Andhra HC (Pre-Telangana)
P.R. Prasad And Ors., Advocates And ... vs The Union Of India (Uoi), Rep. By Its ... on 28 December, 1990
Equivalent citations: 1991(1)ALT528
JUDGMENT Sardar Ali Khan, J.
1. The common prayer in this batch of writ petitions is for the issue of a writ of mandamus declaring that the Advocates are entitled to be classified under "Non-OYT Special" Category for allotment of Telephones and consequently to direct the 2nd respondent-General Manager, Telephones, Telephone Bhavan, Hyderabad, to register the applications of the petitioners on the respective dates when they were made, under Non-OYT Special category and to grant telephone connections forthwith.
2. All the petitioners in this batch of Writ Petitions are Advocates, who have been practising in various courts from a considerably long time.
3. The provision of telephone connections is regulated by the rules and instructions framed by the Department of Telecommunications, Government of India, as amended from time to time Telephone Allotment Rules, 1980 have been framed and several amendments have been effected in the rules by the Department over the period of ten years. It needs to be made clear at the very outset that these Telephone Allotment Rules, 1980 are not statutory in character as they have not been framed in pursuance of the rule making power under Section 7 of the Indian Telegraph Act, 1885 (Act 13 of 1885), hereinafter referred to, for short as "the Act". Under Section 4 of the Act it is provided that within India, the Central Government shall have the exclusive privilege of establishing, maintaining and working telegraphs and that the Central Government may grant a licence, on such conditions and in consideration of such payments as it thinks fit, to any person to establish, maintain or work a telegraph within any part of India. It is further provided that the Central Government may, by rules made under this Act and published in the Official Gazette, permit, subject to such restrictions and conditions as it thinks fit, the establishment, maintenance and working of wireless telegraphs within Indian Territorial waters and of telegraphs other than wireless telegraphs within any part of India. Under Section 7 of the Act it is provided that the Central Government may, from time to time, by notification in the official Gazette, make rules consistant; with the Act for the conduct of all or any telegraphs established, maintained or worked by the Government or by persons licensed under the Act. rules so framed under the said section are to provide for the matters which have been enumerated therein. A close reading of the provisions of Section 7 of the Indian Telegraph Act, 1885 reveals the fact that the subject of allotment of telephones does not fall within the purview of the rule making : power under Section 7 of the Act. The Telephone Allotment Rules, 1980 are, therefore, in the nature of administrative instructions issued by the Department of Telecommunications, Government of India and have been amended quite freely and liberally from time to time by the Department of Telecommunications. It must be made clear that the entire batch of these writ petitions is concerned with the question of the inclusion of the petitioners, who happen to be the practising advocates, in the "Non-OYT Special Category". The object of the batch of the Writ Petitions does not appear to be exclusion of any category which has been included in the "Non-OYT Special Category" but it is to include the names of the Advocates in the said category.
4. For the purpose of a decision in this batch of writ petitions it is necessary to examine meticulously the provisions of the Telephone Allotment Rules, 1980 with special reference to the "Non-OYT Special Category" and the various amendments that have been made to the said rules from time to time.
5. The term "OYT" is an abbreviation of "Own Your Telephone". The Indian Posts and Telegraphs Department issued the Telephone Allotment Rules, 1980 vide reference No. 2-29/78-PHA dated 17th January, 1980, Under Rule 1.4 'OYT (Own Your Telephone) Scheme' is explained in the following Words :-
OYT (Own Your Telephone) Scheme ;-This is a scheme under which an applicant makes an advance lump-sum payment in the form of advance payment of part of the rent for a certain number of years. The subscriber gets a rebate and is liable to pay less rent than the normal rent fixed by the Department".
Under Rule 2.1 "OYT Special" is explained in the following words : "
OYT Special :-This will include following demands :
(a) Demands from Government Departments, Public undertakings, statutory bodies, joint sector undertakings where Government interest is more than 50%.
(b) Retired Officers of public undertakings, statutory bodies, foreign exchange earners and other applicants entitled for 'Non-OYT Special' Category".
Under Rule 2.2. it is stated that 'OYT-General' is open to all. Under Rule 2.3 it is stated that 'Non-OYT SS' is available for selected parties only. Under Rule 2.4 'Non-OYT Special' has been made available to the various categories of persons mentioned therein viz., "For Doctors holding recognised degree or diploma in any approved system of medicine or surgery, qualified nurses and registered midwives.
News papers, journals and magazines, registered with the Registrar of Newspapers, registered News Agencies. Accredited Press Correspondents and Press Photographers.
Public Institutions.
Small Scale Industries.
Publicmen, social workers and Tamra Patra Holders.
Foreign Exchange earners when OYT is not open".
Under Rule 2.5 'Non-OYT General' is stated to be open to all.
6. Since the scope of this batch of writ petitions is confined to the "Non-OYT Special Category" it would be necessary to examine, in detail, the various vicissitudes through which the 'Non-OYT Special Category' has gone. It may be mentioned that under the Telephone Allotment Rules, 1980 it is also provided that the 'Non-OYT Special Category' will get 10% of the connections and priorities have been determined within the said category in the following manner :
(a) Out-of-turn sanctions by P & T Directorate.
(b) Non-OYT-SS
(c) Out-of-turn sanctions by T.A.C.
(d) In turn on waiting list.
These Telephone Allotment Rules, 1980 were amended by virtue of a communication of the Director General of Posts and Telegraphs, New Delhi, vide No. 2-29/78-PHA dated 21st May, 1980. Under the said communication dated 21st May, 1980 it is provided that Rule 2.4 of Telephone Allotment Rules, 1980 has been amended in respect of 'Publicmen' Category. The existing Rule 2.4 may be substituted as follows :--
"2.4 Non-OYT-Special :- For Doctors holding recognised degree or diploma in any approved system of medicine or surgery, qualified nurses and registered midwives.
Newspapers, journals and magazines, registered with the Registrar of Newspapers, registered News Agencies, Accredited Press Correspondents and Press Photographers.
Public Institutions.
Small Scale Industries.
Eminent Publicmen.
Foreign Exchange earners when OYT is not open".
Thus, it is evident that the term "Eminent Publicmen" has been substituted in the place of "Publicmen, social workers and Tamra Patra Holders" as provided under the Telephone Allotment Rules, 1980 dated 17th January, 1980. Attached to the Telephone Allotment Rules, 1980 dated 21st May, 1980 is the letter issued by the Director General of Posts and Telegraphs bearing No. 2-29/78-PHA dated 21st May, 1980 in which the procedure to be adopted for determining the category of 'Eminent Publicmen' is prescribed in the following manner:
"Eminent Publicmen"-Applications from eminent publicmen can be registered under this category after proper scrutiny and at the discretion of the General Manager/District Manager, Telephones. Where necessary the General Manager/District Manager, Telephones may take advice of the Telephone Advisory Committee. Only one demand for residential connection per applicant can be registered under this category provided the applicant is not having any other telephone in his individual capacity at the same place".
On 13th December, 1983 the office of the Director-General, Posts and Telegraphs issued a further set of amendments to the Telephone allotment Rules vide Communication No. 2-29/78-PHA dated 13th December, 1983. It would be worth-while to reproduce below the decisions taken in the above referred communication dated 13th December 1983 so that some aspects of the matter may be highlighted. The said letter reads as follows :-
"Subject :-Telephone Allotment Rules : Amendments to.
This Office has had under consideration the following matters pertaining to the rules for allotment of telephones.
(a) Definition of 'eminent public men';
(b) The number of telephones to be provided for educational institutions under 'Special' Category ;
(c) Eligibility of Trade Unions for telephone connections under 'Special' Category;
(d) Percentage allotment of telephone connections for different categories ;
(e) Inclusion of Cinema Halls and private hotels under "OYT-Special" category; and
(f) Inclusion of Naturopaths and Physio-therapists under 'Special' Category.
Comments on those points have been received from some Circles/ Districts and have been examined in the P & T Directorate. During the last Heads of Circles Conferences, a working Group (No. VI) went into these points and made recommendations.
7. On the basis of an examination of the matter, the following decisions have been taken:
(1) The term 'eminent Publicimen' may be replaced by 'eminent persons', who would be persons who have earned recognition at the State or National level in any particular field of science or public activities including sports, fine arts, literature, family planning, adult literacy and uplift of the down-trodden. The head of the Telecommunications Circle/Telephone District will have the discretion to decide whether an applicant is an eminent person.
(2) Government schools and colleges can register for two Telephone connections each under 'Non-OYT Special' Category, whereas in the case of private schools and colleges, the registration will be under 'OT Special' Category if the Institution requests for the same. In the case of Universities two telephones can be sanctioned for each Faculty under 'Non-OYT' Special category subject to a limit of ten telephones per University. Those Institutions should be recognised schools, colleges or Universities preparing the students for recognised examinations conducted by the Secondary School Education Board, University etc. (3) A registered Trade Union recognised by the management of an establishment will be eligible for registering two telephones under 'Special' Category provided the membership of such a registered Trade Union recognised by the menagement is at least 2000. Application for one telephone can be registered for the office and another at the residence of any office-bearer of the Trade Union.
(4) The percentage allotment of telephone connections under three different categories will be revised as follows:-
(Existing) OYT 40% (25%) Non-OYT Special 20% (40%) Non-OYT General 40% (35%) The excess, if any, under the OYT Category will be utilised for clearing the waiting list under 'Special' and 'General' categories in the ratio of 1:2 after reserving for an estimated six months* requirement in the OYT Category. Similarly, any excess under the 'Special' Category will be utilised for OYT and 'General' category applicants in the ratio of 1:1 after leserving the likely requirement under 'Special' category for the next six months The revised percentage will be effective from 1-1-1984. (5) Cinema Halls and Private Hotels can register for one telephone connection each under the 'OYT Special' Category. (6) Naturopaths and Physiotherapists will be considered for registration under 'Special' Categery provided they are registered by a National or State-level body or if they produce degree/diploma certificate awarded at the National or State level.
8. A reading of the latest amendment, reproduced above, reveals that the term 'eminent public men' has now been replaced by 'eminent persons' who have been defined in the manner as stated above. In Rule 2 of the said rules the Government Schools and colleges can register for two telephone connections each under 'Non-OYT Special' category. It is further provided under Rule 3 a registered Trade Union recognised by the management of an establishment will be eligible for registering two telephones under 'Special' category. It is note-worthy that they will be eligible for registration under 'Special' category. It is not known whether this is a 'Non-OYT Special' category or 'OYT Special' category. The mere mention of the Trade Union falling under 'Special' Category is, therefore, kept delightfully vague, as there is no category like 'Special' Category by itself. Under Rule 5 cinema halls and private hotels are eligible for registration under 'OYT Special' category. Under Rule 6 Naturopaths and Physiotherapists are eligible for registration under 'Special' category even though there is no such category existing under the Telephone Allotment Rules as such. As in the case of Trade Unions, in the case of Naturopaths and Physiotherapists also it is not classified whether they will fall under 'Non-OYT Special' category or 'OYT Special' category' as the case may be.
9. Thus, an analysis of the Telephone Allotment Rules, 1980 along with the guidelines issued by the Department of Telecommunications clearly reveals the fact that the allotment rules and the guidelines have been freely and liberally amended from time to time by the Department in accordance with the exigencies of the situation. It is also obvious that the above said rules are merely administrative instructions and do not have any statutory force as they have not been promulgated in exercise of the powers under Section 7 of the Indian Telegraphs Act, 1885. The discretion vested in the authorities while issuing such administrative instructions must be exercised in a just and fair manner. In Sharp v. Wakefield, 1891 AC 173 it was laid down that 'discretion' means that when something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice, not according to private opinion, according to law and not humour. It is to be, not arbitrary, vague and fanciful but legal and regular. This seems to be the consistent judicial view which has been held eversince these words were pronounced in the case referred to above. The exercise of discretion is a science or understanding to discretion between falsity and truth, between wrong and right and not to do according to their wills and private affections. It may be mentioned here that the power of judicial review over discretion is now crystalized in United States of America in the 'arbitrary', capricious and abuse of discretion' clause of the Federal Administrative Procedure Act. They confirm the judicial authority to intervene where discretion has been abused. Abuse of discretion is supposed to occur when the power has been exercised in an arbitrary or capricious manner. The test applied in all such cases is the test of reasonableness. Accordingly it amounts to an abuse of discretion where this exercise is based upon considerations which should not have entered into the decision. Moreover, a discretionary decision based upon extraneous considerations is invalid as it is bound to be unreasonable and is, therefore, liable to be interfered with by the courts in exercise of their overall power of judicial review. The principle of 'reasonableness', referred to above, is of an ancient origin and is so firmly imbedded as a doctrine of administrative jurisprudence that it still holds the field in regard to matters which fall within the discretionary powers of the authorities concerned. In West-Minister Corporation v. London & North Western Railway Co., 1906 AC 426, Lord Macnaghten observed as follows:-
"It is well settled that a public body invested with statutory powers such as those conferred upon the corporation must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably. The last proposition is involved in the second, if not in the first."
The common theme running through all this judicial dicta seems to be that the notion of absolute or unfettered discretion is liable to be rejected. In Breen v. Amalgamated Engineering Union, (1971) 2 Q.B. 175 Lord Denning observed that the discretion of a statutory body is to be exercised according to law which must be guided by relevant considerations. It does not matter that the statutory body may have acted in good faith. Nevertheless, the decision so arrived at, if it is not based on relevant considerations, will have to be set aside. While observing thus, Lord Denning learned heavily on the cerebrated case of Patfield v. Minister of Agriculture, Fisheries and Food, 1968 A.C. 997 which was laid down the same principle about judicial rejection of unfettered discretion.
10. The object of quoting the above authorities is to derive the principle by applying the inductive method of analysis of law that wide discretions culminating in the form of administrative instructions by authorities clothed with the powers of laying down rules and guidelines are to be exercised not merely carefully and cautiously but fairly and equitably as well.
11. The question that has been raised in this batch of writ petitions by the learned counsel appearing for the petitioners individually and in some cases on behalf of the Advocates' Association is under what canon of law the naturopaths and physiotherapists and persons similarly placed have been included in the 'Special' Category. It has been made clear by almost all the learned counsel appearing in these cases that they are not against the inclusion of such persons in the 'Special' Category but what they are striving at is the exclusion of the advocates as professionals in their own right serving the public interest, and playing a crucial role in the upholding of the doctrine of rule of law in the Non-OyT Special Category for allotment of telephones on a priority basis. It must be said that we find considerable force in this contention advanced by the learned counsel appearing for the petitioners that when the list of 'Non-OYT Special' category has undergone such changes on a vast scale from time to time, then, perhaps, the case of the advocates for inclusion in the 'Non-OYT Special' category should have also been considered by the authorities in an objective manner. In the counter affidavit filed on behalf of the respondents it is stated that it is not only the importance of the profession in general that counts but the profession must be directly linked with life of public or national interest. Jan it be said that the profession of law does not have any link with the life of public or national interest? Can it be said that a lawyer does not play a crucial part in upholding the fundamental principles of democracy like supremacy of law and the establishment of rule of law in the society? It may not be necessary to answer these questions to highlight the importance of the profession of practising advocates but these are all matters which must be left for the good sense of the authorities who have to take a decision in the matter.
12. In P.M. Mohammad Ali v. Union of India, while dealing with a similar matter and rejecting the claims of the Advocates for inclusion in the Non-OYT Special Category, it was observed thus :
"It may be that the authorities thought that those in the legal profession do not require any special treatment and so they are not included in that special category. What can the court say in that treatment? Giving telephone service is the privilege of the Government and the Telegraph authority. If in their opinion or wisdom they thought that public men (Public and social workers)-an elusive category-have a Special function to discharge to the public and deserve a special treatment from advocates who are only a necessary part of the Rule of Law in a democratic set up, the Court cannot venture into an assessment of that opinion or embark on an enquiry of comparative merit of the claimants for getting included in the special category."
It is easy to detect an element of judicial sarcasm in the above observation that the advocates who play such an important part in the upholding of rule of law in a democratic set up have not been found fit to be included in the special category. However, it must also be observed that in the above case the case of the petitioner was not for inclusion of his name in the 'Non-OYT Special' category or General Category but his case was that nobody should be given any special treatment and that applicants should be considered only on the basis of priority of applications. ,The claim of the petitioner was thus rejected as being devoid of any merit and no relief was granted in the above said case. In the present batch of writ petitions, as already pointed out earlier, the case of the petitioners is not that some of the parties included in the 'Non-OYT Special' category should be excluded, but the only claim of the petitioners is that along with others they should also be included in the Non-OYT Special category.
13. In another Full Bench decision of the Rajasthan High Court reported in Shankar Birmiwal v. Union of India, (F.B.) similar claims of the petitioners, who are advocates, have been rejected on the ground that no doubt there has been under inclusion in the Non-OYT Special Category but it does not call for any interference by the courts as such. It was observed in the Full Bench decision of the Rajasthan High Court that the aforesaid defect of under inclusion of the members of the legal profession would not justify striking down the classification altogether. Reliance was placed on the decision of the Supreme Court in Sakhawant Ali v. State of Orissa, while arriving at the conclusion that the legislation enacted for the achievement of a particular object or purpose need not be all embracing, and it is for the legislature to determine what categories it would embrace within the scope of legislation and merely because certain categories which would stand on the same footing as those which are covered by the legislation are left out would not render legislation which has been enacted in any manner discriminatory and violative of the fundamental right guaranteed under Article 14 of the Constitution. It is significant to note that even according to the Full Bench decision of the Rajasthan High Court, referred to above, omission of inclusion of the Advocates in the Non-OYT Special Category amounts to under-inclusion but since it was question of striking down the entire classification the court refused to do so on the ground that mere under-inclusion does not warrant any striking down of the classification as such.
14. In the modern days and since the decisions of the Kerala High Court reported in P.M. Mohammed Ali v. Union of India (5 supra) and the Full Bench decision of the Rajasthan High Court reported in Shankar Birmiwal v. Union of India (6 supra) we have travelled a long way in the field of telecommunications. Much water has flown under the bridge and a telephone has now become, particularly for professional people, a necessity. Persons who are engaged in the field of activity which requires consstant touch with the members of the public badly need a telephone at their place of work or residences, as the case may be. During the last ten years we have seen the development of telecommunications through sattelite and other modern scientific gadgets. There has been a vast expansion in the telephone connections which are given to the members of the public. It would be no exaggeration to say that almost everyone who can afford it is now desirous of having a telephone so that communications in the discharge of his work or duties may be easier.
15. It is abundantly clear that the profession of advocates enjoys the primary place in the maintenance and upholding of rule of law in the democratic society. The advocates have to constantly keep in touch with their clients and other parties who are involved in litigation. Further more, in some cases they have also to be in touch with the officers of the court with regard to the posting of their cases, adjournments and filing of new cases in the court, etc. Therefore, the importance of the profession is well established and it is directly linked up with the life of public or national interest. It is true that comparison of professions in this case will be odious but no one can say that the profession of advocates is not on par with any other profession which serves the national and public interest. It is to be noticed that even in the Full Bench decision of the Rajasthan High Court in Shankar Birmiwal v. Union of India (6 supra), referred to above, it has been held that there is definitely a case of under-inclusion by omission of the profession of advocates in the Non-OYT Special Category for grant of telephones on priority. Similarly in the decision of the Kerala High Court in P.M. Mohammed Ali v. Union of India (5 supra) also it has been observed that the advocates do play a very important part in the maintenance of the democratic form of Government and upholding the principle of Rule of law which deserves to be considered by the authorities.
16. In Comptroller & Auditor General v. K.S. Jagannathan, the Supreme Court while discussing the ambit and scope of Writ of Mandamus, has held that the High Courts exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Goverment or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion. In this case the Supreme Court was concerned with the question of qualifying standard of marks to be obtained in the examination and the relaxation which was granted to Scheduled Caste and Scheduled Tribe candidates. It further held that the discretion conferred on the authority in matters of relaxation of marks in case of Scheduled Caste and Scheduled Tribe candidates is a discretion to be exercised in the discharge of the duties assigned to the authorities under the Constitution. The discretion must be exercised with special care having due regard to the educational and economic interests of the weaker sections of the people on which such advantages have been conferred. The principle, therefore, is clear that the discretion vested in the authorities has to be exercised in accordance with the principles of justice and fair play and must not depend upon the whims and fancies of the authorities in whom such discretion is vested.
17. In Vishnudas Hundumal v. State of M.P., AIR 1981 SC 1616 the question regarding the validity of the scheme of nationalisation of routes in certain areas came up for consideration by the Supreme Court. It so happened that under the Scheme certain existing operators were allowed to operate on overlapping portions of notified routes, while the petitioners, who are similarly placed, were denied such facility. The Supreme Court, inter alia, held that the conditions in the permits issued to the petitioners prohibiting them from passing over the overlapping portion of their routes with the notified route was to be quashed and all the operators including those excluded and similarly situated shall be similarly treated as it resulted in discrimination.
18. In the light of the above principles laid down by the Supreme Court it is evident that the facility of a telephone to the members of the legal profession is a necessity in the modern days of advanced telecommunications. During the last ten years stupendous strides have been taken in the scientific field in the matters of transmission of information and broadcast all over the world. A gadget, which was supposed to be a luxury about ten or fifteen years back has now become a necessity without which it has become difficult to keep in touch with people who have something to do with the work of an individual or a class of persons, as the case may be We have already pointed out that several amendments have been made to the category of persons who are to be included in the Non-OYT Special Category from time to time. It is, therefore, evident that the authorities in whom the discretion is vested to include or delete certain persons in the Non-OYT Special Category, should exercise their discretion in a fair and equitable manner. The question of inclusion of the advocates in the Non- OYT Special Category deserves to be considered keeping in view the unquestionable importance of the profession of Advocates which is linked- up with the life of the public and national interest. We are confident that the exclusion of Advocates from the above said category has been done in the past not with a view to be little the importance of the profession but, perhaps, because at that time it was thought that the facility of telephones cannot be granted to each and every profession which may be similarly placed.
19. It is brought to our notice that in a similar batch of writ petitions viz., W.P. No. 1326/86 and batch, a Division Bench of this Court, by its Judgment dated 2nd June, 1987, directed inclusion of the names of the petitioners therein, who are also advocates, in the list of Non-OYT Special Category for the purpose of allotment of telephone connections on priority basis. It was also directed in the said judgment that those who have already been given telephone connections in accordance with the interim directions given by this court shall continue to have the telephone connections till regular connections are given in their turn on the basis of their inclusion in the list of Non-OYT Special Category. However, in the said Judgment it is made clear that the matter was not contested on merits and that it may not be taken as a precedent in future cases.
20. Therefore, in the changed context of circumstances where there has been a phenomenal expansion of the capacity of the Telephone exchanges and in view of the fact that the profession of Advocates also has come to play increasingly a more active part in the life of the public and the nation as such, it is necessary that the cases of the Advocates for inclusion in the Non-OYT Special Category shall be considered by the authorities concerned and a decision may be taken with due promptitude in any case not beyond the period of three months from today. It would be pertinent to observe here that if the respondent-authorities deem it fit and proper, they may discuss the modalities with regard to the minimum standing at the bar etc., required for inclusion of the names of the Advocates in the list of Non-OYT Special Category with the representatives of the High Court Bar Association or other Advocates' Associations, as the case may be, to evolve an acceptable formula in this regard. It may also be mentioned that in so far as the existing telephone connections which have been given pursuant to the interim directions given by this Court in these Writ Petitions are concerned, they may be continued to operate till a decision is taken by the authorities as indicated above.
21. With the above observations, the Writ Petitions are disposed of, but, in the circumstances, there will be no order as to costs.