A division bench of the Karnataka High Court on Friday disposed of a batch of PILs to uphold the notification issued by it on November 16, 2018, conferring senior designation on eighteen advocates.
In a detailed judgment, Chief Justice Abhay S. Oka and Justice Mohammad Nawaz examined the vires of the High Court of Karnataka (Designation of Senior Advocates), Rules, 2018 vis-à-vis the guidelines issued by the Supreme Court for conferring senior designation in Indira Jaising v. Supreme Court of India, (2017) 9 SCC 766.
The bench said,
"The guidelines/rules of a High Court may contain certain additional guidelines which are not part of the directions in paragraphs 73 to 73.11 of the Apex Court decision. But the same cannot be contrary to or inconsistent with the directions of the Apex Court… If any of Rules are inconsistent with the directions of the Apex Court, the same will have to be ignored and the directions or the Apex Court will have to be strictly followed."
To this end, the court read down following two rules of the High Court Rules:
The court was of the opinion that the Permanent Committee is only empowered to make an overall assessment of all the candidates by assigning points. However, the power to take a final decision in that regard vests only in a Full Court of the high court and such overall assessment does not necessarily bind the Full Court.
The court further clarified that the power conferred on the Permanent Committee to collect certain information may or may not be exercised. It held that "merely because the Permanent Secretariat has not collected the information regarding conduct and integrity of the candidates, the process will not be vitiated. The stakeholders like the Bar Associations, State Bar Council and Advocates can always supply the said information while submitting their suggestions and views."
In this regard the court observed that the Supreme Court had directed all the High Courts to modify their existing guidelines in conformity with its directions. Thus, the high courts were expected to incorporate the directions issued by the Apex Court, which did not leave any room for interpretation by the Chief Justice.
"…The directions of the Apex Court do not leave the issue of interpretation of the Rules or guidelines to the Chief Justice of respective High Courts. Therefore, Rule-11 is completely inconsistent with the directions of the Apex Court and it cannot be implemented," the court said.
The court added,
"Power to designate senior vests only in the full court and not in the Chief Justice alone… the overall assessment made by the Parliament Committee in respect of every candidate shall be placed before the Full Court for decision, as the decision making authority vests in the Full Court."
Issue of Transfer Order of Justice Raghvendra S. Chauhan
In his plea, the Petitioner had also contended that Justice Raghvendra S. Chauhan, who received his transfer order on November 8, 2018, ought to not have participated in the Permanent Secretariat which met on dates subsequent to his order of transfer.
Rejecting this argument the court clarified that even though Justice Chauhan received his transfer order on November 8, he did not assume charge at his new place of posting, i.e., Hyderabad, till November 22. Thus, until he took charge at the High Court of Hyderabad, he was a judge of the Karnataka High Court and had every right to participate in the Secretariat.
The court explained,
"If the argument of the petitioner that with effect from 8th November, 2018 which is the date on which the transfer order was issued Hon'ble Shri Justice Raghvendra S. Chauhan ceased to be the judge at the High Court of Karnataka is accepted, it will lead to an absurdity, inasmuch a3, from 8th November, 2018 till the date on which he assumed charge of post as a Judge of High Court at Hyderabad, he will not be a Judge of any High Court and he will not entitled to draw salary and other perquisites for the said period. There will be a break in his service. An interpretation which leads to such an absurdity cannot be accepted… There was no illegality associated with Hon'ble Sin. Justice Raghvendra S. Chauhan participating in the meetings of the Permanent Committee he!d on 11`" and 12th November, 2018 and the meeting of the Full Court on 15th November, 2018, as he had not subscribed oath or affirmation as a judge of the transferee High Court till 15th November 2018."
The Petitioner had contended that while the Rules require final consideration of the candidates by the Full Court, the Chief Justice of the High Court had insisted that only persons securing a minimal cut-off of 50 points out of 100 points in the assessment made by the Committee should be considered by the Full Court. It was asserted that the Rules do not prescribe cut-off points for consideration by the Full Court, and that the Committee was anyway supposed to play the limited role of making an assessment and preparing a report for the Full Court.
The court said that this contention did not have merit as the Committee had not set any benchmark for assessing the candidates.
"The contention of the petitioner regarding the bench mark cannot be accepted and even if such an inference is to be drawn, the same is inconsistent with the fact that in case of the two candidates who had secured substantially higher marks than 50 marks, the final decision was deferred and in fact their cases were not considered," the court pointed out.
It was further clarified that even if a point based assessment were to be made after an agreement amongst the members of the Full Court, "it is quite possible to fix a bench mark by providing that those who have secured points above the bench mark will be designated as Senior Advocates."
Advocate General's Bias
The petitioner had asserted that the Advocate General, who participated in the Committee deliberations, endorsed one of his erstwhile juniors and two of close associates. This, the plea read "gives rise to apprehension of bias" on his part.
In this regard the court said that it was "unfortunate" that such wild allegations were being made without any basis, whatsoever. The court noted that the Advocate General concerned had "recused" himself from the deliberations and did not assign marks to the concerned candidates. Thus, the allegations did not merit consideration.
Publishing Applicant's Data
Notably, an argument was made that the data compiled by the Permanent Secretariat for overall assessment of all the candidates, vis-à-vis their reputation, conduct, integrity and participation in pro bone work, should be published on the website.
Refuting this argument, the court clarified that the judgment in Indira Jaising case only provides for publication of the proposals received and does not provide that the data compiled by the Secretariat should be published.
The court said that the object behind this was to not allow the stakeholders to make a fishing enquiry about the applicants and raise frivolous objections. "…the members of the Bar, the Bar Association, the Bar Council and litigants who are conversant with the performances of the applicants can always make their suggestions/views on the proposals. The suggestions/views can be expressed on a particular applicant only by those stakeholders who know the applicant," it was thus held.
Review of Full Court's Decision For Granting/ Declining Designation
The court has also held that the decision of the full court on question of granting designation or declining to grant designation is not taken in exercise of "quasi judicial" or "judicial power". Rather, this decision is based on the formation of an opinion in accordance with Section 16(2) of the Advocates Act, 1961. And while the formation of such an opinion must be based on merits, the full court is not bound to record reasons for grant of designation or for declining to grant designation, the high court held.
Since the above said decision is not a judicial/ quasi-judicial order, "when a writ court is called upon to exercise its power of judicial review under Artcle 226 of the Constitution, it cannot go into the merits of the decision and it can examjine only the decision making process," the court held.
With these observations, finding no material irregularity in the decision making process for designating Senior Advocates, the high court dismissed the petitions.
Case Details:Case Title: TN Raghupathy v. High Court of Karnataka & Ors.Case No.: WP No. 5380/2019 (and other similar matters)Quorum: Chief Justice Abhay S. Oka and Justice Mohammad Nawaz
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