Full Text
HIGH COURT OF DELHI
Date of Decision: 5th December, 2022
NISHANT KHATRI ..... Petitioner
Through: Petitioner in person.
Through: Mr. Preet Pal Singh, Standing Counsel for R-1.
JUDGMENT
1. This hearing has been done through hybrid mode.
2. The Petitioner - Nishat Khatri seeks directions against the Respondent No.1 - Bar Council of India (hereinafter, ‘BCI’) in view of the non-conduct of the All India Bar Examination (`AIBE’). The Petitioner’s concern is that he ought not to be debarred from practising as an advocate due to the nonconduct of the AIBE.
3. It is submitted by the Petitioner that in terms of Rules 9 and 10 of the All India Bar Examination Rules, 2010 (hereinafter, ‘AIBE Rules, 2010’) the AIBE was introduced by the BCI on 5th June, 2010. The said exam is mandatory as per Rule 9 of the AIBE Rules, 2010, which provide that no advocate can practice under Chapter VI of the Advocates Act, 1961 without clearing the AIBE. Further, the AIBE is to be cleared by an advocate who is provisionally enrolled within a period of two years from the date of provisional enrolment.
4. The Petitioner points out that in the minutes of the meeting dated 9th August, 2020, a resolution was passed by the of BCI giving exemption from the said Rule 9 the AIBE Rules, 2010 from 24th March, 2020 to 31st March, 2021 due to the outbreak of the pandemic. Further, the last AIBE was conducted only in October, 2021 and no exam has been conducted since then.
5. In Civil Appeal No(s). 816-817 titled Bar Council of India v. Twinkle Rahul Mangaonkar & Ors. the Supreme Court while dealing with certain issues concerning the AIBE passed order dated 2nd August, 2022 wherein it clearly records that the BCI had made a statement that the syllabus would be published within 15 days from the said date and the examination would be held within a period of about three months thereafter. The said statement was taken on record. The extract of the said order of the Hon’ble Supreme Court is set out below: “With reference to the averments in the application(s), on our query, learned senior counsel appearing for the Bar Council of India states that the syllabus will be published within 15 days from today and the examination will be held within a period of about three months thereafter. The statement is taken on record.”
6. The case of the Petitioner is that he got provisionally enrolled with the Respondent No.2 - Bar Council of Delhi on 19th November, 2019. He admits that he did not appeared in the exam held on 31st October, 2021, as in accordance with the AIBE Rules, 2010, he had four attempts in two years in which he could clear the AIBE. However, since the exam had not been conducted, he could not exercise his choice of attempting the AIBE.
7. On a query from the Court, Mr. Preetpal Singh, ld. Counsel appearing for the BCI admits that the last exam was conducted on 31st October, 2021. However, due to a change in the agency conducting the AIBE, there has been a delay in conducting the same. He further submits that in terms of the order of the Supreme Court, the syllabus of the AIBE has already been published and the notification regarding the same is likely to be issued shortly.
8. On a query by the Court, as to what would be the position of advocates who are unable to take the AIBE within two years due the non-conduct of the examination and whether they would be entitled to practice as advocates, Mr. Preet Pal Singh, ld. Counsel submits that he would like to seek instructions to this effect.
9. The Court has considered AIBE Rules, especially Rules 9 and 10. The same are extracted hereinbelow:
10. A perusal of the above would show that it is mandatory for advocates who are provisionally enrolled to clear the AIBE. Further, as per Rules 10(1) and Rule 10(1)(a) of the AIBE Rules, 2010, such an exam is to be held at least twice in a year in such month as the BCI may prescribe.
11. The Court has also perused the statement of the BCI recorded in the aforementioned order of the Hon’ble Supreme Court dated 2nd August, 2022 which states that the syllabus would be published within 15 days from the said date and the examination would be held within a period of about three months thereafter.
12. In the present case, the admitted position is that since October 2021, AIBE has not been conducted. It is also not dispute that the AIBE is to be cleared within two years from the date of provisional enrolment. Thus, it is observed that there may be a large number of advocates whose two year provisional enrolment period may have come to an end this year. Such advocates would have not had the opportunity to avail of the four attempts to write the AIBE over two years. They also face the threat of debarment for not having cleared the AIBE in terms of Rule 9 of the AIBE Rules, 2010 – though the same was due to non conduct of the exam.
13. In view of the fact that the AIBE has not been conducted since October, 2021, the following directions are issued:
(i) The Petitioner shall not be debarred or disqualified from continuing to rely upon his provisional enrolment. The Petitioner would be entitled to appear in the Courts. This order shall continue until further orders of this Court.
(ii) In view of the non-conduct of the AIBE, Rule 9 of the AIBE,
2010 would not be operational qua such advocates who may have not taken the AIBE within the period of two years after their enrolment, due to the non conduct of AIBE.
(iii) A status report shall be filed by the BCI wherein the next date for the conduct of the AIBE shall be provided.
(iv) The BCI shall also consider having a pre-set schedule for conduct of the AIBE (For eg., First Saturday of January and July every year) so that the uncertainty can be resolved and provisionally enrolled advocates can prepare for appearing in the AIBE.
14. List on 6th January, 2023.
PRATHIBA M. SINGH JUDGE DECEMBER 5, 2022 Rahul/KT