B. S. Chauhan, J.
1. This writ petition has been filed for quashing the order dated 24th August, 2003 (Annexure-3) passed by the Bar Council of India, hereinafter called the 'B.C.I.', by which it has rejected the application of the petitioners permitting them to open a new law college at Muriyari town (District Ghazipur) for the reason that it does not have a judicial District Headquarter.
2. Facts and circumstances giving rise to this case are that petitioner No. 1 is a Society registered under the Societies Registration Act. Petitioners applied for approval of affiliation/permission of opening a new law college in town Muriyari in district Ghazipur. The Government of Uttar Pradesh as well as the University granted the affiliation and no objection certificates for opening the new college. The B.C.I, sent an inspection team and after having local inspection, the said team made a recommendation in favour of the petitioners. However, by the impugned order, the B.C.I. disapproved the said recommendation and refused permission on the ground that the town Muriyari is not a Judicial District Headquarter. Hence the present petition.
3. Shri V. C. Mishra, learned senior counsel appearing with Shri K. S. Tewarl, for the petitioners, has raised large number of issues including that application has been rejected in a whimsical/arbitrary manner without application of mind and discriminating the petitioners as it permitted other institution to come up in town Bhauraha Pandeypur, which is at a longer distance than of the petitioners from the District Head Quarter Ghazipur. If the B.C.I. has adopted a formula for this purpose, being a statutory body, it has to apply it uniformly and not in such a discriminatory manner. The provisions of Section 18(d)(1), Part IV, Section A of the Bar Council of India Rules, hereinafter called the 'Rules' which provides that the inspection team before recommending approval of a new law college should inter alia make a specific recommendation as to why such a law college required to be started keeping in view the total number of existing law colleges in the place/area in particular and the State in general, is also under challenge. More so, the said clause does not refer to the District Head Quarter, nor District but only the place/area. Once the recommendation has been made by the inspection team for granting the permission to the petitioners for running a new law college. Rule 4 (1) Section B of the Rules provide that law college shall ordinarily be located at a place where at least a District Court or Circuit District Court is located or within such distance thereof as the Bar Council of India permits. Therefore, deciding that law college shall be located only at the District Head Quarter, is not required at all. Thus, there was no occasion for the B.C.I. to reject the said application and, thus, the petition deserves to be allowed.
4. On the contrary, Shri P. C. Jain, learned counsel appearing for the respondent has submitted that various factors have to be examined before granting the permission. The B.C.I. had passed a resolution not to open many law colleges and not more than one law college in a district. Opening of law college can be permitted provided the Courts are there so that the appropriate training may be given to the students. The Bar Council has absolute power to control imparting of legal education and keep up its standard under Section 7(1)(h) read with Section 7(1)(a to l) and Section 49 (1) of the Bar Council of India Rules framed under the Advocates' Act, 1961, hereinafter called the 'Act', and if the provisions are read together, the B.C.I. has statutorily been conferred the power to do all things which are related to or have any direct effect on the maintenance of standard of legal education and recognition of the degrees for the Advocates etc. Therefore, the order passed by the B.C.I. does not require any interference at all is liable to be dismissed straightaway.
5. We have considered the rival submissions made by the learned counsel for the parties and perused the record.
6. Undoubtedly, Bar Council has a control over the legal education and it is necessary to keep up the standard of legal education. The validity of rules framed by the B.C.I. on the subject of maintenance of standard in Legal Education has been upheld by the Hon'ble Supreme Court in the cases of the Baldev Raj Sharma v. Bar Council of India, 1989 (2) AWC 767 (SC) : AIR 1989 SC 1541 and the case of Bar Council of India and Ors. v. Aparna Basu Mallick and Ors., AIR 1994 SC 1334. The Apex Court has observed that there is great deal of difference between general Education in Law and a professional Education in Law with the aim of awarding a degree which entitle the enrolment as Advocate.
7. The Apex Court in a recent decision given in the case of St. Johns Teachers Training Institute v. Regional Director, National Council for Teachers Education and Ors., 2003 (2) AWC 1076 (SC) : (2003) 3 SCC 321, has upheld that any rule or even guidelines issued by a National Council for teacher's education in relation to permission of new college which have direct nexus with the object are valid observing :
"The Legislature may, after laying down the legislative policy confer discretion on an administrative agency so as to the execution of the policy and leave it out to the agency to work out the details within framework of policy. The need of delegated legislation is that it is framed with care and minuteness when the statutory authority making the rule, after coming into force of the Act, is in a better position to adapt the Act to special circumstances. Delegated legislation permits utilisation of experience and consultation with interests affected by the practical operation of the statute. Rules and regulation made by reason of the specific power conferred by the statute to make rules and regulations establish the pattern of conduct to be followed."
8. Large number of issues have been raised even the validity of certain provisions have been challenged but we are not inclined to probe all the issues raised therein and the controversy lies in a very narrow compass, as the order impugned suggests that application for opening the new law college has been rejected only on the ground that the Judicial District Head Quarter is not situate there. Thus, it is not permissible or either of the parties to go beyond the terms of the said order.
9. In Commissioner of Police v. Gordhandas Bhanji, AIR 1952 SC 16, the Hon'ble Supreme Court considered the issue as how the Court has to examine the impugned order passed by a statutory authority and held as under :
"We are clear that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
10. The Hon'ble Apex Court in Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851, approved and reaffirmed the said law observing as under ;
"................When a statutory functionary makes an order based on certain grounds its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of challenge, get validated by additional grounds latter brought out..........Orders are not like old wine becoming better as they grow older."
11. A similar view has been reiterated in Chandra Singh v. State of Rajasthan, 2003 (3) SCCD 1078 : (2003) 6 SCC 545.
12. In State of U.P. v. Kaushal Kishore Shukla, 1991 (1) AWC 651 (SC) : (1991) 1 SCC 691, the Hon'ble Supreme Court has held that the aforesaid law is also reversible meaning, thereby that when an order is otherwise valid, it cannot be invalidated by reason of any statement in any affidavit seeking to justify the same. Similar view has been reiterated in Pavanendra Narayan Verma v. Sanjay Gandhi P.G.I. of Medical Sciences and Anr., 2002 (1) AWC 42 (SC) : AIR 2002 SC 253.
13. Thus, it is clear from the. aforesaid settled legal proposition that an order cannot be defended on the ground in additional to one taken in the order itself and it is for this reason that the Courts are insisting time and again for recording the reasons as how the authority has applied its mind while considering the case and even in administrative side, it is very settled principle of law that the authority while passing any order, must record the reasons for that.
14. There can be no quarrel to the settled legal proposition that even in administrative matters, the reasons should be recorded as it is incumbent upon the authorities to pass a speaking and reasoned order vide Km. Shrilekha Vidyarthi v. State of U. P. and Ors., AIR 1991 SC
15. In Life Insurance Corporation of India v. Consumer Education and Research Centre, (1995) 2 SCC 480, the Apex Court observed that the State or its instrumentality must not take any irrelevant or irrational factor into consideration or appear arbitrary in its decision. "Duty to act fairly" is part of fair procedure envisaged under Articles 14 and
21. Every activity of the public authority or those under public duty must be received and guided by the public interest.
16. The same view has been taken by the Supreme Court in Mahesh Chand v. Regional Manager, U. P. Financial Corporation and Ors., AIR 1993 SC 935 and Union of India v. M. L. Capoor. AIR 1974 SC 87.
17. In State of West Bengal v. Atul Krishna Shaw. 1991 (Suppl.) 1 SCC 414, the Supreme Court observed that "giving of reasons is an essential element of administration of justice. A right to reason is, therefore, an indispensable part of sound system of judicial review."
18. In S.N. Mukherji v. Union of India, AIR 1990 SC 1984, it has been held that the object underlying the rules of natural justice is to prevent miscarriage of justice arid secure fair play in action. The expanding horizon of the principles of natural justice provides for requirement to record reasons as it is now regarded as one of the principles of natural justice, and it was held in the above case that except in cases where the requirement to record reasons is expressly or by necessary implication dispensed with, the authority must record reasons for its decision.
19. In Krishna Swamy v. Union of India, AIR 1993 SC 1407, the Apex Court observed that the rule of law requires that any action or decision of a statutory or public authority must be founded on the reason stated in the order or borne-out from the record. The Court further observed that "reasons are the links between the material, the foundation for these erection and the actual conclusions. They would also administer how the mind of the maker was activated and actuated and there rational nexus and synthesis with the facts considered and the conclusion reached. Lest it may not be arbitrary, unfair and unjust, violate Article 14 or unfair procedure offending Article 21.
20. Similar view has been taken by the Supreme Court in Institute of Chartered Accountants of India v. L. K. Ratna and Ors., (1986) 4 SCC 537 ; Board of Trustees of the Port of Bombay v. Dilip Kumar Raghavendranath Gavendranath Nadkarni and Ors. AIR 1983 SC 109 ; Vasant D. Bhavsar D. Bar Council of India and Ors., 1999 (4) AWC 2789 : (1999) 1 SCC 45 ; Charan Singh v. Healing Touch Hospital and Ors., 2000 (4) AWC 3316 (SC) : (2000) 7 SCC 668 and Secretary, Ministry of Chemicals and Fertilizers, Government of India v. C.I.P.L.A. Ltd. and Ors., (2003) 7 SCC 1.
21. In the instant case, the only reason recorded is that District Judicial Head Quarter does not exist at the said place. The relevant provision in this regard, i.e., Rule 4 (1) of the Part IV, Section B of the Bar Council of India Rules reads as under :
"A Law College shall ordinarily be located at a place where there is at least a District Court or a Circuit District Court or within such distance thereof as the Bar Council of India permits."
22. The expression 'ordinarily' contained hereinabove, has also been subject matter of judicial-consideration time and again.
23. A Constitution Bench of the Hon'ble Supreme Court in Kailash Chandra v. Union of India and Ors., AIR 1961 SC 1346, considered the meaning of word "ordinary" and held that it means "in the large majority of cases but not invariably".
24. In Krishan Gopal v. Shri Prakash Chandra and Ors., AIR 1974 SC 209, the Apex Court explained that "ordinarily" means "normally but there can be deviation of the rule if the circumstances so demand and it makes relaxation in compliance of the rule permissible.
25. In Union of India v. Majji Jangammayya, AIR 1977 SC 757, the Hon'ble Supreme Court held that where the term "ordinarily" has been used in a provision, there can be deviation from the requirement of provision if such deviation can be justified by the reasons.
26. Similar view has been reiterated in Union of India v. Vipinchandra Heerala Shah, (1996) 6 SCC 721, observing that for good reasons deviation from requirement of rule is permissible if the word "ordinary" is there in the enactment.
27. In Eicher Tractors Ltd., Haryana v. Commissioner of Customs, AIR 2000 SC 525, the Supreme Court held that word "ordinarily" necessarily implies the exclusion of "extraordinary" or word "special circumstances".
28. A Full Bench of Rajasthan High Court in Narainlal v. State of Rajasthan, AIR 2000 Raj 190, held that word "ordinarily" implies that in extra-ordinary circumstances the competent authority may deviate from the ordinary procedure. Thus, it is not mandatory to ensure the compliance of the said rule in all the circumstances.
29. In view of the above, it can be held that unless there are compelling circumstances, requirement of rule must be complied with. If the circumstances so demand the deviation thereof is permissible. The expression "ordinarily" means normally and it does not mean complete prohibition and Shri Jain could not point out as under what circumstances the other factors could not be taken into consideration and what is the distance prescribed by the Bar Council. A very heavy reliance has been placed by him on the Minutes of the Legal Education Committee held on 23rd and 24th August, 2003, wherein decision has been taken as under :
"(i) Where there is a District Judge or Additional District Judge of a Circuit District Court is functioning and where there is no existing law college, approval of affiliation be granted.
(ii) Where there is already a college existing in that district place, approval of affiliation should not be granted,"
30. On the basis of aforesaid resolution, Shri Jain has submitted that it is because of the decision of the Legal Education Committee which requires that school should be opened where there is a Court but he could not satisfy us as how the word "ordinarily" could be ignored by the said Committee while passing the such resolution. Passing such a resolution appears to be beyond the competence of the Committee as it amounts to nullifying the statutory provision altogether.
31. It is settled legal proposition that executive instructions cannot be issued contrary to law. The Constitution Bench of the Hon'ble Supreme Court in B.N. Nagarajan v. State of Mysore, AIR 1966 SC 1942, has observed as under :
"It is hardly necessary to mention that if there is a statutory rule or an Act on the matter, the executive must abide by that Act or the Rules and it cannot, in exercise of its executive powers under Article 162 of the Constitution, ignore or act contrary to that Rule or the Act."
32. Similarly, another Constitution Bench of the Hon'ble Supreme Court in Sant Ram Sharma v. State of Rajasthan and Ors., AIR 1967 SC 1910, has observed as under :
"It is true that the Government cannot amend or supersede statutory Rules by administrative instruction, but if the Rules are silent on any particular point, the Government can fill-up the gap and supplement the rule and issue instructions not inconsistent with the Rules already framed."
33. The law referred to above has consistently been followed and it is settled proposition of law that the Authority cannot issue the orders/office memorandum/executive instructions in contravention of the statutory Rules. However, instructions can be issued only to supplement the statutory rules but not to supplant it. Vide Commissioner of Income Tax v. A. Raman and Co., AIR 1968 SC 49 ; Union of India and Ors. v. Majji Jangammya and Ors., AIR 1977 SC 757 ; Ramendra Singh and Ors. v. Jagdish Prasad and Ors., AIR 1984 SC 885 ; P.D. Agrawal and Ors. v. State of U. P. and Ors., (1987) 3 SCC 622 ; Beopar Sahayak (P.) Ltd. v. Vishwa Nath, (1987) 3 SCC 693 ; Paluru Ramkrishanantah and Ors. v. Union of India and Ors., AIR 1990 SC 166 ; Comptroller and Auditor General of India and Ors. v. Mohan Lal Mehrotra and Ors., AIR 1991 SC 2288 ; Union of India v. Rakesh Kumar, AIR 2001 SC 1879 ; Dr. Rajinder Singh v. State of Punjab and Ors.. AIR 2001 SC 1769 ; Anil Ratan Sarkar v. State of West Bengal, (2001) 5 SCC 327 ; Dundappa Dhamanekar v. Vishwa Bharta Sewa Samiti and Ors., AIR 2001 SC 2836 and Laxmindgarajan R. Bhattad and Ors. v. State of Maharashtra and Ors.. (2003) 5 SCC 413.
34. The Constitution Bench of the Hon'ble Supreme Court in Naga People's Movement of Human Rights v. Union of India and Ors.. AIR 1998 SC 431. held that the executive instructions are binding provided the same have been issued to fill up the gap between the statutory provisions and are inconsistent with the said provisions.
35. In C. Rangaswamaiah and Ors. v. Karnataka Lokayukta and Ors.. AIR 1998 SC 2496, the Hon'ble Supreme Court held that executive instructions can be passed even for creating the post so long as they remain consistent with law/rules.
36. Thus, it is settled law that executive instructions cannot amend or supersede the statutory rules or add something therein. The orders cannot be issued in contravention of the statutory rules for the reason that an administrative instruction is not a statutory rule nor does it have any force of law ; while statutory rules have full force of law as held by the Constitution Bench of the Hon'ble Supreme Court in State of U.P. and Ors. v. Babu Ram Upadhyaya, AIR 1961 SC 751 and State of Tamil Nadu v. Hind Stone etc., AIR 1981 SC 711.
37. In Union of India v. Sri Somesundram Vishwanath, AIR 1988 SC 2255, the Hon'ble Apex Court has observed that if there is a conflict between the executive instruction and the Rules framed under the proviso to Article 309 of the Constitution, the rules will prevail. Similarly, if there is a conflict in the rules made under the proviso to Article 309 of the Constitution and the law, the law will prevail.
38. In Ram Ganesh Tripathl v. State of U. P., AIR 1997 SC 1446, the Hon'ble Supreme Court considered a similar controversy and held that any executive instruction/order which runs counter to or inconsistent with the statutory rules cannot be enforced, rather deserves to be quashed as having no force. The Hon'ble Supreme Court observed as under :
"They (respondents) relied upon the order passed by the State. This order also deserves to be quashed as it is not consistent with the statutory rules. It appears to have been passed by the Government to oblige the respondents and similarly situated ad hoc appointees."
39. It is evident that the aforesaid resolution has made Rule more stringent than it has been made by the Legislature in the said Rules.
40. Shri Jain could not explain as under what circumstances, the permission has been granted to another school for the same district having similar conditions at Bhawarah. Admittedly, there is no District/Circuit Court even at Bhawarah.
41. There is nothing on record to disclose under what circumstances the permission for opening the other school has been granted at Bhawraha Pandey, nor the same can be examined by us. The contents of the affidavit filed by the B.C.I. in this behalf are not sufficient to examine this issue.
42. Undoubtedly, Article 14 does not envisage the principle of negative equality.
43. Article 14 is not meant to perpetuate an illegality. This view stands fortified by the judgments of the Hon'ble Apex court e.g., Snehprabha v. State of U. P. and Ors., AIR 1996 SC 540 ; Secretary, Jaipur Development Authority v. Daulat Mal Jain, 1997 (1) AWC 2.57 (SC) (NOC) : (1997) 1 SCC 35 ; State of Haryana v. Ram Kumar Maan, (1997) 3 SCC 321 and Faridabad Ct. Scan Centre v. Director General, Health Services and Ors., (1997) 7 SCC 752.
44. In Finance Commissioner (Revenue) v. Gulab Chandra and Anr., 2001 AIR SCW 4774, the Hon'ble Apex Court rejected the contention that as other similarly situated persons had been retained in service, the petitioner could not have been discharged during the period of probation observing that if no action has been taken in a similar situation against similarly situated persons, it did not confer any legal right upon the petitioner therein.
45. In Jalandhar Improvement Trust v. Sampuran Singh, 1999 (2) AWC 2,77 (SC) (NOC) : AIR 1999 SC 1347 and Union of India and Ors. v. Rakesh Kumar, 2001 AIR SCW 1458, the Hon'ble Supreme Court held that Court cannot issue direction that some mistake be perpetuated on the ground of discrimination or hardship.
46. Any action/order contrary to law does not confer any right upon any person for similar treatment. Vide State of Punjab and Ors. v. Dr. Rajeev Sarwal, (1999) 9 SCC 240 ; Yogesh Kumar and Ors. v. Government of NCT, Delhi and Ors., 2003 (3) AWC 1823 (SC) : (2003) 3 SCC 548 and Union of India and Anr. v. International Trading Company and Anr., (2003) 5 SCC 437.
47. Thus, in view of the above, it becomes crystal clear that a wrong action taken or order passed cannot be perpetuated on the ground of equal treatment or hardship.
48. However, there is nothing on record to show that the B.C.I. has applied its mind in correct perspective and considered the application of the petitioners keeping in mind the requirement of Rule 4 (1) of the Rules. If the Legislature in its wisdom has used the expression "or" and not "and", therefore, it cannot be read that if the applicant wants to open a new law school at a place where there is no judicial district headquarters or circuit district court, even then, it can be opened, provided the B.C.I. considered other aspects and examined the issue of distance from the said judicial headquarters. There is no way to read the word 'or' as 'and'.
49. Thus, we are of the considered opinion that the B.C.I. failed to record reasons properly, even if it were in its mind, and the ground for rejection cannot be furnished now the order impugned cannot be sustained in the eyes of law.
50. The petition succeeds and is allowed. The order impugned dated 24.8.2003 is hereby quashed. The Bar Council of India is requested to consider the application afresh and pass an appropriate reasoned and speaking order expeditiously, preferably, within four weeks from the date of filing a certified copy of this order before it.