submitted that the Rules framed by Bar Council of Mahapradesh as Rules
of Legal Education, 2009 is contradicting with the provision of The Advocates
Act, 1961. And the same shall be declared null and void to the extent it is
contradicting the provision.

2. Also submitted that the Act of 1961 did not confer any power whatsoever to the Bar
Council of India to frame rules that would have retrospective effect. The rules as
framed could be given prospective effect only. By including the approval that was
granted earlier by the Bar Council of India to the Law College in the term “regular
approval”, a vested right that had accrued in favour of the Law College by virtue
of such grant could not be taken away. So, the students earlier who studied shall
not be made to deny the enrolment who have passed without affiliation approval
and necessary time period must be given in order to proceed with new regulation.

3. It is humbly submitted that The status of the Centres of Legal Education established
before the Rules of 2008 came into force and permanently approved could not be
altered. Placing reliance on the decision in K. Sakthi Rani Versus Secretary,
Bar Council of Tamil Nadu, Chennai (Madras)1 it was submitted that the
Madras High Court had considered the applicability of the Rules of 2008 with
regard to those students who had completed law course when the Rules of 2008
came into force. It was held therein that the Rules of 2008 being in the nature of
subordinate legislation were required to be construed as prospective in nature and
unless the Act of 1961 gave such power, no retrospective effect could be given. It
was held that explanation to Rule 5 of the Rules of 2008 would have prospective
application.

1
[2010(4) MLJ 849]

-Memorandum on behalf of Petitioner- 12

 4. In further its submitted that students not to be made compelled to appear or the
Common Entrance Test for Law Courses of prescribing a syllabus to study in
short period. And deciding the entrance of students on that basis is real bias
among the students and it’s a upfront discrimination imposed to students to
prepare for a new exam without granting ample time to do so.

5. And further prescribing that the students appearing in CET examination would be
given priority in admission. In support of this submission, the learned Counsel
placed reliance on the judgment of the Hon’ble Supreme Court in case of Harsh
Pratap Sisodia Vs. Union of India & Ors.2

6. It is submitted that Learned Counsel for the petitioner placed reliance on the judgment
of a Ravindra K. Rai Vs. State of Maharashtra3, and in particular paragraph 6
and would submit that the respondent no.1 cannot be allowed to urge that the
number of students having passed XII th examination from the other Boards being
small in number cannot be allowed to oppose CET examination or cannot have
any say in the decision of the respondent no.1 in directing to hold CET
examination for granting admission to the Law Colleges in the State of
Mahishmati.

7. Moreover, we submit that the status of the Centres of Legal Education established
before the Rules of 2009 came into force and permanently approved could not be
altered. Placing reliance on the decision in K. Sakthi Rani Versus Secretary,
Bar Council of Tamil Nadu, Chennai (Madras)4 it was submitted that the
Madras High Court had considered the applicability of the Rules of 2009 with
regard to those students who had completed law course when the Rules of 2009
came into force. It was held therein that the Rules of 2009 being in the nature of
subordinate legislation were required to be construed as prospective in nature and
unless the Act of 1961 gave such power, no retrospective effect could be given.

2
(1999) Supreme Court Cases 575
3
(1998) 3 SCC 183
4
[2010(4) MLJ 849]

-Memorandum on behalf of Petitioner- 13

 8. Moreover, It was held that explanation to Rule 5 of the Rules of 2009 would have
prospective application. While urging that grant of permanent approval to the Law
College was in the nature of a “vested right” and that the same could not have
retrospective operation.

9. As the Rules of Legal Education laid down by the BCM wherein 1st provision stating
Title and Commencement, the (c) subrule states that “These Rules shall replace all
previous Rules, Directives, notifications and resolutions relating to matters
covered under these rules”. And the same is contented that the rules made therein
should be in applicable prospective nature and not in retrospective to remove all
the grants provided under previous rules and provisions of Act. Thus, It will be
rightful to allow the candidates who have passed when prior rules are applicable
and the same shall be subjected to be allowed to enroll their names in BCM.

10. Further it is submitted that The State government decided to conduct CET for
admission in to Law courses from the academic year 2016-17 onwards through
Government Resolution No. 111 dated 01-01-2016 and informed all law
colleges/Universities, which are offering law courses stating that the admission
process for 1st year of 3 and 5 year LL.B Courses will be done through the CET
known as ‘Mahapradesh Common Entrance Test-Law’. The State Govt. also
informed that the law colleges/Universities which are having Government
Permission, University Affiliation and the Approval of The Bar Council of
Mahishmati are only be allotted candidates. Where no time period is given to
students to adapt new method and were compelled to test immediately from the
upcoming academic year after passing resolution.

11. It is finally submitted that Respondent 1 also insisted all law colleges to obtain the
necessary approvals from the respondent No.1, i.e., the BCM by remitting the
prescribed inspection fee within the specified time, and for the same Law
Colleges cannot be compelled to get approval of BCM as there is no such
statutory compulsion either under Mahishmati University Grants Commission
Act, The Advocates Act, 1961 or Mahapradesh Universities Act, 1994
subsequently replaced with Mahapradesh Public Universities Act, 2016.

-Memorandum on behalf of Petitioner- 14

ISSUE-2:
Whether the BCM’s denial of enrolment of any candidate as an Advocate, who passed out
from any Law College without its approval of affiliation is constitutionally valid?

I. It is humbly submitted that The BCM’s denial of enrolment of any candidate as an

Advocate, who passed out from any Law College without its approval of affiliation
is not constitutionally valid as the respondent no.1 has not treated two equals or
similarly situated unequally. The denial of enrolment of student who had completed
his law degree in non-approval obtained college will effect the future carrier of
students and in the opinion of student who had followed all the rules and regulations
framed by the UGC and the Advocates Act shall be allowed to enter name in
enrolment.

II. Also the BCM conducts the examinations to law degree holder and when they pass
shall be permanently allowed to enrolment. So, the condition upon law colleges in
short span of time to fulfil the new requirements is not valid and imposing such
regulation which is not permitted in any provision of act governing colleges shall be
declared void-ab-initio.

III. The denial of enrolment of any candidate as an Advocate is unconstitutional as it is

violation of the Art 14. As the State shall not deny to any person equality before the
law or the equal protection of the laws within the territory of India. Thus, the colleges
even after obtaining degree from law college and the Respondent 2 being submitted
its say stating that the respondent no.1 has no role to play except to confine to its
functions as per Sec.7 (1) (h) (i) of The Advocates Act,1961, the BCM no other
authority or powers granted to deny the enrolment of candidates who passed from any
law college without its approval of affiliation.

IV. The counsel of petitioner contends with reference to Rashtrasant Tukdoji Maharaj
Nagpur University V. Bar Council of India5 it was held in para 6 that assuming the
Rules of 2008 which came into force from the academic session 2009-10 to be valid,
the same would apply to the Law College on the expiry of a period of five years as
prescribed.

5
WRIT PETITION No. 1114/2018

-Memorandum on behalf of Petitioner- 15

 V. The application of said Rules vis-a-vis the Law College would be from the academic
session 2014-15 and not the academic year 2009- 10. The Bar Council of India
therefore was not justified in seeking to apply the Rules of 2008 to the Law College
from the academic session 2009-10.

VI. It is also submitted that the that there is no power with the Bar Council of India to
frame the impugned rules. It was also submitted that Section 7 of the Act lays down
the statutory functions of the Bar Council of India. The provisions thereof do not
entitle the Bar Council of India to frame such impugned rules prescribing a pre-
condition before enrolment of an applicant as an `advocate' under the Act It was also
submitted that Section 24 sub-section (3) (d) of the Act also was not available to the
Bar Council of India to frame such Rules.

VII. It was submitted that rule making power of the Bar Council of India as laid down by
Section 49 could not be pressed in service by it in support of the impugned rules. In
addition, the impugned rules were contended to be obnoxious, arbitrary, unreasonable
and unworkable, so much so that they violate the fundamental right to equality under
article 14 of the Constitution of India.

VIII. It was also added that the retrospective nature of the impugned rules was untenable.
Therefore, the petitioner side contend that the impugned rules are ultra vires the
powers of the Bar Council of India and that they are unconstitutional and should be
struck down.

IX. The Rules of Legal Education, 2009 states that, “No Centres of Legal Education shall
admit any student and impart instruction in a course of study in law for enrolment as
an advocate unless the recognition of the degree of the University or the affiliation of
the Centres of Legal Education, as the case may be, has been approved by the Bar
Council of India after inspection of the University or Centres of Legal Education
institution concerned as the case may be. And an existing Centre of Legal Education
shall not be competent to impart instruction in a course of study in law for enrolment
as an advocate if the continuance of its affiliation is disapproved or revoked by the
Bar Council.” Thus, its not as per the provision of the Advocates Act,1961.

-Memorandum on behalf of Petitioner- 16

 X. The functions of a State Bar Council shall be to admit persons as advocates on its roll;
to prepare and maintain such roll; to entertain and determine cases of misconduct
against advocates on its roll; to safeguard the rights, privileges and interests of
advocates on its roll; to promote the growth of Bar Associations for the purposes of
effective implementation of the welfare schemes referred to in clause (a) of sub-
section (2) of this section and clause (a) of sub-section (2) of section 7;

XI. And to promote and support law reform; to conduct seminars and organise talks on
legal topics by eminent jurists and publish journals and papers of legal interest; to
organise legal aid to the poor in the prescribed manner; to manage and invest the
funds of the Bar Council; to provide for the election of its members;to visit and
inspect Universities in accordance with the directions given under clause (i) of sub-
section (1) of section 7; to perform all other functions conferred on it by or under this
Act; to do all other things necessary for discharging the aforesaid functions.

XII. A State Bar Council may constitute one or more funds in the prescribed manner for
the purpose of giving financial assistance to organise welfare schemes for the
indigent, disabled or other advocates; giving legal aid or advice in accordance with
the rules made in this behalf; establishing law libraries. A State Bar Council may
receive any grants, donations, gifts or benefactions for all or any of the purposes
specified in sub-section (2) which shall be credited to the appropriate fund or funds
constituted under that sub-section.

XIII. The functions of the Bar Council of India shall be to lay down standards of
professional conduct and etiquette for advocates; to lay down the procedure to be
followed by its disciplinary committee and the disciplinary committee of each State
Bar Council; to safeguard the rights, privileges and interests of advocates; to promote
and support law reform; to deal with and dispose of any matter arising under this Act,
which may be referred to it by a State Bar Council; to exercise general supervision
and control over State Bar Councils; to promote legal education and to lay down
standards of such education in consultation with the Universities in India imparting
such education and the State Bar Councils;

-Memorandum on behalf of Petitioner- 17

 XIV. And to recognise Universities whose degree in law shall be a qualification for
enrolment as an advocate and for that purpose to visit and inspect Universities or
cause the State Bar Councils to visit and inspect Universities in accordance with such
directions as it may give in this behalf; to conduct seminars and organise talks on
legal topics by eminent jurists and publish journals and papers of legal interest; to
organise legal aid to the poor in the prescribed manner; to recognise on a reciprocal
basis foreign qualifications in law obtained outside India for the purpose of admission
as an advocate under this Act; to manage and invest the funds of the Bar Council; to
provide for the election of its members; to perform all other functions conferred on it
by or under this Act; to do all other things necessary for discharging the aforesaid
functions.

XV. The Bar Council of India may constitute one or more funds in the prescribed manner
for the purpose of giving financial assistance to organise welfare schemes for
indigent, disabled or other advocates; giving legal aid or advice in accordance with
the rules made in this behalf; establishing law libraries.

XVI. The Bar Council of India may receive any grants, donations, gifts or benefactions for
all or any of the purposes specified in sub-section (2) which shall be credited to the
appropriate fund or funds constituted under that sub-section.

XVII. Learned counsel for the petitioner place reliance on the judgment of the Hon’ble
Supreme Court in case of Rakesh Kumar Agarwalla & Anr. vs. National Law
School of India University, Bengaluru & Ors.6 and would submit that since the said
Government Resolution dated 01/01/2016 lacks transparency, it is against the concept
of fair approach and is in violation of the rights of the students under Article 14 of the
Constitution of India.

XVIII. Learned counsel for the petitioner submits that to the order passed by the Hon’ble
Supreme Court dated 25th June, 2021 filed by Anubha Shrivastava Sahai & Ors.
vs. Union of India7

6
(2021) 1 SCC 539
7
Writ Petition (C) No.620 of 2021

-Memorandum on behalf of Petitioner- 18

XIX. It is submitted that in said judgement after recording the statement made by the State
of Andhra Pradesh that after re-examining the situation, the State Government had
been now well advised to cancel the XIIth standard examination to be conducted by
the concerned State Board. And submits that the respondent no.1 as same here to be
advised to cancel the CET examination on the similar ground.

XX. It is humbly submitted reliance on the judgment of Supreme Court in case of State of
Bihar & Ors. Vs. Bihar State Lecturers Association and Ors8 and would submit
that the said judgment relied upon by the petitioner itself would indicate that the State
Government is prohibited from denying persons or class of persons equal treatment,
provided they are equal and are similarly situated. In this case the students who are
eligible to obtain the enrolment are been denied or the reasons where the grounds of
such denial are unjust.

XXI. It is humbly submitted upon the judgment of Hon’ble Supreme Court in case of
Ashwani Kumar Singh v/s. U. P. Public Service Commission and Ors 9., and in
particular paragraph 9 and judgment of Supreme Court in case of Union of India and
Ors. v/s. Dhanwanti Devi and Ors10., in support of the submission that Court should
not place reliance on the decision without discussing as to how the factual situation
fits in with the fact situation of the decision on which reliance is placed. It is only the
principle laid down in the judgment that is binding law under Article 141 of the
Constitution of India.

XXII. And hence submitted that the judgement of case Rashtrasant Tukdoji Maharaj
Nagpur University V. Bar Council of India11 is made on the various other grounds
and the facts of that case differs with that of the case herein and therefore applying the
principle as mentioned in above para, the decision on this case be taken without
considering the facts. Hence submit applying this principle of the Hon’ble Supreme
Court, none of the judgments relied upon by the intervenor can be a binding precedent
on this Court.

8
on 15 May, 2007 Appeal (civil) 2519 of 2007.
9
(2003) 11 SCC 584.
10
(1996) 6 SCC 44.

11
WRIT PETITION No. 1114/2018.

-Memorandum on behalf of Petitioner- 19

XXIII. From the perspective of the legal profession, the term ‘right to practise’ refers to an
exclusive right granted to advocates to represent clients in court and before tribunals.
There are two levels of protection for the right to practise, and they are as follows:

• Protection in General: Article 19(1)(g) of the Indian Constitution safeguards

each person’s right to engage in whatever practice they choose.

• Specific Protection: According to Section 30 of the Advocates Act, 1961, a

person registered with a State Bar Council is entitled to practice law before
any court or body in India, including the Supreme Court.

XXIV. According to Rule 11 of Chapter 2 of Part VI of the Rules of the Bar Council of India,
an advocate is entitled to get payment when he provides or renders services to a client.
According to his position at the bar, he can exercise this right. Thus, it is concluded
by submitting that the denial of advocate enrolment even after passing in law degree
courses and passing bar examination will be the clear discrimination on the students.
And the same is violation of Article 19(1)(g) and Article 14 of Indian Constitution,
i.e, the violation of right to carry out or engage in practice and trade & right to life. As
the case is engaged here the Rules of the Bar Council of India it is violative to the
above-mentioned Article.

XXV. The candidates who have passed but same has been excluded to enrolment clearly
discriminates of enrolment to students of certain institutions with other. But it clearly
delivered through statements that details with the training is clearly the same.

XXVI. The candidates are been thus not to be made discrimination regarding enrolment. As
the case when stated about the acts it is clearly viewed that enrolment is subject to
qualification and the same is obtained and the college had been already obtained the
permanent approval are forced to obtain new affiliation and approval once again on
the basis effecting retrospectively doesn’t makes sense.

-Memorandum on behalf of Petitioner- 20

ISSUE-3:
Whether the BCM and Government of Mahapradesh are liable to refund the inspection fee
collected with interest?

1. It is humbly submitted that the BCM and Government of Mahapradesh are liable to
refund the inspection fee collected from colleges with interest as the Colleges are not
liable to be forced to pay inspection fee as it’s the duty specified in Advocates Act
that BCM can inspect but it cannot as for fee for doing such inspection and the same
is nowhere mentioned in the Act.

2. And the BCM has no powers granted under the Advocates Act, 1961 for collecting
any kind of fees from the University or Law Colleges. Therefore, there is a straight
use of excess jurisdiction of powers made by BCM on matters related to collection of
amount for performing their duties.

3. The using of excess jurisdiction is unconstitutional and its only powers is to promote
legal education and to lay down standards of such education in consultation with the
Universities in India, and to recognise Universities whose degree in law shall be a
qualification for enrolment as an advocate and for that purpose to visit and inspect
Universities.

4. Hence to collection of the fees can only be made by the regulating authority such as
UGC under whom supervision the colleges function and not the BCM whose work is
to just promote legal education and to recognize the qualified university to stop the
malicious practice.

5. The Bar Council of India may prescribe inspection fees to be charged from time to
time from each institutional applicants for the purpose of conducting inspection There
may also be fees prescribed for inspection for providing accreditation of an
institution. Such fees are provided in the Schedule IV of these rules and may be
amended by Bar Council of India from time to time. This inspection fees are collected
by violating the principle and provisions of Advocates Act,1961 and thus are liable to
refund if any collected and not to be collected any more.

Memorandum on behalf of Petitioner- 21

 6. The Committee shall inspect the University, examine the documents and reports, visit
the institution to assess the infrastructure, curriculum design, teaching and learning
process, library and technical facilities and the feasibility of standard clinical
education. The Committee shall then submit its report in the prescribed Form together
with all relevant documents. Members of the Committee shall physically inspect of
the institution.

7. The report has to be signed by the members of the committee inspecting, appreciating
the findings, documentary, and physical, in a meeting of the committee, provided that
the member not physically inspecting the institution may not sign the inspection
report but may appreciate the findings and put his/her opinion. The Secretary shall
place the Inspection Report immediately before the meeting of the Legal Education
Committee for its decision. Thus contention is made that these authority is not
provided to the Bar Council for the same.

8. The inspection fees collected shall be returned with interest to the colleges who have
made their payment towards the inspection fee as the circular directing to obtain the
approval for affiliation is constitutionally invalid and against the general principle of
law. Unless a proper opportunity provided to the party i.e., Law Colleges it can’t be
said as fair opportunity provided to them.

9. Without prejudice, assuming that the Rules of 2008 to be valid for the academic year
2016-17, the college would have to apply on expiration of 5 years and thus the Rules
would apply from 2022-23 and not academic year 2016-17.

10. Thus, It is humbly prayed before the Court that kindly allow the Law Colleges to
permit the admissions to the candidates and allow the enrolment of the following
candidates who have passed the law degree in such colleges.

Memorandum on behalf of Petitioner- 22

PRAYER:

Wherefore, in the light of the fact used, issue raised, arguments advanced and the authorities
cited, it is most humbly and respectfully prayed that this Hon’ble court may be pleased to
adjudge and declare that:

1. The Rules of Legal Education are framed inconsistent to the Advocates Act, 1961 and
the Candidates are allowed to be selected to Law College admission on basis of
percentage obtained in Higher Education or relevant there to.

2. The BCM shall enroll the candidates who have obtained law degree and shall not
deny on the ground of non-approval of affiliation by Law Collees.

3. The BCM and State of Mahapradesh be directed to refund the inspection fee with
interest if any collected from the Law Colleges for the same.

AND/OR

To pass any other order or orders as this Hon’ble court deems fit and proper in the
circumstance of the case and in the light of equity and thus render justice.

All of which respectfully submitted

For the act of kindness, the petitioner shall be duty bound forever.

All of which is most humbly prayed

(Counsel for the Petitioner)

Memorandum on behalf of Petitioner- 23