^^^^K ^^y^'s^^^.-' ^^•SS^M^v:SS: • s t~ BEFORE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR (C.G.) WRIT P ETITION N0. <3S'8t /2005 y PIimoN^^ ,^y^ / V.G. TAMASKAR Aged about 60 years S/o. Late G.Y. Tamaskar Advocate , Chamber : Flat No.-302 'Shanti Apartments, Tikrapara Bilaspur (C.G.) Permanent Address House No. 9/470 Mohan Nagar Durg, Tahsil and District Durg' (C.G.) VERSUS HIGH COURT OF CHHATTISGARH Through : Registrar-General High Court of Chhattisgarh, Bilaspur (C.G.) HIGH COURT OFAflADHYA PRADESH Through : Registrar General High Court of Madhya-Pradesh Jabalpur (M.P.) STATE BAR COUNaL OF CHHATT1SGARH Through : Secretary State Bar Council of Chhattisgarh High Court Premises Bilaspur (C.G.) SHRI P.S. NAIR Senior Advocate Designate M.P. 23/1958 Adv. R/o.1570 Napier Town Jabalpur (M.P.) V: \' \ \: ilHGLi. ^^DU '^ ./•" ,1 .JS'^ ;h, .^-.' ^ ¥ »',-^ 5. DR. N.K.SHUKLA Senior Advocate Designate ^- SHRI PRAMOD KUIVIAR VERMA Senior Advocate Designate (CG/33/1968) 7. SHRI KANAK TIWARI , Senior Advocate Designate fCG/317/1971) 8 SHRI PRITINKAR DIWAKAR Senior Advocate Designate (CG/708/1984) 9. SHRI RAVI SHANKAR JAISWAL Senior Advocate Designate (CG/1319/1988) 10 SHRI GOURI SHANKAR AGRAWAL Senior Advocate Designate (CG/313/1962) 11 SHRIDAYARAM SHARMA Senior Advocate Designate (CG/413/1962) 12. SHRI P.K.C. TIWARI Senior Advocate Designate (CG/214/1964) 13. WIR.KAZI AANWARUDDIN ANSARI Senior Advocate Designate (CG/405/1968) 14. SHRI HARI BHAGAT AGRAWAL Senior Advocate Designate (CG/535/1973) fc s^^^^^s^ ^^^^fs3; %®il / d 15. SHRI NAVALKISHORE AGRAWAL Senior Advocate Designate (CG/185/1979) 16. SHRI SHASHANK DUBEY Senior Advocate Desi.gnate (CG/793/1982) <? 17. SHRI VINAY KUIVIAR HARIT Senior Advocate Designate (CG/77/1984) 18. SHRI V.V.S N. MURTHY Senior Advocate Designate (CG/914/1984) 19. SHRI PRASHANT JAYSWAL Senior Advocate Designate (CG/846/1985) 20. SHRI PRASHANT KUIV1AR MISHRA Senior A'dvocate Designate (CG/924/1987) 21. SHRI MANINDRA SHRIVASTAVA Senior Advocate Designate (CG/1075/1 987) El 1 i-XS. Respondents 5 to 21 Through : Secretary hligh Court Bar Association, High Court Premises, Bilaspur, Tahsil and District Bilaspur. PETITION UNDER ARTICLE 226/227 OF CONSTITUTION OF JNDIA s Hr T^- ^ & Hon'bie Shri Satish K. Agnihotri, J \/.G. v< Present: Petitioner Mr. V.G. Tamaskar in person. ?th The following order of the Court was passed by A.K. The petitioner is an advocate practising in the High Court of Chhattisgarh and has a background of public service. He has filed this wrii petition praying for quashing the designation of respondents 5 to 21 as Senior Advocates of this Court and for directing the High Court of Chhattisgarh to designate all those iawyers who had applied to be designated as Senior Advocates by issuing appropriate writ of csrtiorari / mandamus. The petitioner has also prayed for directing the High Court of Chhattisgarh to frame separate rules for designating the lawyers as Senior Advocates by issuing appropriate writ of mandamus. 2, The petitioner who has appeared in person submitted that a Full Bench of the Allahabad High Court has held in the case of Dsmocratic Bar Association vs. High Court of Judicature at Atiahabad, reported in 2001 (5$ SLR 88 that writ petition filed by Assodation of Advocates and the Advocates practising in the High Court of Allahabad questioning the iegaiity of the rules for designation of Senior Advocates was maintainabie. He submitted that in view of the said decision of the Full Bench of the Allahabad High Court, the present writ petitton by which designation of Senior Advocates of this Court has been challenged, is maintainable at the instance of the petitioner. 3. We have no doubt in our mind that an Advocate of this Court has the locus standi to file a writ petition chalienging the decision of the High Court to designate a Senior Advocate. tn the case of S.P. Oupta vs. President of IndEa, reported in AIR 1982 SC 149, the Supreme Court has held that practising lawyers have vital interest in the maintenance of a feartess and a" independent judidary tn ensure fair and fearless justice to the litigants and can challenge a circular issued by the Law Minisfer wiih regard to the short term extensions of the sitting Additional Judges of High Courts and such practising lawyers either in their individual capacity or representing Lawyers' Association have not merely sufficient interest bu$ special interest of their own in the subject matter of the writ petition. Similariy, practising lawyers of the High Court of Chhattisgarh have sufficient interest in the subject matter of the present writ petition namely, designation of Senior Advocates of the High Court of Chhat'iisgarh and we cannot dismiss the present writ petition at the threshold on the ground that a practising advocate does not have any locus standi to fi!e a writ petition challenging the designation of Senior Advocate by the High Court. But we make it ctear that when a challenge is made by a practising Advocate to the designation of the Senior Advocate by the Court, the Court wiii not !'"'5^c' interfere w/ith the decision of the High Court to designate an Advocaie as Senior Advocate exeept on weli settied principles ofjudicial review. 4. Mr. V.G. Tamaskar next submit'ted that the High Court of Madhya has framed the rules in exercise of its powers under Section 34(1) read with Section 16(2) of the Advocates Act. 1961 iaying down thsrein the procsdure for designation of Senior Advocates as Vi/all as the mariner in which the applications will be fiied by an Advocate for designating him as a Senior Advocate and the manner in which such appiications wiil be desit with, but the aforesaid Rutes framed by the High Court of Madhy'a Pradesh have not been followed by the High Court of Chhattlsgarh whiis designating the respondents 5 to 21 as Senior Advocates of this Court. Mr. Tamaskar vehemently submitted that if respondents 5 to 21 have not bsen designated in accordance with the provisions of the rules framed by High Court of Madhya Pradesh, then their designation as Senior Advocates is invalid. He submitted that till the rules for designation of Ssnior Advocate are framed by the Chhattisgarh High Court, the rules framed by High Court of Madhya Pradesh are In foree and have to be applied by the High Court of Chhattisgarh. In support of his submission he relied on the provisions of Section 25 of the fvl.P. Reorganization Act, 2000. 5. !n view of the said submission made by Mr. V.G. Tamaskar, we cailed for rscords of the Registry of this Court with regard to the designation of the respondents 5 to 21 as Senior Advocates of this Court by order dated 20-07-2005 and pursuant to the said order dated 20-07- 2005 the records regarding designation of the respondents 5 to 21 as Senior Advocates, have been placed before us by the Registiy. On a perusal of the said records v/e find that on 09-01-2002 the Fui! Court of Chhattisgarh High Court has resolved that respondent No.5 - Dr. N.K. Shukla, Shri V.D. Bajpai, Shri Shrse Kumar Agrawal and Shri Suresh Kumar Sinha be designated as Senior Advocates under Section 1 6 (2) ot' the Advocates Act 1961. On perusal of She said records we' aiso find that on 06-01-2005 the Ful! Court of Chhattisgarh High Court has resolved l:c designate respondents 6 to 21 as Senior Advocates considering thsir standing at the Bar and their performance. There Is no indication whatsoever in the resolutions of the Fuii Court of C'nhattisgarh High Cour: adoptsd on 09.01.2002 and 06.01.2005 that the decisions to designate respondents 5 to 21 vi/ere taken after considering the rules frarned by the High Court of Madhya Pradesh for designation of Senior Advocates. All that the sald resolutions indicate is that Senior Advocates have beeri designated in accordance with the provlsions of Sectlon 16 (2) cf Advocates Act, 1961. 6. Section 25 of the M.P. Reorganization Act on which great reliance has been placed by Mr. V.G. Tamaskar is quoted herein beiow: "25. R'actice and Procedure in Chh^tisj si«i Subject to the provisions of this Part, the law in forcs immediately before the appointed day with respect to practice and procedure in the Hjgh Court of Madhya Pradesh shall, with the necessaQ' modifications, apply in re!ation to the High Court of ChhattisgarSi and accordingly, the High Court of Chhattisgarh shall have ail such pove'ers to rnake rules and orders Vi/ith respect to practice and prosedure s.s are immediately before the appointed day exercisabis by the High Court of h4adhya Pradesh. Provided that any rules or orders Vi/hich are In force immediateiy before the appointed day with respect to practice and procedure in the High Cousl of IVIadhya Pradesh shall, until varied or revoked by ruies or oreiers made by the Court is of opinion that by virtue of his ability, standing at the Bar 01- special knowledge or experience in law he is deser/ing of the distinction of a Senior Advocate, such Advocate may v/ith hls consent be designated as Senior Advocate. Hence ability or standing at the Bar or specla.l knowledge or experisnce in law are the norms for designating an Advocate as Senior Advocate. The expression "If the High Court is of the opinion" used in Section 16 (2) of the Advocates Act, 1961 v/ould further clarifs/ that it is the opinion of the High Court about the abiiity; standing at the Bar or special knowiedge or experience in law of an Advocate Vi.'hich is relevant for the purpose of deciding as to 'A'ho shouid be conferred fo'r designation of Senior Advocate or not. S. in the present case, as we have seen, the Fui! Court of i-ligh Court of Chhattisgarh has formed opinion in its meeting held on 09.01.2002 and in its fuieeting held on 06.01.2005 that the Advocates named in the said resolutions be designated as Senior Advocates under Section 16 (2) of the Advocates Act, 1981. Uniess, the said opinion is shown to be yitiated by mala fide or extraneous considerations, this Court in exerciss of its powsrs under Artic!e 226 of the Constitution wil! not interfere with the same. in (he present case, the petitioner has not made any allegation that maia fide or extraneous consideration has influenced the Fuii Court of High Cous-t of Chhattisgarh to designate responderts 5 to 21 as Senior Advocates. VVe sre ihus not in a position to interfere with the same. 10. IVIr. Tamaskar submitted that it be clear from ihe document in Annexure P-16, annexed So the writ petition that he applied o.n 07.02.2005 to the Registrar General of High Court of Chhattisgarh for furnishinc certified copies of the proceedings of the Full Court of She High Court in its meetings convened after 01.11.2000 for designatlng Advocates pract'sing High Court of Chhattisgarh, appiy with the necessaro modifications in relation to practice and procedure in ths High Court of Chhattisgarh as if made by that Court." !t will be clear from the language used in Section 25 of the aforesaid Act that on!y the !aw in force immediatsly before ths appointsd day wiih respect to "practice and procedure in the High Court of Madhya Pradesh" shall, with the necessary modifications, appiy in reiation to High Court of Chhattisgarh. The Rules framed by the High Court of ^4adhy3. Pradesh for designation of an Advocate as Senior Advocate certalnlv is not a ru!e with respect to practice and procedure in the High Court of Madhya Pradesh and will not be applicable for designation of Senior Advocate by the High Court ofChhattisgarh. 7. Mr. Tamaskar next submitted ihat in any ease, some rules have io be followed by the High Court of Chhattisgarh for designating the Advocate of the High Court of Chhattisgarh as a Senior Advocats anci in the absence of any such ruies, the designation would be arbitrary and contrarv to the !aw. 8. Section 16 (2) of the Advocates Act 1961 is quoted herein beiow: "16(2)An Advocate may with his consent, be designated as Senior Advocate if the Supreme Court or a High Court is of opinion that by virtue of his abiiity, (standing at the Bar or special knov/ledge or experience in [avv) he is desen.'ing of such distinction." Section 16 (2) quoted above does not say that the Hi.gh Court has to follow the rules that may be prescribed by the High Court. Section 18 (2), hovi/ever, itself prescribes the norms to be kept in mind b'y She High Cour: for designating an Advocats as a Senior Advocate. It "-A'ii! be c.1ear from the aforesaid provislon in Section 16(2) of the Act that only if the High 1 •" in the High Court of Chhattisgarh as Senior Advocates but no such certified copy was made available to him. 11. Ceriifisd copies of pubiic documents are given under Section 76 of indian Evidence Act, 1872 and said Section is quoted herein below: "76. Csrtified sopies of public doeurrsnts.- Every pubiic officer having the custody of a public docurnent, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fee thsrefor, together with a csrtificate written at the foot of such copy that i'i is a true copy of such document or part thereof, as the case may be, and such certificate shaii be dated and subscribed by such officer with his name and his officiai title, and shall be seaied, whenever such officer is authorized by law to make use of a seal; and such copies so certified shai! be caited certified copies." It be clear from the bare language of the Section 76 of Indian Evidence Act, 1872 that a public document v/hich any person has a right to inspect can only bs given to such person applying for a certified copy. NcShing has besn brought to our notice io show that ths petiiionsr in the prsssnt case has a right to inspect the resolutions of 'ihe Fuil Court of High Court of ChhatSisgarh convened after 01.11.2000 for designating Seitior Advocates practicing in the High Court of Chhattisgarh. 12. IVir. Tamaskar finaHy submitted that Section 16(3) ofthe Advocates Act, 1961 provides that Senior Advocates shail, in the matter cf their practlce, be subject to such restrictions as the Bar Council of india may, in the interests of the legal profession, prescribe. Hs submitted that the averments made in the writ petition as well as the documents annexed Shereto would show that some of the respondents 5 to 21 Vi/ho have been deslgnated as Senior Advocates have not been following the restrictions imposed by the Bar Council of India in the interests of legal profession of Senior Advocates. In this writ petltion, the petitioner has praysd 'for quashing the designation of raspondents 5 to 21 as Senior Advocates and has not prs.yed for directing the concerned authorities to ta.ke actiosi against those Senior Advocates who have violated the restricSions imposed by the Bar Councll of India under Section 16(3) ofthe Advocates Act, 1961. As d'scussed above, we are not incllned to quash the designation of respondents 5 to 21 as Senior AdvocaSes, but in case a separate writ petition is fi!ed by the petitioner establishing thst any of the respondenis 5 to 21 havs violated the restrictions imposed by the Bar Councii of India under Section 16(3) ofthe Advocates Act, 1981, the Gourt may consider such a writ petition on its own merits. !n this vu'rit petltion, however, we are inclined to give some directions to ensure that some of these restrictions imposed by the Bar Councii of India are foliowed. 13. But to ensure that henceforth the designation or non-designation of an Advocate as Senior Advocate by the High Court of Chhattisgarh is transparent, it be appropriate if the Hlgh Court frame-s guidelines fcr designation of an Advocate as Senior Advocats and notlfies the sarne to all concerned inciuding the Advocates practising in the High Court ancl DistricS Courts as has been done in other High Courts. We, therefore, direct respondent No.1 to frame guideiines for designation of an Advocate as Senior AdvQcate keeping in mind the provision of Section 16(2) of the Advocates Act, 1961. 14. Hence, we dispose of this wris petition with a dirsction to respondent No.1 to frame, within two months frorn today, guidelinss for desianation of Advocates as Senior Advocates and thereafter consider the pending applications of the Advocates for designation of Senior Advocates in accordance with such guidelines. VVe also direct thaf the respondent No. 1 to ensure that Advocates those who have been designated as Senior Advocates including respondents 5 to 21 do not file any va.kaJa.tna.ms. in this Court and their names do not appea-r in the ca.use list, as per the restrictions imposed by the Bar Co*inci! of !ndia under Section 16(3} and 49 (1) (g) ofthe Advocates Act, 1961. Sd/- Chief Justice Sd/- Satish K. Agnihotri Judge .Subbu