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Kerala HC Rejects Plea Challenging ‘Senior Designation’ Refusal [Read Judgment]

Team SoOLEGAL 24 May 2017 11:13am

Kerala HC Rejects Plea Challenging ‘Senior Designation’ Refusal [Read Judgment]

His insistence on the Court’s conferring on him what is treated as an honour or a privilege fails to gather judicial muster, literally and legally, the Court said rejecting the plea.

The Kerala High Court has rejected plea of an advocate challenging the Full court decision rejecting his application for designation as Senior Advocate.

Advocate P.B. Sahasranaman had earlier approached the Apex Court raising this challenge, but it had refused to entertain the petition urging the lawyers to raise the plea before the High Court.

The first paragraph of the Judgment is noteworthy as it crystallises the facts involved: “A learned lawyer longs for recognition; he seeks a favour from the judges before whom he pleads daily—designation as a Senior Advocate. The judges, cautious as they are, remain reluctant to confer the favour. They deliberate the issue and calibrate the counsel. They decide that time has not yet come for the lawyer to make the mark, to get the grade, and to earn the distinction. The judges reckon conferring is not for mere asking; it must be earned. So, they refuse. Ruffled, the lawyer questions: he files this writ petition. Is the lawyer impatient, imprudent, impudent, or justly insistent?”

Justice Dama Seshadri Naidu had heard the petitions. It was contended on behalf of Advocate Sahasranaman that that designating an advocate as a senior is not a privilege; on the contrary, it is a statutory right duly recognised under the Advocates Act. On the other hand, the standing counsel for the High Court, defending the Full court decision contended that Senior designation is only a privilege to be conferred by the High Court, and it cannot be wrenched or exacted and the very concept of ‘senior designation’ expects graceful conduct from the counsel applied.

The issues involved in the plea were as follows:

  • Does the High Court have the power delegated to it to frame the Rules prescribing the procedural norms for designating advocates as Seniors?
  • Has the High Court violated the Kerala Destruction of Records Rules, 1966, by not preserving the ballots cast by the judges?
  • To reckon two-third votes, should the judges who abstained from voting be excluded?

Justice Naidu observes in his judgment: “For an advocate ranks himself by what he feels capable of doing, while a judge ranks the advocate by what that advocate has already done. So, no judge prefers to make his choices open. Hence the secret ballot.”

The Court also observed that that the ballot papers’ destruction is the choice of the judges, the Full Court. And the Kerala Destruction of Records Act, or the Rules, or the Guidelines in the Kerala High Court Office Manual, 2015, do not apply to a ballot paper.

Dismissing his plea, the Court said: “An advocate’s not getting a no-vote does not amount his getting a positive or a decisive vote. Abstentions apart, what an advocate must secure under Rule 6 of the Rules is two-thirds of positive or ‘yes’ votes of all the judges present. Anything short of this does not enure to the applicant’s benefit.”

In an elaborate judgment, Justice Naidu summed up his conclusions on legal aspects of procedure involved in Senior designation

  • “Judges present” differs from “judges present and voting”. They both cannot be conflated; nor can they be taken as synonymous.
  • “Judges present” includes the judges abstained or voted “blank.”
  • Abstentions, if any, must be counted to reckon two-thirds majority unless the Rules make the position as the High Courts of Delhi and Gujarat have done.
  • The Courts making Rules is not a sine qua non for them to exercise their powers under Section 16 of the Act.
  • “[T]he Conditions subject to which an advocate shall be permitted to practice in the High Court” as prescribed under Section 34 of the Act encompasses the process of designating advocates as Seniors. And the Rules made by the High Court specifying Section 16 of the Act as the source of power do not fall foul.
  • Ballot papers are not part of the record to be preserved; they can be preserved only with the Full Court’s consent, not at the request of an applicant.

Justice Naidu, in the concluding part of the Judgment made these remarks: “Finally, I may say, the petitioner is neither imprudent nor impudent. He is, perhaps, impatient. His insistence on the Court’s conferring on him what is treated as an honour or a privilege fails to gather judicial muster, literally and legally. He may revive his efforts in two years from the day the Full Court rejected his request.”

Senior Advocate Indira Jaising filed a petition in Supreme Court of India, challenging the non-transparent and arbitrary method of designating of Senior Counsel by the Courts in India. The said plea is under consideration before the Apex court.

Read the Judgment here.

Source: LiveLaw

Tagged: Kerala High Court  
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