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 & Bar Councils (Amendment) Rules, 2013.

2. The factual matrix of the petitions is that after passing LL.B, all the petitioners 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 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 assessment 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 (l) 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 assessment 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 assessment test through NTS. He also referred to PLD 2007 394 (Pakistan Bar Council v. Federal Government & 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 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 of 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-à-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 & others v. Government of Sindh & others), (3) 2014 C L C 335 (M.Q.M. & others v. Province of Sindh & others) and (4) A.I.R. 1957 S.C. 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.Salahuddin 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(l)/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 assessment test as mentioned in Rule 108-B(l). In this regard the applicant may apply to the NTS or any 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 assessment test of NTS and shall furnish copies of LL.B degree or result card with a certificate of NTS to show that he has passed the LL.B final examination and the assessment test. For the ease of reference, Rule 108-C of Pakistan Legal Practitioners and Bar Councils Rules, 1976 is 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(l). 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 L.L.B final examination and Assessment Test of National Testing Service (NTS) and shall furnish copies of his L.L.B degree or result card and the Certificate from the National Testing Service (NTS) as to his having passed the L.L.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).Qanoon-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 F orm “A” prescribed by Pakistan Bar Council for admission as 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 assessment test as lay down in clause (l) which is reproduced as under:-

Clause (l) Rule 108-B

(l) 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 (NTS) 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 or 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] (Sub-section (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, 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 ce. 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 nonofficial lawyer to be regarded 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 Legum 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 statue 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 hosted at the web site of NTS, http://www.nts.org.pk. A law graduate desirous of seeking enrolment as an Advocate to practice law is required to pass an Assessment Test, for being eligible to apply to a Bar Council for that purpose. The Pakistan Bar Council (PBC) has, therefore, assigned National Testing Service (NTS) the responsibility to conduct Law Graduate Assessment Test (LAW-GAT). Person having passed LL.B (final year) examination from a University recognized by Pakistan Bar Council is eligible to apply for LAW-GAT. Curriculum of NTS for law graduate assessment test (LAW-GAT) is as under:-

Sr.No.

Title

Percentage

Constitution

i. World

ii. Constitution History

20%

Jurisprudence

i. English

ii. Islamic Equity

20%

Civil Law

i. CPC

ii. Contract/Limitation

20%

Criminal Law

i. P.P.C.

ii. Cr.P.C.

20%

Law of Evidence

i. 1984 Order

ii. Principles

10%

English Legal Language

10%

Total

100%

15. Earlier also in this court, arrangement of test through NTS for the selection of Additional District Judges was challenged but the learned division bench dismissed the petition. Judgment is reported in 2010 P L C (C.S.) 957 (Kamran Shehzad Siddiqui and 2 others v. Administration Committee and 2 others). This court held that “Contention of the learned counsel that NTS had no authority to conduct test is without any basis whatsoever. The authority to conduct tests vested in the High Court and if Administration Committee of the High Court for reasons that NTS being a Specialized Agency would be more attuned for conducting tests for general knowledge, verbal ability and similar other characteristics subjects came to the conclusion that NTS be given the task of conducting first test no fault can be found with such a decision by Administration Committee. Moreover neither it has been stated in the petition nor was it argued during hearing that what prejudice, if any, has been caused to the petitioners by the mere fact that first test was conducted by NTS”. One more judgment of the apex court which should not escape our attention is the case of Miss.Hina Javed v. Government of N.W.F.P. reported in 1998 SCMR 1469. In this case entry for determining the true merits of the candidates in the medical colleges was challenged. The apex court held as under:-

“11. Firstly, the standard of education and the method of examinations throughout the country has shown a downhill slide in recent past. The manner in which Board examinations are conducted and marking on the papers is done has considerably eroded the faith and confidence in the fairness of the process of these examinations. Therefore, refusal by authorities of medical colleges to abide solely by the result of these examinations to determine the true merit of a candidate was not totally unjustified. Secondly, keeping in view the prevailing irregularities and unhealthy practices in the Board examinations and to meet the challenges of growing competition for admission in the professional colleges, the introduction of entry test for determining the true merits of the candidates was a welcome step. We may mention here that merits of entry test for admission to higher studies and professional colleges have since been recognized all over the world and it is gradually finding its way in the professional colleges of our country as well. The foremost institution in the medical field which introduced entry test to determine the merits of candidates seeking admission to M.B.,B.S. classes was Agha Khan Medical College. Since then many other medical colleges in private sector in the Province of Sindh have adopted this system. The entry test system is also in vogue in the Army Medical College, Rawalpindi. With the success of entry test system in Agha Khan University and other Colleges many other professional colleges in the country have also introduced entry test for determining the merits of candidates seeking admission to these colleges. The system of entry test for admission to professional colleges has by and large met with the approval of people and has been a success so far without arousing any serious adverse criticism from the concerned quarters. No doubt, like all other systems the success of entry test for admission to professional colleges also depends largely on the fairness and transparency of the system and the honesty and dedication of those who are responsible for its enforcement”.

16. Learned counsel for the petitioners argued that the proviso added in Rule 108-C making the requirement of assessment test mandatory before commencing the pupilage and filing of intimation to the Provincial Bar Council is ultra vires to Section 26 of the Legal Practitioners and Bar Councils Act, 1973. It was further argued that Pakistan Bar Council has no right and authority to introduce such type of amendment which is novel and unique to the provisions of Section 26 of the aforesaid Act. It is fundamental and rudimentary for us to put side by side the proviso added through amendment and the pith and substance of the 1973 Act. In our vision and outlook, Section 26 of Act germane to admission as an advocate subject to fulfillment of conditions mentioned under it and clause (d) amplifies that person applied for the license to practice as an advocate has to undergo such course of training and pass such examination for the training as may be prescribed by the Pakistan Bar Council. An argument was put forward that in view the niceties and exactitudes of this clause, Pakistan Bar Council could not introduce any provision for assessment test before commencing the pupilage and filing intimation.

17. Sooner than embarking to the sphere of exploration as to whether the impugned proviso is intra vires or ultra vires, we have to thresh out minutiae of various Sections of Legal Practitioners and Bar Councils Act, 1973 and the Rules framed thereunder. Under Section 13 of the Legal Practitioners and Bar Councils Act, 1973 functions of the Pakistan Bar Council are provided which includes to lay down standards of professional conduct and etiquette for advocates; to promote and suggest law reform; to exercise general control and supervision over the Provincial Bar Councils and to issue directions to them from time to time; to promote legal education and prescribe standards of such education in consultation with the universities in Pakistan and the Provincial Bar Councils; to recognize universities whose degree in law shall be qualification for enrolment as an advocate; and to do all things necessary for discharging functions. (see clause (d), (g), (i), (j), (k) and (n) of Section 13 of Legal Practitioners and Bar Councils Act, 1973). If we get the drift of Section 9 in juxtaposition it converses to the functions of Provincial Bar Councils which inter alia includes to admit persons as advocates on its roll; to hold examination for the purposes of admission; to prepare and maintain a roll of such advocates of the province; to admit persons as advocate entitled to practice before the High Court and to prepare and maintain roll of such advocates; but one of the functions specified in clause (i) is to perform all other functions conferred on it by or under this Act and to comply with directions given to it by Pakistan Bar Council from time to time. At this point of time, we would like to revert to Section 26 which set down the qualification to become an advocate. What profusely deciphers is that a person may be admitted as an advocate subject to the provisions of Legal Practitioners and Bar Councils Act, 1973 and the Rules made thereunder. In exercise of powers conferred by Section 55 of the 1973 Act, Pakistan Bar Council framed Pakistan Legal Practitioners and Bar Councils Rules, 1976, which were notified on 22.5.1976. When we looked into Section 55 of the 1973 Act, we find out various rule making powers which are also included in the functions of Pakistan Bar Council under Section 13 of the Act including the rule making power for general principle and for guidance of the Provincial Bar Councils.

18. Under the 1973 Act, it is clear that Pakistan Bar Council exercises general control and supervision over the Provincial Bar Councils and may issue directions to them from time to time. Simultaneously, one of the functions of the Provincial Bar Councils is to comply with the directions given to it by Pakistan Bar Council from time to time which makes it well-defined that the Pakistan Bar Council possesses general control and supervision over the Provincial Bar Councils and may also issue directions to them from time to time. Reference may be made to 2001 NLR Civil 14 (S.M. Gharib Nawaz Daccawala v. Sindh Bar Council & another), in which the apex court held that Pakistan Bar Council and other Provincial Bar Councils have to work together within the framework of provisions of the Legal Practitioners and Bar Councils Act wherein each Bar Council has been invested with powers to deal with the affairs of the advocates while Pakistan Bar Council being appellate and supervisory body of all the Provincial Bar Councils stands on higher pedestal.

19. While maintaining the argument that proviso of Rule 108-C of the Pakistan Legal Petitioners and Bar Councils Rules, 1976 is ultra vires, the learned counsel for the petitioners referred to the following case law:-

PLD 1964 SC 451 (Province of East Pakistan and another v. Nur Ahmed and another). Rule making authority cannot clothe itself with powers which statute itself does not give.

2001 SCMR 1806 (M/s.Mehraj Flour Mills and others v. Provincial Government and others). Rule should always be consistent with the Act and no Rule shall militate or render the provisions of the Act ineffective. Test of consistency is whether the provisions of the Act and that of the Rules can stand together. Main object of the rule is to implement the provisions of the Act and in case of conflict between the two the Rule must give way to the provisions of the Act.

PLD 2014 SC 389 (Suo Motu Case No.11 of 2011) Rulemaking body cannot frame rules in conflict with or in derogation of the substantive provisions of the law or statute, under which the rules are framed. Rules cannot go beyond the scope of the Act…...

PLD 2011 Supreme Court 619 (Suo Motu Case No.13 of 2009). No rule can be made which is inconsistent with the parent statute, whereas, no regulation can be framed which is inconsistent with the parent statute or the rules made thereunder and the provisions of these rules or regulations, as the case may be, to the extent of such inconsistency with the parent statute or rules shall be void and inoperative.

20. The collective ratio or wisdom deducible from aforesaid dictums makes it abundantly clear that Rule making authority cannot clothe itself with powers which statute itself does not give. Rule should always be consistent with the Act and shall not militate or render the provisions of the Act ineffective. The rule to the extent of inconsistency with the parent statute shall be void and inoperative. Rule cannot go beyond the scope of the Act. There is no cavil to the proposition of law expounded or envisioned in the above pronouncements nevertheless it is not beyond our province to examine the impugned amendment to recapitulate whether the Rule made is inconsistent with or in derogation of substantive provisions of the law or statute. Under Section 26 of the Legal Practitioners and Bar Councils Act, 1973 certain qualifications are provided for admission as an advocate but it comes in the way only after filing intimation and undergone such course of training and pass examination after the training as may be prescribed by the Pakistan Bar Council. In nutshell there is no separate or independent provision specified itself under the Act that how a new entrant may file his Intimation Form and what further formalities he has to meet with at the time of filing intimation or even what requirements he has to fulfill and comply with after completion of his pupilage. All these peculiarities and procedures are provided under the Rules framed by Pakistan Bar Council. We have also scanned the specimen of Form “A” and “P” appended to Sindh Legal Practitioners and Bar Council Rules, 2002 (attached with R&P of CP.NO.D-913/2015) which elucidates that Form “P” is intimation form and after completion of pupilage requirement of Form “A” comes to light so it is recapitulated that applicability of Section 26 of 1973 Act emanates and crop up after completion of pupilage and not prior thereto. The requirement of assessment test naturally ensues at very initial stage when a person after passing LL.B. Final examination decides to join legal profession. Under Article 18 of the Constitution of Islamic Republic of Pakistan, 1973 subject to such qualification if any as may be prescribed by law every citizen has right to enter into any lawful profession or occupation and to conduct any lawful trade or business but noting in this Article prevents the regulation or any trade or profession by licensing system. To join legal profession is no doubt a fundamental right but to become an advocate on one’s own terms and conditions is not a fundamental right but he has to follow all procedural requirements. The expression subject to qualification if any as may be prescribed by law connotes that the State or the competent authority in law can regulate any trade, profession or business. So this right is not an absolute right but it is liable to certain restrictions. The word lawful means; according to law; not contrary to law; or permitted by law: or sanctioned or recognized by law; or pertaining to or concerned with law. According to Judicial Review of Public Actions by Justice (R) Fazal Karim, (Page 719, Chapter-10, Vol.1) ‘Profession’ means a vocation or occupation, requiring special, usually advanced, education, knowledge and skill, e.g. law or medical professions. The labour and skill involved in a profession is predominantly mental or intellectual, rather than physical or manual. The term originally contemplated only theology, law, and medicine, but as applications of science and learning are extended to other departments of affairs, other vocations also receive the name, which implies professed attainments in special knowledge as distinguished from mere skill. Thus, one of the signification of ‘profession’. Occupation means that which principally taken up one’s time, thought, and energies, especially one’s regular business or employment; also, whatever one follows as the means of making a livelihood. Particular business, profession, trade, or calling which engages individual’s time and efforts, employment in which one regularly engages or vocation of his life.

21. The Provincial Bar Councils under the Act are responsible to adhere to the directions given by the Pakistan Bar Council from time to time which is apex body having supervisory control and also issue guidance from time to time. They have created a concept of assessment test under the Rules framed in the year 1976 under the Act, 1973. We do not feel either it is derogatory or inconsistent with the Act, 1973 nor violates or militates the fundamental right of any person. The assessment test is not a new phenomenon but it is quite common in most of the educational institutions imparting education including medical, engineering and other professions. A person who wants to join legal profession with seriousness, allegiance and devotion he should not have afraid of assessment test. Mere passing LL.B examination does not necessarily mean that a person should join legal profession. It is relatively communal that many Government servants and other employees of different organizations/private sector who may not opt to join legal profession but in order to enhance their academic qualifications and to earn better prospective or venue of promotion or progression also take admission in LL.B. It is high time for Pakistan Bar Council and Provincial Bar Councils to formulate and compose all best possible efforts to maintain the high standards and benchmarks of this noble profession and it is their onerous duty to apply assessment test as precondition of “Intimation Form” to sift and screen right and deserving persons so that they may maintain the decorum and high standard of legal profession as true successors of their exalted vocation for which assessment test is an excellent device and yardstick.

22. The important distinction between primary and subordinate legislation is that primary legislation is law directly made by the Legislature; subordinate legislation, on the other hand, is law made by a subordinate authority acting under delegated legislative power. In the words of the Constitution, Article 260, which, among others, defines the terms ‘Federal Law’ and ‘Provincial Law’, primary legislation is the law made by, that is, made directly by the Parliament or as the case may be by the Provincial Assembly and subordinate legislation is the law made under the (delegated) authority of the Parliament, or as the case may be, of the Provincial Assembly. The crucial part of the definitions is that which provides a source based test: law made “under the authority of the Parliament, or as the case may be, of the Provincial Assembly.” Subordinate legislation must, in order to be law, and in order to be valid, depend on an Act. In the poetical words of Cecil Carr, delegated legislation “is directly related to Acts of Parliament, related as child to parent…..’

C.Carr, Delegated Legislation: Three Lectures (1921) p.2.

[Ref: Judicial Review of Public Actions by Justice (R) Fazal Karim, Chapter.3, page 1281, Vo.2.]

“Power to make rules, regulations etc. is a delegated legislative power. Subordinate legislation, if validly made, is as much law as a statute; it binds the public, it binds the government and it binds the courts. Thus, in US v. Nixon, the US Supreme Court said: “So long as this regulation is extant, it has the force of law……. So long as this regulation remains in force, the executive branch is bound by it……” As was said in Works v. DPP. “There is, of course, no doubt that when a statute enables an authority to make regulations, a regulation which is validly made under the Act, i.e. which is intra vires of the regulations-making authority, should be regarded as though it was itself an enactment.” From the proposition that subordinate legislation is law, flows corollary that it can create rights, obligations, duties and liabilities”.

[Ref: Judicial Review of Public Actions by Justice (R) Fazal Karim, Chapter.3, page 1281, Vo.2.]

23. The whole theory of ultra vires is that the act in question, be it a legislative act or an administrative act, is beyond the legal power of the person or authority doing it. In each case, there is law higher in authority, and the test to determine the vires is whether the subordinate law conflicts with the higher law. If it does, then it must be treated as of no validity. We have no hesitation to hold that the impugned proviso added in the Rules is not in derogation of the substantive provisions of 1973 Act nor it is repugnant nor it militates or renders the provisions of the Act ineffective rather the provisions of the Act and that of the Rules both can stand together and there is no such conflict in which circumstances the Rule must give way to the provisions of the Act. The introduction of assessment test for new entrants also does not violate or contravene any fundamental right of any person nor it is discriminatory to any individual quite the reverse, it is applicable across the board with broad spectrum. It is not the case here that on introducing this assessment test, the Bar Councils have restricted or curtailed the seats or openings but any person who will meet threshold of 50% marks will be allowed to submit intimation form and to qualify this test, at least three attempts are available. The curriculum of assessment test shows that it is virtuously confined and restricted to the subjects of law and we do not envision and visualize that a contender who appeared in various subjects of law and passed his LL.B. final examination cannot sit and solve assessment paper. At this juncture, we would like to reproduce paragraph 9 of the Counter Affidavit filed by Sindh Bar Council as under:

“9.It is also relevant to note that after the said amendment was passed, vide letter dated 29.7.2013, the respondent No.3 directed the respondent No.2 that from 30.9.2013 onwards, it should no longer entertain intimation forms from law graduates who had not passed the NTS examination. Copies of the impugned notification dated 7.3.2013, the PBC letter dated 29.7.2013 and the NTS brochure are annexed herewith as Annexures “C” to “E” respectively. It may be pointed out that in the period starting from 1.10.2012 to 30.9.2013, a total of 1926 intimation forms were received by the respondent No.2. Thereafter, once the NTS regime was enforced, only 282 intimation forms were received in the period starting from 1.10.2013 to 30.9.2014. This clearly shows the dramatic improvement in the enrolment standards of advocates. In the three NTS examination that have been held so far since 30.9.2013, a total of 361 law graduates have successfully passed the same. [Emphasis added] It is further requested that the respondent No.4 may be directed to file the syllabus of the examinations being held as well as copies of the three examination papers thus far held and the pass rate in each examination so that this hon’ble court may be in a better position to gauge the utility and benefit of the NTS examination. It may also be pointed out that after the passing of the interim order passed by this court on 16.3.2015 the answering respondent has entertained 1780 intimation forms and the Executive Committee of the answering respondent has recommended, vide its meeting dated 14.5.2015 that in the light of the orders by this court the enrolment of each persons may be proceeded with whether or not they have passed the NTS examination as if the impugned notification of 7.3.2013 had never been issued”.

24. The learned counsel for Sindh Bar Council as his fallback argument referred to Doctrine of severability which permits the court to sever the unconstitutional portion of a partially unconstitutional statute in order to preserve the operation of any uncontested or valid remainder and he made reliance on the following dictums:

2009 SCMR 846 (Qaiser Javed Malik v. Pervaiz Hameed and 2 others). The Courts should adopt an interpretation, which may give meanings to each word of an enactment taking into consideration the spirit of such legislation. An interpretation, whereby any portion of an enactment is rendered ineffective is not to be adopted when clear meanings can be given to various provisions of an enactment in a harmonious manner.

2005 MLD 1724 (Khursheed Ahmed Junejo & others v. Government of Sindh & others). Provisions of a statute were to be interpreted in a harmonious manner so that effect may be given to each one without treating either of them to be redundant.

2014 C L C 335 (M.Q.M. & others v. Province of Sindh & others). Doctrine of severability permitted a court to sever the unconstitutional portion of a partially unconstitutional statute in order to preserve the operation of any uncontested or valid remainder, but if the valid portion was so closely mixed up with the invalid portion that it could not be separated without leaving an incomplete or more or less mixed remainder, the court would declare the entire act void.

A.I.R. 1957 S.C. 628. (R.M.D. Chamarbaugwalla & another vs. Union of India & another). Doctrine of severability. When a statute is in part void, it will be enforced as regards the rest, if that is severable from what is invalid. Certain rules of construction laid down by the American Courts, where the question of severability has been the subject of consideration in numerous authorities. They may be summarized as follows:-

1.In determining whether the valid parts of a statute are separable from the invalid parts thereof, it is the intention of the legislature that is the determining factor. The test to be applied is whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid. Vide Corpus Juris Secundum, Vol. 82, p. 156; Sutherland on Statutory Construction, Vol. 2, pp. 176-177.

2. If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another, then the invalidity of a portion must result in the invalidity of the Act in its entirety. On the other hand, if they are so distinct and separate that after striking out what is invalid, what remains is in itself a complete code independent of the rest, then it will be upheld notwithstanding that the rest has become unenforceable. Vide Cooley's Constitutional Limitations, Vol. 1 at pp. 360-361; Crawford on Statutory Construction, pp. 217-218.

3.Even when the provisions which are valid are distinct and separate from those which are invalid, if they all form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole. Vide Crawford on Statutory Construction, pp. 218-219.

4.Likewise, when the valid and invalid parts of a statute are independent and do not form part of a scheme but what is left after omitting the invalid portion is so thin and truncated as to be in substance different from what it was when it emerged out of the legislature, then also it will be rejected in its entirety.

5. The separability of the valid and invalid provisions of a statute does not depend on whether the law is enacted in the same section or different sections; (Vide Cooley's Constitutional Limitations, Vol. 1, pp. 361-362); it is not the form, but the substance of the matter that is material, and that has to be ascertained on an examination of the Act as a whole and of the setting of the relevant provisions therein.

6. If after the invalid portion is expunged from the statute what remains cannot be enforced without making alterations and modifications therein, then the whole of it must be struck down as void, as otherwise it will amount to judicial legislation. Vide Sutherland on Statutory Construction, Vol. 2, p. 194.

7.In determining the legislative intent on the question of separability, it will be legitimate to take into account the history of the legislation, its object, the title and the preamble to it. Vide. Sutherland on Statutory Construction, Vol. 2, pp. 177-178.

25. According to Bennion’s annotation, “The main reason why the legislature delegates is that it cannot itself go into sufficient detail. The answer is two-tier legislation. The top tier is the enabling Act, sometimes known as a skeleton Act or what Sachs J called a streamlined Act. The second tier is laid down in delegated legislation, which can easily be adjusted in the light of experience of its working. The true extent of the power governs the legal meaning of the delegated legislation. The delegate is not intended to travel wider than the object of the legislature. The delegate’s function is to serve and promote that object, while at all times remaining true to it. That is the rule of primary intention”.Bennion on Statutory Interpretation, Fifth Edition. (Comment on Code S 59. Page 263). Justice G P Singh, in his book “Principles of Statutory Interpretation” 12^th Edition 2010, (Page 1051) annotated that “Rules made under the statute are treated for the purpose of construction as if they were in the enabling Act and are to be of the same effect as if contained in Act. Interpretative notes appended to the Rules by the Rule making authority are part of the Rules and hence statutory. It is a recognized canon of construction that an expression used in a rule, bye-law or form made in exercise of a power conferred by a statute must unless there is anything repugnant in the subject or context have the same meaning as is assigned to it under statute. But the rules are to be consistent with the provisions of the Act, and if a rule goes beyond what the Act contemplates, the rule must yield to the Act”.

26. In the judgment authored by one of us (Muhammad Ali Mazhar-J) 2014 C L C 335 (M.Q.M. & others v. Province of Sindh & others), it was held that Doctrine of severability permits court to sever the unconstitutional portion of a partially unconstitutional statute in order to preserve the operation of any uncontested or valid remainder, but if the valid portion was so closely mixed up with the invalid portion that it could not be separated without leaving an incomplete or more or less mixed remainder, the court would declare the entire act void. No such situation arises in this case to declare the proviso void. The Rules framed under the delegated legislation easily be adjusted in the light of experience of its working which has been done by the Pakistan Bar Council which is in fact a Rule making Authority and most of the incidence are not mentioned in the Act of 1973 including the procedure even filing of intimation but all such details are mentioned in the Rules. The learned counsel for Sindh Bar Council argued that assessment test may be taken after completion of pupilage. We have already examined that under Rule 108-C, at the time of applying admission as an advocate (which means after completion of pupilage) the applicant has to pass a written examination in addition to a viva-voce examination under the directions and supervision of the Enrolment Committee of the Provincial Bar Council in the subjects i.e Civil Procedure Code, Criminal Procedure Code, Qanoon-e-Shahadat, Constitution of the Islamic Republic of Pakistan, Legal Practitioners and Bar Councils Act, 1973 and the rules framed thereunder, Canons of Professional Conduct and Etiquettes. It is further provided in the same Rule that copies of the Constitution, Bare Acts and Rules shall be made available to the applicant at the examination.

27. It is not a workable and feasible idea that after completion of pupilage of six months, applicant should face three exams simultaneously, one assessment test through NTS, second exam with books and third Viva voce. It is not the case that the provisions of Section 26 of the Act 1973 and proviso added in the 1976 Rules are so inextricably mixed up that they cannot be separated from one another so that the invalidity of a portion must result in the invalidity of the Act in its entirety. On the other hand, both are so distinct and separate. It is not the form, but the substance of the matter that is material, and that has to be ascertained on an examination of the Act as a whole and of the setting of the relevant provisions therein. Since we have already held that proviso added in the Rules is not violative of the 1973 Act or anybody’s fundamental rights therefore Doctrine of severability does not apply here for us to preserve the operation of any uncontested or valid remainder and declare the proviso in derogation of the substantive provisions of 1973 Act. So far as Clause (l) added in Rule 108-B is concerned, it merely expresses a formality to attach 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, therefore, it has no adverse repercussions or ramifications. As and when application will be moved by a person under Section 26 of the Act of 1973 read with the formalities required to be fulfilled under Rule 108-B & 108-C for his enrollment and admission as an advocate, the candidate may simply attach his certificate/result card issued by NTS at the time of assessment test conducted as prerequisite of intimation form.

28. As a result of above discussion, the petitions are dismissed with pending applications. However, a Resolution/Decision of Executive Committee is attached to the counter affidavit filed by SBC as Annexure F, which shows that pursuant to the interim orders passed on 16.3.2015 in C.P.NO.D-913/2015, the Executive Committee of SBC decided in their meeting held on 14.5.2015 that “all the pending intimations in which the National Testing Service (NTS) has been cleared by various applicants and others who have not appeared in the NTS due to amendment made by Pakistan Bar Council in Rule 108 be also allowed to appear in written test/viva voce examination if their intimation period have been completed subject to fulfillment of necessary formalities and/or if any case pending for Enrollment due to short documents or otherwise they may also be allowed subject to furnishing of documents” therefore it is clarified that the intimation forms already accepted by the Sindh Bar Council in view of the above decision shall not subject to assessment test at this stage, nevertheless, in future all Intimation Forms shall be accepted after fulfilling the requirement of Assessment Test as envisaged under Rule 108-C of Pakistan Legal Practitioners and Bar Councils Rules, 1976.

Karachi:- Judge

Dated.14.5.2016

Judge