No Suo moto designation of Senior Advocate: Orissa HC set aside 5 senior designation

Senior Advocate
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Division Bench of Justice Chitta Ranjan Dash and Justice Pramath Patnaik set aside the 5 senior designation being ultravires against guidelines/norms framed in paragraph- 73 of Indira Jaising Vs. Supreme Court of India case

Petitioner in person,, Banshidhar Baug, challenged the process of conferring designation of “Senior Advocate” was on in accordance with Rule-6 of High Court of Orissa (Designation of Senior Advocate) Rules, 2019 (“2019 Rules” for short), the Hon’ble Full Court conferred designation of “Senior Advocate” on five Advocates.

Prayer
(I) to quash the Notification No.1378, dated 19.08.2019 vide Annexure-8 declaring
Opposite Party Nos.5 to 9 as “Senior Advocates” ;
(II) to quash sub-rule-(9) of Rule-6 of “2019 Rules”;
(III) to issue direction to the Permanent Committee as well as the Hon’ble Full Court of the High Court to consider the applications of Opposite Party Nos.5 to 9 along with other applicants named in the Notice dated 09.08.2019 vide Annexure-7 for being designated as “Senior Advocates”;
(IV) In W.P.(C) No.17110 of 2019, one more prayer is added to quash the Notification dated
04.09.2019, which calls applications from eligible advocates for being designated as
“Senior Advocates”.

Respondent submitted that the Permanent Committee (which includes Hon’ble the Chief Justice and two Senior-most Hon’ble Judges of the Court) placed names of Opposite Party Nos.5 to 9 before the Hon’ble Full Court for consideration of conferring them with designation of “Senior Advocate” by invoking it’s suo motu power under sub-rule (9) of Rule-6 of “2019 Rules”.Notification was issued on 19.08.2019 by the Orissa High Court designating Opposite Party Nos.5 to 9 as “Senior Advocates”. It is further asserted that the designation of“Senior Advocate”, being not a “bounty”, “title” or “office” and the applications of the petitioners for being designated as “Senior Advocate” being still pending as per the procedure enshrined in Rule- 6 of “2019 Rules”, and the lis between the parties not being a Public Interest Litigation (PIL) or an adversarial litigation, the writ petition is not maintainable being premature and the petitioners have no locus standi to call in question the action of the Hon’ble Full Court.

It was further asserted that the Hon’ble Full Court has rightly declared Opposite Party Nos.5 to 9 as “Senior Advocates”, in exercise of their suo motu power under subrule (9) of Rule- 6 of the “2019 Rules” read with Section16(2) of the Advocates Act. Hence, the writ petition should be dismissed.

The Court framed the following issues:

Whether the petitioners have locus standi to maintain the writ petition ?

The petitioners and the Opposite Party Nos.5 to 9 were not rivals so far as their claim is
concerned. The petitioners may be conferred with the designation of “Senior Advocates” tomorrow after the process under Rule-6 of “2019 Rules” is over. But being advocates they have a vested and existing right to call in question the rule which creates a separate group within a particular group, more so, when such creation of group by invoking a particular rule is not in consonance with the guidelines of Hon’ble the Supreme Court according to their study and wisdom. The question of validity of sub-rule(9) of Rule-6 of “2019 Rules” being the subject matter of litigation now and the petitioners being alleged to have been discriminated by that rule, it is not to be seen now as to whether a fundamental right of the petitioners has been violated. Only because the petitioners are applicants for their private cause, the doctrine of aprobate and reprobate cannot be applied strictly to the facts of the case especially in view of the nature of the lis. Only and only the validity of sub-rule (9) of Rule-6 of “2019 Rules” has to be examined to find out whether the same is in consonance with the guidelines of Hon’ble the Supreme Court framed in Indira Jaising case irrespective of the fact who brought the matter before the Court. In our considered view, therefore, the petitioners have the locus standi to maintain the writ petitions.

Whether the Orissa High Court could have framed Rule in the form of “2019 Rules”
incorporating sub-rule (9) of Rule- 6, which runs contrary to the guidelines/norms of
Hon’ble the Supreme Court for framing Rules as contained in paragraph- 73 of
Indira Jaising case ?

“2019 Rules” is to be examined in the touchstone of the guideline formulated in paragraph- 73 of the said Judgment. While framing the guideline, Hon’ble the Supreme Court has specifically held that the norms/ guidelines, in existence, shall be suitably modified so as to
be in accord with the present. For brevity, we are not quoting here the entire guideline. But we feel it beneficial to say that the power of any addition, deletion from the guidelines formulated in paragraph- 73 in the light of the experience to be gained over a period of time is left open for consideration by Hon’ble the Supreme Court alone at such point of time that the same becomes necessary. It clearly indicates that any modification in the guideline to suit a particular High Court is to be in accord with the guidelines framed in paragraph- 73 and except the Supreme Court, no other High Court has any power to add or delete from the
guideline.

A thorough reading of the entire Judgment along with the guideline framed in paragraph- 73 of the Judgment makes it clear that Hon’ble the Supreme Court in paragraph- 73.4 of the Judgment has recognized two sources for drawing advocates for being designated as
“Senior Advocate”. One is written proposal by the Hon’ble Judges and second source is the application by the advocate concerned. There is no third source of picking an advocate
by exercise of suo motu power, though exercise of suo motu power has been discussed in paragraph- 70 of the Judgment. These sources, we think have been inserted in the guidelines after a conscious thought by Hon’ble the Supreme Court. Hon’ble the Supreme Court has not thought it proper to include exercise of suo motu power by either the Supreme Court or other High Courts so far as designation of “Senior Advocate” is concerned.

Rule makes it clear that sub-rules- (1) & (2) correspond to paragraph-73.4 of the Judgment in Indira Jaising case. Sub-rule (3) corresponds to paragraph- 73.5, sub-rule (4) corresponds to
paragraph-73.6, sub-rule (5) corresponds to paragraph73.7, sub-rule (6) corresponds to paragraph-73.8, sub-rule (7) corresponds to paragraph-73.9 and sub-rule (8) corresponds to paragraph- 73.10 of the said Judgment. Sub-rule (9) according to Mr. Mohanty, learned Senior Counsel appearing for the Orissa High Court and Mr. S.P. Mishra, learned Senior Counsel appearing for Opposite Party Nos.5 & 7 to 9 corresponds to paragraph-70 of the said Judgment, which speaks of exercise of suo motu power and Section- 16(2) of the Advocates Act, 1961.

It is alleged that, after the stage of sub-rule (2), Opposite Party Nos.5 to 9 were picked by the Permanent Committee and the matter was placed before the Hon’ble Full Court for exercise of their suo motu power under subrule (9). It is argued that, all the objective data and information with regard to the reputation, conduct and integrity of Opposite Party Nos.5 to 9 were there on record after the stage of sub-rule (2) and the Hon’ble Full Court had
the occasion to apply their mind to such data and information with regard to the reputation, conduct and integrity of Opposite Party Nos.5 to 9 at the time of consideration of conferring designation of “Senior Advocate” on them (Opposite Party Nos.5 to 9). Mr. S.P. Mishra,

learned Senior Counsel appearing for Opposite Party Nos.5 & 7 to 9 cites before us the Rule of Punjab & Haryana High Court, which has provision similar to sub-rule (9) of our
High Court though couched in different manner. We are, however, not concerned with the Rule of Punjab & Haryana High Court for the present.

In sub-rule (9), the word “even” after the word “advocate” and before the word “without” has been used as an adverb. Literally, it is used as an intensive to emphasize the identity and character of something and that something here is without any proposal from the Hon’ble Judges or application from the Advocate.

Therefore, sub-rule(9) of Rule- 6 of “2019 Rules” is not in consonance with the said
Judgment and ultravires of the guidelines/norms in our
considered view

(III) Whether the direction of Hon’ble the Supreme Court in Indira Jaising case is
binding on this Court, in view of Article141 of the Constitution of India ?

In view of Article- 141 of the Constitution of India, the said guideline is binding on all the Courts of the Country including this Hon’ble Court and no citation is necessary to substantiate this point.

(V) Whether the Opposite Party Nos.5 to 9, who had applied as per the “2019 Rules” along
with the petitioners and others could have been picked by the Permanent Committee
prior to the stage of sub-rule (3) of Rule- 6 of the “2019 Rules” and could their names
have been recommended for designation as “Senior Advocates” ?

Assuming arguenda sub-rule (9) of Rule- 6 of “2019 Rules” to be valid, it is to be examined whether conferment of designation of “Senior Advocate” on Opposite Party Nos.5 to 9 is above reproach. Opposite Party Nos. 5 to 9 were applicants for being designated as “Senior Advocates” along with other applicants. They were picked for being conferred with the
designation after sub-rule (2) of Rule- 6 stage of “2019 Rules”, leaving other applicants to suffer the grind of the processing mill under the said Rules. There is no material
before us to reach a conclusion that applications received from all the applicants were examined in detail or the compilation made by the Secretariat containing relevant
data and information with regard to the reputation, conduct and integrity of the advocates concerned of all the advocates was examined in detail to pick Opposite Party Nos.5 to 9 for conferring them with the designation of “Senior Advocate” in exercise of power under sub-rule (9) of Rule- 6. There is also nothing on record to suggest that the datas and
materials were placed before the Full Court to apply it’s mind. Furthermore, Opposite Party Nos.5 to 9 only and none else were adjudged suitable for exercise of power under subrule (9) of Rule- 6, when Opposite Party Nos.5 to 9 were also applicants and being the applicants, they were in readiness to suffer the grind of the processing mill entirely under Rule6 of “2019 Rules”. Suo motu power is not a power to be exercised ordinarily. It is a power to be exercised sparingly with circumspection in rare cases. We do not find any such rarity in the present case for exercise of power under subrule (9) of Rule- 6 of “2019 Rules”. We are, therefore,
constrained to hold that the entire process of conferring designation of “Senior Advocate” on Opposite Party Nos.5 to 9 is discriminatory.

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