Dama Seshadri Naidu, J.

1. Introduction :

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?

Facts:

2. P.B. Sahasranaman ("PBSN"), the petitioner, a practicing lawyer, has a standing of 33 years at the Bar. On 29.8.2014, he gave his "consent" to be designated as a senior advocate. The High Court of Kerala considered PBSN's "consent" along with nine other proposals in a Full-Court meeting held on 19.8.2015. Eventually, on 30th September 2015, the Court informed the lawyer that he had failed to secure the votes of two-third judges "present" in the meeting, as required under Rule 6 of the Rules framed under Section 16(2) of the Advocates Act.

3. Aggrieved, PBSN initially approached the Supreme Court by filing WP (C) No.135 of 2016. Later, he withdrew that writ petition with liberty to move this Court, as seen from the Ext.P10 order of the Supreme Court. Thus, the issue about how an advocate should be designated as a Senior Counsel is before us.

Submissions:

The Petitioner's:

4. Sri P. Ravindran, the learned Senior Counsel, has submitted that Section 16 of the Advocates Act ("the Act"), dealing with matters such as designating an advocate as a senior counsel, delegates no power to the High Court to frame rules. According to him, only Section 34 of the Act empowers the High Court to make rules: to lay down the conditions, subject to which an advocate may practise in the High Court and the courts subordinate to it. Therefore, the rules framed under Section 16, he contends, are ultra vires.

5. In the alternative, Sri Ravindran submits that the rules framed under Section 16(2) of the Act were misconstrued by the High Court. In elaboration, he emphasizes the expression "consider" in Rule 6: The Chief Justice and other Judges should actively deliberate the merits of the counsel applied. The proposal to designate any advocate as a senior counsel, he argues, shall be treated as rejected only if fewer than two-thirds of the judges "present and voting" "actively" refuse to endorse that proposal.

6. Drawing my attention to the absence of expression 'voting' in Rule 6, Sri Ravindran has asserted that the judges' mere presence is not sufficient, and any abstention does not amount to either affirmation or negation of a proposal-the counsel's merit to be designated.

7. In elaboration, Sri Ravindran would contend that a "handful" of judges cast their ballots without indicating their preference; that is, without marking their ballots with either choice: Yes or No. In other words, when there are two columns-Yes and No-against each advocate's name, those judges marked neither 'yes' nor 'no'. So, casting an unmarked ballot is nothing but an abstention, a non-participation.

8. Sri Ravindran has also submitted that despite PBSN's applying under the Right to Information Act to ascertain how many judges abstained from casting their vote, he was only met with a stoic reply: The records had been destroyed. In that context, he has drawn my attention to the Kerala High Court Office Manual, 2015.

9. On how Rule 6 is to be interpreted, Sri Ravindran has taken me through the analogous rules of the High Courts of Delhi, Gujarat, Chhattisgarh, and Karnataka, as well as the Supreme Court. Eventually, he has asserted that the judge's mere presence in the meeting does not amount to his participating in the deliberations. In the end, Sri Ravindran has summed up his submissions that the High Court has grossly erred in its rejecting PBS