Rule allowing "suo motu" designation of Senior Advocates ultra vires Supreme Court guidelines: Orissa High Court [Read Judgment]

The Orissa High Court on Monday held that a rule allowing the Full Court to designate lawyers as "Senior Advocates" suo motu is ultra vires the Supreme Court's guidelines in the Indira Jaising's case (Banshidhar Baug v. Orissa High Court, represented though its Registrar General and others). .In focus was Rule 6 (9) of the High Court of Orissa (Designation of Senior Advocate) Rules, 2019, which allowed the Full Court, on its own or suo motu, to designate an advocate as Senior Advocate without any application from the advocate and without any proposal from a Judge. .The said Rule was challenged after five lawyers were conferred the "Senior Advocate" designation by the Full Court suo motu, even as 43 applications filed by other lawyers seeking the senior gown remained pending..As per the rule, suo motu designation could be done if the Full Court was of the opinion that the lawyer concerned deserved such recognition owing to her/ his ability or standing in the Bar. .A Bench of Justices Chitta Ranjan Dash and Pramath Patnaik held that the said Rule i.e. Rule 6 (9) goes beyond the guidelines issued by the Supreme Court in the senior designations case i.e. Indira Jaising v. Supreme Court of India (2017).."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," the Court said. .The case had its genesis in a 2019 notification issued inviting applications for the conferment of the "Senior Advocate" designation. .Fifty applications were sent in response to the 2019 notification. One applicant had expired and another withdrew his application after the five lawyers were conferred senior designation suo motu invoking Rule 6 (9). .After the suo motu designation, the High Court also issued a fresh notification seeking applications for the designation. .These developments led to two writ petitions being filed. These petitions challenged:1. The suo motu designation of five lawyers;2. The Rule allowing such suo motu designation;3. The notification issued calling for fresh applications..The Court, ultimately, found merit in the petitioners' challenge. While the Bench agreed with the respondents that “Senior Advocate” is not a “title” or “office”, it was highlighted that such designation adds to the prestige of the lawyer by giving him an exalted position in the eyes of the Court. ."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”," the order stated. .The Court went on to add that 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," the Court said. .The Court dismissed objections that the petitioner-lawyers did not have the locus standi to file a challenge in the matter. ."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 judgment said. .The Bench acknowledged that the Supreme Court did briefly allude to a suo motu method of designating lawyers as seniors, while cautioning that there should not be any scope for doubt or dissatisfaction in the matter. .However, the same was consciously omitted in the guidelines thereafter by the top court, the High Court found. ."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 ... 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 High Court order stated..Additionally, the Court also opined that there was no material to show that all other applications were also examined before the five lawyers were designated as "Senior Advocates" suo motu. .There was nothing to indicate what materials were placed before the Full Court before they decided to confer the senior gown on these five lawyers and none else, the Bench observed. ."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," the Court ruled..All the same, it did not withdraw the designation granted to the five lawyers. Rather, the Court directed that these five lawyers also be considered for Senior Advocate designation, along with the applications filed by the 43 other lawyers. .The second notification issued inviting fresh applications was quashed as being irregular. .The process of designating the “Senior Advocates” was directed to be completed by the end of July, 2021..[Read Judgment]