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-: 1 :- R IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 18TH DAY OF DECEMBER, 2015 PRESENT THE HON'BLE MR.SUBHRO KAMAL MUKHERJEE, ACTING CHIEF JUSTICE AND THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA W.P.No.36789/2014 (GM-RES-PIL) c/w W.P.No.35106/2014 (GM-RES-PIL) IN W.P.No.36789/2014 BETWEEN: M. VEERABHADRAIAH S/O LATE MALLAIAH, AGED ABOUT 58 YEARS, ADVOCATE, EN.NO.KAR/453/1986, HAVING OFFICE AT NO. 141, 1ST FLOOR, 13TH MAIN, 27TH CROSS, 3RD BLOCK EAST, JAYANAGAR, BANGALORE-560 011. ... PETITIONER (BY SRI: N.DEVHADASS, SENIOR COUNSEL FOR SRI. M.R. RAJAGOPAL, ADVOCATE) AND: 1. THE UNION OF INDIA, BY ITS SECRETARY, MINISTRY OF LAW AND JUSTICE, SHASTHRI BHAVAN, A-WING, NEW DELHI-100 001. -: 2 :- 2. THE STATE OF KARNATAKA, BY ITS SECRETARY, DEPARTMENT OF LAW AND PARLIAMENT AFFAIRS, VIDHANA SOUDHA, VIDHANA VEEDI, BANGALORE-560 001. 3. THE REGISTRAR GENERAL, HON'BLE HIGH COURT OF KARNATAKA, VIDHANA VEEDI, BANGALORE-560 001. 4. THE BAR COUNCIL OF INDIA, BY ITS SECRETARY, LAL BAHADUR SHASTRI MARG, NEW DELHI-110 002. 5. THE STATE BAR COUNCIL OF KARNATAKA, BY ITS SECRETARY, BANGALORE, K.G.I.D. BUILDING CUBBON PARK, VIDHANA VEEDI, BANGALORE-560 001. 6. THE BANGALORE ADVOCATES ASSOCIATION, REP. BY ITS SECRETARY, CIVIL COURT COMPLEX, K.G. ROAD, BANGALORE-560 001. 7. SRI. SAJAN POOVAYYA, S/O POOVAYYA M.K., AGED ABOUT 40 YEARS, ADVOCATE, ENROLLMENT NO. KAR/133/1997, PRESENTLY AT: THE ESTATE, LEVEL ONE, 121, DICKENSON ROAD, BANGALORE-560 042. -: 3 :- 8. SRI. ADITYA SONDHI, S/O NOT KNOWN, AGED ABOUT 39 YEARS, ADVOCATE, ENROLLMENT NO. KAR/624/1999 PRESENTLY AT: NO. 101, LANDMARK, 5/2 CUNNINGHAM CRESCENT ROAD, BANGALORE-560 052. 9. SRI. SHASHI KIRAN SHETTY. K, S/O JUSTICE. VISHWANATH SHETTY, AGED ABOUT 39 YEARS, ADVOCATE, ENROLLMENT NO. KAR/627/1999, PRESENTLY AT: NO. 11, JEEVAN BUILDING, KUMARA PARK EAST, BANGALORE-560 001. 10. SRI. PRABHULING NAVADGI .K, S/O LATE JUSTICE. NAVADGI .K, AGED ABOUT 45 YEARS, ADVOCATE, ENROLLMENT NO. KAR/1130/1994, PRESENTLY AT NO. 369, R.T.NAGAR MAIN ROAD, R.T.NAGAR, BANGALORE-560 032. 11. SRI. M.N. SHESHADRI, S/O NOT KNOWN, AGED ABOUT 68 YEARS, ADVOCATE, ENROLLMENT NO. KAR/240/1972, PRESENTLY AT: APT.NO. 263, 6TH FLOOR, RAJANIGANDHA-GARDEN APARTMENTS, NO. 21, VITTAL MALLYA ROAD, BANGALORE-560 001. -: 4 :- 12. SRI. R.L. PATIL, S/O NOT KNOWN, AGED ABOUT 60 YEARS, ADVOCATE, ENROLLMENT NO. KAR/462/1978, PRESENTLY AT: 1ST & 2ND FLOOR, SWASTIK COMPLEX, SESHADRIPURAM, BANGALORE-560 020. 13. SRI. LAKSHMINARAYANA .V, S/O NOT KNOWN, AGED ABOUT 60 YEARS, ADVOCATE, ENROLLMENT NO. KAR/34/1979, PRESENTELY AT: NO. 8/2, OTC ROAD, 3RD FLOOR, ADJACENT TO SHARADHA TALKIES, NEAR DHARMARAJAGUDI CIRCLE, BANGALORE-560 002. 14. SRI. JAGADEESH D.L, S/O NOT KNOWN, AGED ABOUT 59 YEARS, ADVOCATE , ENROLLMENT NO. KAR/296/1980, PRESENTLY AT: NO. 120/3, 4TH CROSS, NEAR KANISHKA HOTEL, GANDHINAGAR, BANGALORE-560 009. 15. SRI. NARGUND M.B, S/O BADRINATH .M. NARGUND, AGED ABOUT 58 YEARS, ADVOCATE, ENROLLMENT NO. KAR/53/1982, PRESENTLY AT: NO. 247, 'MEDHA' 53RD CROSS, OPP. SRI. RAMAMANDIRA, -: 5 :- 4TH BLOCK, RAJAJINAGAR, BANGALORE-560 010. 16. SRI. KRISHNA MURTHY .G, S/O NOT KNOWN, AGED ABOUT 58 YEARS, ADVOCATE, ENROLLMENT NO. KAR/670/1982, PRESENTLY AT: NO. 205, 2ND FLOOR, AHUJA CHAMBERS, NO.1, KUMARA KRUPA ROAD, BANGALORE-560 001. 17. SRI. SADASIVA REDDY Y.R, S/O RAMA REDDY .Y.R, AGED ABOUT 62 YEARS, ADVOCATE, ENROLLMENT NO. KAR/686/1985, PRESENTLY AT: NO. 118, 2ND FLOOR, CUBBONPET MAIN ROAD, AVENUE ROAD CROSS, BANGALORE-560 002. 18. SRI. SESHACHALA M.V, S/O JUSTICE. VENKATACHALA M.N, AGED ABOUT 54 YEARS, ADVOCATE, ENROLLMENT NO. KAR/358/1986, PRESENTLY AT: NO. 8 & 9, GROUND FLOOR, NO.41, SNZ PLAZA, KUMARA KRUPA ROAD, BANGALORE-560 001. 19. SRI. SHYAM PRASAD B.M, S/O JUSTICE. MALLIKARJUNA. B.N, AGED ABOUT 43 YEARS, ADVOCATE, ENROLLMENT NO. KAR/1138/1994, PRESENTLY AT: NO. 481/1, -: 6 :- GROUND & FIRST FLOOR, SREE KRISHNA TEMPLE ROAD, INDIRANAGAR 1ST STAGE, BANGALORE-560 038. 20. SRI. VIVEK SUBBA REDDY, S/O SUBBA REDDY K.N, AGED ABOUT 43 YEARS, ADVOCATE, ENROLLMENT NO. KAR/1661/1995, PRESENTLY AT: NO. 200, 11TH CROSS, WILSON GARDEN, BANGALORE-560 027. 21. SRI. DHYAN CHINNAPPA .M, S/O JUSTICE. CHINNAPPA, AGED ABOUT 38 YEARS, ADVOCATE, ENROLLMENT NO. KAR/636/1999, PRESENTLY AT: NO. 33, XAVIER LAYOUT, 1ST CROSS, VICTORIA ROAD, BANGALORE-560 047. ... RESPONDENTS (BY SRI: KRISHNA S DIXIT, ASSISTANT SOLICITOR GENERAL FOR R1; SRI. R. DEVDAS, PRINCIPAL GOVERNMENT ADVOCATE FOR R2; SRI. UDAYA HOLLA, SENIOR COUNSEL FOR SRI. VIVEK HOLLA, ADVOCATE FOR R3; SMT. GEETHA DEVI .M.P, ADVOCATE FOR R4; R5 - SERVED; SRI. S.S. NAGANAND, SENIOR ADVOCATE FOR SRI. S.SRIRANGA, ADVOCATE FOR R6; -: 7 :- SRI. NANJUNDA REDDY.D.N., SENIOR ADVOCATE FOR SRI. MANU KULKARNI, ADVOCATE FOR R7; MRS. B.V. NIDHISHREE, ADVOCATE FOR R8; SRI. BIPIN HEGDE, ADVOCATE FOR R9 & R17; SRI. POONAM PATIL, ADVOCATE FOR R10; SRI. D.L.N. RAO, SENIOR ADVOCATE FOR SRI. M. KRISHNAPPA, ADVOCATE FOR R11; SRI. D.R. RAVISHANKAR, ADVOCATE FOR R12; SRI. A. SHIVARAM, ADVOCATE FOR R13; SRI. ASHOK HARANAHALLI, SENIOR ADVOCATE FOR MANMOHAN P.N., ADVOCATE FOR R16 & R19; SRI. K. ARUN KUMAR, ADVOCATE FOR R21; SRI. ARAVIND V. CHAVAN, ADVOCATE FOR R18; SRI. L. GOVINDARAJU, ADVOCATE FOR R20; SRI. LOHITASWA BANAKAR, ADVOCATE FOR R14; R15 - SERVED) ***** THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTIFICATION DT.30.6.14 VIDE NO.RPS 58/2008, & THE NOTIFICATION DT.14.7.14, VIDE NO.RPS 58/2008 ISSUED BY THE R3 AS PER ANN-A & B RESPECTIVELY & DECLARE THAT SAME IS NOT WITHIN THE CONSONANCE OF THE SEC.16(2) OF THE ADVOCATES ACT 1961 AND ETC., -: 8 :- IN W.P.No.35106/2014 BETWEEN: SRI. T.N. RAGHUPATHY S/O LATE T. NARAYANA UDUPA .L AGED ABOUT 65 YEARS, ADVOCATE, #7 & 8, II FLOOR, SWASTIK COMPLEX, S.C. ROAD, OPP. SESHADRIPURAM POLICE STATION, SESHADRIPURAM, BANGALORE-560 020. (BENEFIT OF SENIOR CITIZENSHIP NOT CLAIMED) ... PETITIONER (BY SRI: T.N. RAGHUPATHY, PARTY-IN-PERSON) AND: 1. HIGH COURT OF KARNATAKA, BANGALORE, REP. BY ITS REGISTRAR GENERAL, AMBEDKAR VEEDI, BANGALORE-560 001. 2. SRI. SAJAN POOVAYYA, FATHERS NAME NOT KNOWN, MAJOR, ADVOCATE, THE ESTATE, LEVEL ONE, NO.121, DICKENSON ROAD, BANGALORE-560 042. 3. SRI. ADITYA SONDHI, FATHERS NAME NOT KNOWN, MAJOR, ADVOCATE, NO.101, LANDMARK, -: 9 :- 5/2 CUNNINGHAM, CRESCENT ROAD, BANGALORE-560 052. 4. SRI. K. SHASHI KIRAN SHETTY, S/O JUSTICE P. VISHWANATHA SHETTY, RETD., MAJOR, ADVOCATE, NO.11, JEEVAN BUILDING, KUMARA PARK EAST, BANGALORE-560 001. 5. SRI. PRABHULING K. NAVADGI, S/O LATE JUSTICE K.B. NAVADGI, MAJOR, ADVOCATE, NO.369, R.T.NAGAR MAIN ROAD, R.T.NAGAR, BANGALORE-560 032. 6. SRI. M.N. SESHADRI, FATHERS NAME NOT KNOWN, MAJOR, ADVOCATE, APT. NO. 263, 6TH FLOOR, RAJINIGANDHA-GARDEN APARTMENTS, NO.21, VITTAL MALLYA ROAD, BANGALORE-01. 7. SRI. R.L. PATIL, S/O L.P. PATIL, MAJOR, ADVOCATE, 1ST & 2ND FLOOR, SWASTIK COMPLEX, S.C. ROAD, SESHADRIPURAM, BANGALORE-20. 8. SRI. V. LAKSHMINARAYANA, FATHERS NAME NOT KNOWN, MAJOR, ADVOCATE, 8/2, OTC ROAD, 3RD FLOOR, ADJACENT TO SHARADA TALKIES, -: 10 :- NEAR DHARMARAYA TEMPLE, BANGALORE-02. 9. SRI. D.L. JAGADEESH, FATHERS NAME NOT KNOWN, MAJOR, ADVOCATE, NO. 120/3, 4TH CROSS, NR. KANISHKA HOTEL, GANDHINAGAR, BANGALORE-560 009. 10. SRI. M.B. NARGUND, FATHERS NAME NOT KNOWN, MAJOR, ADVOCATE, 247, MEDHA, 53RD CROSS, OPP: SRIRAMAMANDIRA, 4TH BLOCK, RAJAJINAGAR, BANGALORE-10. 11. SRI. G. KRISHNA MURTHY, FATHERS NAME NOT KNOWN, MAJOR, ADVOCATE, NO. 205, 2ND FLOOR, AHUJA CHAMBERS, NO. 1, KUMARA KRUPA ROAD, BANGALORE-01. 12. SRI. Y.R. SADASIVA REDDY, FATHERS NAME NOT KNOWN, MAJOR, ADVOCATE, NO. 118, 2ND FLOOR, CUBBONPET MAIN ROAD, AVENUE ROAD CROSS, BANGALORE-02. 13. SRI. M.V. SESHACHALA, S/O JUSTICE N. VENKATACHALA (RETD), MAJOR, ADVOCATE, NO. 8 & 9, GROUND FLOOR, -: 11 :- NO. 41, SNS PLAZA, KUMARA KRUPA ROAD, BANGALORE-01. 14. SRI. B.M. SHYAM PRASAD, S/O JUSTICE B.N. MALLIKARJUNA (RETD), MAJOR, ADVOCATE, NO. 481/1, GROUND & 1ST FLOOR, SREE KRISHNA TEMPLE ROAD, INDIRANAGAR, 1ST STAGE, BANGALORE-38. 15. SRI. VIVEK SUBBA REDDY, S/O SUBBA REDDY, MAJOR, ADVOCATE, NO. 200, 11TH CROSS, WILSON GARDEN, BANGALORE-27. 16. SRI. DHYAN CHINNAPPA, S/O JUSTICE CHINNAPPA (RETD), MAJOR, ADVOCATE, NO. 33, XAVIER LAYOUT, 1ST CROSS, VICTORIA ROAD, BANGALORE-47. 17. UNION OF INDIA, REP. BY SECRETARY, DEPARTMENT OF LAW & JUSTICE, 4TH FLOOR, A-WING, SHASTRI BHAWAN, NEW DELHI-110 001. ... RESPONDENTS ***** (BY SRI: UDAYA HOLLA, SENIOR ADVOCATE FOR SRI. VIVEK HOLLA, ADVOCATE FOR R1; -: 12 :- SRI. D.N. NANJUNDA REDDY, SENIOR ADVOCATE FOR SRI. MANU KULKARNI, ADVOCATE FOR R2; MRS. B.V. NIDHISHREE, ADVOCATE FOR R3; SRI. BIPIN HEGDE, ADVOCATE FOR R4 & R12; SRI. POONAM PATIL, ADVOCATE FOR R5; SRI. D.L.N. RAO SENIOR ADVOCATE FOR SRI. M. KRISHNAPPA, ADVOCATE FOR R6; SRI. D.R. RAVISHANKAR, ADVOCATE FOR R7; SRI. A. SHIVARAM, ADVOCATE FOR R8; SRI. LOHITASWA BANAKAR, ADVOCATE FOR R9; SRI. S.B. PAVIN, ADVOCATE FOR R10; SRI. ASHOK HARANAHALLI FOR SRI. MANMOHAN P.N., ADVOCATE FOR R11 & R14; SRI. VINOD KUMAR NAIDU, ADVOCATE FOR R13; SRI. L. GOVIND RAJ, ADVOCATE FOR R15; SRI. K. ARUN KUMAR, ADVOCATE FOR R16; SRI.  It may be regarded as a pursuit which yields, if success be gained, a reward of fees and emoluments. But it may also be looked upon as a vocation which offers the joy of intellectual achievement, which claims the allegiance of unswerving honour, which asks for the guardianship of high tradition, and which affords a wide field for loyal and generous service to the community."
(Source: "Lawyers in the Dock", "Nani Palkhivala Selected Writings" - Edited by L.M. Singhvi, M.R.Pai, S.Ramakrishnan) These writ petitions are filed in public interest. They have been filed by two learned advocates, practicing in this Court, as petitioners, assailing -: 14 :- notifications dated 30/06/2014 and 14/07/2014 issued by the respondent-Registrar General, High Court of Karnataka, Bengaluru, by which, the private respondent-advocates have been designated as senior advocates under Section 16 of the advocates Act, 1961 (hereinafter, referred to as "the Act"). A direction is also sought to frame rules for designation of senior advocates under sub-section (2) of Section 16 of the Act, in consultation with the Bar Council of India.
Pleadings:
2. W.P.No.36789/2014 is filed by an advocate through another advocate, while the other petition namely, W.P.No.35106/2014 has been filed by advocate, Sri T.N.Raghupathy, as party-in-person. It is a matter of record that in these writ petitions, initially, an order dated 04/08/2014 was passed stating that the petitioners had no locus standi to file -: 15 :- a writ petition in public interest. That order was assailed before the Hon'ble Supreme Court, in Civil Appeal No.11439/2014. By order dated 16/12/2014, the Hon'ble Supreme Court held that some of the issues raised in the writ petitions require consideration and that the writ petitions were indeed filed in public interest. While setting aside the order dated 04/08/2014 of this Court, a request has been made to consider the matter on merits. It is in the above premise that the Writ Petitions have been heard.
3. According to the petitioners, Section 16 of the Act provides for two classes of advocates, namely, senior advocates and other advocates. Sub-section (2) of Section 16 provides for designation of an advocate as a senior advocate. Under that section, an advocate may, with his consent, be designated as a senior advocate, if the Supreme Court or a High Court is of opinion that by virtue of his ability, standing at the -: 16 :- Bar or special knowledge or experience in law is deserving of such distinction. Under Section 23, a senior advocate has a right of pre-audience in a Court of law. The position of a senior advocate, who has been designated by the Supreme Court of India or High Court, as the case may be, is one of honour, privilege and prestigious. Although, certain restrictions are placed by the Bar Council of India on the senior advocates in the interest of legal profession, the position of a senior advocate in the administration of justice is pivotal and of importance. The restrictions imposed on the practice of senior advocates is good and co-terminus with the privileges extended to them and in order to maintain high standards in advocacy. According to the petitioners, there are certain essential criteria, which have to be possessed by an advocate in order to be designated as a senior -: 17 :- advocate, such as learning, skill, integrity, honesty, diligence, experience etc.
4. It is the case of the petitioners that, as far as High Court of Karnataka is concerned, no rules have been framed for exercise of power under Section 16(2) of the Act. But certain Norms have been defined by a resolution of the Full Court, stipulating certain criteria for the purpose of Section 16(2) of the Act. That the High Court had decided to formulate a set of rules for the purpose of designation of senior advocates under Section 16(2) of the Act and a Committee was constituted, comprising of three Hon'ble judges and certain senior advocates of this Court and office Bearers of the Bar Council of Karnataka and advocates' Association, Bengaluru were invited by the Committee to its deliberations. The said Committee, invited certain advocates, who were already designated as senior advocates, to make -: 18 :- suggestions with regard to the rules to be drafted for exercise of power under Section 16(2) of the Act, and that eleven designated senior advocates, the Chairman of the Karnataka State Bar Council, the President and General Secretary of advocates Association, Bengaluru, participated in the meeting and exchanged their views orally as well as in writing.
It is stated that the High Court of Karnataka Designation of senior advocates Rules, 2014, (Draft Rules, 2014) were drafted, a copy of which is annexed as Annexure-F to
W.P.No.36789/2014, which was placed before the Full Court prior to summer vacation of 2014. But no decision was taken in the matter by the Full Court as the rules required meticulous examination. According to the petitioners, it transpires that at about the same time, one of the Hon'ble Judges of this Court had circulated letter dated 23/04/2014 proposing name of -: 19 :- Sri Sajan Poovayya, Sri Aditya Sondhi, Sri Shashikiran Shetty K. and Sri Prabhuling Navadgi K., (Respondents in the Writ Petitions), for designation as senior advocates. The said letter was placed before the Committee constituted for designation of advocates as senior advocates, which Committee resolved to place the same before the Full Court by resolution dated 16/06/2014. When the matter was placed before the Full Court on 30/06/2014, the Full Court resolved to designate the aforesaid advocates as senior advocates. The aforesaid resolution was based on secret ballot by a simple majority. In fact, along with the said four advocates, names of three other advocates were also considered on that date, but they were not designated as senior advocates namely, Sri Raveendra Kolle, Sri Hashmat Pasha and Sri B.K.Sampath Kumar. According to the petitioners, the aforesaid four advocates are less than 45 years of -: 20 :- age and were not eligible for being designated as senior advocates as per Draft Rules, 2014. Also, some of the members of the Bar had not applied for designation as senior advocates, as they were awaiting finalization of the Draft Rules. According to the petitioners, the aforesaid four advocates were hastily and hurriedly designated as senior advocates on the basis of secret ballot without first finalizing the Draft Rules, 2014. The designation of the aforesaid four advocates as senior advocates on 30/06/2014 was debated at the Bar. As a result, one more Full Court was convened on 10/07/2014 and eleven more advocates were designated as senior advocates once again, without finalizing the Draft Rules.
5. According to the petitioners, if the Draft Rules had been finalized and they had been applied, then fifteen advocates who are designated as senior advocates would not have been so designated as they -: 21 :- were ineligible for such designation. Some of the advocates were below 45 years of age and some other designated advocates had relatives on the Bench and the designated advocates did not meet the standard required under Section 16(2) of the Act. That some of the designated advocates have not been active in practice and did not possess the requisite qualifications for being designated as a senior advocate. According to the petitioners, there was favoritism, nepotism, discrimination, unfairness, non-transparency and monopoly in the decision of designation of respondent-advocates. It is also submitted that in the case of one or two advocates, their proposal for designation as senior advocates was rejected recently. Even then, the said names were reconsidered.
6. In W.P.No.35106/2014, it has been stated that on application made by the petitioner therein, the -: 22 :- Registrar General, High Court of Karnataka, issued a document titled "Norms Fixed by the High Court of Karnataka under Section 16(2) of the advocates' Act, 1961". The said Norms were followed for designating an advocate as a senior advocate. According to him, the designation of senior advocates has been made by following the aforesaid Norms, which are contrary to Section 16(2) of the Act. It is averred that Section 16(2) of the Act does not envisage filing an application by an advocate seeking his designation as a senior advocate, rather it is done on taking consent of the advocate by the Court. Making an application by an advocate for the purpose of designation is anti-thesis to sub-section (2) of Section 16 of the Act. As per the Norms fixed by the High Court, an advocate may be sponsored for designation as a senior advocate by: (i) the Chief Justice or any Judge of the High Court; or
(ii) any two senior advocates; or (iii) an application -: 23 :- made by the advocate desiring such designation. It is averred that application made by an advocate desiring to be designated as a senior advocate, is not contemplated in Section 16(2) of the Act as the designation is a matter of honour bestowed on an advocate by the Court and filing an application by the concerned advocate is not in consonance with the manner of designation. Therefore, Norm No.1(iii) is opposed to sub-section (2) of Section 16 of the Act, is the averment.
7. It is also contended that sub-section (2) of Section 16 of the Act does not contemplate a majority decision to be taken by the High Court on the basis of secret ballot in the matter of designation of an advocate as a senior advocate. It is averred that the Full Court must form an opinion on the ability, experience, standing at the Bar of an advocate and then confer the designation on such an advocate as a -: 24 :- senior advocate. That the High Court cannot resort to the procedure of voting by secret ballot in the matter of designation of an advocate as a senior advocate, is the contention. It is, next contended that the Norms prescribe the number of years of practice at the Bar before an advocate can be considered for designation as a senior advocate. That is an irrelevant consideration as the same is not prescribed under sub-section (2) of Section 16 of the Act. An advocate of outstanding merit can be designated as a senior advocate, irrespective of the number of years of practice at the Bar. It is contended that the Norms cannot be against the spirit of Section 16 of the Act. It is also submitted that the designation must be on an unanimous opinion and secret ballot is not contemplated under sub-section (2) of Section 16 of the Act. That when the High Court designates an advocate as a senior advocate, it is on the opinion of -: 25 :- the Full Court and not based on favourable opinion of a few Judges. Therefore, the designation by majority is defective, is the averment. It is also submitted that on account of the prevailing system, many brilliant advocates from mofussil Courts have not been honoured as senior advocates. Contending that the procedure followed by the Full Court in designating the advocates as senior advocates by Notification dated 30/6/2014 and 14/07/2014 was defective and faulty and that there was no unanimous opinion of the Full Court in the matter, the said notifications have been impugned. It is also contended that in the absence of debate by the Judges and by merely resorting to secret ballot, the designation is not just and proper. Petitioners have sought quashing of the aforesaid Notifications.
8. Statement of objections has been filed on behalf of the Registrar General, High Court of -: 26 :- Karnataka, raising a preliminary objection to the effect that the decision made on the administrative side of this Court cannot be a matter of judicial review and that only the decision-making process can be assailed. As far as the decision-making is concerned, it is averred that the process adopted by the Court is in consonance with the Norms fixed by the Court under sub-section (2) of Section 16 of the Act. The Norms have been amended from time to time and the latest amendment was by resolution dated 13/02/2014 passed by the Court on its administrative side. It is contended that Section 16(2) prescribes certain criteria for designation of an advocate as a senior advocate. That section does not specifically provide for making any rule or procedure for designation of advocates as senior advocates. Even Section 34 of the Act does not contemplate that the High Court must make rules for designation of advocates as -: 27 :- senior advocates. Though Section 49 of the Act empowers the Bar Council of India to make rules with regard to the manner in which seniority amongst advocates must be determined and also the conditions subject to which an advocate shall have the right to practice in a Court and Section 49A of the Act empowers the Central Government to make rules, section 16 or Section 34 of the Act do not contemplate the High Court making any rule with regard to designation of advocates as senior advocates. In the absence of such rules, the High Court has fixed a set of Norms, which have been followed from time-to- time in the present case.
9. The Norms prescribe that the person to be designated as a senior advocate may be sponsored by any of the three ways stipulated therein, that is, (i) by the Chief Justice or any of the Judges of the High Court: (ii) by any two senior advocates: (iii) by an -: 28 :- application made by the advocate desiring to be designated as such. Provided that in case of (i) and
(ii) above, written consent of the advocate concerned shall accompany the proposal and in all the three cases the advocate concerned shall append his certificate that he has not applied to any other High Court for being designated as senior advocate and that no application of his has been rejected by the High Court within the period of two years period prior to the date of the proposal or application.
10. The process of designation is undertaken by secret ballot by the Hon'ble Chief Justice and the Hon'ble Judges present at the Full Court meeting and the decision is by a simple majority. That such a practice has been applied for a number of years by this Court and several advocates have been designated as senior advocates.
-: 29 :-
11. While admitting that a Committee of three Hon'ble Judges was constituted for preparation of Draft Rules or guidelines for designation of advocates as senior advocates and a meeting was held in that regard and suggestions from the members of the Bar were also invited and Draft Rules were also prepared (Annexure-R1) and certain modifications to the Draft Rules were proposed (Annexure-R2), but, the modifications have not been incorporated in the Draft Rules and neither have the Draft Rules been finalized.
12. According to this respondent, the advocates who have been designated as senior advocates ought to have practiced for atleast fifteen years at the Bar and their age is of no relevance. That there have been several illustrious lawyers, who have been designated as senior advocates at a young age, even below 45 years of age, depending on their ability and therefore, it cannot be contended that so long as -: 30 :- an advocate has not completed 45 years of age, he cannot be designated as a senior advocate. What is relevant is that Section 16(2) of the Act has to be complied with and it is in that regard, the Norms have been fixed by this Court which are in consonance with Section 16(2) of the Act. One such Norm is, sponsorship of an advocate for being designated as a senior advocate. With regard to notification dated 30/06/2014, Sri.Poovayya, respondent No.7 in W.P.No.36789/2014 was sponsored by one of the Hon'ble Judges of this Court by his letter pursuant to norm 1(i) of the Norms and respondent Nos.8 to 10 in W.P.No.36789/2014 were sponsored by letters issued by two senior advocates in each of those cases, pursuant to norm 1(ii). The Norms were considered on 26/06/2014 and a decision was taken to designate four advocates as senior advocates by secret ballot. Each of the aforesaid four advocates received -: 31 :- overwhelming majority of votes from the Hon'ble Judges present at the meeting and beyond the simple majority and consequently, notification dated 30/06/2014 was issued.
13. With regard to notification dated 14/07/2014, by which respondent Nos.11 to 18 and respondent No.20 in W.P.No.36789/2014 were designated, it was on the basis of letters issued by two senior advocates sponsoring their names, which is pursuant to norm No.1(ii) of the Norms. Respondent No.19 and 21 submitted applications pursuant to norm No.1(iii) of the Norms. The names of these respondents were considered by Full Court on 11/11/2014 and by secret ballot, the designations were made in respect of those persons, who received votes beyond simple majority. Thus, respondent Nos.11 to 21 were designated as senior advocates. Many other advocates who did not secure the simple -: 32 :- majority in the secret ballot were not designated. Thus, it is contended that the designations do not suffer from any illegality. That the designation of advocates, by adopting the system of secret ballot and on the basis of simple majority is in accordance with the prevailing Norms, and does not suffer from any illegality so as to be challenged in a public interest litigation, is the averment.
14. In this regard, the case of Sri Sampat Anand Shetty, advocate, has been adverted to. The said advocate had filed W.P. (Civil) No.176/2013 before the Hon'ble Supreme Court assailing the process adopted by the Full Court in the designation of senior advocates, as a result of which he was not designated. It was contended in that petition that secret ballot was not envisaged under sub-section (2) of Section 16 of the Act. The said writ petition was dismissed by order dated 30/08/2013 and Review -: 33 :- Petition (C) No.2666/2013, filed thereafter, was also dismissed by the Hon'ble Supreme Court of India on 27/11/2013. It is contended that the grounds urged in that writ petition are similar to the grounds urged in the present case and therefore these Writ Petitions may be dismissed.
15. It is further contended that the procedure adopted for designation of senior advocates vide notifications dated 30/06/2014 and 14/07/2014 have been in accordance with law and that the designation has not been made in a hurried or hasty manner. The Norms which have been fixed by the High Court are in accordance with sub-section (2) of Section 16 of the Act. Consequently, there is no by-passing of any rule or regulation. It is also averred that the writ petitions have been filed based on hearsay information and are in bad taste. It has also been contended that the process of designation of senior advocates in India -: 34 :- cannot be compared with what is prevailing in Australia or in England and therefore, the parallel drawn with those countries is inappropriate. It is also submitted that averments regarding nepotism, favouritism etc., made in the petitions are in bad taste. That this Court, after deliberation, put the names of the advocates to be designated as senior advocates to a process of secret ballot, which is one of the most fair and transparent methods which could have been adopted by this Court. It is averred that most High Courts in the country and the Hon'ble Supreme Court also follow the process of secret ballot in the designation of advocates as senior advocates. While denying the other averments, it has been contended that the designation of senior advocates in the instant case has been on the basis of the criteria mentioned in sub-section (2) of Section 16 of the Act and that the stipulation suggested by the petitioners -: 35 :- with regard to the number of appearances of the advocate in each Court is an impractical stipulation as what has to be seen is the overall performance of the advocate in light of sub-section (2) of Section 16.
16. It is next contended that absence of rules prohibit designation of advocates as senior advocates, is not correct. Norms have existed for several years regarding designation of senior advocates and the Full Court has been following those Norms by making appropriate amendments thereto. Also the norm with regard to application by persons desirous of getting designated as senior advocates is not an incongruous practice, and that the said practice has been followed by many High Courts in the country and also by the Hon'ble Supreme Court. It is also admitted that the Rules of 2014 were drafted, but in view of several suggestions made by certain members of the Bar as well as certain Hon'ble Judges, those Rules were not -: 36 :- finalized. At that juncture, the Committee constituted to designate senior advocates considered the applications of respondent Nos.7 to 10 and resolved to refer the same to the Full Court and consequently, the Full Court resolved to designate respondent Nos. 7 to 10 as senior advocates. It is true that on 26/6/2014 only seven names were considered and four advocates, namely respondent Nos.7 to 10, were designated. While denying various other allegations made in the writ petitions, it has been averred that although some of the advocates designated as senior advocates are the sons of retired Judges of this Court, the parentage of the advocate cannot be a bar for his or her designation as a senior advocate, if he or she had eligibility of being designated as senior advocate.
17. That filing of an application by an advocate for the purpose of designation as a senior advocate is implied in the expression "an advocate may, with his -: 37 :- consent, be designated as senior advocate" in Section
16. But the designation need not be only on the application made by an advocate. It is denied that there was any legal malice in the decision-making process by the Full Court or that the process adopted was neither fair nor reasonable as per Section 16 of the Act. It is also denied that this Court, in a hurried manner, without assessing the ability of the advocates, designated respondent Nos.7 to 21 as senior advocates, which is contrary to the precedent hitherto. It is also denied that an advocate cannot be designated as a senior advocate or appointed as a Judge if he has not completed 45 years of age. It is contended that if a name of a particular advocate is rejected and not considered for being designated as a senior advocate, then it is a discretion of the Full Court to reconsider the names even before the expiry of two years. While denying the other averments in -: 38 :- respect of certain respondents, who have been designated as senior advocates and by contending that the impugned designations are in accordance with law, dismissal of the petitions has been sought by the Registrar General.
18. Statement of objections have been filed by advocates' Association, Bangalore, contending that the power to designate an advocate as a senior advocate is traceable to Section 16(2) of the Act. However, no rules have been framed for the purpose of designation of senior advocates. But certain norms are being followed from time-to-time. Annexure "C" to the writ petition are the Norms. The Norms have been formulated by a resolution of the Full Court, which do not have force of law and are at best, self governance norms, but on the other hand, rules are in the nature of subordinate legislation and have the force of law. The High Court had constituted a Committee of three -: 39 :- Hon'ble Judges to examine the matter of framing rules on receiving suggestions from certain senior advocates. The Draft Rules were placed before this Court on the administrative side for its approval in April 2014, but the draft rules were not approved at that time.
19. When the matter stood thus, certain proposals to designate advocates as senior advocates were made by this Court as per notifications at Annexure "A" and "B" to the writ petition. This exercise of power is arbitrary as it has been done in undue haste. The impugned designation of advocates as senior advocates, is a departure from the Norms laid down by the Court. That some Hon'ble Judges had expressed that a hurried consideration of the proposals would not auger well for the Institution but over- ruling such objection and by resorting to secret ballot, the Full Court initially approved four names for -: 40 :- designation of senior advocates as per Annexure "A" and in a period of two weeks thereafter, 11 other advocates were designated as senior advocates as per Annexure "B". That this Court has not formed an opinion regarding the ability, standing at the Bar, special knowledge or experience in law, when it considered the names of advocates for designation as senior advocates. That a transparent system of designation ought to have been adopted by this Court. That the procedure of secret ballot has lead to a lot of speculation and "horse trading". According to respondent No.6, lack of transparency in the selection process may dissuade many deserving advocates from seeking designation, as they do not have the inclination to "lobby" among the members of the Full Court. That many Hon'ble sitting and former Judges have taken an active part in "canvassing" for one or more candidates for designation. Such practices ought -: 41 :- to be deprecated. Canvassing by the candidates or by any Judge, sitting or former, must be regarded as a disqualification. That the practice of advocates filing applications seeking designation if necessary, must be discontinued and designation as senior advocates may be on recommendation of the Judges and by the decision of the Full Court. The sixth respondent has sought for a direction for the formulation of rules for designation of senior advocates under Section 16 of the Act and to take such other remedial measures which are appropriate.
20. The aforesaid statement of objections were sought to be withdrawn by respondent Bar Association and initially, a memorandum followed by an affidavit was filed by the General Secretary of respondent Bar Association. Objections to the memorandum have been filed on behalf of the petitioners, contending that the respondent No.6 cannot withdraw statement of -: 42 :- objections at the stage when the matter was set down for judgment after completion of arguments on both sides. Petitioners sought for rejection of the memorandum and also the affidavit. Rejoinder to the objections of the petitioners to the memorandum filed by the respondent No.6 have also been filed in support of the withdrawal of the statement of objections.
21. Rejoinder has been filed on behalf of the petitioner to the statement of objections filed by respondent Registrar General. It is stated in the rejoinder that the said respondent has suppressed certain material facts in his statement of objections including the note of one of the Hon'ble Judges styled, "Clarification by Justice N.Kumar" and another Note, of Justice N.Kumar regarding the age of advocates to be designated as senior advocates. That these two documents were produced before the Hon'ble -: 43 :- Supreme Court in Transfer Petition No.1838/2014. It is also stated that petitioner had sought certain information by filing an application before the Public Information Officer and Deputy Registrar of this Court, but the information was not furnished and the matter is before the State Information Commission. That the decision of the Full Court in designating certain advocates as senior advocates impugned in the writ petition lacks bona fides, as it was taken in a hurry in order to favour some of the respondent advocates herein. That when Draft Rules had been framed under Section 16(2) of the Act, prior to finalization of those rules the impugned designations have been made as some of the respondent - advocates would have been ineligible if the Rules had been followed. That the impugned designations were done hurriedly in favour of certain respondents herein and in respect of some other respondents, the distinction of senior advocates -: 44 :- was conferred even without satisfying as to whether those advocates were eligible or not under Section 16(2) of the Act.
22. Rejoinder has been filed by learned advocate, Sri T.N.Raghupathy, stating that the objection statement lacks transparency and to verify the correctness of the statements made therein, it is necessary to call for the records of the entire proceedings concerning the two notifications which are challenged in this writ petition. That the High Court has failed to exercise power vested in it under Section 16(2) of the Act by not inviting eminent advocates to accept designation as senior advocates. Such a step was taken in the year 2003 when 15 advocates were designated as senior advocates after taking their oral consent. But in the instant case, none of the advocates have been called to accept the designation. All of them have applied enclosing recommendatory -: 45 :- letters of two senior advocates. The expression sponsored according to Black's Law Dictionary means "one who intervenes for another voluntarily and without being requested". But in the instant case, the recommendatory letters have been given by the senior advocates at the request of the advocates seeking designation. The names of two advocates namely Sri Hashmath Pasha and Sri Pradeep Sawkar have been unjustly rejected by the High Court. The High Court has also ignored the claim of certain women advocates and the application of the sole women advocate has been rejected without giving any reason.
Submissions:
23. Sri T.N.Raghupathy, learned advocate, who has appeared in person, drew our attention to the Norms fixed by the High Court of Karnataka under Section 16(2) of the Act. That in the Norms fixed by -: 46 :- the High Court, the names of the advocates for being designated as the senior advocates could be sponsored in three ways: i) by the Chief Justice or the Judges of the High Court; ii) by any two senior advocates; iii) by an application made by the advocate desiring to be designated as such. In the case of
i) and ii), written consent of the advocate concerned has to be appended to his certificate that he has not applied to any other High Court for being designated as senior advocates. Also, he has to certify that no application of his has been rejected by the High Court within a period of two years prior to the date of the proposal or application. He contended that in the instant case, the advocates who had obtained recommendatory letters from two senior advocates to be annexed to the documents submitted by them were not really sponsorship by the senior advocates. They were mere certificates issued at the request of -: 47 :- the advocate seeking designation as a senior advocate. They were not really sponsorship by the senior advocates as the senior advocates had not certified for the purpose of sponsoring the names of the advocates but it was on the request of the concerned advocates seeking designation as senior advocates.
24. He also contended that the Norms were contrary to Section 16(2) of the Act as an application cannot be filed by the advocate to seek designation as a senior advocate as contemplated in Norm (1)(iii). But sponsorship by the Chief Justice or any of the Judges of the High Court may be correct. He elaborated his submission by contending that under Section 16(2) of the Act, an opinion has to be formed by the High Court that, by virtue of his or her ability, standing at the Bar or special knowledge or experience in law, an advocate deserves the -: 48 :- distinction of being designated as a senior advocate. Of course, while so designating an advocate, as a senior advocate, the consent of the advocate concerned must be taken. Also, there is no reason to restrict the names being placed before the Full Court from only the aforesaid three avenues.
25. Sri Raghupathy, contented that the prevalent Norms take away the power of the High Court to form an opinion under Section 16(2). He also contended that an advocate with self respect would not apply to be designated as a senior advocate and that the designation must be by sponsorship or by invitation.
26. Sri N.Devhadass, learned senior advocate, appearing for the petitioners in W.P.No.36789/2014 drew our attention to the Notes circulated by Hon'ble Kumar J. and contended that the senior advocates -: 49 :- could not be designated on the basis of likes and dislikes of individual Judges. According to him, the method of secret ballot is based on likes and dislikes of the advocates, who had sought for designation as senior advocates. That there has been no conscientious vote cast by the Full Court. Therefore, the proceedings of the Full Court meetings would have to be looked into in order to ascertain as to what transpired in the Full Court meetings as designations at two stages have been made in a hurried manner.
27. Learned senior advocate, Sri Naganand, who has appeared for the advocates' Association contended that Section 16(2) of the Act does not contemplate exercise of a secret ballot. There has been no discussion about the advocates who had sought for designation as senior advocates. That it is not apparent as to why certain advocates were -: 50 :- designated as senior advocates while certain others were not designated. The procedure of applications by advocates for the purpose of designation as senior advocates is not a correct procedure. In the instant case, where the designations have been made on the basis of applications submitted by the advocates and on the basis of secret ballot cannot be accepted and therefore, the status-quo ante has to be restored. After formulating the rules for designation of senior advocates, the Full Court could reconsider the names of respondent - advocates as senior advocates, on the basis of the rules, was the submission.
28. Countering the aforesaid arguments, Sri Udaya Holla, learned senior counsel, appearing for the Registrar General of the High Court, at the outset, contended that Section 16(2) of the Act clearly indicates the criteria, on the basis of which, an advocate could be designated as a senior advocate. -: 51 :- Merely because rules or regulations have not been framed, under that Section, it would not imply that this Court does not have the authority to exercise power under Section 16(2) of the Act. It was contended that even if a statute requires rules to be framed for the exercise of powers under a particular provision, in the absence of rules being framed, an authority is not barred from exercising power under the provision of the statute. He submitted that whatever Norms or guidelines were prevalent, were applied, to the respondent - advocates, who have been designated as senior advocates. The Full Court has acted in accordance with Section 16(2) of the Act even in the absence of there being rules or regulations framed in that regard, was the submission.
29. He next contended that there is no illegality in the Full Court designating the advocates as senior -: 52 :- advocates on the basis of secret ballot. That the process of secret ballot has been in vogue in the High Courts of Bombay, Madras and Allahabad. Also, it is only when advocates who seek designation as senior advocates comply with the prevalent norms, would their names be placed before the Full Court for the purpose of designation. The prevalent Norms could be construed to be rules or regulations under Section 16(2) of the Act; that section 16(2) of the Act itself prescribes certain guidelines and based on those guidelines, the Norms have been framed by the High Court, on the basis of which, the designations have been made in the instant case. Merely because the Full Court resorted to secret ballot and on the basis of the majority of the votes cast, designations have been made, it cannot be judged to be an illegal or improper process, was the submission. That each Judge may have his or her opinion about an advocate who has -: 53 :- sought for designation as a senior advocate and possibly, in order to avoid any acrimony in the Full Court wherein, contrary opinions would be expressed and in order to maintain a cordial atmosphere, the Full Court may have designated the advocates as senior advocates, based on the secret ballot. He also contended that it is not necessary for the Full Court to give reasons as to why certain advocates were not designated as senior advocates or, for that matter, why certain others were designated as senior advocates. The collective opinion of the Full Court is expressed by means of the secret ballot. He therefore contended that there is no merit in these matters.
30. Sri D.L.N.Rao, learned senior counsel, appearing for some of the respondent-advocates contended that one cannot be judgmental in these matters. The correctness or otherwise of the Norms are not justiciable. The Norms are not amenable to -: 54 :- judicial review. It is based on the prevalent Norms that the applications from advocates interested in seeking designation as senior advocates were received by the Registry. There was no invitation from the Registry of this Court to any advocate to apply and the advocates themselves have applied. Therefore, there is no illegality in the designation of the advocates as senior advocates, was the contention.
31. Sri Ashok Haranahalli, learned senior counsel, appearing for a few respondent - advocates also contended that the designation of advocates as senior advocates is not a justiciable matter; that the Full Court has considered the suitability of advocates for being designated as senior advocates and on that basis, the designation has taken place. Moreover, the prevalent Norms are an inbuilt check on the exercise of power under Section 16(2) of the Act and so long as the designation has been made in accordance with -: 55 :- the prevalent Norms, there can be no interference in the matter, was the submission.
32. Sri D.N.N.Reddy, learned senior counsel, appearing for respondent No.7 in W.P.No.36789/2014 submitted that the said respondent did not make any application and his consent was sought by one of the Hon'ble Judges for the purpose of considering his name as a senior advocate. The Full Court has taken a decision to designate him as a senior advocate by a majority vote. This is based on the subjective satisfaction of the individual Judges. The same cannot be justiciable in a Court of law, was the submission.
33. In reply, Sri T.N.Raghupathy, contended that reference made to the procedure adopted by the Court in New South Wales Australia by learned counsel for respondent Registrar General is not correct, as in India senior advocates are made by -: 56 :- designation by the High Court whereas, in New South Wales, it is by appointment in which case, there has to be an application. There is also a consideration by the Bar Association therein, which is not so in India and therefore, the procedure in New South Wales and in India are not analogous. He submitted that ultimately, the spirit of Section 16(2) of the Act must be followed. But, the statement of objections filed on behalf of the Bar Association clearly reveals the feelings of the Bar and that the designation of advocates on two different dates and selection of only a few advocates for being considered for designation on 26/06/2014 was not correct, was his submission. He therefore contended that the impugned designations may be quashed and the matter may be reconsidered.
34. Sri N.Devhadass, learned senior counsel in his reply reiterated that there is unexplained hurry in -: 57 :- considering only a few names in the first instance leaving aside the other applications filed by the other applicants and that is the main grievance of the Bar. He submitted that the records could be looked into to ascertain as to why only names of a few advocates were considered in the first instance leaving aside the other applications. Therefore, petitioners counsel prayed for grant of relief in the writ petitions.
35. Learned counsel have referred to certain decisions in support of their submissions, which would be adverted to later.
36. After the matter was reserved for judgment on 10/07/2015, a Memorandum was filed for withdrawal of statement of objections filed on behalf of the advocates' Association, Bengaluru. Objections have been filed to the said Memorandum, arguments were heard after re-listing the matter before the Court -: 58 :- and orders on withdrawal of the statement of objections filed on behalf of the Association are also reserved. This aspect shall also be considered later. Points for consideration:
37. On hearing learned Counsel, the following points would arise for our consideration:-
1) Whether, in the absence of
rules/regulations being framed
under Section 16(2) of the Act,
this Court had no jurisdiction to
designate advocates, as senior
advocates?
2) Whether the designation of the
respondent - advocates as
senior advocates is in
accordance with Section 16(2)
of the Act or not?
3) What order?
-: 59 :-
38. Pursuant to the Full Court meeting held on 26/06/2014, Notification dated 30/06/2014 has been issued. With effect from the date of Notification four advocates were designated as senior advocates namely: Sri Sajan Poovayya, Sri Aditya Sondhi, Sri K.Shashi Kiran Shetty, Sri Prabhuling K. Navadgi. The names of Sri Raveendra Kolle, Sri Hashmath Pasha, Sri. B.K.Sampath Kumar, advocates were also considered on that day but as they did not secure a simple majority of votes of the judges present, they were not designated.
39. Pursuant to the Full Court meeting held on 11/07/2014, Notification dated 14/07/2014 was issued under Section 16(2) of the Act designating the following eleven advocates as senior advocates w.e.f. the date of the said Notification: Sri M.N.Seshadri, Sri R.L.Patil, Sri V.Lakshminarayana, Sri D.L.Jagadeesh, Sri M.B.Naragund, Sri G.Krishna -: 60 :- Murthy, Sri Y.R.Sadasiva Reddy, Sri M.V.Seshachala, Sri B.M.Shyam Prasad, Sri Vivek Subba Reddy, and Sri M.Dhyan Chinnappa.
40. There were eleven other advocates whose names were also considered on 11/7/2015 by the Full Court. As they did not secure the requisite number of votes, they were not designated as senior advocates.
41. The Norms fixed by the High Court of Karnataka under Section 16(2) of the Act, as amended by the Full Court resolution dated 13/02/2014 reads as under:-
"1.The name of an advocate for being designated as a senior advocate may be sponsored in any of the following ways:-
(i) by the Chief Justice or any of the Judges of the High Court:
(ii) by any two senior advocates:-: 61 :-
(iii) by an application made by the advocate desiring to be designated as such.
Provided that in case of (i) and (ii) above, written consent of the advocate concerned shall accompany the proposal and in all the three cases the advocate concerned shall append his certificate that he has not applied to any other High Court for being designated as senior advocate and that no application of his has been rejected by the High Court within the period of two years period prior to the date of the proposal or application.
2. The chief Justice and Judges may by simple majority of judges present at the Full Court meeting decide to designate such an advocate as a senior advocate, if in their opinion by virtue of his ability, experience, and standing at the Bar he deserves such a distinction.
3. The advocate to be designated as senior advocate:
-: 62 :-
(i) should have a minimum standing 15 years of active practice in the Courts;
(ii) should be an Income Tax Assessee for 10 years preceding the date of consideration of his case for designation as senior advocate.
(iii) the annual gross income through legal profession should not be less than Rs.3 lakhs for the past 5 years.
(iv) The decision regarding designation of advocates as senior advocates, shall be taken by Secret ballot.
(v) To give due weightage to the advocates who have done a certain minimum number of cases as a Legal Aid Counsel.
4. A proposal once rejected shall not ordinarily be renewed for another two years.
5. The Registrar shall notify the result of the proposal to the advocate concerned. Where the proposal is accepted, intimation shall also be sent to the High Court Bar Association, Bar Council, Karnataka, Bar -: 63 :- Council of India and the Registrar, Supreme Court of India."
42. At the outset, it is noted that the existing Norms have not been assailed in these writ petitions. Only the Notifications dated 30/06/2014 and 14/07/2014 have been assailed. In both the writ petitions, directions have been sought for the framing of new norms or rules in consonance with Section 16(2) of the Act and thereafter, to reconsider the respondent - advocates for designation as senior advocates, by orally contending that the Norms are not in accordance with Section 16(2) of the Act.
43. Thus, at this stage, it is inferred that on the one hand, there is no challenge to the existing norms in the pleadings although, during the course of submission it was vaguely submitted that the norms are not in accordance with Section 16(2) of the Act. On the other hand, the petitioners are seeking fresh -: 64 :- Norms or Rules to be framed for the purpose of Section 16(2) of the Act and to thereafter to reconsider the names of respondent - advocates.
44. Section 16 of the Act reads as under:-
"16. Senior and other advocates.-(1) There shall be two classes of advocates, namely, senior advocates and other advocates.
(2) An advocate may, with his consent, be designated as senior advocate if the Supreme Court or a
High Court is of opinion that by virtue of his ability standing at the Bar or special knowledge or experience in law he is deserving of such distinction.
(3) Senior advocates shall, in the matter of their practice, be
subject to such restrictions as the Bar Council of India may, in the interest of the legal profession, prescribe.
-: 65 :-
(4) An advocate of the Supreme Court who was a senior advocate of the Court immediately before the appointed day shall, for the purposes of this section, be deemed to be a senior advocate:
Provided that where any such senior advocate makes an application before the 31st December, 1965 to the Bar Council maintaining the roll in which his name has been entered that he does not desire to continue as a senior advocate, the Bar Council may grant the application and the roll shall be altered accordingly."
Re: Point No.1:
45. On the petitioner's side, it was seriously contended that in the absence of rules being framed under Section 16(2) of the Act, this Court had no power to designate advocates as senior advocates. It was contended that when steps were taken for the -: 66 :- drafting of new rules, this Court, prior to the promulgation of the new rules could not have designated advocates as senior advocates. In substance, the contention of the petitioners was that in the absence of the rules being made under Section 16(2) of the Act, this Court was not empowered to make the impugned designations. On behalf of the respondents it was submitted that even in the absence of rules, this Court could exercise power under Section 16(2) of the Act. Also, in the instant case, the prevalent Norms were applied and therefore, it was not a case of total absence of guidance. It was contended that Section 16(2) of the Act had sufficient criteria engrafted in it, which was a substantial guide for the purpose of expressing an opinion by the Court in the matter of designation of an advocate as a senior advocate.
-: 67 :-
46. In this regard, learned senior counsel, Sri Udaya Holla, submitted that even if a particular statute prescribes framing of rules for exercise of powers under the statute, the absence of rules would not bar exercise of power under the statute. In this regard, the following citations were adverted to:-
(a) Orissa State (Prevention & Control of Pollution) Board vs. Orient Paper Mills and Another [2003 (10) SCC 421] - The said case arose under Section 19 of Air (Prevention and Control of Pollution) Act, 1981. The State Government under Section 19 of the said Act could exercise power to declare any area as air pollution control area. In the absence of rules prescribing the manner for declaring an area to be an air pollution control area, whether publication of a valid notification under Section 19(1) in the Official Gazette was legal or not, was the question. The Hon'ble Supreme Court held that non -: 68 :- framing of rules does not curtail the power of the State Government and by virtue of Section 19 of the aforesaid Act, State Government was authorized to declare any area as air pollution control area by means of a notification published in the Official Gazette. It also held that simply because rules have not been framed prescribing the manner of declaration of air pollution control areas, it would not render Section 19 inoperative. Thus, when a power is vested in an authority under the statute, it would not cease to exist simply for the reason that rules have not been framed or the manner of exercise of power has not been prescribed, were the observations of the Hon'ble Court.
In the aforesaid case, it has been also held that if rules are framed, the powers so conferred on authority could be exercised in accordance with the rules. But if no rules are framed, the authority is not -: 69 :- precluded from exercising the powers conferred under the statute. It was further held that if the legislative intent is that until the rules are framed, there could be no exercise of power, then the said intent would be expressly made in the statute. But in the absence of any such express provision, framing of rules cannot be a condition precedent for exercise of power under a statute.
(b) In Jantia Hill Truck Owners Association vs. Shailang Area Coal Dealer and Truck Owner Assocaition and others [2009 (8) SCC 492], the Hon'ble Supreme Court held that it is a well settled principle of law that even in a case where the statute provides for certain things to be done, subject to rules, any action taken without framing the rules would not render that action invalid. If a statute is workable even without framing of the rules, the same -: 70 :- has to be given effect to. The law, except in certain situations, does not envisage a vacuum.
(c) It has also been observed in Union of India and Others vs. Majji Jangamayya and Others [(1977) (1) SCC 606], in the context of Article 309 of the Constitution, that in the absence of a specific rule made under that Article, the prevalent practice could be taken into consideration. Similarly, in the absence of statutory rules, executive orders or administrative instructions could be made.
(d) In P.H.Paul Manoj Pandian vs. P.Veldurai [(2011) 5 SCC 214], it has been observed that once a law occupies the field, it will not be open to the State Government in exercise of its executive power under Article 162 of the Constitution, to prescribe in the same field an executive order. However, it is well recognized that in matters relating -: 71 :- to a particular subject, in the absence of any Parliamentary legislation on the said subject, the State Government has jurisdiction to act and to make executive orders, where the subjects are in List II or III of the VII schedule of the Constitution. The executive power of the State would, in the absence of legislation, extend to making rules or orders regulating the action of the executive. But, such orders cannot offend the provisions of the Constitution and should not be repugnant to any enactment of the Parliament. Subject to these limitations, such rules or orders could relate to matters of policy, may make classification and may determine the conditions of eligibility for receiving any advantage, privilege or aid from the State.
(e) Then the question would arise as to whether rules if made, should be in any particular form. In Chandrakant Sakharam Karkhanis and Others vs. -: 72 :- State of Maharashtra and Others [AIR 1977 Bom. 193 (FB)], with reference to Article 309 of the Constitution, it has been held that circulars, orders or resolutions or parts thereof, laying down the rules or principles of general application, which have to be observed in the recruitment or fixation of seniority of Government Servants generally or a particular class of them, and which have been duly authenticated by a signature under the endorsement of the Governor of the particular State and intended to be applicable straightway can amount to rules framed in exercise of the powers conferred under the proviso to Article 309 although the said circulars, orders or regulations do not expressly state that the same were made or issued in exercise of the powers conferred under proviso to Article 309 and are not published in the Official Gazette.
-: 73 :-
It was also held that no particular form is necessary in which rules under proviso to Article 309 should be framed and rules governing recruitment and service conditions framed under proviso to Article 309 could take any form of either a letter or a circular, order or resolution. It is not necessary that these should be styled as rules framed under the proviso to Article 309 of the Constitution.
(f) Similarly, in High Court of Gujarat vs. K.K.Parmar [1992 (2) G.L.H. 379], it has been held that Article 229 (2) of the Constitution nowhere prescribes or indicates any particular form in which a rule should be framed nor does it prescribe any form to be gone through. Though this judgment has been modified by the Hon'ble Supreme Court in [2006 (5) SCC 78], the aforesaid observations has not been modified or commented upon by the Apex Court. -: 74 :-
47. Thus, what emerges from the aforesaid judicial precedents is that exercise of power under a provision of a statute is not dependent upon the framing of rules unless, the legislative intent is, to the contrary. If the Parliament prescribes in the statute itself, that no action shall be taken under a particular provision of a statute until and unless rules are framed in that regard, then the authority concerned is precluded from exercising powers under the statute. In the instant case, Section 16 does not prescribe any such Parliamentary intention. Under the Act, sub-section (1) of Section 34 states that the High Court may make rules laying down conditions, subject to which, an advocate shall be permitted to practice in the High Court and the Courts subordinate thereto. The expression "advocate" in sub-section (1) of Section 34 means "an advocate entered in any roll under the provisions of the Act [Section 2(1)(a)]. -: 75 :- Sub-section (1) of Section 34 is not a mandatory provision but is directory in nature. Also, the said provision deals with advocates in general and not with the aspect of designation of advocates as senior advocates. Designation of senior advocates is in Section 16(2) of the Act. Therefore, it is not incumbent upon the High Court to frame rules before designation of an advocate as a senior advocate could be made by it. On the other hand, the aforesaid judgments clearly enunciate that when a statute prescribes making rules for exercise of power or taking any action under a particular provision, in the absence of rules being framed, exercise of power is not illegal. That apart, as far as this Court is concerned, Norms have been framed and amended from time to time. The prevalent Norms have been applied in the case of the impugned designations. Therefore, it is not a case of there being absolutely no -: 76 :- guidance to the Full Court in the matter of designation of the respondent - advocates. The impugned designations have not been made in a vacuum. Whether the designations are made bypassing the ingredients in Section 16(2) of the Act, which itself enunciates the essential criteria required for the designation of an advocate as a senior advocate, is an aspect which is also discussed.
48. The Act recognizes two classes of advocates, who are eligible to practice namely, senior advocates and other advocates. Initially, all law graduates, who are enrolled at the Bar council are called as advocates. With the passage of time, an advocate could be designated as a senior advocate. The designation could be made either by the Supreme Court or the High Court. If in the opinion of the Court, an advocate is, by virtue of (i) his ability and
(ii) standing at the Bar or special knowledge or -: 77 :- experience in law, is deserving of such distinction, he/she could be conferred such distinction, with the consent of that advocate. The crucial ingredients of Section 16 (2) are as follows: (a) opinion of the Supreme Court or High Court on (i) ability of an advocate; (ii) standing at the Bar or special knowledge or experience in law of the advocate, (b) by virtue of which, he or she is deserving of a distinction of a designation as a senior advocate and
(c) consent of the advocate for being designated as a senior advocate. Thus, the opinion of the Supreme Court or the High Court must be on two aspects, namely, ability of the advocate and standing at the Bar or special knowledge or experience in law, and the opinion must be towards an advocate deserving conferment of a distinction as a senior advocate.
49. The expression "ability" relates to competence or capacity of an advocate. The -: 78 :- advocate's competence vis-à-vis his knowledge of law, manner of conducting cases, advocacy skills in Court and such other aspects which would encompass the expression "professional competence" is to be considered. The expression "standing at the Bar or special knowledge or experience in law" would mean that a person, who has the ability, must also have a professional standing at the Bar. By this, it means that the advocate, apart from being competent and able, is known for his professional integrity, a person who would uphold and follow professional ethics and would generally be a person of impeccable reputation. In short the expression "ability and standing at the Bar" have been used in Section 16(2) of the Act, to relate to not only competence, but also to the reputation and qualities of the advocate to be designated as a senior advocate. Thus, the advocate, who has not only the ability or professional capacity -: 79 :- but who also has standing at the Bar i.e., who possesses the requisite qualities of a senior advocate, a person who upholds professional ethics, and who, in the opinion of the Supreme Court or the High Court, deserves to be designated as a senior advocate, may be so designated after seeking his or her consent.
50. What emerges is that even if an advocate has ability in practice but has no standing at the Bar, cannot be designated as a senior advocate. Conversely, an advocate may have a standing at the Bar but who does not have the ability and professional competence cannot also be conferred the distinction of a senior advocate. Parliament has been conscious to include not only professional competence of an advocate but has also taken into consideration professional ethics for the purpose of conferment of designation as a senior advocate. Therefore, even if an advocate has the ability but has no standing at the -: 80 :- Bar or lacks integrity and character, cannot be designated as a senior advocate. In the same way, an advocate who may have a standing at the Bar, may be ethically good, but not having professional ability, cannot also be designated as a senior advocate.
51. Thus, professional ability or competence and standing at the Bar, are two sides of the same coin and it is only when an advocate, in the opinion of the Supreme Court or High Court possesses both these virtues, he or she could be designated as a senior advocate and he would deserve such a distinction. If either of the two aspects is absent in an advocate he/she cannot be conferred the designation as a senior advocate. In our view, Section 16(2) of the Act enshrines sufficient guidelines for the purpose of forming an opinion by the Supreme Court or the High Court in the matter of designation of an advocate as a senior advocate. Ability and professional -: 81 :- competence and standing at the Bar are matters which have to be taken into consideration by the Court while considering the name of a particular advocate for being designated as a senior advocate, as almost every Judge would have assessed the qualities of an advocate on a daily basis, as and when the advocates appears before a particular Court. With regard to qualities of an advocate, it would be useful to quote Chief Justice Warren E.Burger, of the Supreme Court of United States of America and Sri.Nani A Palkhivala, an eminent jurist of this Country:
"76.1 ... lawyers who know how to think but have not learned how to behave are a menace and a liability not an asset to the administration of justice. . . . I suggest the necessity for civility is relevant to lawyers because they are the living exemplars--and thus teachers--every day in every case and in every court; and their worst conduct will -: 82 :- be emulated . . . more readily than their best."
Warren E. Burger Address, American Law Institute, Washington, D.C., reported in the National Observer, May 24, 1971 76.3. A truly qualified advocate--like every genuine professional--resembles a seamless garment, in the sense that legal knowledge, forensic skills, professional ethics, courtroom etiquette and manners are blended in the total person. There are some lawyers who scoff at the idea that manners and etiquette form any part of the necessary equipment of the courtroom advocate. Yet if one were to undertake a list of the truly great advocates of the past 100 years, I suggest he would find a common denominator: They were all intensely individualistic but each was a lawyer for whom courtroom manners were a key weapon in his arsenal. Whether engaged in the destruction of adverse witnesses or undermining damaging evidence or in final argument, the -: 83 :- performance was characterized by coolness, poise, and graphic clarity, without shouting or ranting, without baiting witnesses, opponents or the judge.-
Warren E. Burger Lecture, Fordham University Law, School, reported in the Los Angeles Times, December 28, 1973 (Source - "LEGAL ETIQUETTE", "THE QUOTABLE LAWYER", Edited by David Shrager and Elizabeth Frost.) "The legal profession at the highest level develops absorptive and analytic capacities of the human mind and offers great intellectual stimulus.
It is no small service to be called upon to defend life, liberty and the other fundamental rights.
But a rare degree of equipment is needed to discharge such duties properly. A lawyer with a well-
furnished mind alone can be truly a counsellor at law; he alone can, not merely look up precedents, but guide -: 84 :- his client along the path of wisdom, even of generosities which may appear irrelevancies to the preoccupied client. In the hands of such a lawyer, the law represents the application of reason to noble and purposeful ends."
(Source: "Professionally speaking" All India Radio, Bombay, December 23, 1968 - "WE, THE PEOPLE,"
Edited by Nani A. Palkhivala.)
52. In E.S.Reddi vs. The Chief Secretary, Government of A.P. [AIR 1987 SC 1550], it has been held that by virtue of the pre-eminence which senior counsel enjoy in the profession, they not only carry greater responsibilities but they also act as a model to the junior members of the profession. A senior counsel more or less occupies a position akin to a Queen's counsel in England next after the Attorney General and the Solicitor General. It is an honour and privilege conferred on advocates of standing and -: 85 :- experience by the Chief Justice and the Judges of the Supreme Court. They thus become leading counsel and take precedence on all counsel not having the rank. Senior advocates on designation, are subject to certain restrictions which the Bar Council of India would prescribe. Those restrictions are in the interest of legal profession.
53. But, in order to illustrate what is contemplated in Section 16(2) of the Act, this Court thought it fit to frame certain Norms for the purpose of designation of advocates under Section 16(2) of the Act. Briefly speaking, the Norms are on the following aspects: certain norms are regarding the procedure to be followed for designation of an advocate as a senior advocate; while certain other norms relate to the criteria mentioned in Section 16(2) of the Act. -: 86 :-
54. Clause (1) of the norms deals with the sponsorship of an advocate for being designated as a senior advocate. An advocate could be sponsored (i) by the Chief Justice or any of the Judges of the High Court; or (ii) by any two senior advocates; or (iii) by the advocate concerned himself or herself making an application for being designated as a senior advocate. In the case of first two kinds of sponsorship, written consent of the advocate concerned must accompany the proposal and in all the three cases, the advocate concerned must certify that he has not applied to any other High Court for being designated as a senior advocate and that no application has been rejected by the High Court within a period of two years prior to the date or proposal or application. The object of Clause (1) of the norms is to provide three different avenues for an advocate to be designated as a senior advocate. The initiative for designation of an -: 87 :- advocate as a senior advocate could be from any member of the Bench or, from two senior advocates of the Bar or, by the advocate concerned, suo motu seeking such a designation by making an application. We do not find any legal lacuna in prescribing three different avenues for initiation of the process of designation of an advocate as a senior advocate. The judges of this Court or the senior advocates at the Bar may not have bestowed their attention on a particular advocate for the purpose of designation as a senior advocate. In such a situation an advocate may bring to the notice of the Court his candidature for designation as a senior advocate. This cannot be condemned as an instance of hankering for designation. It is simply an avenue/channel of receiving names by the Court for the purpose of consideration for designation as a senior advocate. In the case of Clause 1(iii), an advocate may also -: 88 :- enclose recommendatory letters from senior advocates in support of his application.
55. Clause (2) and (3)(iv) of the Norms prescribes the manner in which the designation may be made. It is by a secret ballot on the basis of simple majority of the Judges present and voting in the Full Court meeting held to designate an advocate as a senior advocate in terms of Section 16(2) of the Act. Such a majority could be discerned by an open ballot, by voice vote or show of hands or by a secret ballot, which makes no difference to the result. But, when there are differences of opinion amongst the Chief Justice and the Judges of the Court vis-à-vis, designation of an advocate as a senior advocate in our view, it is prudent to have a secret ballot rather than having a voice vote, so as to maintain a cordial atmosphere during the Full Court Meeting and have a free play of independent judgment. Therefore the -: 89 :- norm prescribing secret vote is, in our view, just and proper.
56. Norm (3) prescribes certain qualifications to be possessed by an advocate seeking designation as a senor advocate. They are: (i) should have a minimum standing of 15 years of active practice in the Courts; (ii) should be an Income Tax assessee for 10 years preceding the date of consideration of his case for designation as senior advocate. (iii) the annual gross income through legal profession should not be less than Rs.3 lakhs for the past 5 years. (iv) To give due weightage to the advocates who have done a certain minimum number of cases as a Legal Aid counsel. The aforesaid parameters are only illustrative and not exhaustive of what is stated in Section 16(2) of the Act. Despite an advocate possessing the aforesaid qualifications, he may still not be designated as a senior advocate as it is a matter of opinion to be -: 90 :- formed by the High Court. This is a matter of subjective satisfaction of the High Court expressed by a simple majority of the judges present at the meeting and voting.
57. Norm (4) states that a proposal once rejected shall not ordinarily be renewed for another two years. This cooling off period is provided in order to give an opportunity to the concerned advocate so that, after a period of two years, the Court may form an opinion regarding such advocate.
58. Norm (5) is a procedural matter concerning intimation of the advocates designated as senior advocates to the High Court Bar Association, Bar Council, Karnataka, Bar Council of India and the Registrar, Supreme Court of India. A notification with regard to the resolution of the proposals would have -: 91 :- to be issued by the Registrar on completion of the procedure referred to in the norms.
59. In Basant Kumar Choudhary vs. Union of India and Others [2005 SCC Online Pat. 196], before a Division Bench of the Patna High Court, the Rules framed for designation of the senior advocates were challenged but the writ petition was dismissed by holding that Rule 2 of the said High Court Rules was in conformity with Section 16(2) of the Act. Similarly, Rule (1) was held to be in accordance with Section 16(2) of the Act. The other rules provided for manner of making the application.  Rule 1 of the aforesaid Rules provided that the Chief Justice and the Judges may with the consent of an advocate, designate an advocate as a senior advocate if in their opinion by virtue of his ability, experience and -: 92 :- standing at the Bar, the said advocate was deserving of such distinction. Rule 3 required an application by an advocate while Rule 1 provided that the Chief Justice and Judges on the basis of their opinion and with the consent of the advocate could confer the distinction. It was held that consent of the advocate was required because the moment he is designated as a senior advocate, he would be under restrictions and a person may not like to become a designated advocate as he would not like to be under certain restrictions. But under Rule 3 of the said Rules, when an application was made by an advocate seeking conferment of such a distinction, such a consent was not necessary for, making of the application by an advocate itself implied that he was agreeable to conferment of the distinction.
60. In the said decision, it was also held that if there is any difference of opinion with regard to -: 93 :- conferment of distinction on an advocate, as a senior advocate, then the democratic process of secret voting could be resorted to and if the majority of the Judges decided that a particular advocate must be conferred the designation, then the said conferment could be decided by a simple majority.
61. In V.G.Tamaskar vs. High Court of Chattisgarh & Others [W.P.No.2581 of 2005 decided on 27/07/2005], a Division Bench of Judicature at Chattisgarh had an occasion to consider Section 16(2) of the Act. In that case also, the designation of certain advocates as senior advocates was questioned. In that case, it was held that Section 16 (2) quoted above does not say that the High Court has to follow the rules that may be prescribed by the High Court. Section 16 (2), however, itself prescribes the norms to be kept in mind by the High Court for designating an advocate as a senior advocate. It will -: 94 :- be clear from the aforesaid provision in Section 16(2) of the Act that only if the High Court was of opinion that by virtue of his ability, standing at the Bar or special knowledge or experience in law he is deserving of the distinction of a senior advocate, such advocate may with his consent be designated as senior advocate. Hence ability or standing at the Bar or special knowledge or experience in law are the norms for designating an advocate as senior advocate. The expression "if the High Court is of the opinion" used in Section 16 (2) of the advocates' Act, 1961 would further clarify that it is the opinion of the High Court about the ability, standing at the Bar or special knowledge or experience in law of an advocate which is relevant for the purpose of deciding as to who should be conferred for designation of senior advocate or not.
-: 95 :-
62. It was further held that unless, the said opinion is shown to be vitiated by mala fide or extraneous considerations, this Court in exercise of its powers under Article 226 of the Constitution will not interfere with the same.
63. In the circumstances, we hold that in the absence of framing of Rules or Regulations under Section 16(2) of the Act, this Court was empowered to designate respondent - advocates as senior advocates. Accordingly, point No.1 is answered. Re: Point No.2:
64. In order to answer this point, we have perused the records which we have secured from the Registry of this Court. In the year 2011, the Registry of this Court had received names of certain advocates for being designated as senior advocates. In respect of some advocates, certain Hon'ble Judges had -: 96 :- recommended them; while in respect of certain other advocates, certain senior advocates had recommended them for being designated as senior advocates; while some other advocates had made their individual requests for being designated as senior advocates.
65. Having regard to Section 16(2) of the Act, and the Norms made there under by this Court, meeting of the Committee to consider suitability of advocates to be designated as senior advocates was convened on 17/11/2011 and it was noted that totally, 22 advocates (18+4) had submitted their particulars for designation as senior advocates. No decision was taken by the Committee on that date. Subsequently, meeting of the Committee was held on 12/06/2012 wherein, it was resolved to recommend to the Full Court for laying down guidelines for consideration of the advocates to be designated as senior advocates. -: 97 :- It was further resolved to proceed with the finalization of process of designating senior advocate on pending applications. The Full Court at its meeting held on 14/12/2012 resolved to direct the Registrar General to secure the rules and guidelines framed by the other High Courts, regarding designation of senior advocates as per Section 16(2) of the Act and also, any procedure adopted by other High Courts in that regard. A communication was addressed to all the High Courts in the Country by the Registrar General of this Court requesting to furnish a copy of the norms/guidelines, if any, framed by those Courts regarding designating the advocates as senior advocates and also to intimate whether there was any Committee constituted in that regard or the same was being considered by the Full Court or by the Hon'ble Chief Justice and also the procedure that was being followed by those Courts. In response, certain High -: 98 :- Courts through their Registrar General had submitted the requisite details to the Registrar of this Court. The matter was later placed before the Full Court for consideration. Thereafter, the then Hon'ble Chief Justice suggested that the Committee constituted to consider the suitability of advocates for designation as senior advocates may also frame rules pertinent to such designation.
66. When the matter stood thus, on 17/09/2012, three advocates out of fifteen advocates were designated as senior advocates.
67. On reconstitution of the aforesaid Committee, it was resolved at its meeting held on 13/03/2014 that a new Committee of atleast three Hon'ble Judges may be constituted to propose draft norms and guidelines or draft rules for the purpose of designation of an advocate as senior advocate by the -: 99 :- High Court in terms of Section 16(2) of the Act. It was further resolved that the Hon'ble Chief Justice shall constitute such a Committee, which shall deliberate and prepare the draft for being placed before the Full Court for approval after inviting suggestions, if any, from the members and leaders of the Bar as also, after taking into consideration the comparative rules framed by the other High Courts. A Committee of three Hon'ble Judges was constituted by the Hon'ble Chief Justice to propose draft norms and guidelines or draft rules for the purpose of designation of an advocate as senior advocates. The said Committee requested certain senior advocates and office bearers of Karnataka State Bar Council and the advocates' Association, Bengaluru, to attend the meeting. Thereafter, on 26/03/2014, it was resolved to place the draft norms or guidelines and rules prepared and finalized by the Committee before the -: 100 :- Full Court for approval. The Full Court on 24/04/2014 deferred the matter by inviting suggestions and modifications from other Hon'ble Judges to be given before the next Full Court meeting, as by then, only Hon'ble Anand Byrareddy J had submitted a note on the suggestions. The Full Court once again deferred the matter on 26/06/2014. By then, Hon'ble Kumar.J had submitted a Note regarding age of senior advocates to be designated.
68. In the meanwhile, only two advocates namely, Mr.Raveendra Kolle and Sri Prabhuling K.Navadgi, had submitted their particulars for being designated as senior advocates. The Hon'ble Chief Justice directed their names to be placed before the Committee for consideration. Subsequently, Sri Hashmath Pasha and Sri Aditya Sondhi, advocates, had submitted their applications for designation as senior advocates.
-: 101 :-
69. On 24/04/2014, the Full Court had resolved that the recommendation for designating Sri Sajan Poovayya, as senior advocate, by Hon'ble Mr.Justice Ashok B.Hinchigeri, may be placed before the Committee constituted to consider the suitability of advocates for designation of senior advocates along with the pending representation/requests of advocates for taking a decision in the matter. The applications/requests of the aforesaid advocates were considered by the said Committee by its meeting held on 16/06/2014 and the said Committee resolved to refer to the Full Court the aforesaid five names whose applications were received for being designated as senior advocates along with any other application received in the meantime. The resolution reads as under:
"Discussed. The Committee resolved to refer to the Full Court the aforesaid five names whose applications -: 102 :- are received for being designated as senior advocates along with any other application received in the meantime." Hon'ble Kumar J submitted his clarificatory Note to the aforesaid Resolution, as a member of the Committee.
70. Sri K.Shashi Kiran Shetty and Sri V.Sudhish Pai, and Sri.B.K.Sampath Kumar, advocates, submitted their applications for being designated as senior advocates, but Sri.V.Sudhish Pai withdrew his application. Accordingly, a list of seven advocates namely: Sri Raveendra Kolle, Sri Prabhuling K. Navadgi, Sri Hashmath Pasha, Sri Aditya Sondhi, Sri Sajan Poovayya, Sri K.Shashi Kiran Shetty, Sri B.K.Sampath Kumar were ordered to be placed before the Full Court to be held on 26/06/2014 by order of the Hon'ble Chief Justice. Accordingly, the names of the aforesaid seven advocates were placed before the Full Court for consideration on 26/06/2014 -: 103 :- and the Full Court resolved to designate the following four advocates as senior advocates, as they had secured more than 50% of the votes cast in the secret ballot, namely:- Sri Sajan Poovayya, Sri Aditya Sondhi, Sri K.Sashi Kiran Shetty, Sri Prabhuling K. Navadgi.
71. It is noted that subsequently, 22 advocates submitted their applications requesting designation as senior advocates. They are as under:
Date of
Sl. Application
No. Name of the advocate for
Designation
as senior
advocate
01 Sri.M.N.Seshadri 30.06.2014
02 Sri Kulkarni Shankar Pampaji 30.06.2014
03 Sri R.L.Patil 24.06.2014
04 Sri V.Lakshminarayana 30.06.2014
05 Sri M.R.C.Ravi 07.07.2014
06 Sri D.L.Jagadeesh 07.07.2014
07 Sri Pradeep S.Sawkar 25.06.2014
-: 104 :-
08 Sri M.B.Nargund 24.06.2014
09 Sri G.Krishna Murthy 02.07.2014
10 Sri B.C.Thiruvengadam 07.07.2014
11 Sri V.Y.Kumar 30.06.2014
12 Sri M.S.Bhagwat 24.06.2014
13 Sri Y.R.Sadasiva Reddy 01.07.2014
14 Sri M.V.Seshachala 02.07.2014
15 Sri N.Raveendranath Kamath 28.06.2014
16 Sri Gurudas S.Kannur 25.06.2014
17 Sri B.V.Shankara Narayana 26.06.2014
Rao
18 Sri K.N.Phanindra 24.06.2014
19 Sri B.M.Shyam Prasad 30.06.2014
20 Sri Vivek Subha Reddy 01.07.2014
21 Sri M.Dhyan Chinnappa 30.06.2014
22 Smt.Jayna Kothari 02.07.2014
72. Those advocates, except one advocate, were considered by the Full Court on 11/07/2014 and it was resolved that eleven advocates could be designated as senior advocates and on 11/07/2014, the following eleven persons were designated as senior advocates, as they had secured a simple -: 105 :- majority of the votes cast and Notification dated 14/07/2014 was issued. The consideration in respect of Smt.Jayna Kothari, advocate was deferred. The names of eleven advocates designated as senior advocate are as under: Sri M.N.Seshadri, Sri R.L.Patil, Sri V.Lakshminarayana, Sri D.L.Jagadeesh, Sri M.B.Nargund, Sri G.Krishna Murthy, Sri Y.R.Sadasiva Reddy, Sri M.V.Seshachala, Sri B.M.Shyam Prasad, Sri Vivek Subba Reddy, Sri M.Dhyan Chinnappa. Notification dated 14/7/2014 was thereafter issued.
73. Narration of the above said facts would clearly reveal that the name of only seven advocates were considered by the Full Court on 26/06/2014, pursuant to the resolution of the Committee dated 16/06/2014 and accordingly, those names were considered as they were the only advocates to be considered. It is also noted that Hon'ble Kumar J., had submitted his clarificatory note to Committee's -: 106 :- resolution dated 16/6/2014 as he was not in favour of the Full Court considering seven advocates only. But the majority of the members of the Committee were in favour of referring those names to the Full Court for its consideration. It is only thereafter, that twenty two advocates filed applications seeking designation as senior advocates. Those applications were considered by this Court on 11/07/2014 and eleven advocates were designated as senior advocates.
74. On perusal of the records, it is noted that on the one hand, a direction was issued to frame rules pertinent to the designation of advocates as senior advocates by the High Court, by the Hon'ble Chief Justice and the Committee was reconstituted for that purpose consisting of the Hon'ble Chief Justice and five Hon'ble Judges and considerable work was undertaken by the said Committee with regard to framing of Rules governing the designation of the -: 107 :- advocates as senior advocates by this Court. The said Committee which met on 13/03/2014, resolved that a new Committee of atleast three Hon'ble Judges be constituted to propose draft rules or norms for the purpose of designation of an advocate as senior advocate by this Court in terms of Section 16 of the Act. The Committee further resolved that the Hon'ble Chief Justice shall constitute such Committee. Accordingly, a new Committee of three Hon'ble Judges was constituted by the Hon'ble Chief Justice. This Committee requested certain senior advocates; Chairman and Vice-chairman of Karnataka State Bar Council, Bangalore and also the President and Secretary of the advocates' Association, Bangalore, to attend the meeting. The said Committee considered the draft Norms or Rules prepared by one of its members and the Committee resolved to place the draft Norms/Guidelines and Rules prepared and -: 108 :- finalized in the meeting before the Full Court for approval. The matter was placed before the Full Court 24/04/2014 and after discussion, it was resolved that if any other suggestion or modification was to be proposed by the Hon'ble Judges, the same must be given well in advance before the next Full Court meeting.
75. Thereafter, the Committee constituted to consider the matter with regard to designation of advocates as senior advocates met on 16/06/2014. That Committee resolved to refer to the Full Court the names of five advocates whose applications were received for being designated as senior advocates along with any other applications received in the meantime. The name of the five advocates are:- Sri Raveendra Kolle, Sri Prabhuling K.Navadgi, Sri Hashmath Pasha, Sri Aditya Sondhi, and Sri Sajan -: 109 :- Poovayya, who was recommended by Hon'ble Mr Ashok B.Hinchigeri J.
76. Hon'ble Kumar J., submitted his clarification to the Resolution dated 16/6/2014.
However, on the basis of the Resolution of the Committee dated 16/06/2014, the aforesaid names along with two other names were placed before the Full Court on 26/06/2014 and four advocates were designated as senior advocates in that meeting as they had secured more than 50% of the votes cast in their favour. This made 22 other advocates submit their applications for designation as senior advocates as adverted to supra. The names of those advocates were considered on 11/07/2015 and 15 advocates were designated on that day by following the same procedure. In fact, the Committee which was constituted with regarding to framing of Norms or Rules governing the designation of advocates as -: 110 :- senior advocates by the High Court was also part of the Committee constituted to consider the matter with regard to designation of advocates as senior advocates and the latter Committee resolved as above on 16/6/2014.
77. On going through the Resolutions of the said Committees it becomes clear that a decision was taken to refer the matter to the Full Court with regard to designation of advocates as senior advocates even prior to the finalization of new Norms or Rules by the concerned Committee. Merely because without completing the task of framing of Norms or Rules, by the Committee constituted for that purpose, certain advocates were designated as senior counsel, it cannot be termed to be an arbitrary or an illegal act or one lacking in transparency or any of the other "epithets" used in the pleadings. There was also no hurried or hasty decision taken in the matter. Having -: 111 :- regard to our answer to Point No.1 supra, we hold that the action of this Court in designating the respondent
- advocates as senior advocates was not unguided or in a vacuum. We also hold that although the Court had taken a decision to frame fresh Norms or Rules the designations impugned herein were made in a period of transition. Moreover, the Committee constituted to consider the suitability of advocates for designation of senior advocates had decided to place the names of all advocates before the Full Court for its decision. The same was followed even in the case of the 22 advocates, who were designated on 11/07/2014.
78. Section 16(2) states that designation of an advocate as a senior advocate must be pursuant to an opinion formed by the Supreme Court or the High Court, as the case may be. That means, all the Judges of the Supreme Court or High Court as the -: 112 :- case may be, present at a meeting called for that purpose. But in this Court, the Committee constituted by the Hon'ble Chief Justice to consider the suitability of the advocates for designation as senior advocates is entrusted with the function of scruitinizing the applications so as to ensure that those applications are in accordance with the norms framed by this Court. The Committee has no jurisdiction to dilate upon the suitability of the advocate in terms of Section 16(2) of the Act. Once the names of the advocates is placed before the Committee, it can at best scrutinize their applications and if held be proper, then the names of the advocates have to be forwarded to the Full Court of this Court, to form an opinion in terms of Section 16(2) of the Act. Therefore, the aforesaid Committee has no jurisdiction to consider the names of the advocates under Section 16(2) of the Act. Such a consideration could be made -: 113 :- only by this Court, in presence of all the Judges at the Full Court meeting held for that purpose. Thus, consideration of the names of the advocates by this Court on 26/06/2014 was in accordance with the resolution of the Committee. Also, the Full Court meeting was held to consider the names of 22 advocates who had submitted their applications and the same were considered on 11/07/2014. It is pertinent to note that almost all the applications of 22 advocates were filed subsequent to the Full Court meeting held on 26/06/2014.
79. Section 16(2) of the Act confers administrative power on the Hon'ble Supreme Court and the High Court to designate advocates as senior advocates. Designation of senior advocate by the Judges has to be made having regard to the contents of Section 16 (2) of the Act at the time of designating an advocate as a senior advocate. An elementary -: 114 :- principle in this regard is that, normally Courts, on the judicial side, would not interfere or probe into the merits of exercise of the discretion by an authority as it is not a forum to hear appeals from the decisions of the authority. Consequently, the question as to whether the opinion formed by an authority is right or wrong cannot be considered nor can the Court substitute its own views with that of the concerned authority. The authority having discretion has to draw its own conclusions upon the material before it. The Court also would not interfere with the subjective satisfaction of an authority before taking a decision in the matter unless there is irrelevant consideration, which has crept in to the decision making process. In fact, in any exercise of an administrative power, there would be two elements involved i.e., an objective element and a subjective element. Any decision based on subjective element i.e., subjective -: 115 :- satisfaction of the authority cannot be a matter for judicial review where the exercise of power is based on subjective satisfaction on certain and definite criteria which are stated in Section 16(2) of the Act. Thus, it is only the decision making process which can be assailed but not the merits of an administrative decision.
80. In Democratic Bar Association, Allahabad and Others vs. High Court of
Judicature at Allahabad and another [AIR 2000 Allahabad 300 (FB)], which is a decision of the Allahabad High Court, it has been held that the High Court has the power to frame rules under Section 34(1) r/w Section 16(2) of the Act.
On the exercise of the power under Section 16(2) of the Act, it has been observed as under:- -: 116 :- "30. From perusal for Section 16(2) of the Act, it is clear that High Court has to form an opinion about the ability, standing at the Bar or special knowledge or experience in law of an advocate and when he is found deserving, he is designated as senior advocate. Process of forming opinion by Hon'ble Judges of this Court is a continuous process based on the observation of the performance of the advocate in arguing cases before the Judge concerned. Such kind of opinion cannot be formed except by long and sustained observation for years. Opinion forming process is thus, objective. However, it is expressed in subjective manner by designating an advocate as senior advocate or by refusing to confer this distinction. The expression is subjective as Hon'ble Judges are not required to assign any reasons for such refusal. Opinion-forming is objective as the concerned advocate appears, argues his cases and his performance regarding ability, standing at the Bar and his -: 117 :- knowledge and experience of law is judged frequently by Hon'ble Judges. It cannot be disputed that function is necessarily administrative but it is statutory in nature. Whether such kind of statutory function, though administrative in nature, can be delegated. There is no doubt about the legal position that when any function is assigned to the High Court, the High Court means, Hon'ble the Chief Justice and all his companion Judges. Normally administrative functions and powers can be delegated in favour of coordinate authority or to a subordinate authority. However, when administrative function is statutory in nature and the function or the power is assigned under the statute, it should be performed or exercised by that authority unless the power to delegate such function or exercise of power is specifically provided or may be inferred by necessary implication from the provisions contained in the statute."
-: 118 :-
81. In the instant case, the opinion to be formed under Section 16(2) of the Act by the High Court is subjective. So long as the said opinion is in accordance with Section 16(2) of the Act, the opinion of the High Court to designate an advocate as a senior advocate is not a subject matter of judicial review in so far as the merits of the opinion is concerned.
82. Accordingly, we answer Point No.2 by holding that we do not find any infirmity in the Notifications dated 30/6/2014 and 14/7/2014 assailed in these writ petitions or with regard to the proceedings held for the purpose of Section 16(2) of the Act.
83. The only other aspect which remains is with regard to the controversy arising form the withdrawal of the statement of objections filed by the respondent
- advocates' Association, Bangalore. Having regard to -: 119 :- the answer given by us to the aforesaid points, we feel that it is not necessary to enter upon the merits of that controversy as it has now become wholly academic in nature. Therefore, we can only observe that the statement of objections initially supported the case of the petitioners but the withdrawal of the statement of objections shows that the Association would like to take a neutral stand in the matter. Withdrawal of the statement of objections does not in any way support the stand of the respondents nor does it cause any prejudice to the petitioners. The petitioners have not relied upon the statement of objections filed by the advocates' Association, Bangalore, in support of their case; they stand on their own contentions and submissions. We do not think that the petitioners in any way sought reliance on the stand taken by the advocates' Association, -: 120 :- Bangalore, to buttress their case. Hence, we express no opinion in the matter.
84. We also hold that no specific direction can be issued for framing of fresh Norms, Rules or Regulations under Section 16(2) of the Act. That is a matter left to the administrative decision of the Hon'ble Chief Justice and the Hon'ble Judges of the High Court. We specifically hold so, in view of our answer given to Point Nos.1 supra. In M/s.Narinder Chand Hem Raj and others vs. L.T.Governor, Administrator U.T. Himachal Pradesh [1971 (2) SC 747] it has been categorically held that no Court can issue a mandate to a Legislature to enact a particular law. Similarly, no Court can direct a subordinate legislative body to enact or not to enact a law which it may be competent to enact. In this context, reliance could be placed on A.K.Roy vs. Union of India [(1982) 1 SCC 271], State of H.P. vs. Parent of a student [(1985) 3 SCC 169] and Common Cause vs. Union of India [(2003) 8 SCC 250]. The relief sought by the petitioners -: 121 :- regarding issuance of a direction for framing of fresh norms, rules or regulations for designation of advocates as senior advocates is hence, declined. Liberty is reserved to the Hon'ble Chief Justice and Judges of this Court to take a decision in the matter.
85. Before parting, we observe that the designation of respondent - advocates as senior advocates, which have been impugned in these writ petitions have not been interfered with and remain intact. This verdict however, does not imply any judicial certification to the respondent - advocates, who have been designated as senior advocates about their future calibre. Ultimately, it is the Bar, which is the Judge of senior advocates, as it is the Judge of Judges, to form an opinion about the respondent - advocates. The passage of time would ultimately judge the respondent - advocates. It is our fond hope that the respondent - advocates, who have been designated as senior advocates would uphold the high traditions and ethics to be followed by them, as also, -: 122 :- the traditions of this Court and transmit, the best practices of the profession to the future generation of advocates, who would enter the portals of this august Court and various other Courts in the State. We also hope and trust that by this decision, the rancor if any, in a section of the Bar, is assuaged as a strong, unified Bar is essential for an independent judiciary.
"If the independent judiciary is the pillar of democracy, the Bar is the foundation of the independent judiciary. The Bar is the mother of the Bench and the bright mirror of the Judicial Officers whose image, character and conduct is correctly and visibly reflected therein, and it is for the Bench to nurse and nourish the merits of the Bar" - [Source - "ROLE OF THE BAR IN THE PROCESS OF ELEVATION" By: Justice R.J.Kochar, High Court of Bombay, Mumbai. (AIR 2003 Journal 357)].
86. In the result, the writ petitions are dismissed.
-: 123 :-
87. Parties to bear their respective costs.
Sd/-
ACTING CHIEF JUSTICE Sd/-
JUDGE *s/*mvs