Condition Stipulating Regular Practice In HC To Be Deleted: Calcutta HC Directs Amendment Of Senior Designation Guidelines [Read Judgment]

The bench comprising Justice IP Mukerji and Justice Amrita Sinha observed that the requirement of providing professional income for the last five years in the application form is to be deleted as it is not a factor to be considered at all for senior designation. It also held that the provision for making exception by relaxation of benchmark in some 'deserving cases' is ultravires the Advocates Act.

The bench directed amendment of the Guidelines as follows:

• In paragraph 11 "regularly practising in the High Court" is to be deleted. [All applications by the Learned Advocates, regularly practicing in the High Court, intending to be designated as Senior advocates shall be submitted to the Secretariat...]
• In paragraph 14 clause c "Legal Services Authority for pro bono work" is to be deleted. [The secretariat shall collect the information/data in respect of applicant from the following sources...c) Legal Services Authority for pro bono work]
• The second sentence of paragraph 20 is to be deleted. ["However in a deserving case, for favourable consideration, the permanent committee may relax the benchmark of 60 marks upto a maximum of 10 marks and designate an Applicant advocate as Senior Advocate"]
• Entry 13 of the proforma application shall be deleted [Professional income particulars as reflected in the Tax Returns in the past 5 years]

The challenge

Debasish Roy, a lawyer, had challenged the guidelines framed by Calcutta High Court for senior designation. According to him, the High Court has not framed guidelines as per the directives issued by the Supreme Court regarding senior designation in the Indira Jaising case.

Condition stipulating regular practice in the High Court should be omitted

Justice IP Mukerji, observed that, the Advocates Act does not prescribe any place of practice or grade of court where an advocate should be practising to be eligible for consideration.

The judge observed: "In our view Section 16(2) of the Act does not qualify the term "advocate". The section only provides that there shall be a class of advocates called senior advocates. Any advocate may be appointed as a senior advocate. It does not say senior advocate of the Supreme Court or senior advocate of the high court. This means that an advocate designated as a senior advocate by the Supreme Court can practise as a senior advocate in the Supreme Court and the High Courts and as a matter of fact in all courts in India. Such is the case with a senior advocate designated by the High Court. Such designation shall be made by the Supreme Court or the High court. The Supreme Court or the high court has to form an opinion that the ability of the advocate, his standing at the bar or special knowledge or experience in law is such that he is entitled to such designation. "

He added: "But if you look at the later part of Sub-section (2) you will notice as we have observed above that the designating court has to form an opinion. The opinion necessarily is subjective as conceived by the Act. The court is to form an opinion itself and not go by any certification made by anybody else. Therefore, in most cases an advocate must actually be seen to be performing in the Supreme Court or the high court by its judges. But it may well be the case that in a short period of time, doing a few big cases an advocate of a lower court makes a healthy impression in the High Court. Thereafter, he may not appear frequently. Still he may be designated as a senior advocate. Or the Supreme Court or the high court may be so impressed with the cross examination skill of a lower court advocate or his arguments and his knowledge of law evident from it that he is designated a senior advocate, without his having a regular practice in either of the Courts."

Justice Mukerji further said: "I no doubt realize that the said guidelines have been made taking into consideration the ground reality that an advocate has to be physically observed to be designated a senior advocate but nevertheless in view of my analysis above the condition stipulating regular practice in the high court for being considered for designation as a senior advocate should be omitted from the guidelines."

In her concurring opinion, Justice Amrita Sinha observed that, in case the advocate is not a regular practitioner of the High court then the opinion of the Court has to be formed relying upon the judgments in respect of cases in which the advocate appeared.

Hardly any reason for relaxation of the points

Advocate Roy had assailed the provision which provided that in a 'deserving case' the Permanent Committee may relax the benchmark of 60 marks up to a maximum of 10 marks.

Holding that the provision for making exception by relaxation of benchmark in some deserving cases is ultravires the Act, the court observed: "What is to be considered as a deserving case has not been specified. As far as the points or marks for assessment are concerned, our guidelines are identical to the scheme pronounced by the Supreme Court in paragraph 73.7 of the said judgment. But there is neither any stipulation in the judgment that 60 marks or points have to be obtained to be designated a Senior Advocate nor any provision for relaxation of marks or point."

Justice Sinha observed that providing grace marks to undeserving candidates will mark the beginning of downfall of the standard of the special class of advocate namely 'Senior Advocates'

She said: "There is hardly any reason for relaxation of the points as fixed by the Supreme Court. If a person fails to achieve the required marks he can surely wait for his next turn and not look for relaxation of the marks. Providing grace marks to undeserving candidates will mark the beginning of downfall of the standard of the special class of advocate namely 'Senior Advocates'. The entire judicial system will come to disrepute. The standard should be set very high so that the same may act as deterrent to mediocre level advocates to even apply for the same, otherwise the permanent Secretariat will be left grappling with applications from undeserving candidates and the Permanent Committee will be saddled with the task of selecting the best amongst the rest."

Collection of info about Advocate from Legal Service Authority unnecessary

While directing deletion of Legal Services Authority as a source from where the secretariat shall collect the information/data in respect of applicant advocate, the bench said: "When the guidelines specify that the Legal Services Authority is the provider of data for pro bono work, the Secretariat will only look towards it to collect or verify information in relation to pro bono work done by a candidate. This provision was unnecessary. We find that in Sl. No. 8 of the proforma application there is reference to "details of the pro bono work done". We think that once these details are furnished they are either to be accepted or if the Secretariat is directed by the Permanent Committee to verify or collect information, it may do so, working upon the said details furnished. It should be left with the Secretariat to make its own discreet enquiry."

Justice Sinha added: "There are as many as six sources mentioned in the said notification. Legal Services Authority is one of them. There may be instances where the concerned advocate has no occasion to associate himself with the said Authority but has conducted pro bono work in respect of other clients. In such a case the concerned advocate shall indicate the pro bono work conducted by him and it will be the Secretariat to verify the said statement."

Professional Income of Advocate Not A Factor At All

The court also observed that the requirement of providing professional income for the last five years in the application form is not compatible with the judgment. "Professional income for the reasons given in that judgment is not a factor to be considered at all. In our opinion, the requirement of providing professional income for the last five years in the application form is not compatible with the judgment. Mr. Kar assures us that the income criterion was not taken into account in assessing the suitability of candidates. Moreover, it tends to have a prejudicial effect on the minds of the committee.", Justice Mukerji said.

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