What Is The Case
● Banshidhar Baug v. Orissa High & Ors.
● 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. Union 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.
● "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.
● 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.
● 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" sub rule (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."
● 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."
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