Orissa High Court
Banshidhar Baug vs Orissa High Court on 10 May, 2021
Equivalent citations: AIRONLINE 2021 ORI 127
Author: C.R. Dash
Bench: Chitta Ranjan Dash
ORISSA HIGH COURT: CUTTACK.
W.P.(C) Nos. 17009 and 17110 of 2019
In the matter of applications under Articles 226 & 227 of the
Constitution of India.
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In W.P.(C) No.17009 of 2019
Banshidhar Baug ....... Petitioner
-Versus-
Orissa High Court, represented though
its Registrar General and others ....... Opp. Parties
For Petitioner : M/s. Bansidhar Baug
(In person)
For Opp. Party Nos.1 and 3 : M/s. Sanjit Mohanty,
Senior Advocate &
I.A. Acharya
For Opp. Party No.5 : M/s. S.P. Mishra, Sr. Advocate
Gouri Mohan Rath,
A.C. Panda,
M. Agarwal, S.S. Padhi,
S.D. Ray, P.P. Behera &
A. Mishra.
For Opp. Party No.6 : M/s. P. Ramakrishna Patro &
A.K. Samal.
For Opp. Party Nos.7, 8 & 9 : M/s. S.P. Mishra, Sr. Advocate
Debasis Nayak,
A.Mishra, M. Agarwal &
P.P. Behera.
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In W.P.(C) No.17110 of 2019
Karunakar Jena and others ....... Petitioners
-Versus-
Orissa High Court, represented though
its Registrar General and others ....... Opp. Parties
For Petitioners : M/s. S.S. Rao, B.K. Mohanty
and R.R. Jethi
For Opp. Party No.1 and 3 : M/s. I.A. Acharya
For Opp. Party No.5 : M/s. S.P. Mishra, Sr. Advocate
Gouri Mohan Rath,
A.C. Panda, M.Agarwal,
S.S.Padhi, S.D.Ray,
P.P.Behera & A.Mishra
For Opp. Party No.6 : M/s. P.Ramakrishna Patro
and A.K. Samal
For Opp. Party Nos.7 to 9 : M/s. S.P. Mishra, Sr. Advocate
Debasis Nayak,
A. Mishra,M. Agrawal &
P.P. Behera.
PRESENT :
THE HONOURABLE SHRI JUSTICE CHITTA RANJAN DASH
AND
THE HONOURABLE SHRI JUSTICE PRAMATH PATNAIK
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Date of Hearing: 30.03.2021 : Date of Judgment: 10.05.2021
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C.R. Dash, J. Both these writ petitions have been filed by four
Advocates. They have put in several years of practice in the
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High Court and other Courts. They aspire to be conferred
with the designation of "Senior Advocate". While the process
of conferring designation of "Senior Advocate" was on in
accordance with Rule-6 of High Court of Orissa (Designation
of Senior Advocate) Rules, 2019 ("2019 Rules" for short), the
Hon'ble Full Court conferred designation of "Senior
Advocate" on five Advocates, who are Opposite Party Nos. 5
to 9.
2. Being aggrieved by such action of the Hon'ble
Full Court, both these writ petitions have been filed with the
following prayers ;
(I) to quash the Notification No.1378, dated
19.08.2019 vide Annexure-8 declaring
Opposite Party Nos.5 to 9 as "Senior
Advocates" ;
(II) to quash sub-rule-(9) of Rule-6 of "2019
Rules";
(III) to issue direction to the Permanent Committee
as well as the Hon'ble Full Court of the High
Court to consider the applications of Opposite
Party Nos.5 to 9 along with other applicants
named in the Notice dated 09.08.2019 vide
Annexure-7 for being designated as "Senior
Advocates";
(IV) In W.P.(C) No.17110 of 2019, one more prayer
is added to quash the Notification dated
04.09.2019, which calls applications from
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eligible advocates for being designated as
"Senior Advocates".
3. Brief fact of the case is as follows :-
(a) Hon'ble the Supreme Court on 12.10.2017
delivered the Judgment in the case of Indira Jaising
vs. Supreme Court of India, (2017) 9 SCC 766
(Annexure-1). The Orissa High Court, in exercise of the
power under Section-16(2) read with Section-34 of the
Advocates Act, 1961 and the guidelines framed by
Hon'ble the Supreme Court in the aforesaid Judgment
vide Annexure-1, notified "2019 Rules" on 13.02.2019.
(Annexure - 2)
The Orissa High Court thereafter through the
Registrar (Judicial) issued an Advertisement inviting
applications from the eligible Advocates to be conferred
with the designation of "Senior Advocates".
(Annexure - 3)
In response to the aforesaid advertisement, 50
applications were received, out of whom, Mr. P.K.
Routray, Advocate has expired in the meantime and
Mr. S.S. Rao has withdrawn his application.
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On scrutiny and perusal of the applications, the
Permanent Committee (which includes Hon'ble the
Chief Justice and two Senior-most Hon'ble Judges of
the Court) placed names of Opposite Party Nos.5 to 9
before the Hon'ble Full Court for consideration of
conferring them with designation of "Senior Advocate"
by invoking it's suo motu power under sub-rule (9) of
Rule-6 of "2019 Rules".
The Orissa High Court thereafter through the
Registrar (Judicial) invited suggestions and views on 45
remaining applicants. (Annexure- 7)
(b) The Hon'ble Full Court on 17.08.2019, unanimously
Resolved to designate Opposite Party Nos. 5 to 9 as
"Senior Advocates" in exercise of it's suo motu power
under sub-rule (9) of Rule-6 of "2019 Rules".
Notification was issued on 19.08.2019 by the Orissa
High Court designating Opposite Party Nos.5 to 9 as
"Senior Advocates". (Annexure- 8)
After this stage, Mr. P.K. Routray expired and Mr.
S.S. Rao withdrew his application. So there remained
43 advocates excluding opposite party Nos.5 to 9 to be
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considered for conferring designation of "Senior
Advocate" on them.
On 04.09.2019, the Orissa High Court through the
Registrar (Judicial) issued a fresh advertisement
inviting applications from the eligible Advocates to be
designated as "Senior Advocates". (Annexure -9)
(Annexures cited above are as per W.P.(C)
No.17009 of 2019).
(C) Impugning conferment of the designation of
"Senior Advocate" on Opposite Party Nos.5 to 9 and
issuance of Notification dated 04.09.2019 which calls
for applications afresh from the eligible Advocates after
conferring designation of "Senior Advocates" on
Opposite Party Nos.5 to 9, the present writ petitions
have been filed with the prayers as delineated in
paragraph-2 (supra).
4. Briefly stated, the counter affidavit filed by the
Orissa High Court questions the locus standi of the
petitioners to file the writ petition and its maintainability.
4.1. It is further asserted that the designation of
"Senior Advocate", being not a "bounty", "title" or "office" and
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the applications of the petitioners for being designated as
"Senior Advocate" being still pending as per the procedure
enshrined in Rule- 6 of "2019 Rules", and the lis between the
parties not being a Public Interest Litigation (PIL) or an
adversarial litigation, the writ petition is not maintainable
being premature and the petitioners have no locus standi to
call in question the action of the Hon'ble Full Court.
4.2. It is further asserted that the Hon'ble Full Court
has rightly declared Opposite Party Nos.5 to 9 as "Senior
Advocates", in exercise of their suo motu power under sub-
rule (9) of Rule- 6 of the "2019 Rules" read with Section-
16(2) of the Advocates Act. Hence, the writ petition should be
dismissed.
4.3. Except Opposite Party No.6, no other private
Opposite Party has filed counter affidavit. The Opposite Party
No.6 in his counter affidavit has laid stress on the length of
his practice in the High Court and his standing in the Bar.
5. From the rival pleadings filed by the parties, the
following points emerge for determination :
(I) Whether the petitioners have locus standi
to maintain the writ petition ?
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(II) Whether the Orissa High Court could have
framed Rule in the form of "2019 Rules"
incorporating sub-rule (9) of Rule- 6, which
runs contrary to the guidelines/norms of
Hon'ble the Supreme Court for framing
Rules as contained in paragraph- 73 of
Indira Jaising case ? (Annexure - 1)
(III) Whether the direction of Hon'ble the
Supreme Court in Indira Jaising case is
binding on this Court, in view of Article-
141 of the Constitution of India ?
(IV) Whether beginning of sub-rule (9) of Rule-6
with a non-obstante clause takes away the
effect of "2019 Rules" from sub-rule (3) to
sub-rule (8) of Rule-6 ?
(V) Whether the Opposite Party Nos.5 to 9, who
had applied as per the "2019 Rules" along
with the petitioners and others could have
been picked by the Permanent Committee
prior to the stage of sub-rule (3) of Rule- 6 of
the "2019 Rules" and could their names
have been recommended for designation as
"Senior Advocates" ?
(VI) Whether the Hon'ble Full Court for
exercising the power under sub-rule (9) of
Rule- 6 could have accepted the
recommendation of the Permanent
Committee before the stage of sub-rule (3) of
Rule-6 to declare Opposite Party Nos.5 to 9
as "Senior Advocates" without forming any
independent opinion ?
6. Broaching the question of "locus standi",
Mr. Sanjit Mohanty, learned Senior Counsel appearing for
the Orissa High Court submits that, the designation of
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"Senior Advocate" is not an "office" or "post", in which
position only a limited number of persons can be
accommodated. Relying on the case of Indira Jaising
(2017) 9 SCC 766 (paragraph- 57), Mr. Mohanty submits
that the designation "Senior Advocate" is hardly a "title", it is
a "Distinction"; a "Recognition". Relying on paragraph- 70 of
the said Judgment, Mr. Mohanty submits that, only the
most deserving and very best, who would be bestowed with
the Honour and Dignity, can be designated as "Senior
Advocate".
6.1. Relying on the case of National Lawyers'
Campaign for Judicial Transparency and Reforms vs.
Union of India, 2019 (5) SCALE: 588 (para- 15),
Mr. Mohanty, further submits that, designation as a "Senior
Advocate" is neither a "bounty" nor a "right".
6.2. Mr. Mohanty further goes to submit that the
petitioners cannot be termed as being aggrieved or having
any locus standi to maintain the writ petition with regard to
designation of Opposite Party Nos.5 to 9 as "Senior
Advocates" because:
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(I) the applications of the petitioners for being
designated as "Senior Advocates" are still
pending.
(II) the impugned Notification dated 19.08.2019
designating the Opposite Party Nos.5 to 9 as
"Senior Advocates" does not operate as a
decision against the petitioners, much less
affects them.
(III) each applicant has their own interest which
cannot be termed as rivals to each other.
(IV) there has been no discrimination.
(V) there is no inter-se seniority among the
"Senior Advocates".
6.3. Mr. S.P. Mishra, learned Senior Counsel who
appears for the Opposite Party Nos.5 to 9 has the same
submissions.
7. Mr. Banshidhar Baug, appearing in person,
submits that, he has put in 40 years of practice as Advocate
of the High Court and different other Courts since
28.02.1981. He had the desire to be considered along with
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other Advocates as "Senior Advocate", but the Permanent
Committee as well as the Hon'ble Full Court had arbitrarily,
malafidely and illegally designated the Opposite Party Nos.5
to 9 as "Senior Advocates" by adopting pick and choose
method and completely discriminated against the petitioner.
It is submitted by him that the action of the Permanent
Committee and the Hon'ble Full Court is violative of Article-
14 of the Constitution of India, "2019 Rules" and Section-
16(2) of the Advocates Act. As the petitioner has called in
question the method of selection of Opposite Party Nos.5 to
9 as "Senior Advocates", when his and others' applications
are still pending, he has locus standi to question such
method and the writ petition filed by him and other three
Advocates are maintainable.
Mr. S.S. Rao, learned counsel, who appears for
the petitioners in another writ petition, has also adopted the
same stand.
8. Mr. Baug relies on the case of Democratic Bar
Association, Allahabad and others vs. High Court of
Judicature at Allahabad and others, AIR 2000
Allahabad 300 and the case reported in (2014) 14 SCALE:
12
141 in order to drive to home his points. The case of
"Democratic Bar Association", Allahabad (Supra) was a
Public Interest Litigation (PIL). In the said case, locus standi
of the petitioner was challenged. The said writ petition was
filed challenging the validity of amendment of Designation of
Senior Advocates Rules, 1999 and Procedure evolved by
such Rules for consideration of Advocates for being
designated as "Senior Advocates" under the Advocates Act.
The writ petition was filed by the Lawyers practising in the
High Court.
8.1. Hon'ble Allahabad High Court held that, the writ
petition is maintainable because such Lawyers practising in
the High Court cannot be termed as busy bodies and
intermeddlers, as they have vital interest in the subject
matter of the writ petition, more so, when it was not shown
that, the petitioner had filed writ petition for any personal
gain or private profit or political motive or any such other
oblique consideration.
8.2. In the case reported in 2014 (14) SCALE: 141,
an interim order was passed by the Hon'ble Karnataka High
Court at Bangalore holding that, the appellant does not have
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locus standi to file writ petition in public interest. Hon'ble
the Supreme Court had held that, the petitioner has locus
standi, as some issues are to be considered by the High
Court in the writ petition regarding the Rules, Regulation,
and guideline of conferring the designation of "Senior
Advocates". This case also was a PIL filed by an Advocate
wherein, main prayer was issuance of a writ of mandamus
for framing new norms strictly in consonance with the
provisions of Section- 16(2) of the Advocates Act, 1961 in the
matter of designation of "Senior Advocates" and a writ of
certiorari was also sought for quashing the Notifications
dated 30.06.2014 and 14.07.2014 whereby 15 nos. of
Advocates had been designated as "Senior Advocates" by the
High Court of Karnataka.
9. The decisions relied on by Mr. Baug (Petitioner in
W.P.(C) No.17009 of 2019) in the case of "Democratic Bar
Association", Allahabad and others and (2014) 14 SCALE:
141 are not applicable to the facts of the present case, as
the writ petitions in both the aforesaid cases were PILs and
it is settled law that, no rigid rule of locus standi can be
applied to a Public Interest Litigation. Hon'ble the Supreme
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Court, in the case of Janata Dal vs. Choudhury HS,
(1992) 4 SCC 305, has permitted any person acting bona
fide and having sufficient interest in maintaining an action
for judicial redress for public injury to put the judicial
machinery in motion. However, only a person acting bona
fide and having sufficient interest in the proceeding of Public
Interest Litigation will alone have a locus standi. A person
prompted by personal gain or private profit or political
motive or any oblique consideration has no locus standi.
9.1. In the first case relied on by Mr. Baug, an
Advocate Body was the petitioner in the writ petition and in
the second case, an Advocate was the petitioner in the writ
petition and in both the cases, public interest of the
Advocates at large were espoused by the petitioners and
question of locus standi was decided accordingly. In the
present case, however, the petitioners in both the writ
petitions are espousing their private cause.
10. The petitioners in both the writ petitions are
aggrieved by the fact that opposite party Nos.5 to 9 were
picked for designating them as "Senior Advocates", when the
process under Rule-6 of "2019 Rules" was on. The
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petitioners might be in know of the rule i.e., "2019 Rules",
but they did not have any expectation that in the midst of
the process under Rule-6, the Opposite Party Nos.5 to 9
shall be conferred with the designation of "Senior Advocates"
before opening of the process under sub-rule (3) of Rule- 6
and such action shall be taken up by invoking sub-rule (9)
of Rule-6 of "2019 Rules". Such an action was a surprise to
them and lacks transparency.
10.1. We thoroughly agree with Mr. Sanjit Mohanty,
learned Senior Counsel appearing for the Orissa High Court
that whatever he has submitted as enumerated in
paragraphs-6, 6.1 and 6.2 of this order are true and the
present writ petitions are not usual adversarial litigations,
but the petitioners being Advocates and being applicants for
being conferred with the designation of "Senior Advocates",
have an existing right to call the rule, i.e. "2019 Rules" in
question, though they have applied for being designated as
"Senior Advocates". Designation as a "Senior Advocate" is
not a "title" or "office" as ruled by Hon'ble the Supreme
Court. But it adds to the prestige of an advocate both in the
Bar and society. It gives him an exalted position in the eyes
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of the Court before whom he appears. It gives him a self-
satisfaction about his achievement in the profession and in
life. It adds a distinct feather to his cap already feathered.
Even after his death, he is remembered with adulation. The
designation may not be a "title" but from the perspective of
those on whom the designation of "Senior Advocate" is
conferred, it is more than a "title" in the trapping of a
"designation".
10.2. We agree that the petitioners and the Opposite
Party Nos.5 to 9 are not rivals so far as their claim is
concerned. The petitioners may be conferred with the
designation of "Senior Advocates" tomorrow after the process
under Rule-6 of "2019 Rules" is over. But being advocates
they have a vested and existing right to call in question the
rule which creates a separate group within a particular
group, more so, when such creation of group by invoking a
particular rule is not in consonance with the guidelines of
Hon'ble the Supreme Court according to their study and
wisdom. The question of validity of sub-rule(9) of Rule-6 of
"2019 Rules" being the subject matter of litigation now and
the petitioners being alleged to have been discriminated by
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that rule, it is not to be seen now as to whether a
fundamental right of the petitioners has been violated. Only
because the petitioners are applicants for their private
cause, the doctrine of aprobate and reprobate cannot be
applied strictly to the facts of the case especially in view of
the nature of the lis. Only and only the validity of sub-rule
(9) of Rule-6 of "2019 Rules" has to be examined to find out
whether the same is in consonance with the guidelines of
Hon'ble the Supreme Court framed in Indira Jaising case
irrespective of the fact who brought the matter before the
Court. In our considered view, therefore, the petitioners have
the locus standi to maintain the writ petitions.
11. Mr. S.P. Mishra, learned Senior Counsel
appearing for Opposite Party Nos.5 & 7 to 9 raises the
question of waiver on the part of the present petitioner on
the ground that the petitioners in both these writ petitions
are precluded from challenging sub-rule (9) of Rule- 6 of the
"2019 Rules", in view of their participation in the process of
selection.
11.1. In this regard, Mr. Mishra, relied on the case of
Madras Institute of Development Studies and another
18
vs. K. Sivasubramaniyan and others, (2016) 1 SCC 454.
In the aforesaid case, the selection process was challenged
by the unsuccessful candidates after participating in the
selection process. Relying on a catena of decisions of its
own, Hon'ble the Supreme Court held that, such a stand by
the petitioners after participating in the selection process
acts against them and is hit by waiver and estoppel.
11.2. The case in hand is however different. The
petitioners might be knowing the Rule, i.e. "2019 Rules", but
they are aggrieved by the action of the High Court in the
midst of the selection process under Rule-6 of "2019 Rules"
and they have an existing right to challenge sub-rule (9) of
Rule-6 as being violative of the guidelines enumerated by
Hon'ble the Supreme Court in paragraph- 73 of the Indira
Jaising case. In view of our discussion supra and the nature
of the lis, we do not think strict rule of "Doctrine of waiver"
applies to the facts of the case.
12. Out of the points for determination that have
been enumerated in paragraph-5 supra, point Nos.2 & 3 are
important and basic. Those points are whether sub-rule(9)
of Rule-6 of "2019 Rules" is in consonance with the
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guidelines/norms framed by Hon'ble the Supreme Court in
paragraph- 73 of Indira Jaising case and whether those
guidelines/norms are binding in view of Article-141 of the
Constitution of India.
13. Mr. Baug, appearing in person and Mr. S.S. Rao,
learned counsel appearing for the petitioners in another writ
petition submit that, sub-rule (9) of Rule-6 giving suo motu
power to the Court is contrary to the guidelines framed by
Hon'ble the Supreme Court in paragraph-73 of the
Judgment in Indira Jaising case. They relied on
paragraphs- 56, 57, 64, 66, 69, 70, 73 & 74 of the said
Judgment to substantiate their contention.
13.1. It is further submitted by Mr. Baug and Mr. Rao
that the Judgment of Hon'ble the Supreme Court in the case
of Indira Jaising being positive and mandatory direction,
the same is binding on all Courts, in view of Article- 141 of
the Constitution of India. To substantiate this point, they
relied on the cases of State of Himachal Pradesh vs.
Paras Ram and others, (2008) 3 SCC 655,
Chandramohan Pandurang Kajbaje vs. State of
Maharashtra and others, 2008 AIR SCW 619, Kalyani
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Packaging Industry vs. Union of India and another,
(2004) 6 SCC 719 and Suganthi Suresh Kumar vs.
Jagdeeshan, AIR 2002 SC 681.
14. Relying on paragraphs- 58, 62 & 70 of the
Judgment in Indira Jaising case, Mr. Sanjit Mohanty,
learned Senior Counsel appearing for the Orissa High Court
submits that sub-rule (9) of Rule-6 of "2019 Rules" is valid
and it is not contrary to the guidelines framed by Hon'ble
the Supreme Court in the said Judgment, inasmuch as
Hon'ble the Supreme Court in paragraph-58 of the Indira
Jaising case and paragraph-15 of the Judgment of
National Lawyers' Campaign for Judicial
Transparency, 2019 (5) SCALE : 588 has held that,
designation of advocates as "Senior Advocate" as provided in
Section-16 of the Advocates Act, 1961 is valid and
Constitutional.
14.1. It is further submitted by Mr. Mohanty, learned
Senior Counsel that, in paragraph- 66 of the Indira Jaising
case, it is stated that no reasons are recorded either for
designation as "Senior Advocate" or rejection. Mr. Mohanty,
learned Senior Counsel is vehement on the point that
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paragraph- 73 of the said Judgment cannot be read in
isolation and it must be read along with paragraphs- 58, 62
& 70. The suo motu power of the High Court has not been
taken away in any sense and the suo motu power is a power
vested by Section- 16(2) of the Advocates Act, 1961.
According to him, the impugned rule is a valid rule and it is
not at all contrary to the guidelines framed by Hon'ble the
Supreme Court in the said case.
15. Mr. S.P. Mishra, learned Senior Counsel, who
appears for Opposite Party Nos.5 & 7 to 9 has the same
answer. He also relies on paragraphs- 58, 62 & 70 of the
Judgment in Indira Jaising case and also relies on the Rule
of Punjab & Haryana High Court, which provides for
exercise of suo motu power.
16. We read the Judgment in Indira Jaising case in
its entirety more than once. We found that earlier there were
no uniform rules for conferring designation of "Senior
Advocates". Different High Courts were following different
rules. There was also no proper rule on the subject for
Hon'ble the Supreme Court of India. All the aforesaid rules
of different High Courts including the rule of this Court
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being followed prior to the Judgment in Indira Jaising case
have been quoted by Hon'ble the Supreme Court in the said
Judgment. Hon'ble the Supreme Court, after taking into
consideration different rules of different High Courts as well
as that of Hon'ble the Supreme Court in paragraph-55 of the
Judgment in Indira Jaising case, (2017) 9 SCC 766, took
into consideration the ingredients of Section- 16(2) of the
Advocates Act, 1961. In paragraph- 56 towards the end, it is
observed by Hon'ble the Supreme Court as thus :-
56. "xxxxxxxx So long as the basis of the classification
is founded on reasonable parameters which can
be introduced by way of uniform guidelines/
norms to be laid down by this Court, we do not
see how the power of designation conferred by
Section 16 of the Act can be said to be
constitutionally impermissible."
16.1. In paragraph- 57, it is held that, designation of
"Senior Advocate" is only a distinction and a recognition. In
paragraph- 58, it is held thus :-
58. "We, therefore, take the view that the designation
of "Advocates" as "Senior Advocates" as
provided for in Section 16 of the Act would pass
the test of constitutionality and the endeavour
should be to lay down norms/guidelines/
parameters to make the exercise conform to the
three requirements of the statute already
enumerated hereinabove, i.e., namely, (1) ability
of the advocate concerned; (2) his/her standing
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at the Bar; and (3) his/her special knowledge or
experience in law."
16.2. In paragraph- 62 of the said Judgment, it is held
thus :-
62. "The power of designating any person as a Senior
Advocate is always vested in the Full Court either
of the Supreme Court or of any High Court. If an
extraordinary situation arises requiring the Full
Court of a High Court to depart from the usual
practice of designating an advocate who has
practiced in that High Court or in a court
subordinate to that High Court, it may always be
open to the Full Court to so act unless the norms
expressly prohibit such a course of
action............"
16.3. Paragraph- 66 of the Judgment of the said case
reads as follows :-
66. "Both Section 16(2) of the Act and Order 4 Rule 2
of the Supreme Court Rules, 2013 are significant
in the use of the expression "is of opinion" and "in
their opinion", respectively which controls the
power of the Full Court to designate an advocate
as a Senior Advocate. It is a subjective exercise
that is to be performed by the Full Court
inasmuch as a person affected by the refusal of
such designation is not heard; nor are reasons
recorded either for conferring the designation or
refusing the same. But the opinion, though
subjective, has to be founded on objective
materials. There has to be a full and effective
consideration of the criteria prescribed, namely,
ability; standing at the Bar, special knowledge or
experience in law in the light of materials which
necessarily have to be ascertainable and
verifiable facts."
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16.4. Paragraph- 68 of the said Judgment reads as
follows :-
68. "What is merit? Is it the academic qualification or
brilliance or is it something more? The matter has
been considered earlier by this Court in K.K.
Parmar v. High Court of Gujarat. Placing reliance
on an earlier view in Guman Singh v. State of
Rajasthan it has been held that : (K.K. Parmar
case, SCC pp. 801-02, paras 27-28)
"27. Merit of a candidate is not his academic
qualification. It is sum total of various
qualities. It reflects the attributes of an
employee. It may be his academic
qualification. He might have achieved certain
distinction in the university. It may involve
the character, integrity and devotion to duty
of the employee. The manner in which he
discharges his final duties would also be a
relevant factor. (See Guman Singh v. State of
Rajasthan)
28. For the purpose of judging the merit, thus,
past performance was a relevant factor.
There was no reason as to why the same
had been kept out of consideration by the
Selection Committee. If a selection is based
on the merit and suitability, seniority may
have to be given due weightage but it would
only be one of the several factors affecting
assessment of merit as comparative
experience in service should be."
16.5. Paragraph- 69 of the said Judgment reads as
follows :-
69. "The guidelines governing the exercise of
designation by the Supreme Court have already
been noticed so also the guidelines in force in the
25
various High Courts. Though steps have been
taken to bring in some objective parameters, we
are of the view that the same must be more
comprehensively considered by this Court to
ensure conformity of the actions/ decisions
taken under Section 16 of the Act with the
requirement of constitutional necessities,
particularly, in the domain of a fair,
transparent and reasonable exercise of a
statutory dispensation on which touchstone
alone the exercise of designation under
Section 16 of the Act can be justified. We
have also noticed the fact that until the enactment
of the Advocates Act, 1961 and the Supreme
Court Rules, 1966 the option to be designated as
a Senior Advocate or not was left to the advocate
concerned, with the Full Court having no role to
play in this regard. We have also noticed that in
other jurisdictions spread across the Globe, where
the practice continues to be in vogue in one form
or the other, participation in the decision-making
process of other stakeholders has been
introduced in the light of experience gained."
(Emphasis supplied by us)
16.6. Paragraph- 70 of the said Judgment reads as
follows :-
70. "We are, therefore, of the view that the framework
that we would be introducing by the present order
to regulate the system of designation of Senior
Advocates must provide representation to the
community of advocates though in a limited
manner. That apart, we are also of the view that
time has come when uniform parameters/
guidelines should govern the exercise of
designation of Senior Advocates by all courts of
the country including 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
26
in the process so as to ensure that it is only
and only the most deserving and the very
best who would be bestowed the honour and
dignity. The credentials of every advocate
who seeks to be designated as Senior
Advocate or whom the Full Court suo motu
decides to confer the honour must be subject
to an utmost strict process of scrutiny
leaving no scope for any doubt or
dissatisfaction in the matter."
(Emphasis supplied by us)
17. We thought it proper to quote the aforesaid
paragraphs relied on by learned counsels for the parties not
to leave any doubt in their mind and our mind so far as the
understanding of the Judgment is concerned. It is settled in
law that, a Judgment is never interpreted or in other words,
a meaning is never attributed to a Judgment by interpreting
it in one's own way. From the reading of the Judgment, we
have understood that before framing the guidelines/norms
in paragraph- 73, Hon'ble the Supreme Court has taken into
consideration at length the power of the Supreme Court and
other High Courts under Section- 16 of the Advocates Act
and the practice of other Courts across the Globe. They have
also taken into consideration in paragraph- 70 the exercise
of suo motu power of the Full Court, but such exercise
of power has also been subjected to an utmost strict
27
process of scrutiny leaving no scope for any doubt or
dissatisfaction in the matter.
18. "2019 Rules" is to be examined in the touchstone
of the guideline formulated in paragraph- 73 of the said
Judgment. While framing the guideline, Hon'ble the
Supreme Court has specifically held that the norms/
guidelines, in existence, shall be suitably modified so as to
be in accord with the present. For brevity, we are not
quoting here the entire guideline. But we feel it beneficial to
say that the power of any addition, deletion from the
guidelines formulated in paragraph- 73 in the light of the
experience to be gained over a period of time is left open for
consideration by Hon'ble the Supreme Court alone at such
point of time that the same becomes necessary. It clearly
indicates that any modification in the guideline to suit a
particular High Court is to be in accord with the guidelines
framed in paragraph- 73 and except the Supreme Court, no
other High Court has any power to add or delete from the
guideline.
19. A thorough reading of the entire Judgment along
with the guideline framed in paragraph- 73 of the Judgment
28
makes it clear that Hon'ble the Supreme Court in
paragraph- 73.4 of the Judgment has recognized two
sources for drawing advocates for being designated as
"Senior Advocate". One is written proposal by the Hon'ble
Judges and second source is the application by the advocate
concerned. There is no third source of picking an advocate
by exercise of suo motu power, though exercise of suo motu
power has been discussed in paragraph- 70 of the
Judgment. These sources, we think have been inserted in
the guidelines after a conscious thought by Hon'ble the
Supreme Court. Hon'ble the Supreme Court has not thought
it proper to include exercise of suo motu power by either the
Supreme Court or other High Courts so far as designation of
"Senior Advocate" is concerned.
20. Relevant portion of "2019 Rules" which is
impugned here is reproduced below for ready reference :-
"6. Procedure for Designation:-
(1) All the written proposals or applications for
designation of an Advocate as a Senior
Advocate shall be submitted to the Secretariat.
Provided further that in case the proposal
emanates from a Judge the Secretariat shall
request such Advocate to submit Form No.2
29
duly filled in within such time as directed by
the Committee.
(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 and on the matters
covered by Sl. Nos. 2 & 3 of Appendix-B
covering a period of last 5 years.
(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 Orissa, inviting suggestions and views
within such time as may be fixed by the
Committee.
(4) After the material in terms of the above is
complied 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.
30
(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. However the
Seniormost Judge or Chief Justice as the case
may be present in the Full Court shall not cast
his vote. In case the Judges present be equally
divided, the Chief Justice or in his absence the
Seniormost 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.
(9) Notwithstanding the above noted procedure for
designation of an Advocate as Senior Advocate,
Full Court on its own can designate an
Advocate as Senior Advocate even without any
proposal from Hon'ble Judges or application
from the Advocate if it is of the opinion that by
virtue of his/her ability or standing at the Bar
said Advocate deserves such designation."
20.1. A cursory reading of the aforesaid Rule makes it
clear that sub-rules- (1) & (2) correspond to paragraph-73.4
of the Judgment in Indira Jaising case. Sub-rule (3)
corresponds to paragraph- 73.5, sub-rule (4) corresponds to
paragraph-73.6, sub-rule (5) corresponds to paragraph-
73.7, sub-rule (6) corresponds to paragraph-73.8, sub-rule
31
(7) corresponds to paragraph-73.9 and sub-rule (8)
corresponds to paragraph- 73.10 of the said Judgment.
Sub-rule (9) according to Mr. Mohanty, learned Senior
Counsel appearing for the Orissa High Court and Mr. S.P.
Mishra, learned Senior Counsel appearing for Opposite Party
Nos.5 & 7 to 9 corresponds to paragraph-70 of the said
Judgment, which speaks of exercise of suo motu power and
Section- 16(2) of the Advocates Act, 1961.
21. It is alleged that, after the stage of sub-rule (2),
Opposite Party Nos.5 to 9 were picked by the Permanent
Committee and the matter was placed before the Hon'ble
Full Court for exercise of their suo motu power under sub-
rule (9). It is argued that, all the objective data and
information with regard to the reputation, conduct and
integrity of Opposite Party Nos.5 to 9 were there on record
after the stage of sub-rule (2) and the Hon'ble Full Court had
the occasion to apply their mind to such data and
information with regard to the reputation, conduct and
integrity of Opposite Party Nos.5 to 9 at the time of
consideration of conferring designation of "Senior Advocate"
on them (Opposite Party Nos.5 to 9). Mr. S.P. Mishra,
32
learned Senior Counsel appearing for Opposite Party Nos.5
& 7 to 9 cites before us the Rule of Punjab & Haryana High
Court, which has provision similar to sub-rule (9) of our
High Court though couched in different manner. We are,
however, not concerned with the Rule of Punjab & Haryana
High Court for the present.
22. In sub-rule (9), the word "even" after the word
"advocate" and before the word "without" has been used as
an adverb. Literally, it is used as an intensive to emphasize
the identity and character of something and that something
here is without any proposal from the Hon'ble Judges or
application from the Advocate. Sub-rule (9), therefore,
includes three sources:-
(1) Proposal from the Hon'ble Judges;
(2) Application from the Advocate concerned and
(3) Exercise of suo motu power in respect of an
Advocate even without any proposal from the
Hon'ble Judges or application from the
Advocate concerned, if the Hon'ble Full Court
is of the opinion that, by virtue of his/her
ability or standing at the Bar, the said
Advocate deserves such designation.
23. So far as the third source is concerned, we have
discussed in detail that, Hon'ble the Supreme Court in the
33
Judgment in Indira Jaising case has consciously not
included the third source in the guideline framed in
paragraph-73. In paragraph- 70, Hon'ble the Supreme Court
has referred to exercise of suo motu power, but has
specifically held thus:-
"xxxxxxxx The credentials of every Advocate who
seeks to be designated as Senior Advocate or
whom the Full Court suo motu decides to confer
the honour must be subject to an utmost strict
process of scrutiny leaving no scope for any doubt
or dissatisfaction in the matter."
Aforesaid quotation so couched is so clear in its
meaning that, an advocate who seeks to be designated
means an advocate who files an application for being
designated, stands apart, from him on whom the Hon'ble
Full Court suo motu decides to confer the honour. The word
"or" in between the words "Advocate" and "whom" has been
used as a conjunction, which is a function word to indicate
an alternative. Having discussed this suo motu power in
paragraph- 70, Hon'ble the Supreme Court in paragraph-
73.4 has ipse dixit not stated anything about the pick
through suo motu source. Such silence in paragraph-73.4,
according to our understanding is a conscious silence.
24. Paragraph- 73 of the said Judgment reads thus:-
34
73. "It is in the above backdrop that we proceed to
venture into the exercise and lay down the
following norms/guidelines which henceforth
would govern the exercise of designation of Senior
Advocates by the Supreme Court and all High
Courts in the Country. The norms/guidelines, in
existence, shall be suitably modified so as to be in
accord with the present".
and Paragraph-74 of the Judgment reads thus:-
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 addition/deletion 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."
After reading the entire Judgment and especially
paragraphs-73 and 74, we are of the view that sub-rule(9) of
Rule- 6 of "2019 Rules" is an addition beyond the scope of
the guidelines/norms framed in paragraph-73 of the
Judgment in Indira Jaising case. Therefore, sub-rule(9) of
Rule- 6 of "2019 Rules" is not in consonance with the said
Judgment and ultravires of the guidelines/norms in our
considered view.
25. In view of Article- 141 of the Constitution of India,
the said guideline is binding on all the Courts of the Country
including this Hon'ble Court and no citation is necessary to
35
substantiate this point. It is not out of place to mention here
that, in the past, such guidelines were issued in the cases of
Vishakha and others, A.R. Antuley, Arnesh Kumar, D.K.
Basu, Lalita Kumari and Prabin Singh Saini to cite a few
and some have been crystallized into law subsequently.
26. Assuming arguenda sub-rule (9) of Rule- 6 of
"2019 Rules" to be valid, it is to be examined whether
conferment of designation of "Senior Advocate" on Opposite
Party Nos.5 to 9 is above reproach.
Opposite Party Nos. 5 to 9 were applicants for
being designated as "Senior Advocates" along with other
applicants. They were picked for being conferred with the
designation after sub-rule (2) of Rule- 6 stage of "2019
Rules", leaving other applicants to suffer the grind of the
processing mill under the said Rules. There is no material
before us to reach a conclusion that applications received
from all the applicants were examined in detail or the
compilation made by the Secretariat containing relevant
data and information with regard to the reputation, conduct
and integrity of the advocates concerned of all the advocates
was examined in detail to pick Opposite Party Nos.5 to 9 for
36
conferring them with the designation of "Senior Advocate" in
exercise of power under sub-rule (9) of Rule- 6. There is
also nothing on record to suggest that the datas and
materials were placed before the Full Court to apply it's
mind. Furthermore, Opposite Party Nos.5 to 9 only and none
else were adjudged suitable for exercise of power under sub-
rule (9) of Rule- 6, when Opposite Party Nos.5 to 9 were also
applicants and being the applicants, they were in readiness
to suffer the grind of the processing mill entirely under Rule-
6 of "2019 Rules". Suo motu power is not a power to be
exercised ordinarily. It is a power to be exercised sparingly
with circumspection in rare cases. We do not find any such
rarity in the present case for exercise of power under sub-
rule (9) of Rule- 6 of "2019 Rules". We are, therefore,
constrained to hold that the entire process of conferring
designation of "Senior Advocate" on Opposite Party Nos.5 to
9 is discriminatory.
27. We have no doubt in our mind that Opposite
Party Nos.5 to 9 deserve to be designated as "Senior
Advocates" and in the process, they shall be designated as
"Senior Advocates". We are, however, pained by the
37
argument and submission of Mr. Baug, alleging malafide on
the Hon'ble Full Court. He having applied for being
designated as "Senior Advocate", he should have the
character becoming of a "Senior Advocate". There should be
sobriety in his submission. We fail to understand how Mr.
Baug forgot that the Hon'ble Full Court with consensus took
a decision in plurality and in such a case he could not have
attributed malafide to each and every Hon'ble Judge of the
Court.
28. After our findings (supra), discussion on other
points of determination becomes mere academic in nature.
Therefore, for brevity, we desist from such discussion.
29. In W.P.(C) No.17110 of 2019, there is an
additional prayer to quash the Notification dated 04.09.2019
calling for applications from the eligible advocates for being
designated as "Senior Advocates".
From the facts of the case, it is found that first
such notification was issued vide Annexure-3 dated
22.04.2019. In response to the aforesaid advertisement vide
Annexure-3, fifty (50) applications were received. The
Hon'ble Full Court on 17.08.2019 unanimously resolved to
38
designate Opposite Party Nos.5 to 9 as "Senior Advocates" in
exercise of the power under sub-rule (9) of Rule- 6 of "2019
Rules". On 19.08.2019, necessary notification was issued
designating Opposite Party Nos.5 to 9 as "Senior Advocates".
After the aforesaid exercise was over, the impugned
Notification dated 04.09.2019 was issued calling fresh
applications from the eligible advocates to be designated as
"Senior Advocates". In our considered view, after the first
notification vide Annexure- 3, when the process under Rule-
6 was on, it was irregular on the part of the High Court to
issue the Notification dated 04.09.2019. Instead of
expanding the ambit of selection process, it put the selection
process into more confusion. We are, therefore, of the view
that issuance of Notification dated 04.09.2019 is not valid in
the eye of law.
30. Before parting with the Judgment, we propose to
think aloud on the following aspects:
(I) He is an Advocate with towering personality. He
is suave and gentle. His disposition towards the
Court and his fellow counsels is impressive. He
is known for his ready wit. Ask him any question
on any law, he has an answer with reasonings.
His standing in the Bar is remarkable. He is a
social factor in the society, he lives. He is
humble, dignified, kind and a person with
39
sobriety. He would however not come to stand in
a queue to file an application for being
designated as "Senior Advocate". Such a person
being an asset to the profession, suo motu power
should be reserved to be exercised for such a
person only and such power should be given to
the High Courts, as in our understanding, such
power has not been given to the High Courts in
the guidelines/norms framed in Indira Jaising
case.
(II) Designation of "Senior Advocate" is a coveted
position from the point of view of the Bar and the
society. There should not be crowd in such a
coveted position. Every Tom, Dick & Harry
should not be brought to this position by
whatever means permissible. Certain percentage
of the total strength of a particular Bar should
only be allowed to enter into this coveted
position.
31. Opposite Party Nos.5 to 9 having been graced by
the Hon'ble Full Court with the designation of "Senior
Advocate", we do not want to disgrace them at present by
withdrawing the designation, as there is no fault on their
part in the entire exercise. Tomorrow, the Hon'ble Full Court
may rethink after exhausting the process under Rule-6 of
"2019 Rules" to designate them again as "Senior Advocates",
as according to our view, they are deserving, but there may
be contrary decision also. Though we have declared sub-rule
(9) of Rule-6 ultravires, we do not propose to strike down the
40
Notification No.1378, dated 19.08.2019 for the present. It
would only cease to be after a decision is taken by the
Hon'ble Full Court on the matter regarding designation of
"Senior Advocate" is placed before it after exhausting the
entire process under Rule-6 in which process applications of
Opposite Party Nos.5 to 9 shall also be taken into
consideration.
32. Taking into consideration our discussion (supra),
in fine, we hold thus:-
(I) sub-rule (9) of Rule- 6 of the High Court of Orissa
(Designation of Senior Advocate) Rules, 2019 is
declared as ultravires of the guidelines/norms
framed in paragraph- 73 of Indira Jaising case.
(II) The Notification dated 04.09.2019 calling fresh
applications from the eligible Advocates for being
designated as "Senior Advocate" is quashed and
the applications received in response to the said
Notification are not to be taken into
consideration.
(III) The Notification No.1378, dated 19.08.2019 shall
have effect till fresh decision by the Hon'ble Full
Court is taken regarding designation of "Senior
Advocate" on consideration of all 48 applications
including that of Opposite Party Nos.5 to 9.
33. The process of designating "Senior Advocates" be
completed by end of July, 2021.
41
34. Both the writ petitions are disposed of
accordingly.
.......................
C.R. Dash, J.
I agree. ...........................
P. Patnaik, J.
Orissa High Court, Cuttack. The 10th May, 2021/S. Mohanty, P.A. 42 Hon'ble Justice P. Patnaik The Judgment prepared by me in W.P.(C) Nos.17009 and 17110 of 2019 is sent herewith for perusal, variation, modification, addition, if any.
(Justice C.R. Dash)