Sub-rule (9) of Rule-6 of the High Court of Orissa (Designation of Senior Advocate) Rules, 2019 is ultra-vires: High Court of Orissa

 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. In W.P.(C) No.170019 . Petitioner Banshidhar Baug Versus Orissa High Court represented though its Registrar General and others . Opp. Parties For Petitioner : M s. Bansidhar Baug For Opp. Party Nos.1 and 3 : M s. Sanjit Mohanty Senior Advocate & I.A. Acharya For Opp. Party No.5 : M s. Gouri Mohan Rath A.C. Panda M. Agarwal S.S. Padhi S.D. Ray P.P. Behera & For Opp. Party No.6 : M s. P. Ramakrishna Patro For Opp. Party Nos.7 8 & 9 : M s. Debasis Nayak A.K. Samal. A. Mishra. A. Mishra M. Agarwal & P.P. Behera. In W.P.(C) No.171119 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 For Opp. Party No.1 and 3 : M s. I.A. Acharya and R.R. Jethi For Opp. Party No.5 : M s. 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. Debasis Nayak A.Mishra M. Agrawal & P.P.Behera. PRESENT : THE HONOURABLE SHRI JUSTICE CHITTA RANJAN DASH A N D THE HONOURABLE SHRI JUSTICE PRAMATH PATNAIK Date of Hearing: 30.03.2021 : Date of Judgment: 10.05.2021 C.R. Dash J. Both these writ petitions have been filed by four Advocates. They have put in several years of practice in the 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 OrissaRules 2019the Hon’ble Full Court conferred designation of Advocate” on five Advocates who are Opposite Party Nos. 5 to 9. Being aggrieved by such action of the Hon’ble Full Court both these writ petitions have been filed with the following prayers (II) to quash the Notification No.1378 dated Opposite Party Nos.5 to 9 as “Senior Advocates” vide Annexure 8 to quash sub ruleof Rule 6 of “2019 Rules” 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” In W.P.(C) No.171119 one more prayer is added to quash the Notification dated 04.09.2019 which calls applications from eligible advocates for being designated as “Senior Advocates”. Brief fact of the case is as follows : Hon’ble the Supreme Court on 12.10.2017 delivered the Judgment in the case of Indira Jaising vs. Supreme Court of India 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 issued an Advertisement inviting applications from the eligible Advocates to be conferred “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. On scrutiny and perusal of the applications the Permanent Committee 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 of Rule 6 of “2019 Rules”. The Orissa High Court thereafter through the Registrarinvited suggestions and views on 45 remaining applicants.Resolved to designate Opposite Party Nos. 5 to 9 as “Senior Advocates” in exercise of it’s suo motu power under sub ruleof 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”.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 The Hon’ble Full Court on 17.08.2019 unanimously for conferring designation of Advocate” on them. On 04.09.2019 the Orissa High Court through the issued a fresh advertisement inviting applications from the eligible Advocates to be designated as “Senior Advocates”.Annexures cited above are as per W.P.(C) No.170019). “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 2Impugning conferment of the designation of 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 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 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 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 II) Whether the Orissa High Court could have framed Rule in the form of “2019 Rules” incorporating sub rule 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 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 of Rule 6 with a non obstante clause takes away the effect of “2019 Rules” from sub rule to sub ruleof 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 ruleof 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 could have accepted exercising the power under sub rule of Rule 6 Permanent Committee before the stage of sub ruleof Rule 6 to declare Opposite Party Nos.5 to 9 as “Senior Advocates” without forming any independent opinion the question of “locus standi” Mr. Sanjit Mohanty learned Senior Counsel appearing for the Orissa High Court submits that the designation of “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 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”. Relying on the case of National Lawyers’ Campaign for Judicial Transparency and Reforms vs. Mr. Mohanty further submits that designation as a “Senior Advocate” is neither a “bounty” nor a “right”. 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: Union of India 2019 SCALE: 588 para 15) the applications of the petitioners for being designated as “Senior Advocates” are still pending. 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”. Mr. S.P. Mishra learned Senior Counsel who appears for the Opposite Party Nos.5 to 9 has the same submissions. 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 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. 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 in14 SCALE: 141 in order to drive to home his points. The case of “Democratic Bar Association” Allahabad was a Public Interest LitigationSCALE: 141 an interim order was passed by the Hon’ble Karnataka High Court at Bangalore holding that the appellant does not have 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. W.P.(C) No.17009 of 2019) in the case of “Democratic Bar Association” Allahabad and others and 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 The decisions relied on by Mr. Baug4 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. 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. 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 We thoroughly agree with Mr. Sanjit Mohanty 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 of Rule 6 and such action shall be taken up by invoking sub rule of Rule 6 of “2019 Rules”. Such an action was a surprise to them and lacks transparency. learned Senior Counsel appearing for the Orissa High Court that whatever he has submitted as enumerated 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 We agree that the petitioners and the Opposite 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 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 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. 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 ruleof Rule 6 of the “2019 Rules” in view of their participation in the process of selection. In this regard Mr. Mishra relied on the case of Madras Institute of Development Studies and another vs. K. Sivasubramaniyan and others 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. 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 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. 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 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. Mr. Baug appearing in person and Mr. S.S. Rao learned counsel appearing for the petitioners in another writ petition submit that sub ruleof 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 Indira Jaising case. They relied on paragraphs 56 57 64 66 69 70 73 & 74 of the said Judgment to substantiate their contention. 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 Relying on paragraphs 58 62 & 70 of the Packaging Industry vs. Union of India and another 2004) 6 SCC 719 and Suganthi Suresh Kumar vs. Jagdeeshan AIR 2002 SC 681. Judgment in Indira Jaising case Mr. Sanjit Mohanty learned Senior Counsel appearing for the Orissa High Court submits that sub rule 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 Transparency 2019 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. 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 It is further submitted by Mr. Mohanty learned 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. 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. 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 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 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.” 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 : “Advocates” as 58. “We therefore take the view that the designation “Senior Advocates” as provided for in Section 16 of the Act would pass the test of constitutionality and the endeavour should be lay down norms guidelines parameters to make the exercise conform to the the statute already enumerated hereinabove i.e. namely ability of the advocate concerned his her standing requirements of at the Bar andhis her special knowledge or experience in law.” 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 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 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 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 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.” to be 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 : “27. Merit of a candidate is not his academic is sum total of various qualities. It reflects the attributes of an 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.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 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 for any doubt or leaving no scope dissatisfaction in the matter.” 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 process of scrutiny leaving no scope for any doubt or dissatisfaction in the matter. “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. A thorough reading of the entire Judgment along with the guideline framed in paragraph 73 of the Judgment it clear that Hon’ble the Supreme Court 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. Relevant portion of “2019 Rules” which impugned here is reproduced below for ready reference : “6. Procedure for Designation: 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 duly filled in within such time as directed by the Committee. 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. 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. After the material in terms of the above is complied and all such information as may be specifically required by the Committee to be respect of any particular candidate has been obtained and suggestions and views have been received the Secretariat shall put up the case before the Committee for scrutiny. Upon submission of the case by 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. 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. 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. The cases that have not been considered by the Full Court may be reviewed reconsidered after the expiry of a period of two the same procedure as years prescribed above as if the proposal is being considered afresh. 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.” A cursory reading of the aforesaid Rule makes it clear that sub rules &correspond to paragraph 73.4 of the Judgment in Indira Jaising case. Sub rule corresponds to paragraph 73.5 sub rulecorresponds to paragraph 73.6 sub rule corresponds to paragraph 73.7 sub rule corresponds to paragraph 73.8 sub rule It is alleged that after the stage of sub rule 7) corresponds to paragraph 73.9 and sub rule corresponds to paragraph 73.10 of the said Judgment. Sub rule 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. 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 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 the word “even” after the word 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 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. “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 therefore includes three sources: Proposal from the Hon’ble Judges Application from the Advocate concerned and 3) Exercise of suo motu power in respect of an Advocate even without any proposal from the from the Hon’ble Judges or application 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. So far as the third source is concerned we have discussed in detail that Hon’ble the Supreme Court in the 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: 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 in the light of the suitable addition deletion 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 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 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 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 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 conferring them with the designation of “Senior Advocate” in exercise of power under sub rule 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 ruleof 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 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 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 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 applications were received. 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 the power under sub ruleof 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 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 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: 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 file an application sobriety. He would however not come to stand in for being a queue to 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. 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 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 32. Taking into consideration our discussion consideration. in fine we hold thus: sub ruleof 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. 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 consideration. to be 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. 34. 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. 

Summary: Hon’ble the Supreme Court in paragraph- 73.4 of Indira Jaising case 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. Therefore, sub-rule(9) of Rule- 6 of “2019 Rules” is not in consonance with the said Judgment and ultra-vires of the guidelines/norms. This was held in Banshidhar Baug V. Orissa High Court, Represented though its Registrar General and others[W.P.(C) Nos. 17009 and 17110 of 2019] in the High Court of Orissa by the division bench consisting of JUSTICE CHITTA RANJAN DASH AND JUSTICE PRAMATH PATNAIK. Facts are that the petitioners are four Advocates who 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 Rules, 2019 the Hon’ble Full Court conferred the designation of “Senior Advocate” on five Advocates, who are Opposite Party Nos. 5 to 9, writ petitions have been filed against the same. The Petitioners appearing in person submitted 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. The counter affidavit filed by the Orissa High Court questioned the locus standi of the petitioners to file the writ petition and its maintainability. The designation of “Senior Advocate”, being not a “bounty”, “title” or “office” and the applications of the petitioners for being designated as “Senior Advocate” being still pending the writ petition is not maintainable being premature. The Court made reference to the judgement of Apex court delivered in the case of Indira Jaising vs. Supreme Court of India, wherein the following observation had been made,“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. The credentials of every advocate who seeks to be designated as Senior Advocate or whom the Full Court suo motu decides to confer the honour must be subject to an utmost strict process of scrutiny leaving no scope for any doubt or dissatisfaction in the matter.” The court also made reference to paragraph 73 of the above-mentioned judgement, wherein it was held that, “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”.