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Breaking: "Every Tom, Dick & Harry Should Not Be Brought To This Position": Orissa High Court Strikes Down Own Rule Allowing Senior Designation Sans Proposal/ Application

Akshita Saxena
10 May 2021 11:47 AM GMT
Breaking: Every Tom, Dick & Harry Should Not Be Brought To This Position: Orissa High Court Strikes Down Own Rule Allowing Senior Designation Sans Proposal/ Application
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The Orissa High Court on Monday struck down Rule 6(9) of the 'High Court of Orissa (Designation of Senior Advocate) Rules, 2019' which confers power on the Full Court to designate an Advocate as Senior in the absence of any proposal from Judges or application from such Advocate. A Division Bench comprising of Justices CR Dash and Pramath Patnaik observed that the Rule is not in...

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The Orissa High Court on Monday struck down Rule 6(9) of the 'High Court of Orissa (Designation of Senior Advocate) Rules, 2019' which confers power on the Full Court to designate an Advocate as Senior in the absence of any proposal from Judges or application from such Advocate.

A Division Bench comprising of Justices CR Dash and Pramath Patnaik observed that the Rule is not in consonance with the guidelines framed by the Supreme Court for conferment of senior designation in Indira Jaising case [Indira Jaising v. Supreme Court of India, (2017) 9 SCC 766].

The Bench stated that in the said judgment, the Supreme Court 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.

"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," the Bench said. It emphasized that the Supreme Court's silence on third source of picking through suo moto power is a "conscious silence".

The Bench was hearing a writ petition filed by four Advocates assailing a notification issued by the High Court in in August 2019, whereby the Full Court had designated 5 Advocates namely (i) Bibekanada Moanti, (ii) Gautam Misra, (iii) Debi Prasad Dhal, (iv) Gautam Mukherji, and (v) Durga Prasad Nanda, as Senior in exercise of its powers under Rule 6(9).

Finding the notification to be discriminatory, the Bench has asked the Full Court to take a fresh decision regarding designation of above named Advocates alongside 43 applications received by it.

It has however clarified that until a decision is taken by the Full Court, the impugned notification shall remain in effect.

It held,

"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… There is also nothing on record to suggest that the datas and materials were placed before the Full Court to apply it's mind.

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."

It added,

"Opposite Party Nos.5 to 9 having been graced by the Hon'ble Full Court with the designation of "Senior Advocate", we do not want to disgrace them at present by withdrawing the designation, as there is no fault on their part in the entire exercise. Tomorrow, the Hon'ble Full Court may rethink after exhausting the process under Rule-6 of "2019 Rules" to designate them again as "Senior Advocates", as according to our view, they are deserving, but there may be contrary decision also.

Though we have declared sub-rule (9) of Rule-6 ultravires, we do not propose to strike down the Notification No.1378, dated 19.08.2019 for the present. It would only cease to be after a decision is taken by the Hon'ble Full Court on the matter regarding designation of "Senior Advocate" is placed before it after exhausting the entire process under Rule-6 in which process applications of Opposite Party Nos.5 to 9 shall also be taken into consideration."

The Bench reiterated that the sole yardstick with which the Supreme Court devised guidelines for framing Rules for senior designation is the need for "maximum objectivity" in the process, so as to ensure that it is only and only the most deserving and the very best who would be bestowed the honour and dignity.

"The credentials of every advocate who seeks to be designated as Senior Advocate or whom the Full Court suo motu decides to confer the honour must be subject to an utmost strict process of scrutiny leaving no scope for any doubt or dissatisfaction in the matter," the Supreme Court had opined.

During the course of hearing, the Bench also discussed the locus standi of Petitioners to maintain the writ petition, who had also made applications for designation.

The Court held that the petition is maintainable as the Petitioners and the Opposite Parties are 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," it held.

Before parting, the Bench made the following observations:

(I) He is an Advocate with towering personality. He is suave and gentle. His disposition towards the Court and his fellow counsels is impressive. He is known for his ready wit. Ask him any question on any law, he has an answer with reasonings. His standing in the Bar is remarkable. He is a social factor in the society, he lives. He is humble, dignified, kind and a person with sobriety. He would however not come to stand in a queue to file an application for being designated as "Senior Advocate". Such a person being an asset to the profession, suo motu power should be reserved to be exercised for such a person only and such power should be given to the High Courts, as in our understanding, such power has not been given to the High Courts in the guidelines/norms framed in Indira Jaising case.

(II) Designation of "Senior Advocate" is a coveted position from the point of view of the Bar and the society. There should not be crowd in such a coveted position. Every Tom, Dick & Harry should not be brought to this position by whatever means permissible. Certain percentage of the total strength of a particular Bar should only be allowed to enter into this coveted position.

Case Title: Banshidhar Baug v. Orissa High & Ors.

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