Sunil Kumar Tripathi vs High Court Of Judicature At ...
2019 Latest Caselaw 5851 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

(A.F.R.)
 
Court No. - 34
 

 
Case :- WRIT - C No. - 21947 of 2019
 

 
Petitioner :- Sunil Kumar Tripathi
 
Respondent :- High Court Of Judicature At Allahabad And 77 Others
 
Counsel for Petitioner :- Sunil Kumar Tripathi (In Person)
 
Counsel for Respondent :- Ashish Mishra
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Rajeev Misra,J.

1. Heard Sri Sunil Kumar Tripathi, Advocate in person and Sri Ashish Mishra, learned counsel for respondents.

2. Petitioner, a practicing Advocate in this Court, has filed this writ petition under Article 226 of Constitution of India challenging notification dated 20.05.2019 issued by Registrar General of this Court under Section 16(2) of Advocates Act 1961 (hereinafter referred to as 'Act, 1961') designating 75 'Advocates' as 'Senior Advocates' with effect from 18.05.2019.

3. Facts, in brief, giving rise to the present writ petition are that petitioner obtained degree of L.L.B. from Banaras Hindu University and thereafter registered with Bar Counsel of Uttar Pradesh vide Enrollment No. U.P. 607 dated 12.03.1977. He claims that since then he is continuously practicing in this Court. However, he was registered as Member of High Court Bar Association on 15.01.2001.

4. Issue with regard to designation of Senior Advocates under Section 16 of Act, 1961 came up before Supreme Court in Indira Jaising Vs Supreme Court of India (2017) 9 SCC 766, Court laid down certain norms/guidelines with a direction to modify Rules relating to designation of 'Senior Advocates' by respective Courts. Directions/guidelines contained in para 73 of judgment read as under:-

"73. It is in the above backdrop that we proceed to venture into the exercise and lay down the following norms/guidelines which henceforth would govern the exercise of designation of Senior Advocates by the Supreme Court and all High Courts in the country. The norms/guidelines, in existence, shall be suitably modified so as to be in accord with the present.

73.1 All matters relating to designation of Senior Advocates in the Supreme Court of India and in all the High Courts of the country shall be dealt with by a Permanent Committee to be known as "Committee for Designation of Senior Advocates";

73.2 The Permanent Committee will be headed by the Hon'ble the Chief Justice of India and consist of two senior most Judges of the Supreme Court of India [or High Court(s), as may be]; the learned Attorney General for India (Advocate General of the State in case of a High Court) will be a Member of the Permanent Committee. The above four Members of the Permanent Committee will nominate another Member of the Bar to be the fifth Member of the Permanent Committee;

73.3 The said Committee shall have a permanent Secretariat, the composition of which will be decided by the Chief Justice of India or the Chief Justices of the High Courts, as may be, in consultation with the other Members of the Permanent Committee;

73.4 All applications including written proposals by the Hon'ble Judges will be submitted to the Secretariat. On receipt of such applications or proposals from Hon'ble Judges, the Secretariat will compile the relevant data and information with regard to the reputation, conduct, integrity of the advocates(s) concerned including his/her participation in pro bono work; reported judgments in which the advocate(s) concerned had appeared; the number of such judgments for the last five years. The source(s) from which information/data will be sought and collected by the Secretariat will be as decided by the Permanent Committee

73.5 The Secretariat will publish the proposal of designation of a particular advocate in the official website of the Court concerned inviting the suggestions/views of other stakeholders in the proposed designation;

73.6 After the database in terms of the above is compiled and all such information as may be specifically directed by the Permanent Committee to be obtained in respect of any particular candidate is collected, the Secretariat shall put up the case before the Permanent Committee for scrutiny;

73.7 The Permanent Committee will examine each case in the light of the data provided by the Secretariat of the Permanent Committee; interview the advocate concerned; and make its overall assessment on the basis of a point based format indicated below:-

S.No.

Matter

Points

1.

Number of years of practice of the Applicant Advocate from the date of enrollment

[10 points for 10-20 years of practice; 20 points for practice beyond 20 years]

20 points

2.

Judgments (Reported and unreported) which indicate the legal formulations advanced by the advocate concerned in the course of the proceedings of the case; pro bono work done by the advocate concerned; domain expertise of the applicant advocate in various branches of law, such as Constitutional law, Inter-State Water Disputes, Criminal law, Arbitration law, Corporate law, Family law, Human Rights, Public Interest Litigation, International law, law relating to women, etc.

40 points

3.

Publications by the applicant advocate

15 points

4.

Test of personality and suitability on the basis of interview/interaction

25 points

73.8 All the names that are listed before the Permanent Committee/cleared by the Permanent Committee will go to the Full Court.

73.9 Voting by secret ballot will not normally be resorted to by the Full Court except when unavoidable. In the event of resort to secret ballot, decisions will be carried by a majority of the Judges who have chosen to exercise their preference/choice.

73.10 All cases that have not been favorably considered by the Full Court may be reviewed/reconsidered after expiry of a period of two years following the manner indicated above as if the proposal is being considered afresh;

73.11 In the event a Senior Advocate is guilty of conduct which according to the Full Court disentitles the Senior Advocate concerned to continue to be worthy of the designation, the Full Court may review its decision to designate the person concerned and recall the same." (emphasis added)

5. Accordingly, this Court, in exercise of powers under Article 225 made amendment in Allahabad High Court Rules, 1952, Volume 1, (hereinafter referred to as 'Rules, 1952') by publishing Allahabad High Court (Amendment) Rules, 2018 and thereby Chapter XXIV of Rules, 1952 was substituted by a new set of Rules called as "Designation of Senior Advocates Rules, 2018". It contains 12 Rules. Rule 1 talks of "Short title, extent and commencement"; Rule 2 provides "Definitions"; Rule 3 to Rule 7 contain the Constitution of Permanent Committee, the procedure for inviting applications or recommendation of Advocates as Senior Advocates and procedure for their designation. Rule 8 imposes certain restrictions on designated Senior Advocates; Rule 9 prohibits canvassing in any manner in designation of Senior Advocate and Rule 10 provides that if any question relating to interpretation of Rules arises, it shall be referred to the Chief Justice whose decision thereon shall be final. Rule 11 confer powers upon Court to review or recall any Senior Advocate after he has been designated i.e. withdrawal of designation as Senior Advocate and Rule 12 provides that repeal and saving.

6. For the purpose of present writ petition, Rules 3 to 7 of Rules, 2018 are relevant and reproduced as under:-

"3. Permanent Committee for designation of Senior Advocates:- (1) All the matters relating to designation of Senior Advocates in the High Court shall be dealt with by the Permanent Committee, which will be headed by the Chief Justice and consist of the two Senior-most Judges of the High Court; (ii) the Advocate General of the State of Uttar Pradesh; and (iii) a designated Senior Advocate of the Bar to be nominated by the members of the Committee.

(2) The Committee constituted under sub-rule (1) shall have a Secretariat, the composition of which will be decided by the Chief Justice of the High Court, in consultation with other members of the Committee.

(3) The Committee may issue such directions from time to time as deemed necessary regarding functioning of the Secretariat, including the manner in which, and the source/s from which, the necessary data and information with regard to designation of Senior Advocates are to be collected, compiled and presented.

4. Designation of an Advocate as Senior Advocate:- (1) The High Court may designate an Advocate as a Senior Advocate, if in its opinion, by virtue of his/her ability and standing at the Bar, the said Advocate is deserving of such distinction.

Explanation: The term "standing at the Bar" means position of eminence attained by an Advocate at the Bar by virtue of his/her seniority, legal acumen, and high ethical standards maintained by him, both inside and outside the Court.

(2) An advocate who has put in at least ten years of actual practice as an advocate shall be eligible to be designated as Senior Advocate.

Provided that a retired Judge of any High Court, who is qualified to practice in the Allahabad High Court may also be recommended for being designated.

5. Motion for Designation as Senior Advocate:- Designation of an Advocate as Senior Advocate by the High Court may be considered:

(a) on the written proposal made by the Chief Justice or any sitting Judge of the High Court of Judicature at Allahabad.

Provided that a sitting Judge will not make a proposal for more than two Advocates in a calendar year; or

(b) on the written application submitted by an Advocate, recommended by two designated Senior Advocates.

Provided further that such designated Senior Advocates will not recommend the names of more than two Advocates in a calendar year.

6. Procedure for Designation:- (1) All the written proposals and applications for designation of an Advocate as a Senior Advocate shall be submitted to the Secretariat.

Provided that every application by an advocate shall be made in Form No. 1 of APPENDIX-A appended to these Rules.

Provided further that in case the proposal emanates from a Judge it need not be submitted in the prescribed form. However once the proposal is received, the Secretariat shall request such advocate to submit form No. 1 duly filled in within such time as directed by the Committee and in such a case the requirement of having recommendation of two Senior Advocates would stand dispensed with.

(2) On receipt of an application or proposal for designation of an Advocate as a Senior Advocate, the Secretariat shall compile the relevant data and the information with regard to the reputation, conduct, integrity of the advocate concerned including his participation in pro bono work, reported judgments of the last five years in which the concerned advocate has appeared and has actually argued.

(3) The Secretariat will notify the proposed names of the advocates to be designated as Senior Advocates on the official website of the High Court of Judicature at Allahabad, inviting suggestions and views within such time as may be fixed by the Committee.

(4) After the material in terms of the above is compiled and all such information, as may be specifically required by the Committee to be obtained in respect of any particular candidate, has been obtained and the suggestions and views have been received, the Secretarial shall put up the case before the Committee for scrutiny.

(5) Upon submission of the case by the Secretariat, the Committee shall examine the same in the light of the material provided and, if it so desires, may also interact with the concerned advocate(s) and thereafter make its overall assessment on the basis of the point based format provided in APPENDIX-B to these Rules.

(6) After the overall assessment by the Committee, all the names listed before it will be submitted to the Full Court along with its Assessment Report.

(7) Normally voting by ballot shall not be resorted to unless unavoidable. The motion shall be carried out by consensus, failing with voting by ballot may be resorted to. In the event of voting by ballot, the views of the majority of the Judges present and voting shall constitute the decision of the Full Court. In case the Judges present be equally divided, the Chief Justice or in his absence the Senior Judge present shall have the casting vote.

(8) The cases that have not been favorably considered by the Full Court may be reviewed/reconsidered after the expiry of a period of two years, following the same procedure as prescribed above as if the proposal is being considered afresh.

7. Designation of Advocates as Senior Advocates by the Chief Justice:- (1) On the approval of the name of the Advocate by the Full Court, the Chief Justice shall designate such an advocate as a Senior Advocate under Section 16 of the Advocate's Act, 1961.

(2) The Registrar General shall notify the designation to the Secretary General of the Supreme Court of India, the Bar Council of Uttar Pradesh, Bar Council of India and also to all the District and Sessions Judges subordinate to the High Court.

(3) A record of the proceedings of the Committee and the record received from the Full Court in this regard shall be maintained by the Permanent Secretariat for further reference." (emphasis added)

7. It may be noted here that Rule 6(5) talks of assessment about the concerned Advocate on the basis of point based format provided in Appendix-B and, therefore, Appendix-B is also relevant. The same reads as under:-

S.No

Matter

Points

1.

Number of years of practice of the Applicant Advocate from the date of enrollment

[10 points for 10-20 years of practice, 20 points for practice beyond 20 years]

20 points

2.

Judgments (Reported and unreported) which indicate the legal proceeding formulations advanced by the concerned Advocate in the course of the proceedings of the case; pro bono work done by the concerned Advocate; domain Expertise of the Applicant Advocate in various branches of law, such as constitutional law, Inter-State Water Disputes, Criminal law, Arbitration law, Corporate law, Family law, Human Rights, Public Interest Litigation, International law, law relating to women, etc.

40 points

3.

Publications by the Applicant Advocate

15 points

4.

Test of Personality & Suitability on the basis of interview/interaction

25 points

8. In response to Rules 4 and 5, by notice, application from Advocates were invited for consideration for designation of Senior Advocates. Petitioner submitted his application dated 19.07.2018. Names of about 100 Advocates were received by Secretariat.

9. These names were uploaded on website inviting suggestions and views of other stakeholders within 4 weeks.

10. Petitioner who has appeared in person, contended that procedure prescribed in Rules 6(4), 6(5) and 6(6) of Rules, 2018 has been violated and also the directions contained in paras 73, 74 and 75 of Supreme Court's judgement in Indira Jaising (supra) have been contravened, therefore, notification, impugned in the present writ petition, designating 75 Advocates as Senior Advocates, is illegal. Petitioner contended that Secretariat was required to collect all relevant materials with respect to Advocates who have submitted their details for designation as Senior Advocates and to place it before Permanent Committee for scrutiny. Thereafter, Permanent Committee shall examine the case in the light of material provided and if so desires, may also interact with individual Advocate and, thereafter, make its overall assessment on the basis of point based format as provided in Appendix-B. Overall assessment report of all names listed before Committee has to be submitted to Full Court and thereafter Full Court shall consider the matter for designation of Senior Advocates under Rule 6(7). Our attention is drawn to averments made in para 14 to the writ petition which reads as under:-

"14. That procedure prescribed under Rules 6(5) and 6(6) has been completely overlooked as per following detail.

(i) The Secretariat failed to submit point based format provided in Appendix-B before the Committee for overall assessment of the Advocate. Relevant to mention that there are 4 parameters in the Appendix-B to the Rule of 2018 and the Secretariat by not furnishing list of marks of all the Advocates Applicants on 4 parameters, grossly violated the directives in Rule 6(5) of the Rule of 2018. The Committee failed to prepare the overall assessment report as per Appendix-B.

(ii) The Committee in the absence of complete marking on the 4 parameters, in prescribed format provided in Appendix-B, could not submit "overall assessment report" before the Hon'ble Full Court for overall assessment of the Advocate and as such Rule 6(6) has been violated. Impugned notification issued, without considering the overall assessment report is not only arbitrary & illegal but also violative of Article 14 of the Constitution of India."

11. It is said that procedure prescribed in Rules 5 and 6 has been completely overlooked, therefore, designation of 'Senior Advocates' is bad. Petitioner claimed that details given by him in respect of himself, if considered in the light of point based format for assessment, he is likely to secure 65 marks out of 75 (excluding 25 marks meant for interaction/interview) and, therefore, deserves to be designated as Senior Advocate but has been denied the same illegally.

12. When we questioned as to how petitioner knows that no assessment has been made by Permanent Committee as contemplated under Rule 6(5) of Rules, 2018, he contended that a Senior Advocate who is member of Permanent Committee, informed him about this fact and also that he has submitted a dissenting note. He contended that no such point based format of Advocates prepared by Committee was placed before Full Court and, therefore, Rule 6(5) has not been complied with. What he contended is that point based assessment of all the advocate was required to be placed before Full Court. This argument we find has no substance. A careful reading of Rule 6(5) shows that after material or information collected by Secretariat is placed before Permanent Committee, it shall examine the same in the light of such material. The question of interaction with concerned Advocate is optional and not mandatory. Therefore, whenever interaction is considered to be necessary by Committee, the marks provided for interaction will have to be awarded otherwise marks provided for interaction will be of no consequence. Where Committee decided not to have any interaction, Item-4 in Appendix-B will become inapplicable and, thereafter assessment shall be only on the basis of item nos. 1, 2 and 3.

13. So far as item 1 is concerned, it is correlated with the number of practice and, therefore, can be assessed by every person including concerned Advocate, looking into account his number of practice in Court.

14. So far as items no. 2 and 3 are concerned, the same have to be judged by Permanent Committee concerned and no one can adjudge himself or his performance from the judgments he has relied and the publications he has supplied. On items 2 and 3, it is decision of Permanent Committee and cannot be self assessed by any individual.

15. Then coming to Rule 6(6), we find that after making overall assessment by Permanent Committee as per point based format provided in Appendix-B, the Committee shall prepare its report and thereafter names listed before it shall be placed before Full Court along with "assessment report". Rule 6(6) talks of "assessment report" and not the "actual assessment" made as per Appendix-B. Committee shall make its assessment as per Appendix-B and thereafter it shall submit "assessment report" to Full Court.

16. Petitioner appeared in person, did not dispute and it is also evident from pleadings in writ petition that in all, there were 100 Advocates whose names were placed before Permanent Committee but ultimately only 75 Advocates have been designated as Senior Advocates. Learned Counsel appearing for High Court pointed out that in the "assessment report" submitted by Committee, it has given its recommendation for not designating 22 Advocates as senior who were not found fit according to Committee. It recommended 78 Advocates, fit/suitable for designation as Senior Advocates. Even Full Court has not mechanically designated all such Advocates who were recommended by Permanent Committee but has considered the matter objectively and out of 78 so recommended, only 75 have been designated and 3 more Advocates have not been found suitable or fit for designation as Senior Advocates. These facts as stated by Learned Counsel appearing for High Court are not disputed by petitioner. In our view, it clearly shows that requirement of Rules has been complied with, inasmuch as, Permanent Committee was required to submit its 'assessment report' which it had submitted to Full Court. It was considered by Full Court and thereafter it also applied its mind and designated only 75 Advocates as Senior Advocates. It was always open to Full Court to seek point based assessment made by Permanent Committee as per Appendix-B for its consideration if found necessary but to suggest that such format was necessary to be supplied to Full Court otherwise 'assessment report' was not in consonance with Rule 6(6), we find difficult to accept. Hence, it cannot be said that procedure prescribed in Rules 6(4)(5)(6) has not been followed.

17. Petitioner then contended that making interaction optional is contrary to direction issued by Supreme Court. We may notice hereat that validity of Rules is not under challenge and, therefore, issue of designation of Senior Advocate was to be considered by this Court in the light of Rules notified. Unless we find any patent illegality by infringing the procedure prescribed in Rules, we do not find that exercise undertaken by Court for designation of 'Senior Advocates', consistent with Rules, would justify any interference.

18. We can appreciate that petitioner has a long experience of 41 years of practice and in his own assessment, his performance and level of practice is also quite high but for designation of Senior Advocate, it is not the individual's self assessment which is material but it is the assessment of work and performance of Advocates in the opinion of Court which is of ultimate importance. Mere publication of some articles does not mean that an Advocate can claim highest marks assigned for publication of articles irrespective of quality of articles, the material contained therein, information it is conveying to readers and other relevant factors. Similarly, an Advocate may have appeared in a number of cases decided by Court but still the nature of issue raised therein, the complexity of the matter in which concerned Advocate has appeared and the adjudication by this Court considering the level of assistance provided by Advocate are all relevant factors for making assessment in respect of judgments i.e. Item no. 2 of Appendix-B. For example, if an Advocate has appeared in hundreds of bail applications decided by Court, the same cannot be equated with the cases where issues of vires of statutes are raised and decided by Court. Importance of issues and decision by Court involved in a particular case in which Advocate concerned appeared, has to be considered and appreciated from case to case basis and that is why Item- 2 of Appendix-B provides marks in respect to judgments. It is not number of judgments irrespective of other relevant considerations which will entitle an Advocate to claim maximum marks provided for Item-2 in Appendix-B. In fact it is the objective consideration by Committee, in respect of assessment under items 2 and 3. Though the manner of assessment to some extent is also subjective since it does not involve any principles of natural justice but assessment has to be made by Committee on its own on the basis of material collected by it.

19. Conferment of status of 'Senior Advocate' to an 'Advocate' is not a matter of right. It is a recognition by Court to the legal knowledge, high degree of Advocacy, manner of presentation in Court and other relevant considerations which are cumulatively considered to confer the status of 'Senior Advocate' upon an Advocate. Every person who has passed L.L.B. and enrolled with Bar Counsel concerned, becomes an Advocate and this does not require any recognition by Court as such but to cross the level from Advocate to 'Senior Advocate', it requires an appreciation and recognition by Court to the eminence, learnedness, depth of legal knowledge, Court craft and conduct, manner and purity demonstrated by an Advocate in his practice at the Bar, not only towards the client but to the Court also and similar other aspects.

20. We do not intend to delve into matter further to the self-assessed merit of petitioner as it may prejudice his matter in future also but so far as the present writ petition is concerned, we are satisfied that there is no illegality in the procedure followed by Court in designating 75 'Senior Advocates' by notification in question and apparently there is substantial compliance of rules, therefore, no interference is called for.

21. Writ petition is accordingly dismissed. No costs.

Order Date :- 9.7.2019

Siddhant Sahu/AK