Vishnu Behari Tewari vs The High Court Judicature At Allahabad ... on 3 September, 2024

[Cites 19, Cited by 0]

Allahabad High Court

Vishnu Behari Tewari vs The High Court Judicature At Allahabad ... on 3 September, 2024

1. Heard Sri Vishnu Behari Tewari, in person and Sri Rohit Kumar, learned counsel for the petitioner in Writ-C No.19326 of 2019 and Sri G.K. Singh, learned Senior Advocate assisted by Sri Ashish Mishra & Sri Chandan Sharma, learned counsel for the Allahabad High Court.

2. Matter has been received upon nomination made. Since one of us was party to the Full Court Meeting held on 18.05.2019, that fact was clarified to the parties, on 08.04.2024. All parties consented that the matter may be heard by this bench. Accordingly, it has been proceeded.

3. On 25.09.2019, the present petition was filed for the following relief:

(i) TO ISSUE a writ, order or direction in the nature of certiorari quashing the minutes of the meeting of Permanent Committee constituted under sub-rule (1) of Rule 3 of The Designation of Senior Advocate Rules, 2018 held on 10.05.2019 at 4.30 P.M. in the Committee Room at Allahabad High Court;

(ii) TO ISSUE writ, order or direction in the nature of mandamus declaring the words "if it is so desires may in the sub-rule (5) of Rule 6 of The Designation of Senior Advocate Rules, 2018 is contravention of the paragraph No.73.7 of the Apex Court judgment cited in (2017) 9 Supreme Court Cases: 766 "Indira Jaising vs. Supreme Court of India though Secretary General & others", as ultra vires being arbitrary, discriminatory, unjust, illegal and violative of Article 14 , 15 & 21 of the Constitution of India,

(iii) TO ISSUE a writ, order or direction in the nature of mandamus restraining the Chief Justice of the High Court of Judicature at Allahabad not to designate the approved Advocates by Full Court Meeting held on 18.05.2019 as Senior Advocate under Section 16 of the Advocates Act, 1961;

(iv) TO ISSUE a writ, order or direction in the nature of mandamus restraining the Registrar General of the High Court of Judicature at Allahabad not to notify the designation of Advocate as Senior Advocate in compliance of sub-rule (2) of Rule 7 of the Designation of Senior Advocate Rules, 2018;

(v) TO ISSUE any other writ order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case;

(vi) TO AWARD cost of the writ petition to the petitioner."

4. Challenge raised in the present petition, amongst others, is to the proceedings, resolution and consequential action arising from the Full Court Meeting of this Court dated 18.05.2019. Since both writ petitions have been heard together, for the sake of convenience, we refer to the facts in Writ - C No. 17736 of 2019, as that petition has been argued first.

5. Section 16 of the Advocates Act, 1961 (hereinafter referred to as the Act) provides for designation of Senior Advocates. It reads as under:

"Section 16 of the Advocates Act states the following:

(1) There shall be two classes of advocates, namely, senior advocates and other advocates.

(2) An advocate may, with his consent, be designated as senior advocate if the Supreme Court or the High Court is of opinion that by virtue of his ability, [standing at the Bar or special knowledge or experience in law] he is deserving of such distinction.

(3) Senior advocates shall, in the matter of their practice, be subject to such restrictions as the Bar Council of India may, in the interests of the legal profession, prescribe.

(4) An advocate of the Supreme Court who was a senior advocate of that Court immediately before the appointed day shall, for the purposes of this section, be deemed to be a senior advocate:

[Provided that where any such senior advocate makes an application before the 31st December 1965 to the Bar Council maintaining the roll in which his name has been entered that he does not desire to continue as a senior advocate, the Bar Council may grant the application and the roll shall be altered accordingly."

6. Thus, other things apart, under the scheme of the Act, designation as a Senior Advocate comes by way of a 'distinction' conferred, either by the Supreme Court or a High Court. It arises on the subjective opinion of the Supreme Court or a High Court, that an Advocate is deserving of that 'distinction' by virtue of (i) his ability and (ii) standing at the Bar or special knowledge or experience in law.

7. To cut the controversy short, earlier issues arose before the Supreme Court primarily in the matter of designation being conferred that Court. Those were dealt in Indira Jaising Vs. Supreme Court of India & Anr., (2017) 9 SCC 766 [hereinafter referred to as Indira Jaising (Ist case)]. Following relief was claimed in that petition:

(a) Issue writ, order, or direction declaring that the system of designation of Senior Advocates by recently introduced method of vote is arbitrary and contrary to the notions of diversity violating Articles 14 , 15 and 21 and therefore, it is unconstitutional and null and void; and

(b) Issue writ, order or direction for appointment of a permanent Selection Committee with a Secretariat headed by a lay person, which includes Respondent 4 Attorney General of India, representatives from Respondent 5 SCBA and Respondent 6 AOR Association and academics, for the designation of Senior Advocates on the basis of an assessment made on a point system as suggested in Annexure P-8; and

(c) Issue a writ of mandamus or direction directing Respondent 1 representing the Chief Justice and the Judges of the Supreme Court to appoint a Search Committee to identify the Advocates who conduct public interest litigation (PIL) cases and Advocates who practice in the area of their domain expertise viz. constitutional law, international arbitration, inter-State water disputes, cyber laws, etc. and to designate them as Senior Advocates;

(d) Issue a writ of mandamus or direction directing Respondent 1 representing the Chief Justice and the Judges of the Supreme Court to frame guidelines requiring the preparation of an Assessment Report by the Peers Committee on the Advocates who apply for designation based on an index 100 points as suggested in Annexure P-8:

(e) Issue a writ of mandamus or direction directing Respondent 1 representing the Chief Justice and the Judges of the Supreme Court to reconsider its decision taken in the Full Court held on 11-2-2014 and 23-4-2015 and designate as Senior Advocate all those advocates whose applications seeking designation had received recommendation by not less than five Judges of the Supreme Court (including deferred applicants) during the process of circulation ordered by the Chief Justice."

8. Upon hearing, the Supreme Court noted the thrust of the submissions raised before it by the petitioner in that case, in the following terms:

"65. Ms. Indira Jaising, who has spearheaded the entire exercise before the Court, at no stage, pressed for declaration of Section 16 of the Act or the provisions of the Supreme Court Rules, 2013 as unconstitutional. Her endeavour, particularly in the rejoinder arguments, has been to make the exercise of designation more objective, fair and transparent so as to give full effect to consideration of merit and ability, standing at the bar and specialised knowledge or exposure in any field of law."

9. By way of its decision, the Supreme Court observed in paragraph no.73 to 75, as below:

"73. It is in the above backdrop that we proceed to venture into the exercise to lay down the following norms/guidelines which henceforth would govern exercise of designation of Senior Advocates by the Supreme Court and all the High Courts in the country. The norms/guidelines, in existence, shall be suitably modified so as to be in accord with the present.

73.1. All matters relating to designation of Senior Advocates in the Supreme Court of India and in all the High Courts of the country shall be dealt with by a Permanent Committee to be known as "Committee for Designation of Senior Advocates";

73.2. The Permanent Committee will be headed by the Hon'ble the Chief Justice of India and consist of two senior most Judges of the Supreme Court of India or High Court(s), as may be]; the learned Attorney General for India (Advocate General of the State in case of a High Court) will be a Member of the Permanent Committee. The above four Members of the Permanent Committee will nominate another Member of the Bar to be the fifth Member of the Permanent Committee;

73.3. The said Committee shall have a permanent Secretariat, the composition of which will be decided by the Chief Justice of India or the Chief Justices of the High Courts, as may be, in consultation with the other Members of the Permanent Committee;

73.4. All applications including written proposals by the Hon'ble Judges will be submitted to the Secretariat. On receipt of such applications or proposals from Hon'ble Judges, the Secretariat will compile the relevant data and information with regard to the reputation, conduct, integrity of the advocate(s) concerned including his/her participation in pro bono work: reported judgments in which the advocate(s) concerned had appeared; the number of such judgments for the last five years. The source(s) from which information/data will be sought and collected by the Secretariat will be as decided by the Permanent Committee;

73.5. The Secretariat will publish the proposal of designation of a particular advocate in the official website of the Court concerned inviting the suggestions/views of other stakeholders in the proposed designation;

73.6. After the database in terms of the above is compiled and all such information as may be specifically directed by the Permanent Committee to be obtained in respect of any particular candidate is collected, the Secretariat shall put up the case before the Permanent Committee for scrutiny;

73.7, The Permanent Committee will examine each case in the light of the data provided by the Secretariat of the Permanent Committee; interview the advocate concerned; and make its overall assessment on the basis of a point based format indicated below :

Sl.

No. Matter Points

1.

Number of years of practise of the applicant advocate from the date of enrolment.

(10 points for 10-20 years of practise; 20 points for practise beyond 20 years 20 points

2. Judgments (reported and unreported) which indicate 40 points the legal formulations advanced by the advocate concerned in the course of the proceedings of the case; pro bono work done by the advocate concerned, domain expertise of the applicant advocate in various branches: of law, such as Constitutional law, Inter-State Water Disputes, Criminal law, Arbitration law, Corporate law. Family law, Human Rights, Public Interest Litigation, International law, law relating to women, etc. 40 points

3. Publications by the applicant advocate 15 points

4. Test of personality and suitability on the basis of interview/interaction 25 points 73.8. All the names that are listed before the Permanent Committee/cleared by the Permanent-Committee will go to the Full Court.

73.9. Voting by secret ballot will not normally be resorted to by the Full Court except when unavoidable. In the event of resort to secret ballot, decisions will be carried by a majority of the Judges who have chosen to exercise their preference/choice 73.10. All cases that have not been favourably considered by the Full Court may be reviewed/reconsidered after expiry of a period of two years following the manner indicated above as if the proposal is being considered afresh;

73.11. In the event a Senior Advocate is guilty of conduct which according to the Full Court disentitles the Senior Advocate concerned to continue to be worthy of the designation, the Full Court may review its decision to designate the person concerned and recall the same.

74. We are not oblivious of the fact that the guidelines enumerated above may not be exhaustive of the matter and may require reconsideration by suitable additions/ deletions in the light of the experience to be gained over a period of time. This is a course of action that we leave open for consideration by this Court at such point of time that the same becomes necessary.

75. With the aforesaid observations and directions and the guidelines framed, we dispose of Writ Petition (Civil) No. 454 of 2015."

10. Thereafter, in exercise of power vested under Article 225 of the Constitution of India, the Allahabad High Court enforced the Allahabad High Court (Amendment) Rules, 2018 whereby it substituted the then existing The Designation of Senior Advocate Rules, 1999 with The Designation of Senior Advocate Rules, 2018 (hereinafter referred to as the Rules). For ready reference, Rule 1 to Rule 12 of the Rules, are quoted below:

"1. Short title, extent and commencement:

(1) These Rules shall be called "The Designation of Senior Advocate Rules, 2018, (2) These Rules shall extend to the entire jurisdiction of the High Court of Judicature at Allahabad (3) These Rules shall come into force from the date of their publication in the Official Gazette

2. Definitions: In these Rules, unless the context otherwise requires:

(a) "Advocate" means an Advocate whose name is entered on the rolls prepared and maintained under the provisions of the Allahabad High Court Rules, 1952,

(b) "Committee" means the "Permanent Committee for Designation of Senior Advocates as constituted under sub-rule (1) of Rule 3 of these Rules;

(c) "Court" means the same as defined in the Rules of the Court, 1952;

(d) "High Court" means the same as defined in section 2 (g) of the Advocate's Act 1961;

(e) "Roll" means the roll of Advocates prepared and maintained under the provisions of the Allahabad High Court Rules, 1952,

(f) "Secretariat" means the Permanent Secretariat established by the Chief Justice of the High Court under sub-rule (2) of Rule 3 of these Rules.

3. Permanent Committee for designation of Senior Advocates:-

(1) All designation of Bentar Advocates in the High Court shall be dealt with by the Permanent Committee, which will be headed by the Chief Justice and consist of the two senior-most judges of the High Court; (ii) the Advocate General of the State of Uttar Pradesh: and (iii) a designated senior Advocate of the Bar to be nominated by the members of the Committee.

(2) The Committee constituted under sub-rule (1) shall have a Secretariat, the composition of which will be decided by the Chief Justice of the High Court, in consultation with other members of the Committee.

(3) The Committee may issue such directions from time to time as deemed necessary regarding functioning of the Secretariat, including the manner in which, and the source/s from which, the necessary data and information with regard to designation of Senior Advocates are to be collected, compiled and presented.

4. Designation of an Advocate as Senior Advocate:

(1) The High Court may designate an Advocate as a Senior Advocate, if in its opinion, by virtue of his/her ability and standing at the Bar, the said Advocate is deserving of such distinction.

Explanation: The term "standing at the bar" means position of eminence attained by an Advocate at the Bar by virtue of his/her seniority, legal acumen, and high ethical standard maintained by him, both inside and outside the Court.

(2) An advocate who has put in at least ten years of actual practice as an advocate shall be eligible to be designated as Senior Advocate :

Provided that a retired Judge of any High Court, who is qualified to practice in the Allahabad High Court may also be recommended for being designated.

5. Motion for Designation as Senior Advocate: Designation of an Advocate as Senior Advocate by the High Court may be considered :

(a) on the written proposal made by the Chief Justice or any sitting Judge of the High Court of Judicature at Allahabad.

Provided that a sitting Judge will not make a proposal for more than two Advocates in a calendar year; or

(b) on the written application submitted by an Advocate, recommended by two designated Senior Advocates.

Provided further that such designated Senior Advocates will not recommend the names of more than two Advocates in a calendar year.

6. Procedure for Designation:- (1) All the written proposals and applications for designation of an Advocate as a Senior Advocate shall be submitted to the Secretariat.

Provided that every application by an advocate shall be made in Form No. 1 of APPENDIX-A appended to these Rules.

Provided further that in case the proposal emanates from a Judge it need not be submitted in the prescribed form. However once the proposal is received, the Secretariat shall request such advocate to submit Form No. 1 duly filled in within such time as directed by the Committee and in such a case the requirement of having recommendation of two Senior Advocates would stand dispensed with.

(2) On receipt of an application or proposal for designation of an Advocate as a Senior Advocate, the Secretariat shall compile the relevant data and the information with regard to the reputation, conduct, integrity of the advocate concerned including his participation in pro bono work, reported judgments of the last five years in which the concerned advocates has appeared and has actually argued.

(3) The Secretariat will notify the proposed names of the advocates to be designated as Senior Advocates on the official website of the High Court of Judicature at Allahabad, inviting suggestions and views within such time as may be fixed by the Committee.

(4) After the material in terms of the above is compiled and all such information, as may be specifically required by the Committee to be obtained in respect of any particular candidate, has been obtained and the suggestions and views have been received, the Secretariat shall put up the case before the Committee for scrutiny.

(5) Upon submission of the case by the Secretariat, the Committee shall examine the same in the light of the material provided and, if it so desires, may also interact with the concerned advocate(s) and thereafter make its overall assessment on the basis of the point based format provided in APPENDIX-B to these Rules.

(6) After the overall assessment by the Committee, all the names listed before it will be submitted to the Full Court along with its Assessment Report.

(7) Normally voting by ballot shall not be resorted to unless unavoidable. The motion shall be carried out by consensus, failing which voting by ballot may be resorted to. In the event of voting by ballot, the views of the majority of the Judges present and voting shall constitute the decision of the Full Court. In case the Judges present be equally divided, the Chief Justice or in his absence the Senior Judge present shall have the casting vote.

(8) The cases that have not been favorably considered by the Full Court may be reviewed/reconsidered after the expiry of a period of two years, following the same procedure as prescribed above as if the proposal is being considered afresh.

7. Designation of Advocates as Senior Advocates by the Chief Justice:- (1) On the approval of the name of the Advocate by the Full Court, the Chief Justice shall designate such an advocate as a Senior Advocate under section 16 of the Advocate's Act, 1961.

(2) The Registrar General shall notify the designation to the Secretary General of the Supreme Court of India, the Bar Council of Uttar Pradesh, Bar Council of India and also to all the District and Sessions Judges subordinate to the High Court.

(3) A record of the proceedings of the Committee and the record received from the Full Court in this regard shall be maintained by the Permanent Secretariat for further reference.

8. Restrictions on Designated Senior Advocates: A Senior Advocate shall be subject to such restrictions as the Supreme Court, High Court, the Bar Council of India or the Bar Council of the State may prescribe from time to time.

9. Canvassing: Canvassing in any manner by a nominee/applicant for designation as a Senior Advocate shall disqualify him/her from being so considered or designated for the next five years.

10. Interpretation:- All questions relating to the interpretation of these Rules shall be referred to the Chief Justice, whose decision thereon shall be final.

11. Review and Recall:- (1) If, after being designated as a Senior Advocate, it is reported by a Judge of the Court, that by virtue of his/her conduct or behavior either inside or outside the Court he/she has forfeited his/her privilege to the distinction conferred upon him/her by the Court, the matter may be placed by the Chief Justice before the Full Court for consideration of withdrawal of designation as Senior Advocate. If the Full Court is of the view that Senior Advocate by virtue of his/her conduct or behavior either inside or outside the Court has disentitled himself/herself to be worthy of the designation, the Full Court may review its decision to designate the concerned person and recall the same.

(2) The procedure for review and recall shall be the same as provided under sub-rule (7) of Rule 6. After the approval by the Full Court the Chief Justice shall recall the designation of such Senior Advocate. The Registrar General shall notify the decision in the same manner as provided in sub-rule (2) of Rule 7 of these Rules.

12. Repeal and Saving:- All previous Rules, except Rule 11 of Chapter XXIV of Allahabad High Court Rules, 1952, on the subject matter covered by these Rules including the guidelines for designating an advocate as Senior Advocate are hereby repealed. However this repeal shall not, by itself, invalidate the actions taken under the repealed rules/guidelines."

11. Also, since much submissions have been advanced on the strength of marks awarded to the applicants seeking designation, we consider it appropriate to extract Appendix 'B' referred to in Rule 6(5) of the Rules. It reads as below:

APPENDIX-B [See Rule 6 (5) POINT BASED FORMAT FOR ASSESSMENT OF AN ADVOCATE FOR BEING DESIGNATED AS SENIOR ADVOCATE Sl.

No. Matter Points

1.

Number of years of practise of the applicant advocate from the date of enrolment.

(10 points for 10-20 years of practise; 20 points for practise beyond 20 years 20 points

3. Publications by the applicant advocate 15 points

4. Test of personality and suitability on the basis of interview/interaction 25 points

12. We note here itself, no format is prescribed or provided by the Rules for submission of the Assessment Report by the Permanent Committee to the Full Court in terms of Rule 6 (6) of the Rules.

13. Later, a notice was published by the High Court inviting applications to confer designation as Senior Advocate, by 31.07.2018.

14. It is a fact that the two petitioners before us along with 98 others sought conferment of distinction - of Senior Advocate, by the Allahabad High Court. Also, in its meeting dated 10.05.2019, the Permanent Committee resolved that it had received suggestions with respect to the four applicants. The Permanent Committee also considered the fact that three out of hundred applicants had already been elevated to the bench of this Court. Therefore, their names had to be excluded.

15. The writ petition discloses - thereafter the Permanent Committee headed by Hon'ble the then Chief Justice, considered the impact of Indira Jaising (Ist case) and resolved as below:

"as per criteria laid down in the judgement and in our Rules as Appendix 'B', aforesaid, Advocates / applicants who earns 45 or more point out, of 75 points, shall only be considered to be eligible as such for their nomination for designation as Senior Advocate".

Office is directed to prepare and list eligible Advocate / Applicant accordingly.

The Committee feels that interview / interaction with Advocates / Applicants to be dispensed with."

16. Thereafter further resolutions (of date 10.05.2019), are shown to exist with which we may not be concerned. After that, there appear names along with signatures of five Members of the Permanent Committee. Thereafter, a dissenting note of one of the members / nominated Senior Advocate is found recorded. In effect, it clearly records as below:

"The Committee did not undertake the exercise of assessing the merits of the applicants for designation as Senior Advocates. The Apex Court has also interdicted the determination of Income limit of such applicants. The besides awarding marks as laid down by the Apex Court, as per Para 73.8, the committee was also to Interview the applicants."

17. Even according to the dissenting note though marks were awarded to the applicants, they ought to have been interviewed as well, in terms of the ratio laid down in Indira Jaising (Ist case).

18. Thereafter, further meeting of the Permanent Committee is disclosed on 13.05.2019. Agenda Item No.3 and resolution passed thereon is extracted as below:

Sl.

No. Agenda Resolution

1.

3. Consideration of directions given vide earlier resolution dated 10.5.2019 for preparing list of Advocates/Applications falling under zone of consideration The office has placed the information as directed vide our earlier resolution dated 10.5.2019 in a tabular form.

The names of the advocates/applicants who have submitted their forms to consider their names for designation of senior advocate are to e considered as per the criteria adopted by us is annexed herewith as Table 'A' The list of the advocates/applicants qualified for consideration as per Table 'A' are awarded points as per the criteria laid down in Appendix-B of the Designation of Senior Advocate Rules 2018 is annexed herewith as Table 'B' On the basis of table 'A' and Table 'B' the Advocates/ Applicants who are found eligible to be under zone of consideration is annexed herewith as Table 'C' Details of the Advocates/Applicants not falling under zone of consideration for the reasons assigned before their names is annexed herewith as Table 'D'

19. This again is signed by all members of the Permanent Committee. At this stage, it was further indicated that one applicant withdrew his application, and another application was found defective. Thus, 95 applications survived. It is not in doubt that as per Table-C, 78 applicants were found eligible by the Permanent Committee. Further, as per Table-D, the remaining applicants including the petitioners before us were included in the list of the applicants not found eligible, by the Permanent Committee. To that extent, there is no factual dispute. Limited dispute exists with respect to permissibility of waiver of interview requirement; marks not awarded on the scale of maximum 100 marks; the Permanent Committee did not disclose to the Full Court the marks awarded to the individual applicants; the Permanent Committee erred in fixing cut off marks and; it further erred in not sending the remaining 17 names to the Full Court along with its Assessment Report.

20. In that background, at the Full Court meeting of the Allahabad High Court held on 18.05.2019, resolution was passed to confer distinction of designation as Senior Advocate, on 75 out of 78 names cleared by the Permanent Committee. The distinction sought by two the applicants was declined at that Full Court meeting whereas the matter pertaining to one applicant was deferred. It is a matter of common knowledge that that designation was conferred on him, later, by a separate Full Court Meeting resolution.

21. Before requisite Notification could be issued pursuant to the resolution of the Full Court meeting, on 18.5.2019 itself, the petitioner (Sri Vishnu Behari Tewari) served notice on the High Court to not give effect to the report of the Permanent Committee. On 20.5.2019, at 10:00 A.M., notice of the present petition was served on the High Court. However, the impugned Notification No.162/VIII-C-168 also dated 20.5.2019 came to be published on that itself. Consequently, the petitioner moved an Amendment Application in the writ petition. It was allowed on 23.5.2019 and the following two prayers were added as prayer nos. i(a) and iv(a) to the Prayer clause of the writ petition.

"i(a). To issue a writ, order or direction in the nature of certiorari quashing the notification bearing notification No. 162/VIII-C-168/Permanent Secretariat dated: Allahabad, May, 20, 2019 (Annexure No. 10 to this writ petition).

iv(a). To issue a writ, order or direction in the nature of mandamus directing the respondents to place the list of Advocates mentioned in Table-D annexed with the Minutes dated 10.5.2019 before Full Court of Parliament Committee, to secure the ends of justice."

22. The Stay Application filed was rejected on 23.5.2019 itself. It is also on record that the petitioner moved another application seeking to implead the 75 newly designated Senior Advocates as party respondents in these proceedings. Time was spent in serving notices. Upon exchange of pleadings, the matter has remained pending for long. In the meanwhile, 5 years have passed. Since then, besides one designation conferred, no other designation has yet been conferred by the Allahabad High Court.

23. Also, during pendency of this writ petition, the matter of designation of Senior Advocates came to be further considered by the Supreme Court in Ms. Indira Jaising Vs. Supreme Court of India, AIR Online 2023 SCC 24 [hereinafter referred to as the Indira Jaising (IInd case)]. Those proceedings were decided on 12.5.2023. Perusal of the same reveals that the matter came to be reconsidered by the Supreme Court in terms of observations made in paragraph 74 of Indira Jaising (Ist case). In paragraph 11 of Indira Jaising (IInd case), it was observed as below:

"11. In paragraph 74 of the 2017 judgment, this Court noticed that the guidelines enumerated may not be exhaustive and may require reconsideration by suitable additions/deletions in the light of the experience to be gained over a period of time. Thus, the Bench left it open for consideration by this Court at such point of time that the same may become necessary. The debate before us in the present applications is in this conspectus."

(emphasis supplied)

24. Considering the same, the Supreme Court made the following pertinent observations with respect to Voting by Secret Ballot, in paragraphs 17 , 18, 19 and 20 of the report:

"17. In our view, the matter before us is in a limited compass. Our remit is to fine-tune the guidelines laid by this Court in the 2017 judgment. The constitution of a Permanent Committee, reliance on certain objective criteria for assessment, and final decision through voting are the central aspects of the 2017 judgment. Our remit does not extend to reviewing the same, but only to modifying the criteria through our experience gained over a period of time.

18. We agree that the elaborate procedure carried out by the Permanent Committee would serve no purpose if the ultimate decision is taken by secret ballot. It has been found that even the applicants who were beyond the cut-off were at times put through a secret ballot. This has resulted in both the exclusion of people from the list prepared by the Permanent Committee and expansion of the list by further inclusion.

19. The aforesaid aspect has to be considered in the conspectus of the concept of 'Senior Designation'. This designation has always been held to be an honour conferred. While it is alleged that voting by secret ballot may not always subserve the interests of transparency, in practice judges may be reluctant to put forth their views openly. This is especially the case where the comments of a judge can have a deleterious effect on the advocate's practice.

20. Thus, we find merit in the contention that voting by secret ballot should not be the rule but clearly an exception. In case it has to be resorted to, the reasons for the same should be recorded."

(emphasis supplied)

25. With respect to the Cut-off marks to be awarded to the applicants by the Permanent Committee, the following pertinent observations came to be made paragraph 21 of the report:

"21. A grievance was raised that while the cut-off marks may have already been decided, the same are neither published in advance nor communicated to those applying for senior designation, thereby leading to speculation at the Bar. It was thus prayed that the cut-off marks be released in advance."

(emphasis supplied)

26. Then, with respect to the points to be assigned for Publications further observations were made as below:

"25. We have considered the aforesaid aspect and find some merit on both sides. We find that the allocation of 15 points for publication is high, and thus we deem it fit to reduce the available points under this category to 5 points. Most practicing advocates find very little time to write academic articles. In any case, academic publications require a different aptitude. However, given that Senior Advocates are expected to make nuanced and sophisticated submissions, academic knowledge of the law is an important prerequisite. Thus, we would not like to do away with this criteria, but expand what should fall under this criteria, while reducing the points under this category.

26. We believe that confining these criteria merely to the authorship of academic articles would not be enough. Instead, it must also include teaching assignments or guest courses delivered by advocates at law schools. This would be a more holistic reflection of the advocate's ability to contribute to the critical development of the law. It also shows their interest in guiding and helping their peers at the Bar.

28. Here, we would also like to add that the quality of writing by an advocate should be an important factor in allocating points under this category. We leave it to the Permanent Committee to decide on the manner of assigning points under this category, including the possibility of taking external assistance to gauge the quality of publications. This can be through other Senior Advocates or academics. We are conscious that this would increase the load of the Secretariat assisting the Permanent Committee, but that is inevitable."

27. Next, with respect to marks to be awarded for Unreported or Reported judgments pro bono work etc., the Supreme Court made the following observations:

"30. We deem it fit to enhance the number of points under this category by 10 points, having deducted the same from Sl. No. 3, i.e. publications. We are also increasing the scope of this category.

31. The first aspect to be noticed under this head is that of reported and unreported judgments. We deem it fit to clarify that it is not orders (not laying down any proposition of law) but judgments that have to be considered. We say so as judgments ordinarily deal with significant and contested legal issues.

32. Here, we ought to also consider the role played by the advocate in the proceedings. In recent times, and particularly in the Supreme Court, the number of advocates present for a matter are very high. However, that is not ipso facto reflective of the assistance that they are providing to the Court. A matter may be argued by a counsel who may be assisted by others, including an Advocate-on-Record. Thus, an assessment would have to be carried out in enquiring into the role played by the advocate in the matter they have appeared in with their role specified by them in their application. Merely looking into the number of appearances would not be enough.

33. We believe that this would also take care of any perceived disadvantages arising due to the larger number of appearances by Government counsel, as compared to counsel who are engaged in private work.

34. One suggestion that we are inclined to accept is that while analyzing the role of lawyers, the quality of the synopses filed in Court ought to be considered. Synopses can be a useful indicator for assessing the assistance rendered by an advocate to the Court. Candidates should thus be permitted to submit five of their best synopses for evaluation with their applications."

28. Another aspect dealt with by the Supreme Court on this occasion was with respect to advocates who may have set up their practice at particular Tribunals. In that regard, following observations came to be made :

"36. Often appeals from those Tribunals lie to this Court and, thus, such advocates also appear before this Court, although the frequency of their appearances may be less. Specialised lawyers with domain expertise should be permitted to concentrate on their fields and not be deprived of the opportunity of being designated as Senior Advocates. Thus, in the case of such advocates, a concession is required to be given with regards to the number of appearances. This category of advocates and their expertise is also essential for the advancement of all specialized fields of law.

"37. We also believe that due consideration should be given in the interest of diversity, particularly with respect to gender and first-generation lawyers. This would encourage meritorious advocates who will come into the field knowing that there is scope to rise to the top. The profession has seen a paradigm shift over a period of time, particularly with the advent of newer law schools such as National Law Universities. The legal profession is no longer considered as a family profession. Instead, there are newer entrants from all parts of the country and with different backgrounds. Such newcomers must be encouraged."

29. Then, with respect to Personal Interview, taking note of the original recommendations to award marks against maximum 25 marks for interview, it was noted as below:

"38. The requirement of allocating 25 points in this category was debated. One of the criticisms against retaining this category was that it would delay the process of designation, keeping in mind the practical issue of interviewing a large number of candidates. Further, very little purpose would be served by an interview as the candidates were already being assessed by their appearances before the Court.

39. We are conscious of the aforesaid criticisms. We believe that an interview process would allow for a more personal and in-depth examination of the candidate. An interview also enables a more holistic assessment, particularly as the Senior Advocate designation is an honour conferred to exceptional advocates. A Senior Advocate is also required to be very articulate and precise within a given timeframe, which are values that can be easily assessed during an interview.

40. It is in this spirit that we have sought to make the interview process more workable. We have thus restricted the number of interviews to the appropriate amount as deemed feasible by the Permanent Committee, keeping in mind the number of Senior Advocates to be designated at a given time.

41. As we have streamlined the process by restricting the number of interviews in the context of number of candidates to be designated, we believe a meaningful exercise can be carried out. Thus, we are not inclined either to do away with or to reduce the marks assigned under this category, especially in view of the fine-tuning we have done by the present order to make this exercise more meaningful."

(emphasis supplied)

30. Thereafter, the Supreme Court referred to General Aspects of the matter. It made the following observations:

"44. In this regard, we would only like to say that the process should be carried out at least once a year so that applications do not accumulate. In this respect, some disturbing instances have emerged from certain High Courts where the exercise of designation has not been undertaken for many years. As a consequence, meritorious advocates at the relevant time lose out on the opportunity of being considered for designation.

46. We must also say that the Supreme Court rests on a different footing as the highest court of the land. Although designations in the Supreme Court in comparison to High Courts have usually taken place at the age of 45 plus, younger advocates have also been designated. While we would not like to restrict applications only to advocates who are above 45 years of age, only exceptional advocates should be designated below this age. We say no more and leave this aspect to the wisdom of the Permanent Committee and the Full Court.

47. Here, we would like to reiterate the observation made in the 2017 judgment that the power of suo motu designation by the Full Court is not something that is being taken away. This power has been and can continue to be exercised in the case of exceptional and eminent advocates through a consensus by the Full Court."

(emphasis supplied)

31. Last, the Supreme Court also made observations with respect to the procedure to be followed to deal with the pending applications. In that, it was observed as below:

"41. As we have streamlined the process by restricting the number of interviews in the context of number of candidates to be designated, we believe a meaningful exercise can be carried out. Thus, we are not inclined either to do away with or to reduce the marks assigned under this category, especially in view of the fine-tuning we have done by the present order to make this exercise more meaningful."

(emphasis supplied)

32. In such facts and contextual background, Sri Vishnu Behari Tewari, has strenuously urged, though the directions issued by the Supreme Court in Indira Jaising (Ist case), contained in paragraph 73.1 to 73.6 were complied, no compliance was made by the Permanent Committee to the directions contained in paragraph 73.7 and 73.8 of that report. According to him, the Permanent Committee did not examine individual case of each applicant on its merit. It did not hold interview, as was mandatory. Thus, it did not make overall assessment of each applicant, as prescribed. It did not award marks out of total 100, as was mandatory. Arbitrarily, the maximum/marks were reduced to 75 without sanction of the law the Permanent Committee prescribed cut-off marks. Contrary to the law, it prescribed cut off marks, 45. In view of such completely erroneous and illegal action of the Permanent Committee to do away with the interview carrying of 25 marks, the petitioners were wrongly non-suited. He has referred to the dissenting note of the fifth member of the Permanent Committee to assert - there is clear evidence of the Permanent Committee having deliberately not complied with the law declared by the Supreme Court in Indira Jaising (Ist case).

33. Referring to the Indira Jaising (IInd case), it has been vehemently urged that the conduct of interview is a mandatory condition. In that later decision, the Supreme Court has laid down the requirement to hold interactions with individual applicants by the Permanent Committee, mandatory. Neither the Permanent Committee could have avoided those directions nor Rule 6 (5) of the Rules is a valid piece of legislation - to the extent it confers discretion with the High Court, to not hold interview.

34. He has also referred to certain documents namely information received by the petitioners under the Right to Information Act dated 16.8.2019 and 20.7.2019, wherein it has been disclosed as below:

"A. No merit list on the basis of points scored by the Advocates/applicants for being designated as the Senior Advocates was prepared. Therefore, no such list as sought by the applicant exists."

35. Since, originally the applicants including the present petitioners were not aware of any attempt of the Permanent Committee to waive the personal interactions, the petitioners had no occasion to challenge the validity of the Rules, till Rule 6(5), was actually invoked by the High Court. Insofar as, that waiver was granted on 10.5.2019, there is no delay on the part of the petitioner in approaching the Court on 20.5.2019.

36. As to facts, reference has been made to the pleadings made in paragraph 35 to 38 of the writ petition. Reference has also been made to the reply to those proceedings contained in paragraphs 35 and 40 of the Counter Affidavit filed by the High Court, to assert that there is no denial offered, to the essential pleadings that the entire action taken by the High Court was contrary to the directions issued by the Supreme Court in Indira Jaising (Ist case). At the same time, the petitioner does not dispute the fact that along with the information furnished on 16.8.2019, the following information was also divulged to him, against his query to the marks awarded:

"The applicant has obtained 40 marks out of 75."

37. It has been submitted that the entire process of holding and completion of Full Court proceeding, issuance of the impugned Notification was done in great haste i.e. the first meeting of the Permanent Committee was held on 10.5.2019 and the second on 13.5.2019. The Full Court meeting was held on 18.5.2019. The resolution was prepared and signed and thereafter the impugned Notification was issued on 20.5.2019. Relying on S.P. Kapoor (Dr.) Vs. State of Himachal Pradesh & Ors., AIR 1981 SC 2181, it has been submitted, such action taken in unusual haste and rush is per se arbitrary. That principle has been further invoked on the strength of another decision of the Supreme Court in Bahadursinh Lakhubhai Gohil Vs. Jagdishbhai M. Kamalia and others (2004) 2 SCC 65.

38. Since, the petitioners have been unfairly dealt with and they have been unfairly and arbitrarily deprived of opportunity to be designated at the Full Court meeting on 10.5.2019 on account of acts attributable solely to the conduct of the Permanent Committee and the Full Court of this Court, the right to pre-audience that may otherwise have been conferred on them (upon designation as a Senior Advocate) in terms of Section 23 of the Act, must be preserved. Relying on Tika and Others Vs. State of Uttar Pradesh 1975 CRLJ 337, it is submitted, that right must be preserved to the petitioners.

39. Then, reference has been made to a decision of the Orissa High Court in Banshidhar Baug Vs. Orissa High Court, AIR Online 2021 ORI 127. In that case as well, the process of designation had been completed (by the Orissa High Court) contrary to the law laid down by the Supreme Court in Indira Jaising (Ist case). Repelling the preliminary objection as to maintainability of that writ petition, the Orissa High Court ruled in favour of the petitioners (in that case) and stayed the Notification till consideration was offered to the applications filed by the petitioners (in that case). In no unclear terms, the Orissa High Court reached the conclusion that the scheme for designation throughout the country had to remain one i.e. as prescribed by the Supreme Court in Indira Jaising (Ist case) and any modification to that scheme may be made only by that Court and no other. To the extent, Rule 6(5) of the Rules departs from the scheme prescribed by the Supreme Court and to the extent that Rule was invoked by the Permanent Committee, the entire action taken by the Permanent Committee as was approved by the Full Court, was vitiated.

40. Then, referring to decision of the Calcutta High Court in Debasish Roy Vs. High Court at Calcutta & Anr., 2019 AIR (Cal) 77, it has been urged that no prescription may have been made by the Permanent Committee to provide for qualifying marks. It was the bounden duty of the Permanent Committee to make overall assessment of each individual applicant - strictly in terms of the law laid down in Indira Jaising (Ist case) and place the entire material before the Full Court. That body alone may have taken the decision to confer the distinction of Senior Advocate on all or any applicant. By prescribing the qualifying marks and by doing away with the interview process, the Permanent Committee reduced the overall assessment against 75 marks only, as against 100 marks prescribed. Thus, the Permanent Committee acted in a manner completely contrary to the directions of the Supreme Court. To the extent the petitioners have been excluded from the zone of consideration (by the Permanent Committee), the impugned Notification cannot be sustained.

41. Here, it has been also submitted that the Permanent Committee did not forward to the Full Court, the marks awarded by it. In that regard, again reliance has been placed on the information received by the petitioners under the Right to Information Act. Thus, it has been suggested that the correct facts had not been disclosed to the Full Court.

42. Then petitioner (Shri. Vishnu Behari Tewari) has specifically emphasized (at the stage of dictation of this order), that the Court may also take note of the fact that the Permanent Committee though impleaded as a party respondent and though represented has chosen not to file reply to the specific allegations made in the writ petition that the complete list of the applicants was not forwarded by it to the Full Court and it has also not offered any denial to the pleadings that the procedure prescribed by the Supreme Court in Indira Jaising (Ist case) was deliberately not followed by the Permanent Committee. Referring to Chapter XXII Rule 4 A of the Rules of the Court and relying on Bharat Sanchar Nigam Limited and others v. Abhishek Shukla and others, (2009) 5 SCC 368; Seth Ram Dayal Jat v. Laxman Prasad, (2009) 11 SCC 545; Asha vs Pt. B.D. Sharma University of Health Sciences & Ors., (2012) 7 SCC 389 and Standard Chartered Bank vs Andhra Bank Financial Services Limited & Ors., (2016) 1 SCC 207, the principle of non-traverse has been invoked. It has been submitted - therefore, it stands admitted to the respondents that there was a clear omission on the part of the Permanent Committee in complying with the mandatory provisions of law. Consequently, only one result may arise i.e. the writ petition be allowed with exemplary costs and the impugned Notification be quashed or it be stayed till due consideration is offered to all the applicants whose applications were placed before the Permanent Committee. Once the petitioners would be found entitled to conferment of distinction as Senior Advocate, consequentially their right of pre-audience may be preserved to be availed along with others to whom that right that has been conferred at the Full Court held on 18.05.2019.

43. Responding to the above, Sri G.K. Singh, learned Senior Advocate appearing for the Allahabad High Court has first referred to the observations of the Supreme Court recorded in paragraph no.73 of Indira Jaising (Ist case). It is his submission that the Supreme Court did not seek to enact or lay down a rigid law for the purpose of grant of distinction of Senior Advocate by itself or by the High Courts. It only sought to provide norms/guidelines to be followed generally, for that purpose. No doubt, such norms and guidelines may be considered to suitably modify the distinct Rules at various High Courts, the norms may not themselves be enforced as a law, contrary to the statutory Rules. In that regard, he also referred to the different Rules considered by the Supreme Court in that decision.

44. Following the above, it is his submission, the Allahabad High Court amended its Rules while applying the norms and guidelines laid down by the Supreme Court in Indira Jaising (Ist case). That amendment was enforced w.e.f. 18.04.2018. Considering the peculiar needs of, and circumstances operating at this Court, Rule 6 (5) of the Rules created a discretion with the Permanent Committee to waive personal interaction "if it so desires".

45. In the instant case, all applications were first considered by the Permanent Committee at its meeting dated 10.05.2019. Against 100 applications made, three had been rendered infructuous by virtue of those applicants having been elevated to the bench of this Court. Later, two other applications came to be excluded - one occasioned by withdrawal and the other on a technical ground. Thus 97 applications survived. Keeping in mind the totality of the facts that may have obtained, at that stage i.e. on 10.05.1919, the Permanent Committee chose to waive the requirement of interview. Since that condition was waived in terms of Rule 6 (5) of the statutory Rules, the evaluation of the valid applications remained to be made against 75 marks. Therefore, no provision could be made for evaluation against 100 marks in face of personal interview of 25 marks, waived.

46. Thus, it is the submission of learned Senior Counsel for the High Court that the decision in Indira Jaising (Ist case) is not to be read as a statutory law over and above the Rules framed by High Court. Interview may have to be waived considering the large number of candidates who may seek designation at any given point in time. Because the applicants who had applied for designation were mostly regular practitioners of the Court who were having regular interactions with the Court on its judicial side, a decision appears to have been taken by the Permanent Committee to waive the interview requirement.

47. As to the award of cut off marks for consideration by the Full Court, again it has been submitted, occasioned by the large number of applications received by the Permanent Committee, and overall assessment made on objective criteria of marks awarded on specified parameters, that objective benchmark was fixed by the Permanent Committee to ensure that the conferment of distinction of Senior Advocate is done in an objective and efficient manner. In that regard, heavy reliance has been placed on Indira Jaising (IInd case) to submit that the criteria adopted by the Permanent Committee of this Court (on the administrative side), as is impugned in these proceedings, has found the stamp of approval of the Supreme Court on the judicial side. The same principle has been recognized and applied by the Supreme Court in Indira Jaising (IInd case), to allow the Permanent Committee to fix qualifying marks for the purpose of interview.

48. It has also been submitted, the Rules were notified in April 2018 whereas Notification inviting applications was published later. Applications were invited up to 31.07.2018. Over a long period of 11 months, no challenge was raised. The said Notification clearly mentioned that the applications were invited strictly in terms of the Rules. Rules 6 (5) clearly allowed for waiver of interview. Still no objection was raised till as late as the impugned Notification was issued notifying the names of 75 advocates as Senior Advocates. The petitioners themselves applied under the same Rules, procedure and notification. Therefore, they cannot now turn around and raise challenge to the Rules, only because they have not been conferred the distinction sought. He has relied on Ashok Kumar and Ors. Vs. State of Bihar & Ors, 2017 (4) SCC 357.

49. Referring to the Minutes of meeting of the Permanent Committee dated 10.05.2019 as also substance of the dissenting note relied upon the petitioners, it has been submitted that the dissenting note itself makes plain that marks were awarded by the Permanent Committee. Only two disputes exist - (i) that marks were not awarded for interview, and (ii) cut off marks were fixed. It cannot be held that the procedure followed by the Permanent Committee was in contravention to the norms and guidelines laid down by the Supreme Court in the case of Indira Jaising (Ist case).

50. Next, referring to the Minutes of the Permanent Committee dated 13.05.2019, it has been submitted that four lists were prepared in Table-A, Table-B, Table-C and Table-D. While contents of Table-B are not on record, during the course of the hearing, we had required learned counsel for the High Court to produce the original record. That has been shown to us. From the record we find Tables A, B, C and D were prepared by the Permanent Committee. Table A is the list of all valid applications (95). Table B is the list of table of marks awarded by the Permanent Committee to all 95 applicants. Table C is the list of 78 candidates forwarded by the Permanent Committee for consideration by the Full Court for the purpose of conferment of designation and Table D is the list of 17 applicants not found eligible, in the opinion of the Permanent Committee. Strictly speaking it is Table D which alone forms the subject matter of challenge in these proceedings.

51. Referring to Indira Jaising (IInd case), it has been submitted that the ratio of the said decision impliedly overrules the ratio of the Calcutta High Court in Debasish Roy (supra) to the extent the Calcutta High Court had ruled that no eligibility marks may be fixed by the Permanent Committee. Also, relying on that later decision, he would submit, if at all, interviews had to be granted to those who had secured the cut-off marks. Only for those applicants, interviews were made mandatory to be granted. Inasmuch as the Permanent Committee found only 75 applicants made the cut-off, of whom only two have not been conferred designation and none of them are before this Court, the submission being raised by the petitioners is described to be not available to the petitioners.

52. As to the decision of Orissa High Court in Bansidhar Baug (supra), he would submit that the said decision arose on completely different facts. There, the Orissa High Court had chosen to confer designation through suo moto exercise of power though it had earlier invited and was considering applications in terms of its Rules. However, Indira Jaising (IInd case) protects the power of the Supreme Court and the High Courts to confer such distinction of Senior Advocate on a suo moto exercise of power.

53. Having heard learned counsel for the parties, we first proceed to deal with the preliminary objection raised by learned senior counsel appearing for the High Court. Section 16 of the Act contemplates designation to be granted to an Advocate as a Senior Advocate by the Supreme Court or a High Court, by way of distinction conferred on individual advocates. The validity of Section 16 of the Act was upheld in Indira Jaising (Ist case). Thereafter, the Supreme Court laid down guidelines to govern the exercise of designation of an Advocate as a Senior Advocate - both by itself and by all High Courts of the country. To that end, a framework was devised in that decision.

54. Conferment of designation as a distinction may never be equated with selection to a post or office of profit. It is the highest and the only distinction that the higher Courts confer on the most deserving member/s of the bar. The considerations on which such distinction arises, are governed by statute i.e. Section 16 of the Act. Thus, the designation as a Senior Advocate may not be conferred on any advocate except one who may qualify the strict test of Section 16(2) of the Act. To the extent the conferment of distinction is not a selection to a post and further to the extent the exercise of confirment of distinction by this Court must remain transparent and not be shrouded with doubts, misgivings and unaddressed objection, the challenge that has arisen must be dealt with on merits, with sensitivity and clarity. Keeping that principle in mind, these being the only petitions filed immediately after the conclusion of the Full Court meeting held on 18.5.2019, that too including on the date of issuance of the impugned Notification - notifying 75 newly designated Senior Advocates, we overrule the preliminary objection and choose to deal with the writ petition, on merits.

55. Next, coming to the scope of challenge that may arise on the strength of the decision of the Supreme Court in Indira Jaising (Ist case), it is to be noted that there first exists a statutory provision of Section 16 of the Act. That has already been extracted above. Then, Article 225 of the Constitution of India reads as below:

"225. Jurisdiction of existing High Courts - Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution:

[Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the collection thereof was subject immediately before the commencement of this Constitution shall no longer apply to the exercise of such jurisdiction.]"

56. It is in exercise of that power vested by the Constitution of India that this Court and the other High Courts have framed their Rules, amongst others, governing the designation of advocates as Senior Advocates. Prior to Indira Jaising (Ist case), there were in force - The Designation of Senior Advocate Rules, 1999. Those rules, amongst others, were considered by the Supreme Court in Indira Jaising (Ist case). In paragraph 66 of that report, the Supreme Court noted that the words "is of opinion" and the words "in their opinion" appearing in the Supreme Court Rules, referred to a subjective opinion formed on objective material. Then, in paragraph 69 of that report, the Supreme Court further noted existence of guidelines governing the exercise of designation of advocates by the Supreme Court and also the guidelines in vogue at various High Courts. Having noted that, the Supreme Court was of the view that the existing guidelines must be made more comprehensive - to enforce conformity of the actions or the decisions taken under Section 16 of the Act in a fair, transparent and reasonable exercise of statutory discretion.

57. Therefore, in paragraph 70 of the report, the Supreme Court set out to introduce a "framework" to regulate the system of designation of Senior Advocates. Also, it attempted to introduce "uniform parameters and guidelines" to govern the exercise of designations. In the words of the Supreme Court, "the sole yardstick by which we propose to introduce a set of guidelines to govern the matter 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." In that view, further observations (as have been referred to above) appear in that decision of the Supreme Court, in paragraphs 73 and 74 (extracted above).

58. There can be no denial to the statement made by the petitioners, that the decision of Supreme Court in Indira Jaising (Ist case) causes binding effect in law. The decision of the Supreme Court in Indira Jaising (Ist case) is clearly a law laid down under Article 141 of the Constitution of India, insofar as the ratio of that decision is directly and inherently to give effect to the scheme of Section 16 of the Act. At the same time, the said judgement does not seek to enact or replace or supersede the statutory Rules, framed either by that Court or by any High Court. On the contrary, the decision develops the law recognizing the federal framework in which the scheme of section 16 of the Act to the extent it takes note of different Rules and guidelines operating at different High Courts. It then seeks to bring conformity in the existing guidelines and to further bring the maximum objectivity of uniform parameters to be adopted by the Supreme Court and all High Courts in the exercise of their power under Section 16 of the Act. No Rule of any High Courts was declared to be ultra-vires or contrary to any pre-existing or that precedential law. The primacy of the High Courts in the matter of framing Rules as emanates from Article 225 of the Constitution of India, was maintained intact. Having said that we do recognize that in pursuing the object of maintaining uniformity, a positive direction is contained in that decision itself. It required all existing norms/guidelines "shall be suitably modified so as to be in accord with the present". Yet, though it framed the guidelines and reserved to itself the power to modify the same, notably, the Supreme Court did not frame any model Rules for designation of Senior Advocates. Consequently, it did not direct the High Courts to adopt such model Rules.

59. Though words used in a judgement are not words of a statute, at the same time, such words having become subject matter of discussion in the present case they may also be examined in the context of their dictionary meaning first. According to the Concise Oxford English Dictionary (Indian Edition), meaning of words 'guideline' and 'norm' are given as below:

(i) guideline - a general rule or piece of advice.

(ii) norm - 1. the usual, typical, or standard thing. A required or acceptable standard: the norms of good behaviour. 2. Mathematics the sum of the squares of the real and imaginary components of a complex number, or the positive square root of this sum. v. adjust (something) to conform to a norm.

-ORIGIN C19:from L.norma 'precept, rule, carpenter's square'

60. Black's Law Dictionary (11th Edition) refers to word 'norm' as below:

"norm. 1. A model or standard accepted (voluntarily or involuntarily) by society or other large group, against which society judges someone or something. An example of a norm is the standard for right or wrong behavior. 2. An actual or set standard determined by the typical or most frequent behavior of a group."

61. Then, we are inclined to accept the submission advanced by learned counsel for the petitioners that the decision of the Supreme Court in Indira Jaising (Ist case) is binding law. As to the extent to which the judgement bound the High Court in the context of the statutory/constitutional power of the High Court to frame the Rules and to work the same, is another matter. In view of the discussion made above and in the context of the Rules framed by the Allahabad High Court under Article 225 of the Constitution of India, it would survive for consideration if the guidelines and norms or framework or uniform approach prescribed by the Supreme Court by way of law laid down, would per se override the statutory rules or render the Rules otiose or ultra-vires those guidelines, by own force of law declared by the Supreme Court, under Article 141 of the Constitution of India.

62. The pre-existing statutory Rules that were directly in issue or that were plainly considered by the Supreme Court [in Indira Jaising (Ist case)], were not declared ultra-vires and the direction issued by the Supreme Court to bring the norms and guidelines in existence by making suitable modifications, to bring them in accord with its decision. Hence, we may explore the nature of the norms/guidelines issued, a little further. If the Rule complained of is not seen to be falling foul of the law laid down under Article 141 of the Constitution of India or the application of the offending rule is not seen to be contrary to the specific law laid down by the Supreme Court, no finer or more extensive examination may be called, by this Court.

63. In Narendra Kumar Maheshwari vs Union of India, 1990 Supp SCC 440, an issue arose as to the binding nature of certain guidelines issued by the Competition Commission of India. In that context, the Supreme Court noted that those guidelines were "not statutory in character". Yet, it was further recognized that even those guidelines may be "intended to clarify or implement the conditions and requirements precedent to the exercise of certain rights conferred in favour of citizens or persons and a deviation therefrom directly affects the rights so vested." There "the persons whose rights are affected have a clear right to approach the court for relief." Then, it was also noted "if the guidelines are departed without rhyme or reason, an arbitrary discrimination may result which may call for judicial review." In that way, it was further observed, the guidelines "have only an advisory role to play and non-adherance to or deviation from them is necessarily and implicitly permissible if the circumstances of any particular fact or law situation warrants the same. Judicial control takes over only where the deviation either involves arbitrariness or discrimination or is so fundamental as to undermine the basic public purpose which the guidelines and the statute under which they are intended to achieve." That principle has been consistently followed and applied.

64. In the first place, the decision of the Supreme Court in Indira Jaising (Ist case) framed the guidelines to bring uniformity of approach by the Supreme Court and the High Courts, in matters of conferment of distinction of advocates as Senior Advocates. Second, the power to revise those guidelines was reserved to Supreme Court. Third the guidelines were to be applied by each High Court. Yet, by way of a direct application of that principle, a statutory rule framed by the High Court under Article 225 of the Constitution of India may not be easily exposed to vice of ultra-vires unless it stands in patent conflict to that law declared under Article 141 of the Constitution of India. Each and every departure that may be alleged or be pointed out in the Rule or its implementation, in contrast to the norms/guidelines/uniform policy laid down by the Supreme Court in Indira Jaising (first case), may not be seen as a conflict with that law declared by the Supreme Court. To the extent the said decision deliberately chose not to declare invalid - any of then existing Rules framed by any of the High Courts (framed under Article 225 of the Constitution of India), and laid down general norms and guidelines to be followed by the Supreme Court and all High Courts - to bring uniformity in the procedure of designation of Senior Advocates, the alleged deviation and departures from those norms and guidelines may only expose the actions performed by the statutory Rules against to the test of arbitrariness and discrimination pervading such action.

65. We hasten to add the issue of vires may also arise where a High Court may not have made any compliance to the general norms/guidelines - whatsoever or may have acted in a manner that may be described as wholly contrary to or in conflict to the norms and guidelines enforced by way of law laid down in Indira Jaising (Ist case). That is not the case here.

66. As to the present challenge, it is the petitioners' own case that the High Court first amended its Rules and substituted the old Rules of 1999 with the Rules. Barring the challenge raised to the Rule 6(5) of the Rules, it is not the case of the petitioners that any part of those Rules is in conflict to the ratio of the Supreme Court in Indira Jaising (Ist case). Further, as to the procedure for designation actually adopted, it is the submission of the petitioners that the guidelines/norms laid down by the Supreme Court in the Indira Jaising (Ist case) from paragraph nos. 73.1 to 73.6 were followed. Once that admission/status exists, all that is required to be examined is whether guidelines formulated by the Supreme Court in paragraph nos. 73.7 and 73.8 in Indira Jaising (Ist case) were followed and whether departure if any, was informed with reason and fairness of procedure.

67. Here, as a fact it may be noted, according to the petitioners the Permanent Committee did not make overall assessment of each applicant because it did not interact with the applicants, personally. It did not award marks against total 100 marks. Last, reference has been made to the dissenting note of one of the five members of the Permanent Committee, dated 10.05.2019.

68. First, we may deal with the issue of processing of applications by the Permanent Committee and examine if it made an overall assessment of individual applicants. As has been extracted above, in the first meeting of the Permanent Committee dated 10.05.2019, three applications were dropped from consideration for reason of those applicants having been elevated to the bench, in the meanwhile. As to the surviving 97 applications, proceedings were held. As per minutes of that meeting, all members participated. We have seen the original record. The original record as is the custom/practice of the Court has been prepared on official/green (colour) ledger paper. It has been signed by all five members of the Permanent Committee, in hand writing. Thereafter, at the foot of those minutes, the dissenting note of the fifth member has been pasted on non-official/white paper. It is printed and not hand written. It is signed separately, by that member of the Permanent Committee. It opens with the words "I had participated in the deliberations of the committee held on 11th May 2019..........". It ends with the words "besides awarding marks as laid down by the Apex Court, as per Para 73.8, the committee was also to interview the applicants".

69. The dissenting note unequivocally suggests to us that the same was submitted after the minutes dated 10.05.2019 had been signed by all members of the Permanent Committee. What may have transpired and when and why it came to be submitted later is not a subject matter we may go into, at this stage. Suffice to note that for all reasons noted above, namely that the dissenting note is prepared on non-official/white paper; it is printed and not hand written; it refers to deliberations of the committee held on 11.05.2019 and not 10.05.2019 and it is pasted below the signatures of all five members of the Permanent Committee, affixed to the resolution dated 10.05.2019, we cannot doubt the true recovered of the proceedings conducted by the Permanent Committee on 10th May 2019, are found recorded in its minutes. Besides the above fact - being the Permanent Committee, it is obligated with the most onerous task of processing applications to confer the distinction of Senior Advocate, there exists an implied faith and trust in that body, both collectively and individually in all its members. In the context of the challenge raised, we have given our consideration to the objections raised in an objective manner. We are however unable to accept the objections with respect to the conduct of the meeting dated 10.05.2019. The minutes of that meeting clearly record what they record.

70. Further, since the making of the dissenting note was also not in doubt (even if made later), we have examined its contents. The fact that the fifth member himself recorded - that besides awarding of marks to the applicants (on the strength of their applications), interviews were also necessary, the said member has indirectly but by necessary implication, confirmed through his dissenting note that marks were awarded by the Permanent Committee to all applicants, at its meeting held held on 10.05.2019.

71. As to interviews being waived, the resolution of the Permanent Committee dated 10.05.2019, first records that the Committee resolved that 45 out of maximum possible 75 marks (to be allotted against applications) be the cut off marks for consideration of award of distinction as a Senior Advocate, by the Full Court. In continuation thereto further resolution has been recorded that interview/interaction with the advocates/applicants be dispensed with. Therefore, the resolution of the Permanent Committee to prescribe cut-off marks and waive requirement of interview were made in a fair and transparent manner.

72. Insofar as challenge has been raised to the lack of overall assessment for reason of cut off marks being fixed out of 75 marks by excluding the interview marks, we find a departure had been made by the Permanent Committee from the general norms/guidelines laid down by the Supreme Court in Indira Jaising (Ist case). It is this fact departure enabled by Rules 6(5) that falls for our consideration including therein the validity of the Rule 6(5) of the Rules.

73. In that we first take up the issue of award cut off marks. Here it is an admitted case between the parties that 100 applications had sought designation. Of that 97 survived for consideration by the Permanent Committee, at the first instance. One more application came to be dropped through withdrawal and another on technical issue. Thus the Permanent Committee was required to deal with 95 applications. If the guidelines and norms framed by the Supreme Court in Indira Jaising (Ist case) requiring conduct of interviews are held mandatory, 95 interviews had to be held by the five member Permanent Committee, comprising of none other then the Chief Justice and two senior most judges of the Court, the learned Advocate General and the fifth member. How much time if not days would have been required to complete that exercise is not for us to contemplate. At the same time, it cannot be denied -s much time would be required to interview 95 practising advocates that to those having flourishing practices and distinguished careers.

74. In this context we may take note of the specific directions issued by the Supreme Court in Indira Jaising (Ist case). In Paragraph 73.8 of the said decision reads as below:-

"73.8. All the names that are listed before the Permanent Committee/cleared by the Permanent Committee will go to the Full Court."

Clearly, in the context of general norms/guidelines laid down by the Supreme Court, it was mindful, even at that stage that names of only such applicants may fall for consideration by a Full Court of the Supreme Court or of the High Court as may either be "listed" before the Permanent Committee or as may be "cleared by the Permanent Committee". The suggestion (as was strenuously urged), that only hindsight wisdom has given rise to that consequential direction in Indira Jaising (IInd case) - to allow for prescription of cut-off marks, is therefore not acceptable. Even in the first decision (as noted above), the Supreme Court had allowed or left open to the Permanent Committee of the Supreme Court and/or the High Court to evolve an objective or rational criteria to "clear"/recommend only such applicants to the Full Court, as it may consider fit. To that extent, the action taken by the Permanent Committee was fully in conformity to the guidelines/norms issued in Indira Jaising (Ist case).

75. Then, as per the original record, Table B does contain tabulation of marks awarded to individual applicants by the Permanent Committee, on the basis of facts disclosed in their respective applications. Those marks were available to the Permanent Committee when it resolved to prescribe the cut off marks 45 out of 75 - for the purpose of consideration for designation, by the Full Court. The marks awarded to the petitioners are clearly included in Table B. Also those were disclosed to the petitioner Shri Vishnu Behari Tewari in response to his application made under the Right to Information Act, 2005.

76. Thus, the Permanent Committee took a decision to shortlist the suitable applicants from the list of 95 applicants, on the strength of marks obtained by them on their individual applications. As noted above, by way of a process adopted, it was legally permissible. The Permanent Committee did not lack that inherent jurisdiction. Second, by way of method adopted, the criteria to shortlist all applicants based on qualifying marks fixed by the Permanent Committee was rationale, fair, objective and a transparent criteria. Third, in any case, we are also not to explore the challenge to rationality of that criteria, in view of the later pronouncement in Indira Jaising (IInd case) which clearly recognises and gives judicial approval to the power of the Permanent Committee to evolve cut-off marks to shortlist the total number of applicants recommended for conferment of distinction as Senior Advocates.

77. What then survives for our consideration is whether lack of personal interview [contemplated in Indira Jaising (Ist case) and as has been made mandatory by Indira Jaising (IInd case)] leads to any infirmity in the Rules and/or leads to infraction of the rights to the applicants. Read co-jointly, the two decisions in Indira Jaising (Ist case) and Indira Jaising (IInd case) clearly lead us to a conclusion that no distinction by way of designation as a Senior Advocate may be conferred except against prior interview granted. That being the norm/guideline, challenge may arise where such distinction is granted without prior interview, except in cases where the Supreme Court or the High Court may chose to confer that distinction by way of suo moto exercise of power. That power has also been specifically preserved in the later decision in Indira Jaising (IInd case).

78. Insofar as the cut-off marks were permissible to be prescribed and as a fact, those were prescribed under a resolution of the Permanent Committee - unanimously passed by all five members, the issue of lack of interview may have arisen only at the instance of those short-listed, but not the rest. Seen in that light, the ground for challenge being pressed, that designation has been deprived to the petitioners without interview, may not lead to any success to these petitioners. The petitioners not being shortlisted on the basis of cut-off marks prescribed, they never earned a right to be interviewed by the Permanent Committee. Thus, out of 78 applicants shortlisted by the Permanent Committee, initially, three applicants were not conferred designation at the Full Court. The claim of one applicant was deferred and to two others the distinction was positively declined. The applicant whose application was deferred was also granted designation, later. The other two applicants never challenged the action of the Full Court. Five years have passed since then. No challenge may even arise or exist on that count, now.

79. Besides the above, we also do not find any justification to consider the possibility of that challenge for reason of passage of time. Five years have passed since designation were conferred by this Court. Those designated have been regularly appear amongst others, before this Court, at Prayagraj and at Lucknow. The distinction conferred may never be thought to be withdrawn or be doubted now for reason of interview not held five years ago. Equally, no useful purpose may be serve in now requiring that condition to be fulfilled, at this later stage, with these facts.

80. Seen in that light, we now examine the raw validity of the Rules. By virtue of the discussion made above, we have no doubt that Rule 6(5) of the Rules if read in a manner to do away with the process of interview completely, would fall foul with the mandatory directions of the Supreme Court in Indira Jaising (IInd case) read with Indira Jaising (Ist case). Seen in that light, the words "and, if it so desires, may also interact with the concerned advocate(s)" appearing in Rule 6(5) of the Rules only refer to the power and discretion of the Permanent Committee to interview such applicants who may be shortlisted on the strength of any objective criteria such as cut-off marks allotted on their applications. Thus, by way of example, if there is only one applicant who may seek the distinction to be designated as a Senior Advocate, the Permanent Committee (at a given occasion) may necessarily interact with him through personal interview before requiring that matter to be considered by the Full Court. At the same time, where many applicants exist, or are in the waiting, it may remain open to the Permanent Committee to interact with only such applicants who may first be shortlisted on an objective criteria - of cut-off marks etc. In that, the process of short listing may also be permissible to be adopted by the Permanent Committee again or after the conduct of the interview of all or any (shortlisted) applicants. Conduct of interview may not vest any right on any applicant to be necessarily considered by the Full Court for the purpose of conferment of distinction of Senior Advocate. However, we make it plain that that exercise may fall in the exclusive discretion and domain of the Permanent Committee.

81. As to the further challenge that no merit list was prepared by the Permanent Committee and the marks allotted were not placed before the Full Court, those fact assertions must be accepted to be true. At the same time, no merit list was required to be prepared. In the matter of distinction being conferred by the High Court, no merit list is required to be prepared. In the first place, there were no posts available and there was no selection to those posts being made by the High Court. All who were worthy of the distinction, deserved to be vested with the same with the right of pre-audience arising on same day, in order to their inter se seniority/standing at the bar. To prepare a merit list of such advocates would be to demean and devalue the distinction being conferred.

82. Second, Rule 6(6) of the Rules only required the Permanent Committee to place before the Full Court its Assessment Report. That did not mandate or require the Permanent Committee to disclose or place before the Full Court, the exact marks awarded to individual applicants, in the process of short-listing adopted by it. The Full Court was only to be informed by the Permanent Committee that an objective criteria had been followed to shortlist the applicants. Neither in the Indira Jaising (Ist case) nor in Indira Jaising (IInd case), any norm or guideline has been framed necessitating supply of the marks awarded to the applicants by the Permanent Committee to be placed before the Full Court. Award of marks is sufficient evidence of objective criteria applied by the Permanent Committee. Its disclosure is neither mandated nor desirable for the purpose and/or the conduct of the Full Court.

83. As noted above, the Permanent Committee being burdened with the onerous task of scrutinising applications to determine the suitability for conferment of distinction as Senior Advocate, works on an implied trust. It is required to screen those applications to help the Full Court form its subjective opinion. There is no quarrel that such objective criteria was adopted.

84. Further submission has been advanced and specifically pressed by the petitioners that the Permanent Committee though impleaded as a party respondent, it has not submitted any Counter Affidavit and there is no specific denial by the High Court to the material pleadings made in paragraphs 35 to 38 of the writ petition and other paragraphs of the writ petition. In the context of the challenge raised to the validity of the Rules and bonafides of the exercise of power made by the Permanent Committee and the Full Court, we had considered the challenge raised with that much care. For that reason we had called for the original records of the Permanent Committee and the Full Court. Those records reveal the true facts, as noted above. Being matters of record that are before the Court, the alleged lack/inadequacy of pleadings pales into insignificance. For that reason, we find, the ratio of the decision of the Supreme Court in Bharat Sanchar Nigam Limited (supra), Seth Ram Dayal Jat (supra), Asha vs Pt. B.D. Sharma University of Health Sciences (supra) and Standard Chartered Bank (supra) to be distinguishable, on facts. No malafides have been pleaded against any individual nor such presumption may ever arise especially in the context of power exercised by the Permanent Committee and the Full Court.

85. The ground of challenge of action performed in post haste manner also does not merit our acceptance. It is an undoubted fact that the Full Court was concluded on 18.05.2019. It was an exercise of and by the Court. The resolution of the Full Court is clear. It deserved a prompt notification to be made. The fact that on earlier occasions, in similar circumstances more time may have been taken, may never be a yardstick to measure the bonafides of the impugned action. We are therefore constrained to offer our unequivocal observation that we are dismissive of these contentions advanced by the petitioners. For that reason, we are also unable to confirm the applicability of the law laid down in Bahadursinh Lakhubhai Gohil (supra) and Smt. S.R. Venkata Raman Vs. Union of India, AIR 1979 SC 49.

86. The petitioners had a grievance with the Court on the administrative side. That they have voiced. They also have every right to pursue their grievance and seek adequate relief, on the judicial side. At the same time, that challenge process cannot arise or be propelled or be pursued on unsubstantiated doubts, suspicions or presumptions or assumed bias. The entire exercise is found to have been conducted in a transparent and fair manner with objective consideration, at every stage. Even at the Full Court, three names did not go through. Two were declined. The fact that the petitioners may have missed out, may give them a right to be reconsidered as contemplated under the Rules where any applicant who may not be successful at seeking designation in one Full Court may be reconsidered after two years. Yet, the petitioners may not have acted recklessly, by giving wings to their worst imaginations.

87. The decision of the Orissa High Court in Banshidhar Baug (supra) is wholly distinguishable. In that case, the Orissa High Court had first invited applications for conferment of the distinction as Senior Advocate. During pendency of those applications, suo motu power was also exercised by that High Court - to confer distinction on some of the applicants while leaving out the others. There, the process of conferment of designation in the manner prescribed by the Rules and as guided by the guidelines and norms laid down by the Supreme Court in Indira Jaising (Ist case) and the suo motu power of the Court, arose simultaneously. Once the regular mechanism governed by the statutory Rules had been undertaken, it may not have been open to exercise suo motu power, that too with respect to some of the applicants, leaving others aside. It is in that context that the right of pre audience may have been altered prejudicially. Such facts do not obtain in the cases before us.

88. Insofar as the decision of the Calcutta High Court in Debasish Roy (supra) is concerned, we find, the principle objection noted by the Calcutta High Court has been taken care of in the Indira Jaising (IInd case). We may also note, in view of our observations and reasoning that the decisions in Indira Jaising (Ist case) and Indira Jaising (IInd case) have been given effect and the Rules are consistent to the guidelines/norms enforced thereunder, the test to be applied is whether the procedure followed by the Permanent Committee is arbitrary but not per-se, ultra vires.

89. Thus, we find ourselves at permissible variance with the opinion of the Orissa High Court and Calcutta High Court. To that extent, as a High Court, it is our privilege to be in respectful disagreement with an other High Courts and to that extent, those decisions of other High Court are of persuasive value, with which we respectfully disagree.

90. Before we part, we may take note of the fact that in Indira Jaising (IInd case), the Supreme Court has amongst others observed, in paragraph 44 of that report that exercise of conferment of distinction should be carried out at last once a year. That exercise has not been undertaken since the last Full Court giving rise to the present case, held on 18.05.2019. Five years have passed. On a query made, learned counsel for the High Court informs us that in 2019, there were more than 18000 advocates registered as Advocate on Roll (AOR) at Prayagraj and more than 10000 advocates were registered as AOR, at Lucknow, with this Court. Against those large numbers, in 2019, there were in all, 85 designated Senior Advocates designated by this Court. Consequent to the last designations made, there are about 143 Senior Advocates.. At present, there are 26170 advocates registered as AOR at Prayagraj and 15300 advocates registered as AOR at Lucknow, with this Court. In that background, about 236 applications are described to have been made to the Permanent Committee for conferment of the distinction as Senior Advocate. Those are pending consideration. With that parting observation, both the writ petitions are dismissed. No order as to costs.

 
Order Date :- 3.9.2024
 
rkg/CS/Imran/Prakhar/Salman/Abhilash/A.Gautam
 

 

 

 
(Donadi Ramesh, J.)        (S.D. Singh, J.)

Unlock Advanced Research with PRISMAI

Allahabad High Court