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Petitioner: KHURRAM and others VS Respondent: FEDERATION OF PAKISTAN through Secretary/ Chairman and others Respondents
Court Name: Sindh High Court Judge(s): Muhammad Ali Mazhar, Anwar Hussain Title:KHURRAM and others vs FEDERATION OF PAKISTAN through Secretary/
Chairman and others Respondents Case No.: C.Ps. Nos. 209, 913 and 1092 of 2015 Date of Judgment:2016-05-14 Reported As: PLD 2016 Sindh 557 Result: Petitions dismissed Judgment ORDER MUHAMMAD ALI MAZHAR, J.--The aforementioned constitution petitions have been brought to challenge a proviso integrated and assimilated in Rule 108-C of Pakistan Legal Practitioners and Bar 'Councils Rules 1976 through Pakistan Legal Practitioners and Bar Councils (Amendment) Rules, 2013. 2. The factual matrix of the petitions is that after passing LL.B, all the petitioner's applied to join legal profession and filed intimation but they were called upon to appear in the assessment test in terms of proviso incorporated under the Rule 108-C of Pakistan Legal Practitioners and Bar Councils Rules, 1976. The petitioners have come up with this certitude that Pakistan Bar Council has no jurisdiction or authority to make any rule inconsistent with Section 26 of the Legal Practitioners and Bar Councils Act, 1973. On 16.3.2015, Constitution Petition No,D-913/2015 was fixed before the learned division bench of this court when without prejudice to the case of any of the parties, the learned bench suspended the operation of impugned Notification. 3. The learned counsel for the petitioners argued that the amendments made in the Rules by Pakistan Bar Council are in deviation with the Legal Practitioners and Bar Councils Act, 1973. Pakistan Bar Council under Section 55 of the Legal Practitioners and Bar Councils Act, 1973 has no power to make rules for introducing any assessment test or NTS. In fact the amendments made in the Rules are in conflict with the provisions made under Section 26 of the Legal Practitioners and Bar Councils Act, 1973. It was further averred that the respondents cannot adopt the assessment test which is not recognized by Higher Education Commission of Pakistan. It was next contended that Pakistan Bar Council in order to discourage the students and to create a monopoly of the
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existing advocates has introduced these amendments contrary to the parent Act. It was further argued that the rule making authority cannot frame rules in derogation of substantial provisions of law as it is well settled that rules cannot go beyond the scope of Act. The main object of the rules is to implement the provisions of Act and not to create a new situation altogether. 4. They further argued that by virtue of SRO. No,184(II) 2013 .Dated 8.3.2013 impugned proviso has been added which made assessm ent test mandatory before commencing the pupilage and filing intimation which is ultra vires to the Act. Though under Section 26 (d) of the Legal Practitioners and Bar Councils Act, 1973, one of the qualifications to become an advocate is undergoing such course of training and pass such examination after the training as may be prescribed by Pakistan Bar Council so in these parameters, Pakistan Bar Council may prescribe any examination after completion of training and not before. Learned counsel further argued that if the conditions mentioned in the Rule 108-B are taken into consideration, it is clear that a person can only fulfill these conditions after six months training era but in this Rule also clause (1) has been incorporated which provides a new condition to comply with that on filing application result card issued by NTS or any other authority notified by the Pakistan Bar Council is required to be attached to show that the applicant has passed the assessment test. They also questioned the veracity and authenticity of NTS assessm ent test. The learned counsel for the petitioners placed reliance on PLD 1964 SC 451 (Province of East Pakistan and another v. Nur Ahmed and another), 2001 SCMR 1806 (M/s. Mehraj Flour Mills and others v. Provincial Government and others), PLD 2014 SC 389 (Suo Motu Case No,11 of 2011), PLD 2011 Supreme Court 619 (Suo Motu Case No,13 of 2009). 5. Mr. Abrar Hasan, learned counsel for Pakistan Bar Council .Referred to Section 26(d) of Legal Practitioners and Bar Councils Act, 1973 and argued that under this clause Pakistan Bar Council may prescribe course of training and examination and under Section 55, Pakistan Bar Council may make the rules. He further argued that since the standard Of profession of law is deteriorating day by day, therefore, in order to maintain high standard of legal profession, rules have been amended with the effect that even at the time of filing intimation, a candidate has to undergo an assessment test. He also referred to paragraph 7 of the Judgment passed by learned Peshawar High Court in Writ Petition No,2525/2014 (Kashif Zaman v. K.P.K. Bar Council) and argued that similar question was raised before the learned Peshawar High Court in which it was held that the amendments in question are neither violative of the fundamental rights, nor do they tantamount to denying the equality before law in terms of Article 25 of the Constitution. Learned counsel made much emphasis that Pakistan Bar Council may frame rules relating to standard of professional conduct and etiquette to be observed by the Advocates including the general principle for guidance for the Provincial Bar Councils. Pakistan Bar Council may also frame rules in relation to the standard of legal education to be observed by universities in Pakistan and the inspection of universities for that purposes. He further argued that the amendments made in the rules is not in conflict with the parent Act and Pakistan Bar Council within the sphere of their powers rightly made the amendments so that before filing intimation form or to enter into a legal profession the candidates must pass the assessm ent test though NTS. He also referred to PLD 2007 SC 394 (Pakistan Bar Council v. Federal Government and others). 6. Mr. Salahuddin Ahmed, learned counsel for Sindh Bar Council. Argued that the NTS examination was challenged in the Peshawar High Court in Writ Petition No,2217/2014 which was partially accepted to the extent that syllabus of NTS examination should be amended:He also referred to the counter affidavit filed for and on behalf of Sindh Bar Council that NTS examination is adopted as pre-requisite for the .Enrolment of advocates due to the reasons that law colleges are not maintaining proper standard and fake degree holders are proliferating and a large number of law graduates are being enrolled without adequate legal knowledge and the ultimate sufferers are the litigant public. The written and viva-voce being conducted by the Provincial Bar Councils is
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insufficient. There is compelling need for maintaining nationwide standard. When the amendment was introduced, Pakistan Bar Council directed the Sindh Bar Council from 30.9.2013 onwards not to entertain any intimation form of the law graduates who had not passed NTS Examination. Learned counsel however, argued that under Section 26 of Legal Practitioners and Bar Councils Act, 1973 a provision 01 passing examination is available but after the training while by virtue of amendment it has become mandatory for every fresh law graduates to pass assessment test through NTS before filing the intimation Form. He referred to Section 56 of the Legal Practitioners and Bar Councils Act, 1973 in which the Provincial Bar Council may make rules including course of practical training in law and the examination to be passed after such training for admission as an advocate 7. He further argued that Pakistan Bar Council made amendments after consultation with all Provincial Bar Councils. After introducing the provision of assessment test, the percentage of intimation forms was radically decreased. He further argued that the rule making power of .Sindh Bar Council vis-a-vis provision of post training examination for prospective advocates conferred under Section 56 of the Legal Practitioners and Bar Councils Act, 1973 is complementary and additional to the powers conferred upon the Pakistan Bar Council under Section 26 (d) of the Act. It was further argued that the amendments made in the rules are to be interpreted harmoniously, so this should not be rendered. Redundant and the case in hand the doctrine of harmonious interpretation applies. It was further contended that Rule 108-C of the Pakistan Legal Practitioners and Bar Councils Rules, 1976 is intra vires of Section 26 (d) of the Act. However, his fall back argument was that if the said Rule is considered to be ultra vires, the only part of the said Rule that could arguably be said to violate the parent .Act is the portion that "before commencing the pupilage and filing intimation to the Provincial Bar Council concerned" which may be struck out and remainder be continued so that NTS Assessment may be conducted after training. Learned counsel also referred to the doctrine of severability which permits a court to sever unconstitutional portion of a statute in order to preserve the operation of an uncontested or valid remainder. In support of his arguments, he referred to 2009 SCMR 846 (Qaiser Javed Malik v. Pervaiz Hameed and 2 others), (2) 2005 MLD 1724 (Khursheed. Ahmed Junejo and others v. Government of Sindh and others), (3) 2014 CLC 335 (M. Q. M. And others v. Province of Sindh and others) and (4) AIR(sic) 1957 SC 628. 8. The learned Standing Counsel adopted the arguments of Mr.Abrar Hasan and supported the proviso added through the amendment made in Rule 108-C of Pakistan Legal Practitioners and Bar Councils Rules, 1976, while learned AAG argued that the provision of assessment test made in the aforesaid Rule should have been made effective after completion of pupilage and filing of application under Section 26 of the Legal Practitioners and Bar Councils Act, 1973 and he also supported the arguments advanced by Mr. $alahuddin Ahmed, counsel for. Sindh Bar Council. [Note. All learned counsel agreed that the aforesaid petitions may be heard and decided at katcha peshi stage and they argued the case extensively] 9. Heard the arguments. In fact the bone of contention between the parties is the proviso inserted in Rule 108-C of Pakistan Legal Practitioners and Bar Councils Rules, 1976 vide SRO-184(1)/2013 dated 8.3.2013. The newly added proviso made it mandatory that before commencing the .Pupilage and filing intimation to Provincial Bar Council the applicant must undertake and pass assessm ent test as mentioned in Rule 108 B(1). In this regard the applicant may apply to the NTS or any A other authority duly notified by Pakistan Bar Council to appear in the assessment test. After passing the LL.B examination a candidate may avail three chances to qualify the assessment test. One more proviso was added through SRO 782(1) of 2014 dated 4.9.2014 according to which an apprentice would commence his apprenticeship, with an advocate after passing LL.B final examination and assessm ent test of NTS and shall furnish copies of LL.B degree or result card with a certificate of NTS to how that he has passed the LL.B final examination and the assessment test.
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For the ease of reference, Rule 108-C of Pakistan Legal Practitioners and Bar Councils Rules, 1976 s reproduced as under:- (108-C. (1). Every apprentice (except a person mentioned in Rule 108-J infra) shall, before being admitted as an Advocate, have to undergo a comprehensive training regularly for a continuous period of six months as a pupil in the chamber of an advocate. Who has been entitled to practice as an Advocate for a period of not less than ten years: [Provided that before commencing the pupilage and filing intimation to the Provincial Bar Council concerned the applicant must undertake and pass an Assessment Test as mentioned in Rule 108B(1). The applicant may apply to the National Testing Service (NTS) or any other authority duly notified by the Pakistan Bar Council, to appear in the Assessment Test after passing the LL.B. Examination and will be afforded three chances to qualify the Assessment Test.] 'Emphasis added] Provided further that an apprentice would commence his apprenticeship with such Advocate after having passed his LL.B final examination and Assessment Test of National Testing Service (NTS) and shall furnish copies of his LL.B degree or result card and the Certificate from the National Testing Service (NTS) as to his having passed the LL.B final examination and the Assessment Test. [Emphasis added] (2). A pupil may take training with more than one advocate for a total period of six months which are substantially continuous. Intimation of joining each advocate shall be sent to the Secretary, Provincial Bar Council in accordance with this rule. Provided that no advocate shall take more than three pupils at a time, that the advocate taking pupils was practicing at the Bar during the whole period of pupilage and that a written intimation of a person joining an advocate as pupil, signed by both of them, has been sent to the Secretary of Provincial Bar Council within one month after the commencement of pupilage. In case an advocate has more than three pupils at any particular time, only the first three in the order in which they were taken, shall be regarded as under training. (3) An advocate with whom a person received training in accordance with sub-rule (1) of Rule 108- C shall gave a certificate in Form "B" prescribed by the Provincial Bar Council and shall specify in the certificate or as a separate annexure thereto at least ten cases in which he had the assistance of the pupil. (4) An advocate who gives a false certificate in this behalf shall be guilty of professional misconduct. (5). Every applicant applying for admission as an advocate shall have to pass a written examination in addition to a viva-voce examination, held quarterly under the directions and supervision of the Enrolment Committee of the Provincial Bar Council in the following subjects: (i). Civil Procedure Code; (ii).Criminal Procedure Code; (iii). Qanun-e-Shahadat; (iv). Constitution of the Islamic Republic of Pakistan; (v) Legal Practitioners and Bar Councils Act, 1973 and the rules framed thereunder; and (vi) Canons of Professional Conduct and Etiquettes. The written examination shall be of 3' hours duration carrying 100 marks each paper with a pass percentage of 50%. Copies of the Constitution, Bare Acts and Rules shall be made available to the applicant at the examination. 10. At this juncture, Rule 108-A of Pakistan Legal Practitioners and Bar Councils Rules, 1976 is also worth mentioning which postulates that any person qualified to be admitted as an advocate under Section 26 may make application in Form "A" prescribed by Pakistan Bar Council for admission as
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an advocate to the Provincial Bar Council within whose jurisdiction he proposes to practice generally. While 108-B of the same Rules catalogued the formalities and prerequisites of the application which includes certificate/result card issued by the National Testing Service (NTS) or any other authority duly notified by the Pakistan Bar Council, as to show that the applicant has passed the assessm ent test as laid down in clause (1) which is reproduced as under:-- Clause (1) Rule 108-B (1) Certificate/Result Card issued by the National Testing Service (NTS) or any other authority duly notified by the Pakistan Bar Council as to applicant's having passed the Assessment Test. The National Testing Service CNTS) shall hold the. Assessment Test thrice in a year. [Emphasis added] 11. In order to move forward it is also expedient to reproduce Section 26 of the Legal Practitioners and Bar Councils Act, 1973 which reads as under:- 26. Persons qualified for admission as advocates.---[xxx] Subject to the provisions of this Act and the rules made thereunder, a person shall be qualified to be admitted as an advocate if he fulfills the following conditions, namely: (a). He is a citizen of Pakistan or a person deriving his nationality from the State of Jammu and Kashmir: Provided that subject to the other provisions of this Act a national of any other country [who has resided in Pakistan for a period of not less than one year immediately preceding the day on which he applies for admission] may be admitted as an advocate if citizens of Pakistan duly qualified are permitted to practice law in that other country; (b). He has completed the age of twenty-one years; (c). He is a Barrister or is or was enrolled as an advocate of a High Court in any area which before the fourteenth day of August, 1947, was comprised within India as defined by the Government of India Act, 1935 (25 Geo. 5, c 2), or has obtained- (i). Before the 7th day of February, 1966, a degree in law from any university in Pakistan, or (ii). Before the fourteenth day of August, 1947, a degree in law from any university in any area which was comprised before that date within India as defined by the Government of India Act, 1935 (36 Geo 5, c 2); or (iii).a degree in law from a university in Pakistan or abroad recognized by the Pakistan Bar Council; and] (d). He has undergone such course of training and passed such examination after the training as may be prescribed by the. Pakistan Bar council: [Emphasis added] Provided that this clause shall not apply to any class of persons who, by reason of their legal training or experience, are declared by the Pakistan Bar Council to be exempt from the provisions of this clause; and (e). He has paid such enrolment fee and fulfills such other conditions as may be prescribed by the Pakistan Bar Council. [(2) xxxxxxxxx] (Subs. By Amendment Act XII of 2005 dated 17.9.2005) [(3)xxxxxxxxx] (Subsection (2) omitted by 'Amendment Act XII of 2005 dated 17.9.2005) 12. Before dwell on and explicating the core issue or the stumbling block in the case in hand, we would like to revisit recent past to grasp the role played by Pakistan Bar Council and their concern and anxiety with regard to the standard of legal education and legal acumen which always plays an important role to enhance and build up and groom a person who decided to join profession of law as his career. Being apex and supervisory body of Provincial Bar Councils, Pakistan Bar Council filed a Constitution Petition (PLD 2007 Supreme Court 394, Pakistan Bar Council v. Federation of Pakistan and others) in the Supreme Court and sought directions against the Federal Government,
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Higher Education Commission of Provincial Governments and the Universities to adopt and implement the Affiliation of Law Colleges Rules framed by the Pakistan Bar Council and further that no charter or no objection certificate be issued to any institution, college or individual to establish law college without compliance of the said Rules. Apex court analyzed and took the cognizance of the situation with regard to legal education in the country and allowed the petition in the following terms: "21. For what has been discussed above and on account of the fair stand taken by the respondents, we are persuaded to allow this petition and direct as under:- (1) The Pakistan Bar Council, is the apex professional elected body. Of lawyers established under the Legal Practitioner and Bar Councils Act, 1973. One of its primary functions under this Act is to 'promote legal education and prescribed standards of such education in consultation with the universities in Pakistan and the Provincial Bar Councils'. (Section 13(j)). It has been empowered to make rules to carry out its functions which include rules to provide for, "the standards of legal education to be observed by the universities in Pakistan and the inspection of universities for that purpose". (ii) The Affiliation of Law Colleges Rules framed by the Pakistan Bar Council and any rule added or amended from time to time by it are essential to ensure that the law schools/colleges impart uniform quality legal education. (iii) The rules framed by the Pakistan Bar Council shall be read into the rules framed by any Pakistani university and in case of conflict former rules shall have primacy. (iv) The rules do not envisage any concept of provisional affiliation. However, if any enactment, rules or regulation made thereunder provide for provisional affiliation, the same shall not extend beyond the period of one year and thereafter the said college shall stop admitting students for a law degree. (v) With a view to improve and update the syllabus prescribed for a professional degree in law, we are persuaded to appoint a 5 Member Committee to be headed by Justice (R) Nasir Aslam Zahid, former Judge of the Supreme Court of Pakistan to examine the existing courses of law prescribed by the universities for obtaining the professional degree and to suggest suitable proposals, inter alias, in the light of the observations made by this Court. The Committee shall submit its report within six months to the Pakistan Law Commission for consideration...." 13. According to Britannica, Legal profession/vocation is based on expertise in the law and in its applications. Although there are other ways of defining the profession, this simple definition may be best, despite the fact that in some countries there are several professions and even some occupations (e.g., police service) that require such expertise but that may not regarded as within the legal profession. A distinct class of legal specialists other than judges first emerged in Greco- Roman civilization, and, as with the law itself, the main contribution was from Rome in the period from 200 BCE to 600 BCE. In the early stages of both Greece and Rome, as later among the German tribes who overran the Roman- Empire, there was a prejudice against the idea of specialists in law being generally available for a fee. The assumption was that the citizen knew the customary law and would apply it in transactions or in litigation personally with advice from kinsmen. As the law became more complex, men prominent in public life usually patricians found it necessary to acquire legal knowledge, and some acquired reputations as experts. Often they spent periods serving as magistrates and in Rome as priests of the official religion, having special powers in matters of family law. Among the German tribes, noble experts were allowed to assist in litigation, not in a partisan fashion but as interpreters (Vorsprecher) for those who wished to present a case but felt uncomfortable doing so themselves. The peculiar system of development of early Roman law, by annual edict and by the extension of trial formulas, gave the Roman patrician legal expert an influential position. He became the jurist-consult, the first non-official lawyer to be regarded
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with social approbation, but he owed this partly to the fact that he did not attempt to act as an advocate at trial a function left to the separate class of orators and was prohibited from receiving fees. (Ref: http://www.britannica.com/topic/legal-profession) 14. LL.B. stands for Bachelor of Laws (English). In Latin the abbreviation LL.B. is expanded as Legurn Baccalaureus. Aptitude test means a test designed to determine a person's ability in a particular skill or field of knowledge. A standardized test designed to predict an individual's ability to learn certain skills. According to profile available at website, National Testing Service (NTS) was established in July 2002 in response to a need for a testing service in the National Education Policy (1998-2010) and the Information Technology (IT) Policy of Government of Pakistan (GoP). This institution conducts tests and assessments for admissions, scholarships, recruitment and promotion purposes which are now pre-requisite of many prime public and private sector engineering, medical and other colleges, universities and institutions for admission and recruitment. We are fully in agreement that this institution has not been constituted under any statute but at the same time we are sanguine that this is only a service provider venture which arranges facility and infrastructure to make easy and facilitate the required assessment or aptitude test. It is totally dependent upon one's own leisure either to engage this service provider or to arrange any such aptitude or assessment test by their own. Since in the case in hand, Pakistan Bar Council has made arrangement of the assessment test through NTS which by all means a contractual engagement between a service provider with the apex body of all provincial bar councils so in our view it does not seem to be violative of any law except that it is an agreement and arrangement which may be determined at any time by the parties in accordance with the terms of engagement if any. To cut a long story short, let us go through "Law Graduate Assessment Test" (LAW-GAT), developed by the service provider to cater the need of assessment test. According to the details…
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