Orissa HC While Striking Down Own Rule: Every Tom, Dick And Harry Should Not Be Brought To This Position

Key Takeaways

● Banshidhar Baug v. Orissa High & Ors.

● Full Court has the power to appoint an Advocate as Senior in the absence of a recommendation from the Judges.

● There is no third option for selecting an advocate through suo motu force.

● Suo motu power should be reserved for such an individual only

● Every Tom, Dick, and Harry should not be forced into this situation by any means. Only a certain percentage of a Bar's overall strength should be permitted to reach this coveted spot.

Introduction

On Monday, the Orissa High Court struck down Rule 6(9) of the 'High Court of Orissa (Designation of Senior Advocate) Rules, 2019', which gives the Full Court the power to appoint an Advocate as Senior in the absence of a recommendation from the Judges or an application from the Advocate.

The Rule, according to Justices CR Dash and Pramath Patnaik of the Division Bench, is in conflict with the Supreme Court's guidelines for conferring senior designation in the Indira Jaising case (Indira Jaising v. Supreme Court of India)

The Bench noted that the Supreme Court acknowledged two sources for drawing advocates for the designation of "Senior Advocate" in the said judgment. One source is the written proposal of the Hon'ble Judges, and the other is the application of the concerned advocate. There is no third option for selecting an advocate through suo motu force.

Details

Four Advocates have filed the writ petitions. They've spent years honing their skills in the High Court and other courts. They hope to have the title of "Senior Advocate" bestowed upon them. The Hon'ble Full Court conferred the designation of "Senior Advocate" on five Advocates, who are Opposite Party Nos. 5 to 9, while the process of conferring designation of "Senior Advocate" was ongoing in accordance with Rule-6 of the High Court of Orissa (Designation of Senior Advocate) Rules, 2019 ("2019 Rules" for short).

The Bench was hearing a writ petition filed by four Advocates challenging a notification issued by the High Court in August 2019 in which the Full Court named five Advocates as Senior in the exercise of its powers under Rule 6 of the Supreme Court Rules, namely (i) Bibekanada Moanti, (ii) Gautam Misra, (iii) Debi Prasad Dhal, (iv) Gautam Mukherji, and (v) Durga Prasa

The Bench, finding the notice to be discriminatory, has requested the Full Court to reconsider the classification of the above-mentioned Advocates, as well as 43 other applications it has issued.

Courts Order

● "The Supreme Court has not considered it appropriate to include the exercise of suo motu power by either the Supreme Court or other High Courts in the designation of "Senior Advocate," the Bench said.

● The Supreme Court's silence on the third source of picking by suo moto power is a "conscious silence," according to the text.

● There is no evidence in front of us to support the conclusion that all applications received from all applicants were thoroughly examined, or that the Secretariat's collection of relevant data and information relating to the credibility, behaviour, and dignity of all advocates was thoroughly examined. There is also no evidence that the data and materials were presented to the Full Court for its consideration.

● Suo motu power is not a power that can be used on a regular basis. It is a force to be used sparingly and with caution in exceptional circumstances. We notice no such rarity in the present case for the exercise of power under Rule 6 of the "2019 Rules" subrule (9)

● As a result, we are forced to conclude that the whole method of conferring "Senior Advocate" designation on Opposing Party Nos. 5 to 9 is discriminatory."

● "Opposite Party Nos. 5 to 9 having been granted the title of "Senior Advocate" by the Hon'ble Full Court, we do not want to embarrass them at this time by withdrawing the designation, since there is no blame on their part in the entire exercise." After exhausting the procedure under Rule-6 of the "2019 Rules," the Hon'ble Full Court can reconsider designating them as "Senior Advocates" tomorrow, as we believe they are worthy, but there may be a contrary decision. Despite the fact that we have ruled Rule-6 sub-rule (9) ultra vires, we do not plan to strike down Notification No.1378, dated 19.08.2019 for the time being.

● The Bench also addressed the locus standi of Petitioners to retain the writ petition, who had also applied for classification, during the trial. The petition is maintainable, according to the Court, since the Petitioners and the Opposing Parties are not rivals in terms of their argument.

● After the procedure under Rule-6 of the "2019 Rules" is completed tomorrow, the petitioners may be conferred with the designation of "Senior Advocates." However, as advocates, they have a vested and established right to challenge the law that creates a separate community within a larger group."

Conclusion

In conclusion, Court said that He is a powerful lawyer with a commanding presence. He has a refined and gentle demeanour. His demeanour against the Court and his co-counsels is admirable.

He will not, however, join the line to file an application to be classified as a "Senior Advocate." Suo motu power should be reserved for such an individual only, and such power should be given to the High Courts, as such power was not given to the High Courts in the guidelines/norms framed in the Indira Jaising case.

From the perspective of the Bar and society, the title of "Senior Advocate" is highly sought. In such a coveted spot, there should not be a crowd. Every Tom, Dick, and Harry should not be forced into this situation by any means. Only a certain percentage of a Bar's overall strength should be permitted to reach this coveted spot.