Patna High Court - Orders
The Bihar State Electronics ... vs Jayant Prasad Saha & Ors on 13 August, 2013
Author: Navin Sinha
Bench: Navin Sinha, Vikash Jain
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.393 of 2013
======================================================
1. The Bihar State Electronics Development Corporation, Beltron Bhawan,
Bailey Road, Patna Through Its Managing Director
2. The Managing Director, The Bihar State Electronics Development
Corporation, Beltron Bhawan, Bailey Road, Patna
3. The Manager, (Administration), The Bihar State Electronics
Development Corporation, Beltron Bhawan, Bailey Road, Patna
.... .... Appellant/s
Versus
1. Jayant Prasad Saha Son Of Late Rajendra Lal Saha Resident Of Saryug
Apartment Flat No.- 303, Patliputra Colony, P.S.- Patliputra, District- Patna
2. The State Of Bihar
3. The Secretary, Department Of Industries, Government Of Bihar, Patna
4. The Chairman, Bureau Of Public Enterprises, Finance Department, Old
Secretariat, Bihar, Patna
5. Joint Director, Department Of Finance, Bureau Of Public Enterprises,
Old Secretariat, Bihar, Patna
6. Sri P.N. Singh Ex. M.D. Beltron Bhawan, B.S.E.D.C. Beltron Bhawan
Patna- 23 At Present Chandra Bhawan, Lohia Nagar, M.I.G. Kankarbagh
P.S.- Kankarbagh, Patna- 20
.... .... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Lalit Kishore, Principal Additional
Advocate General
Mr. Vikash Kumar
For the Respondent/s : Mr. Ajay Thakur
======================================================
CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA
and
HONOURABLE MR. JUSTICE VIKASH JAIN
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE NAVIN SINHA)
6 13-08-2013I.A. No. 2289 of 2013 has been filed to condone the delay of approximately 132 days in preferring the Appeal. We have heard Counsel for the parties and considered the explanation for the delay. Considering the facts of the case, nature of questions involved, we consider it proper to condone delay and take up the Appeal for disposal on merits.
The present Appeal arises from order dated 26.6.2012 Patna High Court LPA No.393 of 2013 (6) dt.13-08-2013 2 allowing CWJC No.12676 of 2002. The orders dated 30.9.2002 terminating the service of respondent no.1 has been set aside holding him to be in continuous service from the date of his initial appointment entitled to all arrears of salary and emoluments.
Respondent no.1 was initially appointed on the post of Production Manager, T.V. Project in the Appellant Corporation for a two-year period on contract, by order dated 24.10.1980. The Appellant published a fresh advertisement in April 1983 inviting applications inter alia for the post of Production Manager T.V. Project, on pay scale of Rs. 1575-2300. The post, as mentioned in the advertisement, carried other benefits of CPF, Medical facilities, CLA, House rent and such other benefits as admissible to the employees of the Corporation from time to time. The High Level Selection Committee of the Bureau of Public Enterprises considered the candidature amongst others of respondent no.1 in response to the advertisement and recommended his name for the aforesaid post, along with two others for different posts. The Board of Directors of the Appellant resolved to appoint him.
The Managing Director of the Appellant however issued an appointment letter on 17.2.1984 for a contract appointment of two years duration liable to be extended from time to time for a further fixed period according to the need of the Corporation. The terms of the appointment including the pay scale were at variance with the advertisement. Respondent no.1 protested in writing on 14.9.1983 that the advertisement was not for a contract appointment. The Board of Directors of the Appellant Corporation then promoted him Patna High Court LPA No.393 of 2013 (6) dt.13-08-2013 3 to the post of Assistant Manager [Q.C.]. The Managing Director of the Appellant subsequently, referring to a Board Resolution dated 15.2.1986 terminated the contract appointment of Respondent no.1 on 17.2.1986 stating that his services were no longer required. Respondent no.1 protested in writing on more than one occasion and also pursued the matter with the Industries Department, the Bureau of Public Enterprises and the State Minister for Industries. The three authorities sought explanation from the Appellant for the justification of a contract appointment and subsequent termination without approval.
The Managing Director then referring to Letter no.824 dated 25.2.1986 of the Bureau of Public Enterprises, Letter no.12099 dated 15.11.1989 of the Industries Department and the Demi Official letter no.261 dated 16.5.1990 from the State Minister for Industries reinstated him on the same terms and conditions which were applicable to him on the date of termination along with the additional benefits that would have accrued on the post from time to time in the meanwhile. Salary for the interregnum was denied and the period not to count for service. Respondent no.1 resumed duties but was again terminated by by the Managing Director vide office order dated 30.9.2002 with effect from 1.10.2002 stating that the appointment was illegal referring to Board Resolution dated 30.9.2002 at its 91 st meeting.
The Learned Single Judge held that the advertisement published in April 1983 by the Bureau of Public Enterprises was for a permanent post of Production Manager, T.V. Project. The Patna High Court LPA No.393 of 2013 (6) dt.13-08-2013 4 respondent no.1 was selected by the High Level Selection Committee of the Bureau of Public Enterprises who was the appointing authority. The Board of Directors of the appellant resolved to appoint him. Neither the advertisement nor the resolution of the Board provided for a contract appointment of two years duration only. The Managing Director acted illegally in making such contract appointment. The orders of termination dated 17.2.1986, without considering the objections of respondent no.1 and without approval of the Bureau of Public Enterprises were all bad. Reinstatement had rightly been ordered on 29.5.1990. The denial of salary in the interregnum was not justified and that respondent no.1 was deemed to be in service continuously from his initial date of appointment i.e. 18.2.1984. The Learned Single Judge also noticed the stand of the Bureau of Public Enterprises and the Department of Industries before him that the appointment of the petitioner had been recommended for a permanent post and that no approval had been taken from them before appointing him on contract basis and terminating it after two years. The resolution at the 91st meeting of the Board dated 30.9.2012 leading to order of termination dated 30.9.2012 had not been brought on record by the respondents.
The Learned Principal Additional Advocate General appearing on behalf of the Appellant submitted that respondent no.1 never challenged the order dated 17.2.1984 appointing him on a contract basis for two years or the order terminating it dated 17.2.1986 before any legal forum. The private respondent was re-appointed and not Patna High Court LPA No.393 of 2013 (6) dt.13-08-2013 5 reinstated on 29.5.1990 which again he did not question. No relief from the date of original appointment could have been granted. The only relief sought in the writ application was to quash the fresh order of termination dated 30.9.2012. The Learned Single Judge therefore travelled beyond the pleadings and relief sought to erroneously direct reinstatement with all consequential benefits from 18.2.1984. In absence of any pleadings the question of moulding any relief did not arise.
Learned Counsel for respondent no.1 submitted that the advertisement of April 1983 was for a regular vacancy and not a contract appointment of two years duration. Soon after joining the private respondent had protested the contract appointment and had even submitted a resignation. Considering the same, the Board of Directors on 14.9.1983 promoted him to the post of Assistant Manager (Q.C) after which he withdrew his resignation. The question of promoting a person on contract for two years does not arise. The appointment was made at complete variance with the terms of the advertisement regarding pay scale and other service conditions. The respondent protested and represented against the illegal termination dated 17.2.1986. Reinstatement followed on 29.5.1990 after the Bureau of Public Enterprises, the Industries Department and the State Minister for Industries did not approve of the termination. The grant of service benefits as may have accrued in the meantime on the date of reinstatement is itself indicative of the decision to give him continuity by reinstatement. Such conduct is inconsistent with an order for re-appointment. The fresh impugned termination dated Patna High Court LPA No.393 of 2013 (6) dt.13-08-2013 6 30.9.2012 was in violation of the principles of natural Justice without a show cause notice mandated for a permanent employee. No grounds were mentioned in the order with regard to the nature of the illegality in the appointment. The termination dated 17.2.1986 itself being illegal the question of obtaining any ratification/sanction for reinstatement from the Bureau or other authorities does not arise. The ground for termination as explained in the counter affidavit for lack of such concurrence was incongruous and apparently arbitrary based on non-existent grounds. Respondent no.1 has been unnecessarily hounded because he made certain claims for Provident Fund dues against the Corporation upheld by the Provident Fund Authorities on 20.8.2002 for a sum of Rs.1,78,680/- along with interest not denied in paragraph 28 of the counter affidavit.
We have considered the submissions made on behalf of the parties. The advertisement published in April 1983 inter-alia for the post of Production Manager T.V. Project provided a pay scale of Rs.1575 - 2300. It carried other service benefits of C P F, Medical facilities, C L A, House rent and such other benefits as admissible to the employees of the Corporation from time to time. Such benefits of the nature mentioned in the advertisement are available to regular employees only. A prudent understanding of the advertisement shall therefore necessarily be that it was for a regular appointment against a permanent post. The grant of such benefits on the face of it militates against the concept of a contract appointment. The latter would carry fixed emoluments with specified benefits mentioned Patna High Court LPA No.393 of 2013 (6) dt.13-08-2013 7 only. We are further fortified in our view from the fact that the recommendation of the Bureau of Public Enterprises dated 26.12.1983 and the subsequent Resolution no. 21/8 of the Board of Directors did not make a recommendation for a contract appointment of two months. The Appellant in its counter affidavit before the Learned Single Judge or in the Memo of Appeal has not furnished any explanation under what circumstances and why the Managing Director made an appointment on contract for two months only. The office order of appointment does not refer to the recommendation of the Bureau of Public Enterprises or the Resolution of the Board. The letter of appointment also demonstrates that the terms of appointment were at complete variance with the pay scale and other service conditions as mentioned in the advertisement. The Managing Director of the Corporation acted illegally and without authority or jurisdiction in making the contract appointment of the private respondent for a period of two years only on completely different terms in response to the advertisement.
The order of the Managing Director for a contract appointment and the subsequent termination of the same apparently being illegal in their origin, it does not lie for the Appellant to contend that in absence of any challenge to the same, what originated in rank illegality acquired the cloak of legality. To hold so would be putting a premium on the illegality committed by the Appellant giving them an advantage of their own wrongs. It would be a dangerous reasoning to hold that an order palpably illegal passed in gross abuse of public powers by a public authority, unjustified on the face of it without a Patna High Court LPA No.393 of 2013 (6) dt.13-08-2013 8 detailed enquiry, must still be challenged by the citizen failing which illegality shall rule. We reject such a submission.
The maxim that no one can take advantage of his own wrong was considered in (2007) 11 SCC 447 (Kusheshwar Prasad Singh v. State of Bihar) holding as follows :-
―14. In this connection, our attention has been invited by the learned counsel for the appellant to a decision of this Court in Mrutunjay Pani v. Narmada Bala Sasmal wherein it was held by this Court that where an obligation is cast on a party and he commits a breach of such obligation, he cannot be permitted to take advantage of such situation. This is based on the Latin maxim commodum ex injuria sua nemo habere debet (no party can take undue advantage of his own wrong).
15. In Union of India v. Major General Madan Lal Yadav the accused army personnel himself was responsible for delay as he escaped from detention..........This Court (at SCC p. 142, para 28) referred to Broom's Legal Maxims (10th Edn.), p. 191 wherein it was stated:
―It is a maxim of law, recognised and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognised in courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure.‖
16. It is settled principle of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non-
performance he has occasioned. To put it differently, ―a wrongdoer ought not to be permitted to make a profit out of his own wrong‖.
The promotion of the respondent no.1 to the post of Assistant Manager(Q.C.), in our opinion further militates against the idea of a contract appointment. On protest representations by respondent no.1, the State government in the Department of Industries and the Bureau of Public Enterprises had both questioned the Appellant with Patna High Court LPA No.393 of 2013 (6) dt.13-08-2013 9 regard to the legality and justification for contract appointment followed by termination. Neither before the Learned Single Judge in its counter affidavit, nor before us in the Memo of Appeal, has the Appellant disclosed what response it submitted to the same. To the contrary, the order for reinstatement dated 29.5.1990 refers to letters dated 25.2.1986 of the Bureau of Public Enterprises, 15.11.1989 of the Industries Department and the letter dated 16.5.1990 of the State Minister for Industries as the reason for reinstatement. Curiously, the Appellant, neither in its counter affidavit before the Learned Single Judge nor before us in the Appeal has placed what was the content of the aforesaid three letters. These letters were crucial and would have shed much light on the sequence of events. The failure of the Appellant to produce them satisfies us to draw an adverse inference to conclude that the reinstatement of the private respondent was the result of the aforesaid authorities not approving of the contract appointment followed by termination of the same.
Whether the order dated 29.5.1990 was one of re-appointment or reinstatement, has to be culled not only from the language used but the entire attending circumstances. In addition to what has been noticed in this regard by us herein above, if it was not an order for reinstatement there was no justification to give him up to date accrued benefits of the post as may have been available from the date of termination to the date of reinstatement. There is no order for break in service. The semantics between the words re-appointment and reinstatement sought to be urged by the Appellants does not impress us in the facts and circumstances of the case. Patna High Court LPA No.393 of 2013 (6) dt.13-08-2013 10
In the Universal's Law Dictionary (English to Hindi/ Hindi to English) compiled by Dansingh Suganchand Choudhary, Appointment has been described as ―Niyukti‖. Re-appointment has been defined as ―Punarniyukti‖ and ―Punirniyukti‖ has been defined as ―Reinstatement‖. What connotation the words shall have has therefore to be determined on the facts of each case.
The order of termination dated 30.9.2002 was not preceded by any show cause notice and opportunity to defend. The nature of the illegality in appointment has also not been mentioned in the order which simply states ―illegal appointment.‖ An order passed in violation of the principles of natural justice is akin to a still born child which never comes into existence as held in (1974) 2 SCC 121 (Nawabkhan Abbaskhan v. State of Gujarat) observing :-:
―19. In the present case, a fundamental right of the petitioner has been encroached upon by the police commissioner without due hearing. So the Court quashed it -- not killed it then but performed the formal obsequies of the order which had died at birth.....‖ The law stands equally settled that an order by the authorities has to be tested on basis of recitals contained therein and cannot be explained in a counter affidavit. To permit the same may tantamount to furnishing an opportunity to justify an illegal order by passage of time and events which was palpably illegal when passed. In (2002) 1 SCC 520 (2002) 1 SCC 520 (Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences) it was observed :-
―34. That an affidavit cannot be relied on to improve or supplement an order has been held by a Constitution Bench in Mohinder Singh Gill v. Chief Election Commr., New Delhi) :
―[W]hen a statutory functionary makes an order Patna High Court LPA No.393 of 2013 (6) dt.13-08-2013 11 based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise.‖ The illegality in the appointment dated 29.5.1990 sought to be explained in the counter affidavit for absence of approval from the Industries Department or the Bureau of Public Enterprises leaves us unimpressed. If the original appointment on contract and the subsequent termination dated 17.2.1986 itself was contrary to the law it is difficult to appreciate what ratification or consent the Appellant was seeking from those who did not approve the conduct.
No other illegality has been pointed out. These alone vitiate the order of termination without further more.
The power to appoint, terminate, reinstate and then again terminate is a public power exercised by a public functionary and has a public purpose. The power has therefore to be exercised for public good and not at whims and fancies. Every repository of public power has a duty to act honestly, faithfully and reasonably within the bounds of law and the power conferred. In (1979) 3 SCC 489 (Ramana Dayaram Shetty v. International Airport Authority of India) it was observed :-
―10..... It is indeed unthinkable that in a democracy governed by the rule of law the executive Government or any of its officers should possess arbitrary power over the interests of the individual. Every action of the executive Government must be informed with reason and should be free from arbitrariness. That is the very essence of the rule of law and its bare minimal requirement. And to the application of this principle it makes no difference whether the exercise of the power involves affectation of some right or denial of some privilege.Patna High Court LPA No.393 of 2013 (6) dt.13-08-2013 12
12. We agree with the observations of Mathew, J., in V. Punnan Thomas v. State of Kerala that:
―The Government, is not and should not be as free as an individual in selecting the recipients for its largesse. Whatever its activity, the Government is still the Government and will be subject to restraints, inherent in its position in a democratic society. A democratic Government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal.‖ .....................the power or discretion of the Government in the matter of grant of largesse including award of jobs, contracts, quotas, licences, etc. must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the Government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory.‖ In (2011) 9 SCC 354 (Delhi Airtech Services (P) ltd v. State of U.P.) on issues for accountability in exercise of public powers by those holding public office it was observed as follows :-
―215. The concept of public accountability and performance of functions takes in its ambit, proper and timely action in accordance with law. Public duty and public obligation both are essentials of good administration whether by the State or its instrumentalities. In Centre for Public Interest Litigation v. Union of India, this Court declared the dictum that State actions causing loss are actionable under public law. This is a result of innovation, a new tool with the courts which are the protectors of civil liberties of the citizens and would ensure protection against devastating results of State action. The principles of public accountability and transparency in State action are applicable to cases of executive or statutory exercise of power, besides requiring that such actions also not lack bona fides. All these principles enunciated by the Court over a passage of time clearly mandate that public officers are answerable for both their inaction Patna High Court LPA No.393 of 2013 (6) dt.13-08-2013 13 and irresponsible actions. If what ought to have been done is not done, responsibility should be fixed on the erring officers; then alone, the real public purpose of an answerable administration would be satisfied.
218. Principles of public accountability are applicable to such officers/officials with all their rigour. Greater the power to decide, higher is the responsibility to be just and fair. The dimensions of administrative law permit judicial intervention in decisions, though of administrative nature, which are ex facie discriminatory. The adverse impact of lack of probity in discharge of public duties can result in varied defects, not only in the decision-making process but in the final decision as well. Every officer in the hierarchy of the State, by virtue of his being ―public officer‖ or ―public servant‖, is accountable for his decisions to the public as well as to the State. This concept of dual responsibility should be applied with its rigours in the larger public interest and for proper governance.‖ The pleadings in a writ application are undoubtedly important.
No litigant can be taken by surprise without first being made fully aware of the case that his opponent makes out and required to be answered. But for the purpose, the entire pleadings must be read and understood rather a pedantic approach with regard to what may or may not be stated in a particular paragraph. Reading paragraph 1 of the writ application coupled with the grounds urged in paragraph 2 (I to VII) and the detailed facts stated thereafter it does not need much imagination to understand that the challenge to the order of termination dated 30.9.2002 was not in isolation but on the ground that the initial appointment was on a permanent post and not contractual in nature. That termination had been ordered contrary to the law. The order for termination was in violation of the principles of natural Justice. The petitioner should be deemed to be a regular Patna High Court LPA No.393 of 2013 (6) dt.13-08-2013 14 employee from the date of original appointment. The counter affidavit filed by the Appellant leaves us satisfied that they have not been taken by any surprise with the nature of the relief granted as they very well understood the same and duly replied to it on merits all of which has been considered by the Learned Single Judge. We therefore reject the submission that the relief sought was limited to quashing of the order for termination dated 30.9.2002 only and that relief had been granted beyond pleadings.
The purpose of pleadings and the manner in which they are to be read eschewing a hyper technical approach in writ jurisdiction dealing with matters related to service was considered in (1976) 3 SCC 832 (Mumbai Kamgar Sabha v. Abdulbhai Faizullabha) observing as follows:-
―7....But a bare reading of the petition, the description of parties, the grounds urged and grievances aired, leave us in no doubt..... The substance of the matter is obvious and formal defects, in such circumstances, fade away. We are not dealing with a civil litigation governed by the Civil Procedure Code but with an industrial dispute where the process of conflict resolution is informal, rough- and-ready and invites a liberal approach. Procedural prescriptions are hand-maids, not mistresses, of justice and failure of fair play is the spirit in which courts must view processual deviances. Our adjectival branch of jurisprudence, by and large, deals not with sophisticated litigants but the rural poor, the urban lay and the weaker societal segments for whom law will be an added terror if technical misdescriptions and deficiencies in drafting pleadings and setting out the cause title create a secret weapon to non-suit a party. Where foul play is absent, and fairness is not faulted, latitude is a grace of processual justice. Test litigations, representative actions, pro bono publico and like broadened forms of legal proceedings are in keeping with the current accent on justice to the common man and a necessary disincentive to those who wish to bypass the real issues on the merits by suspect reliance on Patna High Court LPA No.393 of 2013 (6) dt.13-08-2013 15 peripheral, procedural shortcomings.....‖ We may usefully also refer to (2011) 3 SCC 436 (State of Orissa v. Mamata Mohanty) observing :-
―55. Pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue....‖ The pleadings and issues are to ascertain the real dispute between the parties to narrow the area of conflict and to see just where the two sides differ.‖ The power under Article 226 is couched in wide language to reach injustice anywhere. Procedural hidebound objections cannot whittle down the plenary power. The only limitations very broadly speaking are the self-imposed restrictions on grounds of alternative statutory remedy, complicated questions of facts etc. The plenary nature of the power under Article 226 of the Constitution was noticed in (1965) 3 SCR 536 (Dwarka Nath v. ITO) holding as follows :-
―4...... This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression ―nature‖, for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to Patna High Court LPA No.393 of 2013 (6) dt.13-08-2013 16 introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself. To say this is not to say that the High Courts can function arbitrarily under this Article. Some limitations are implicit in the article and others may be evolved to direct the article through defined channels.‖ In the facts of the present case, we are of the opinion that the Learned Single Judge did not travel outside the pleadings to mould grant of relief. Even if that be so the power to mould the relief on facts presented was noticed in (2011)1 SCC 484(M. Sudakar v. V. Manoharan) observing as follows:-
―14......The power to mould relief is always available to the court possessed with the power to issue high prerogative writs. In order to do complete justice it can mould the relief, depending upon the facts and circumstances of the case. In the facts of a given case a writ petitioner may not be entitled to the specific relief claimed by him but this itself will not preclude the writ court to grant such other relief which he is otherwise entitled. Further delay and laches do not bar the jurisdiction of the court. It is a matter of discretion and not of jurisdiction.‖ The facts of the present case reveal a sorry state of affairs. An advertisement is published by a government body for regular appointment on a permanent post with a specified pay scale and other service conditions available to regular employees. After selection recommendation is made by the appointing authority and the Board for the same. But the Managing Director whimsically deviates from the same and makes a contract appointment on entirely different pay scale and other terms and conditions. Without any modification of the earlier recommendations and resolution, the Patna High Court LPA No.393 of 2013 (6) dt.13-08-2013 17 Board now approves of the contract appointment being terminated.
When queries are made by the Department of Industries and the Bureau of Public Enterprises the respondent is reinstated.
Subsequently it is again terminated in violation of the principles of natural Justice with no disclosure of the alleged illegality. The defence furnished in the counter affidavit is that though reinstatement may have been necessitated by an illegal termination yet ratification was required. The result is wholly frivolous and avoidable litigation generated by the Appellant where there should have been none. If that where not enough, the matter is carried in a wholly frivolous appeal wasting public money and the time of the Court with no important questions involved. Disapproving of such frivolous appeals filed by State authorities it was observed in (1976) 3 SCC 404 (State of Maharashtra v. Narayan Vyankatesh Despande):-
―3. It is evident that the appeal was filed by the State of Maharashtra without giving much thought to the question and caring to enquire whether the judgment of the High Court suffered from any errors requiring to be corrected by a superior court. We do not think it is right that State Government should lightly prefer an appeal in this Court against a decision given by the High Court unless they are satisfied, on careful consideration and proper scrutiny, that the decision is erroneous and public interest requires that it should be brought before a superior court for being corrected. The State Governments should not adopt a litigious approach and waste public revenues on fruitless and futile litigation where there are no chances of success. It is unfortunately a fact that it costs quite a large sum of money to come to this Court and this Court has become untouchable and unapproachable by many litigants who cannot afford the large expense involved in fighting a litigation in this Court. It is, therefore, all the more necessary that State Governments, which have public accountability in respect of their actions, should not lightly rush to Patna High Court LPA No.393 of 2013 (6) dt.13-08-2013 18 this Court to challenge a judgment of the High Court which is plainly and manifestly correct and drag the opposite party in unnecessary expense, part of which would, in any event, not be compensated by award of cost. The present appeal is an instance of the kind of unnecessary and futile litigation which the State Governments can and should avoid.‖ Imposing costs on the officer who took the decision to file such frivolous appeal it was observed in (2005) 12 SCC 174 (State of U.P. v. Vijay Dutt) :-
―In this view, while dismissing this misplaced special leave petition, we direct the State to recover the cost of filing of this special leave petition from the officer concerned who took decision to file the special leave petition against order dated 31-3-2003 and impose on the petitioner State the costs in the sum of rupees twenty thousand for unnecessarily wasting the time of this Court, which shall be deposited in the Supreme Court Legal Services Committee within four weeks.‖ In conclusion, we find no reason to interfere with the order under Appeal. We dismiss the Appeal with costs of Rs. Twenty five thousand only with like directions as contained in in Vijay Dutt (supra) to be deposited in the Patna High Court Legal Services Committee and receipt filed within two weeks.
The Appeal stands dismissed.
(Navin Sinha, J) (Vikash Jain, J) I agree.
(Vikash Jain, J) Patna High Court The 13 th August, 2013 SNKumar/- (NAFR)