Impact of AOR Registration Date on Seniority at Supreme Court

Re. Application of Mr. Mohit Kumar Gupta Advocate for Registration as Advocate on Record (Supreme Court of India)

Introduction: The Supreme Court of India’s recent decision in Gopal Jha Vs. The Hon’ble Supreme Court of India W.P. (Civil) 745 of 2018 and Miscellaneous Application Diary No. 4565/2024 has shed light on a critical aspect of the legal profession: the date of registration as an Advocate-on-Record (AOR) and its implications for inter-se seniority among AORs. This case has significant implications, particularly for chamber allotment at the Supreme Court. The petitioner’s struggle, Mohit Kumar Gupta, underscores the importance of this issue and its broader impact on the legal community.

In a first of its kind, the Supreme Court of India has ordered on 02 February, 2024 its own administration, commonly known as registry, to register an Advocate as Advocate-on-Record (AOR) from a retrospective date i.e. 19 January, 2024, who claimed to have lost seniority against other AORs despite securing the coveted second (2^nd) rank in the Advocate-on-Record Examination 2023. The petitioner is Mohit Kumar Gupta, who happens to be just another practising Advocate and a non-practising Chartered Accountant, appeared for the Advocate-on-Record Examination conducted by the Supreme Court of India in June 2023, whose results were declared in the month of December 2023 making 199 advocates eligible to start their journey as a special class of advocates in the Supreme Court. But, the question comes as to what happened and why the ‘Date of Registration’ as an Advocate-on-Record is so special as it became the contentious point only for the petitioner and not for the other 198 advocates.

Before that, it is imperative to understand who an Advocate-on-Record is and what does the special class of advocates do. An Advocate-on-Record is an advocate who is entitled under the Order IV of the Supreme Court Rules, 2013 (previously Order IV of the Supreme Court of India Rules, 1966), framed by the Supreme Court of India under Article 145 of the Constitution, to act as well as to plead for a party in the Supreme Court of India. As per the rules, no advocate other than an advocate on record shall be entitled to file an appearance or act for a party in the Supreme Court of India. No advocate other than an advocate on record can appear and plead in any matter unless he is instructed by an advocate-on-record. Therefore, for the special class of advocates, a special case came to be made out, touching the upon the issue of inter-se seniority amongst the Advocate-on-Records (AORs) for the purpose of Chamber Allotment at Supreme Court of India in light of ‘Gopal Jha Vs. The Hon’ble Supreme Court of India’ W.P. (Civil) 745 of 2018 and Miscellaneous Application Diary No. 4565/2024.

The cause of action for the petitioner arose when post declaration of the results of the AOR Examination on December 12, 2023, no communication was found to be made by the AOR Examination Cell to the petitioner and such similarly situated successful advocates having passed the said examination, and only upon the enquiries made by the petitioner, the petitioner was handed over the ‘Certificate’ of having passed the written test prescribed by sub-rule (i) of rule 5, Order IV, Supreme Court Rules, 2023, along with the Application Form for Registration as an Advocate-on-Record on 05 January, 2024. Unaware of any rules, practice or procedure stipulating any last date for submission of application for registration as an AOR and listing of batch of such applications through AOR Examination Cell before the Hon’ble Judge-in-Chambers unlike a regular matter, the petitioner found himself left out in the process, when the applications for registration as AOR got listed for 172/173 advocates before the bench of Hon’ble the Chief Justice of India (in-chambers) on 19 January, 2024. The petitioner, having been informed of the scenario on the intervening night of 18-19 January, 2024 preferred an urgent application before the Registrar detailing therein the brief and relevant facts and circumstances concerning his case by submission through R&I Branch in the morning of 19 January, 2024; however, despite making strenuous efforts with different officers and offices, nothing materialized, and eventually, in a quest to mention the matter before the Hon’ble Court, the matter having reached on board pre-lunch when the petitioner was outside the Old Building Complex, could only join through Video-conferencing but could not mention so on account of being kept on mute, whereas the another petitioner, Ms. Visakha was successful to do it, and a total number of 173/174 advocates were ordered to be registered as Advocates-on-Record, while leaving the petitioner making him an individual donned with two different ranks for two different purposes, one at 2^nd position and other at 174^th/175^th position.

Now, why such discrimination through creation of two ranks for the petitioner?, was the point troubling the petitioner, and the answer was to be found qua the following questions, which revolved around the controversy of inter-se seniority amongst the Advocates-on-Record (AORs) and the allotment of Chambers in the Supreme Court Complex, for which the petitioner feared a spell of problems to come his way years later when he would apply for chamber allotment and what not:

1. When is the registration of an Advocate-on-Record considered to take effect from?

2. Whether the concept of inter-se seniority exists amongst the Advocates-on-Records for the purpose of Chamber Allotment in the Supreme Court Complex?

3. Whether retrospective registration of an Advocate-on-Record could be allowed?

The answer to the first question lies in the fact that that date of the daily order, being a judicial order, passed by the Hon’ble Judge (in-chambers), Supreme Court of India, being a Court of Record, is reckoned as the date of registration as an AOR by the Record Room of the Supreme Court of India, and as such, the date of enrolment as an AOR, since there are other channels available under Order IV Rule 5 of the Supreme Court Rules, 2013 to become an Advocate-on-Record, and therefore, no date other than the same is found on record otherwise for the said purpose. The answer to the second question gets an indication from the Gopal Jha judgement of the Hon’ble Supreme Court of India dated 25.10.2018 as delivered by a two-judges bench, along with its relevance being found in various administrative orders of this Hon’ble Court, as well as requirements of the Supreme Court Advocates-on-Record Association (SCAORA) and Supreme Court Bar Association (SCBA), wherein it has come out that the inter-se seniority between the AORs would be considered from the ‘Date of Registration’ coupled with the date of their membership with SCBA, provided the Date of Registration as an AOR is same in such case. Furthermore, the following matrix was found to have put in place by the Admin. General Branch of the Supreme Court of India, which deals with administrative functions pertaining to the Chambers, regarding the method to be employed for reckoning the inter-se seniority much beyond the stated above:

1^st Standard: Date of Registration as an Advocate-on-Record.

If the above is found same, then the,

2^nd Standard: Date of SCBA Membership.

If the above is found same, then the,

3^rd Standard: Date of Enrolment as an Advocate with the concerned State Bar Council.

If the above is found same, then the,

4^th Standard: Date of Birth.

Since the trouble was found to be personal to the petitioner, and was so found to have remained limited to himself while other Advocates having cleared the said examination along with the petitioner and not being so registered as an Advocate-on-Record on 19 January, 2024 remaining unmoved to pursue the same, a mentioning was made before the Hon’ble the Chief Justice on 22 January, 2024, and the petitioner was asked to send an email to the Registrar (Judicial Administration), who was too present in the courtroom then, which was assured to be duly considered. With certain efforts, the matter could finally be listed along with the applications of other twenty (20) odd Advocates whose registration as AOR was pending, on 25 January 2024. In light of all the chamber matters being found cancelled post-lunch, the day again witnessed two classes of advocates, twenty (20) odd Advocates mentioning to get them registered w.e.f. 25 January, 2024, while the petitioner arguing on merits as to the relevance of the ‘Date of Registration’, and ultimately, after hearing a special session for the said chamber matter, the applications of all the twenty (20) odd Advocates were allowed, while in the case of the petitioner, his application was separated and on the perusal of the email sent to the Registrar (Judicial Administration), a report seeking remarks was called from the Registrar (AOR Examination) to be taken up on the next date. The Registrar, AOR Examination filed his detailed report wherein it was submitted that no precedent was there granting retrospective registration. However, the Hon’ble Court granted the retrospective registration of the petitioner w.e.f. 19 January, 2024 vide its order dated 02 February, 2024 in alignment with and recognizing the equitable considerations at play, and upholding the principles of fairness and equal treatment which underscored the significance of the date of registration in delineating rights and privileges within the legal realm.

The answer to the third question, based on the intricate issues discussed above, is still not available in concrete terms as on date; however, beyond the relief granted in one such case, the larger concern is as to how such issue could be prevented to arise in future. The case of the petitioner was such that in case the Hon’ble Court had not given him the relief on 02 February, 2024, his rank in the inter-se seniority for the purpose of chamber allotment would have shifted to 194^th/195^th, much beyond the other twenty (20) odd Advocates who preferred to seek the registration on and w.e.f. 25 January, 2024. The said concern can very well be taken care of by the registry, if a Standard Operating Procedure (SOP) for registration of fresh Advocates-on-Record is formulized and proper communication methods are adopted. Though the Toppers Advocates Vidhi Pankaj Thakar and Mohit Kumar Gupta are slated to be felicitated by the Supreme Court AOR Association in the near future and with the Gold and Silver Medal respectively by the Board of Examiners of Supreme Court of India, besides Mukesh Goswami Memorial Prize, O. P. Malhotra Award and P. R. Kumaramangalam Award on the Constitution Day this year, the petitioner believes that the felicitation has already been done with the relief granted in a judicial order as a precedent wherein the Hon’ble Court has reaffirmed the fundamental tenets of justice and meritocracy, ensuring that individuals like the petitioner are not unjustly disadvantaged due to procedural technicalities.

In conclusion, the present matter illuminates the path towards a more equitable and transparent legal landscape. The petitioner’s experience encapsulates the broader struggle for recognition and parity within the legal profession, echoing the sentiments espoused, and as the legal fraternity continues to evolve, this seminal case shall serve as a guiding light, fostering a culture of fairness and inclusivity within the legal profession.

FULL TEXT OF THE SUPREME COURT JUDGMENT/ORDER

I have read the order dated 25.01.2024 and the Report of the Registrar dated 31.01.2024. The Report is reproduced as under :-

“REPORT

In compliance of the orders of the Hon’ble Judge­in­Chambers dated 25.01.2024 (F/A) passed in M.A. Diary No. 3250 of 2024, whereby the undersigned ­ Registrar (AoR Examination Cell) has been directed to place his remarks on the representation in the e­mail dated 22.01.2024 (F/B) of Mr. Mohit Kumar Gupta, Advocate, it is respectfully submitted that :

1. Mr. Mohit Kumar Gupta, Advocate passed & secured second position in the Advocates­ on­ Record Examination held in June 2023. His application for registration as an Advocate ­on­ Record was received on 19.01.2024 in AoR Examination Cell through R&I Branch and it was processed without any delay.

2. 172 applications for registration as Advocates ­on­ Record received till 18.01.2024 were listed under Rule 2(20) of Order V of the Supreme Court Rules, 2013 on 19.01.2024 by the Chamber Listing Branch; and the application of Ms. Visakha upon being mentioned by her was taken on board. The names of above said 173 applicant advocates were directed to be registered as Advocates­ on ­Record by order dated 19.01.2024 (F/C) of Hon’ble the Chief Justice of India (in ­chambers). 20 such applications including application of Mr. Mohit Kumar Gupta, Advocate were listed before the Hon’ble Judge ­in ­Chambers on 25.01.2024.

3. Visakha had filed her application for registration as an Advocate­ on­ Record in the AoR Examination Cell on 19.01.2024, whereas Mr. Mohit Kumar Gupta, Advocate in R&I Branch on the same day. The application of Ms. Visakha has been allowed on 19.01.2024 after it was taken on board upon being mentioned by her personally in the Court. Mr. Mohit Kumar Gupta has stated in his representation that he could not secure physical presence before the Court. As the applications by both Ms. Visakha and Mr. Mohit Kumar Gupta were filed on the same day i.e. 19.01.2024, the case of Mr. Mohit Kumar Gupta, Advocate may be considered similar to that of Ms. Visakha.

4. As far as procedure for registration as an Advocate ­on­ Record is concerned, after collecting the Certificate of passing the Advocates­ on­ Record Examination from the Registry, the concerned Advocates apply for registration in the prescribed format after depositing prescribed court fee of Rs.250/­. Accordingly, this time also, 172 Advocates (out of 199 Advocates who passed the AoR Examination held in June 2023) applied for registration till 18.01.2024 and all the applications were listed by the Chamber Listing Branch on 19.01.2024.

5. The date of order of the Hon’ble Judge­ in­ Chambers on the applications for registration as Advocates ­on­ Record is treated as the date of registration as an Advocate­ on­ Record.

6. As far as chamber allotment is concerned, inter se seniority is decided on the basis of the date of membership of SCBA if the Advocates ­on ­Record are registered on the same day, as per Circular F.No.201/LCA/2022/SC/AG dated 01.11.2022 placed below (F/D).

7. As there is no precedent of granting registration as an AoR with retrospective effect, the Hon’ble Court may be pleased to pass such order(s) as are deemed appropriate in the circumstances of the present case.

The above Report is respectfully submitted for consideration, please.

(Devender Pal Walia)
Registrar (AoR Examination)
31.01.2024”

From the totality of circumstances, it appears that the delay, if any, on the part of Mr. Mohit Kumar Gupta, Advocate, for registration as Advocate­ on ­Record cannot completely be attributed to him. Mr.Mohit Kumar Gupta secured 2^nd Rank in the Advocates­ on­ Record Examination held in June, 2023. His case is similar to Ms. Visakha, Advocate, in material particulars.

For the above reasons and also the fact that in similar circumstances, in the case of the applicant Ms. Visakha, Advocate, Hon’ble The Chief Justice has passed the order dated 19.01.2024, the application of Mr. Mohit Kumar Gupta, Advocate, is accepted. He be registered as an Advocate­ on ­Record without reference to delay in filing the application for registration.

The application is ordered accordingly.