Ori HC│Exercise of suo motu power by Orissa High Court for designation of “Senior Advocates” ultravires the guidelines laid down Indira Jaising case; Power to Add/Delete/Modify in Rules lies only with Supreme Court

Orissa High Court: A Division Bench of Chitta Ranjan Dash and Pramath Patnaik JJ. held sub-rule (9) of Rule- 6 of the High Court of Orissa (Designation of Senior Advocate) Rules, 2019 as ultravires of the guidelines/norms framed in para 73 in Indira Jaising case.

The facts of the case are such that 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 Indira Jaising v. Supreme Court of India, (2017) 9 SCC 766. The Orissa High Court issued an Advertisement inviting applications from the eligible Advocates to be conferred with the designation of “Senior Advocates” and after thorough scrutiny names of Opposite Party 5 to 9 were considered conferring them with designation of “Senior Advocate” by invoking it’s suo motu power under sub-rule (9) of Rule-6 of “2019 Rules”. Impugning conferment of the designation of “Senior Advocate” on Opposite Party 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 5 to 9, the present writ petitions was filed by 4 advocates.

Issues

(I) Whether the petitioners have locus standi to maintain the writ petition?

Counsel for the petitioners submitted that the designation of the Opposite Party 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.

Counsel for the respondents submitted that the petitioners do not have any locus standi to maintain the writ petition as the impugned Notification dated 19.08.2019 designating the Opposite Party.5 to 9 as “Senior Advocates” does not operate as a decision against the petitioners, much less affects them.

The Court observed that 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 laid under Indira Jaising[supra]. It was further observed that as 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 but 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, hence the petitioners have the locus standi to maintain the writ petitions.

(II) Whether the Orissa High Court could have designated Respondent 5 to 9 as “Senior Advocates” in exercise of its suo moto power under sub-rule (9) of Rule-6 of “2019 Rules” as laid down in Indira Jaising case [supra]?

After perusing the landmark judgment, the Court observed  that “2019 Rules” is to be examined in the touchstone of the guidelines formulated in Indira Jaising case [supra].While framing the guidelines, Supreme Court has specifically held that the norms/ guidelines, in existence, shall be suitably modified so as to be in accord with the present and this power lies only with Supreme Court and no other High Court has any power to add or delete from the guidelines

The contentious Sub-rule (9) includes three sources by which applicant advocates can be chosen as “Senior Advocates”:-

(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

The Court observed that the exercise of suo motu i.e. the third source mentioned under Sub rule (9) has consciously not been included in the guideline framed in Indira Jaising case [supra].

Quoting para 70 from Indira Jaising case [supra].

“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.”

The Court observed 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.

The Court thus held “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.”

It was further held that “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.”

In view of the above, petition was disposed of.

[Banshidhar Baug v. Orissa High Court, 2021 SCC OnLine Ori 484, decided on 10-05-2021]


Arunima Bose, Editorial Assiatnt has put this report together 

Counsel For Petitioner : Adv. Bansidhar Baug(In person)

Counsel For Opp. Party 1 and 3: Adv. Sanjit Mohanty and Adv. I.A. Acharya

Counsel For Opp. Party No.5 : Adv. Gouri Mohan Rath, Adv. A.C. Panda, Adv. M. Agarwal, Adv. S.S. Padhi, Adv.  S.D. Ray, Adv.  P.P. Behera &  Adv. A. Mishra.

Counsel For Opp. Party 6: Adv. P. Ramakrishna Patro and Adv. A.K. Samal.

Counsel For Opp. Party 7, 8 & 9: Adv. Debasis Nayak, Adv. A. Mishra, Adv. M. Agarwal and Adv. P.P. Behera.

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