Summary
The Orissa High Court, on its judicial side, had struck down Rule 6(9) of its Senior Advocate designation rules, which allowed the Full Court to designate advocates suo motu, as contrary to the Indira Jaising guidelines, and had quashed a notification calling for fresh applications. Following the three-Judge Bench decision in Jitender @ Kalla v. State (NCT of Delhi), which reaffirmed the Full Court's power of suo motu designation subject to fairness and transparency and dispensed with the points-based assessment, the Court set aside the High Court's order, upheld the designations made in the meantime and continued the amended Rule 6(9) until fresh rules are framed.
Issues
- Whether the Full Court of a High Court retains the power to designate advocates as Senior Advocates suo motu, and whether Rule 6(9) of the High Court of Orissa (Designation of Senior Advocate) Rules, 2019 providing for such designation was ultra vires the guidelines in Indira Jaising v. Supreme Court of India.
- Whether the designation of the respondents who had initially been designated suo motu, and were later designated again after going through the full procedure, should be disturbed.
- Whether the Indira Jaising judgments required reconsideration by this Bench.
Provisions considered
- Section 16(2), Advocates Act, 1961An advocate may, with consent, be designated senior advocate if the Supreme Court or a High Court is of opinion that by virtue of ability, standing at the Bar or special knowledge or experience in law he deserves the distinction. The provision is the source of the High Court's power of designation, which Indira Jaising-1 upheld while prescribing a transparent procedure; the three-Judge Bench in Jitender @ Kalla read it as contemplating a collective decision of the Full Court, not individual Judges' recommendations, and as permitting designation without an application. (¶¶ 9, 10, 18)
- Section 34(1), Advocates Act, 1961The Rules, 2019 were framed under Section 34(1) read with Section 16(2); the rule-making power of High Courts for the designation process is traced to this provision (and Article 227(2)(b)) in Jitender @ Kalla, which asked all High Courts to frame rules within four months. (¶¶ 11, 18)
- Rules 5(1)(a), 5(2), 6(9) (as amended on 15.12.2023) and 7(1), High Court of Orissa (Designation of Senior Advocate) Rules, 2019The Rules provide three routes: a Judge's written proposal, the advocate's own application, and suo motu designation by the Full Court under Rule 6(9). The High Court quashed Rule 6(9); after Indira Jaising-2 clarified that the suo motu power survives, the Rule was amended to permit the Full Court, by consensus, to designate an exceptional and eminent advocate. The amended Rule remains in force until fresh rules are framed. (¶¶ 2, 11, 12, 13, 16, 20)
Held
- Section 16(2) of the Advocates Act implicitly recognises the High Court's power to confer the distinction of Senior Advocate on forming the requisite opinion about the advocate's ability, standing or special knowledge; Indira Jaising-1 upheld that power while laying down guidelines and a Permanent Committee mechanism to make the process transparent, and itself recorded that the guidelines were not exhaustive and open to reconsideration. (¶¶ 9, 10, 17)
- Indira Jaising-2 clarified that the Full Court's power of suo motu designation was never taken away and may continue to be exercised for exceptional and eminent advocates by consensus; the High Court accordingly amended Rule 6(9) to that effect. (¶¶ 15, 16)
- The three-Judge Bench in Jitender @ Kalla reaffirmed the validity of suo motu designation by the Full Court provided it adheres to fairness, transparency and objectivity, directed that the 100-point assessment in paragraph 73.7 of Indira Jaising-1 not be implemented, held that individual Judges cannot recommend candidates since the decision is a collective one of the Full Court, and asked High Courts to frame proper rules. As a matter of judicial discipline that decision was followed, and no reconsideration of the issue was warranted. (¶ 18)
- Since the respondents who had been designated suo motu were, pursuant to this Court's interim order, considered again along with other applicants and designated afresh, their designation complies with this Court's directive and requires no further examination; it is valid. (¶¶ 13, 14, 20)
- Designation as Senior Advocate is a mark of distinction conferred at the Court's discretion in recognition of exceptional ability, integrity and standing; it is a privilege, not an entitlement, cannot be claimed on seniority, experience or popularity, and must be granted through a merit-based, transparent process free from personal preference or informal influence. (¶ 19)
Result
Special leave petitions disposed of; the High Court's order on the judicial side set aside; designation of Respondent Nos. 5 to 9 as Senior Advocates held valid; amended Rule 6(9) to remain in force until the High Court frames fresh rules. No costs; miscellaneous applications closed.