Senior Advocate Designation | Permanent Committee Not Empowered To Withhold/Defer Candidature Of Some Advocates From Full Court: Orissa HC

In an important development, the Orissa High Court has held that the 'Permanent Committee' constituted for designation of Senior Advocates is not empowered to withhold/eliminate/defer candidature of some Advocates without submitting their names to the Full Court for consideration.

Clarifying the scope of functioning of the 'Permanent Committee', the Division Bench of Justice Sangam Kumar Sahoo and Dr. Justice Sanjeeb Kumar Panigrahi held –

“Specifically, Rule 6(6) requires that all names considered by the Permanent Committee, together with its assessment report, be submitted to the Full Court. This provision does not grant the Permanent Committee the authority to restrict submissions to only those names meeting a specified cut-off score, or to withhold, eliminate, or defer any candidate's name following the interactions mandated by Rule 6(5).”

Factual Background

Banshidhar Baug, a practicing Advocate having experience of around 43 years, filed this writ petition seeking a direction to the Permanent Committee to submit his name along with a comprehensive assessment report to the Full Court for consideration of his candidature for designation as a Senior Advocate.

The petitioner initially applied for designation in the year 2013-14. However, his application was deferred and while the matter stood thus, the judgment of the Supreme Court in Indira Jaising v. Supreme Court of India (2017) provided elaborate guidelines for designation of Senior Advocates.

Pursuant to such guidelines, the High Court of Orissa (Designation of Senior Advocate) Rules, 2019 ('2019 Rules') was framed by the High Court. Under such Rules, an advertisement was published by the Court on 22.04.2019 calling application from eligible candidates for designation as Senior Advocates.

The petitioner alleged that before compliance of the mandate under Rule 6(3) [soliciting views and suggestions on the candidature of applicants] of the 2019 Rules, the Permanent Committee recommended names of some of the Advocates for designation as Senior Advocates 08.08.2019.

It was further apprised to the Court that on 09.08.2019, the Registrar (Judicial) of the High Court issued a notification calling for suggestions and views regarding the candidature of several Advocates including the petitioner, but excluding the names of the Advocates whose names were recommended by the committee on 08.08.2019.

On 19.08.2019, a notification was issued by the Court designating the recommended candidates as Senior Advocates. The petitioner being dissatisfied with such notification, challenged the same before the High Court.

A Division Bench of the High Court, vide its judgment dated 10.05.2021, declared Rule 6(9) of 2019 as void but upheld the notification designating the aforesaid Advocates as Senior Advocates.

However, the Bench made it clear that the notification would remain effective until the Full Court rendered a fresh decision, taking into account all 48 applications, including the designated Advocates. The Court had also directed the process to be completed by the end of July 2021.

The petitioner further averred that while his writ petition challenging the notification was pending, a notice was issued by the Court on 03.10.2019 directing all the 48 Advocates to appear for an interaction as per Rule 6(5) of the 2019 Rules. The petitioner appeared before the committee for interaction on 18.10.2019, but strikingly his application was deferred on 23.10.2019.

Questions for Consideration

After examining the facts of the case, the Court framed the following four questions for consideration:

1. Whether the Permanent Committee has the authority to withhold or defer an Advocate's name from being submitted to the Full Court following the interaction stage, as prescribed by Rule 6(5) of the 2019 Rules?
2. Whether the Permanent Committee possesses the authority to exclude the names of certain Advocates from consideration based on the points they have secured in the overall assessment?
3. In light of the petitioner's fresh application in response to Advertisement No. 1 dated 22.04.2019, which adhered to the 2019 Rules and included the invitation of suggestions and views on his name under Rule 6(3), as well as his submission of reported and unreported decisions, articles, and particulars, and his participation in the interaction on 18.10.2019, was the Permanent Committee justified in deferring his case on 23.10.2019?
4. Given the Division Bench's directive in its judgment dated 10.05.2021 in the aforementioned two writ petitions, which mandated the consideration of all 48 applications, including that of the petitioner and Opposite Parties Nos. 5 to 9, should the petitioner have been excluded from participating in the second interaction based on the prior decision made on 23.10.2019?

Power Of Permanent Committee To Withhold Candidates

To answer the question as to whether the Permanent Committee has power to withhold/defer the names of Advocates without submitting the same to the Full Court, the Court traced the origin of the Permanent Committee.

It noted that the committee was constituted pursuant to the directions issued by the Supreme Court in Indira Jaising (supra). It was tasked with evaluating each candidate based on the data provided by the Secretariat of the Permanent Committee, conducting interviews and making a comprehensive assessment using a point-based system.

It further referred to the directive issued in the aforesaid judgment vide para 35(VIII) which provides that all the names that are listed before the Permanent Committee/cleared by the Permanent Committee will go to the Full Court.

“The following words employed in the above directive are critical for this case: 'listed before the Permanent Committee' and 'cleared by the Permanent Committee.' The plain meaning suggests that the Advocates whose names are either 'listed' before the Permanent Committee or 'cleared' by the Permanent Committee shall be placed before the Hon'ble Full Court for final consideration and designation,” it held.

Interpreting the above directive, the Court was of the view that the Apex Court has essentially left the discretion with the High Courts to frame rules and to carve out the jurisdiction of Permanent Committees.

“Specifically, a High Court may choose to empower the Permanent Committee to establish a cut-off score based on the criteria outlined in the Indira Jaising (supra) and to recommend only those Advocates who meet this threshold. Conversely, another High Court might decide to restrict the Permanent Committee's role to merely reviewing applications, conducting interviews, and presenting all names, along with its recommendations, to the Full Court.”

In this regard, the Court referred to the judgment of the Karnataka High Court in T.N. Raghupathy v. High Court of Karnataka through its Registrar General & Ors. wherein it was held that the overall assessment by the Permanent Committee must be submitted to the Full Court for a final decision. It also held that the Full Court is not obligated to adhere to the Permanent Committee's assessments or scores and may choose to fully agree, partially agree, or disagree with them.

A similar view was expressed by the Madras High Court in S. Lawrence Vimalraj v. Registrar (Judicial), High Court of Madras & Ors and it reiterated that the ultimate decision making power lies with the Full Court.

After observing thus, the Court examined the stipulations made under the High Court of Orissa (Designation of Senior Advocate) Rules, 2019. Rule 6(6) says that 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.

“The 2019 Rules do not grant the Permanent Committee the authority to set a cut-off score based on the criteria outlined in the Indira Jaising (supra) directives, nor does it empower the Committee to advance only those Advocates who meet such a cut-off,” it added.

Thus, the Court held that ultimate authority to designate an Advocate as a Senior Advocate clearly resides with the Full Court, not the Permanent Committee. Therefore, the Permanent Committee's role is confined to making an assessment and submitting a comprehensive assessment report to the Full Court for consideration.

So far as the power to exclude names of some Advocates basing upon their scores is concerned, the Court was of the view the committee is not authorized to forward only the names of those who meet the cut-off score to the Full Court.

“Unless explicitly provided in the 2019 Rules or granted to the Committee, the imposition of a 70% cut-off for submitting applicants' cases to the Full Court for Senior Advocate designation is not justifiable. Merely notifying the Full Court about the adoption of a 70% cut-off point is insufficient,” it further held.

Deferment Of Petitioner's Application Justified?

The Division Bench highlighted that the committee did not inform the Full Court that the petitioner's case was deferred nor it provided any reasoning for such deferral. Thus, it was of the considered opinion that deferring the petitioner's case indefinitely denies him the right to be considered for designation, which is illegal.

The judgment authored by Justice Sahoo castigated the Permanent Committee for deferring the petitioner's application on 23.10.2019 after conducting his personal interaction on 18.10.2019.

“If the Permanent Committee acquired any new information post-interaction with the petitioner that could adversely impact his candidacy, such information should have been presented to the Full Court along with the overall assessment conducted by the Permanent Committee. At a minimum, such information should have been disclosed to the Court,” it observed.

It was further held that in case the Permanent Committee had any reason to believe that a deferment was needed in the application of the petitioner, it should have sought a modification in the judgment dated 10.05.2021, which had specifically asked to consider the candidature of all the 48 Advocates, including the petitioner and forward their names to the Full Court.

“Without such a modification, the petitioner should not have been barred from participating in the second interaction solely on the basis of the prior deferral. Thus, the deferral of the petitioner's case could not be extended indefinitely,” it added.

Accordingly, the action of the Permanent Committee in withholding/deferring the application of the petitioner was invalidated. The petitioner was asked to submit a fresh application in the new format, i.e., Form-2 of Appendix-A of the High Court of Orissa (Designation of Senior Advocate) Amendment Rules, 2023, within two weeks.

“Upon receipt of the fresh application, the Permanent Committee shall proceed in accordance with Rule 6 of the 2019 Rules, as amended by the 2023 Amendment Rules. The Committee shall conduct an overall assessment and submit the petitioner's name to the Hon'ble Full Court along with its assessment report,” it further directed.

Case Title: Sri Banshidhar Baug v. Orissa High Court & Ors.

Case No: W.P.(C) No. 14219 of 2022

Date of Judgment: September 19, 2024

Counsel for the Petitioner: Mr. Banshidhar Baug (in person)

Counsel for the Respondents: Mr. Jyoti Prakash Patnaik, Govt. Advocate

Citation: 2024 LiveLaw (Ori) 77

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