Uttarakhand High Court
Dinesh Kumar Chandola vs State Of Uttarakhand And Others on 9 May, 2017
Equivalent citations: AIR 2017 (NOC) 972 (UTR.)
Bench: K.M. Joseph, V.K. Bist
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No. 161 of 2017
State of Uttarakhand & another. ........Appellants
Versus
Lalit Singh Bisht. .......Respondent
Mr. S.N. Babulkar, learned Advocate General with Mr. Paresh Tripathi, learned Chief
Standing Counsel & Mr. Rajeev Singh Bisht, Brief for the State of Uttarakhand/
appellants.
Mr. C.K. Sharma, Advocate for the respondent.
with
CLMA No. 4683 of 2017 (Exemption Application)
In
Special Appeal No. 158 of 2017
Dinesh Kumar Chandola. ........Appellant
Versus
State of Uttarakhand & others. ......Respondents
Mr. C.K. Sharma, Advocate for the appellant.
Mr. S.N. Babulkar, learned Advocate General with Mr. Paresh Tripathi, learned Chief
Standing Counsel & Mr. Rajeev Singh Bisht, Brief for the State of Uttarakhand/
respondent nos. 1 to 3.
Mr. A.D. Tirpathi, Advocate for respondent no. 4.
with
CLMA No. 4614 of 2017 (Exemption Application)
In
Special Appeal No. 155 of 2017
Dinesh Kumar Chandola. ........Appellant
Versus
State of Uttarakhand & others. ......Respondents
Mr. C.K. Sharma, Advocate for the appellant.
Mr. S.N. Babulkar, learned Advocate General with Mr. Paresh Tripathi, learned Chief
Standing Counsel & Mr. Rajeev Singh Bisht, Brief for the State of Uttarakhand/
respondent nos. 1 to 3.
Mr. A.D. Tripathi, Advocate for respondent no. 4.
2
Dated: 9th May, 2017
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble V.K. Bist, J.
K.M. Joseph, C.J. (Oral) Heard learned counsel for the parties.
2. Exemption applications filed in Special Appeal Nos. 158 of 2017 and 155 of 2017 are allowed.
3. These Appeals being connected, we are disposing of the same by the following common judgment.
4. Special Appeal No. 155 of 2017 is filed against the interim order passed by the learned Single Judge. The other two Appeals are filed against the judgment rendered in the writ petition itself.
5. The writ petition was filed by a practicing Advocate of this Court. Therein, he sought the following reliefs:
"I. Issue a Writ, order, or direction in the nature of Mandamus Commanding the Respondent Authorities to put in place the Institutional mechanism to select the State law officers and other Panel Advocates of the State and Public Prosecutors in the Hon'ble High Court strictly on merit through an Impartial/ Transparent Process.
II. Issue Writ, Order, or direction in the nature of Mandamus Commanding the Respondent no. 1 to comply with the 3 Guidelines issued by the Apex Court in the case of State of Punjab vs. Brijeshwar Singh Chahal reported in 2016 SCC Volume 6."
6. Briefly put, the case of the writ petitioner before the learned Single Judge is as follows:
Petitioner is a bona fide practicing lawyer in the High Court of Uttarakhand at Nainital. He is aggrieved by the illegal action of the respondent authorities in the appointment of the State Law Officers in the High Court without following the guidelines laid down by the Hon'ble Apex Court in the case of "State of Punjab another vs. Brijeshwar Singh Chahal & another", reported in (2016) 6 SCC 1. He further states that question of law sought to be adjudicated in the present petition is the enforcement of guidelines issued in the said judgment to put in place the Institutional Mechanism to select the Law Officers and Panel Advocates of the State and Public Prosecutors, Additional/Assistant Advocate Generals/ Government Advocates, Chief Standing Counsel, Standing Counsel and Brief Holders, strictly on merit through an impartial/transparent process. He would allege that petitioner, in particular, and the Advocates of the Bar, in general, are important part of the Justice Delivery System, inasmuch as, the Advocates provide the necessary legal assistance to the Courts on behalf of the State. It is further alleged that the State Government, ever since the creation of the State of Uttarakhand, has never adopted and established the fair and impartial mechanism and mode for the selection and appointment 4 of Panel Advocates and absolutely illegal mode has been resorted for the appointment of Panel Advocates based upon the extraneous consideration and political affinity with the ruling political party in the State. Appointments of Advocates, made to the offices heavily remunerated from the Public Exchequer, should not remain unregulated. There is no Scheme, Policy, Norms or Standards formulated for the appointment of Law Officers. In the grounds, it is stated that the petitioner is filing the writ petition only for fundamental rights envisaged in part III of the Constitution of India and also interested for the betterment and development of the institution. He would allege that, in catena of judgments, the Hon'ble Apex Court has held that the lawyers had in interest and locus standi to file a petition in the Court against any arbitrary, unreasonable and discriminatory action of the State. There is a public element attached to it. The State and all the public bodies are the trustees of power vested in them and they are under an obligation to engage the most competent lawyers.
7. Originally, an interim order was passed. Against the same, Appeal was carried and the Appeal was disposed of by relegating the parties to raise all the contentions before the learned Single Judge.
8. A counter affidavit is filed on behalf of the State. Therein, the State questioned maintainability. It is stated that there was no demand by the petitioner before approaching the Court. It is pointed out that, for 5 a mandamus to be issued, there must be a legal duty for which, there must be a legal right with the person, who is applying for the same. It is contended that none of the three essential ingredients were present. The statement that there was no Scheme, Policy, Norms or Standards formulated for the appointment of the Law Officers was pointed to be a false statement. It is contended that violation of legal right is a condition precedent to maintain the writ petition; but, the petitioner has failed to establish any legal injury. As far as judgment of the Hon'ble Apex Court is concerned, it is pointed out that, in paragraph 51.6 of the said judgment, the directions in the said judgment are confined to the State of Punjab & Haryana. It is pointed out that there is a L.R. manual, which governs the appointment of Law Officer in the State. There is a Search Committee composite of Chief Secretary; Principal Secretary/Secretary Law Department; Principal Secretary/Secretary Home Department; Additional Secretary, Law Department; Joint Secretary, Law Department. The policy was produced. Also, there is a reference to an Office Memorandum dated 10.02.2016 issued by the State Government. It is contended that general instructions were issued for appointment and the tenure of Law Officers in the State and the same would reveal that the eligibility criteria in the State of Uttarakhand is much better and, keeping in view the litigation policy, the criteria for selection is more stringent than the State of Punjab, which has framed the Act in compliance of the judgment of the Hon'ble Apex Court. Regarding consultation with the Chief Justice, it is pointed out that 6 it is to be done wherever it is felt necessary by the Government and the petitioner cannot compel the Government to make a mechanism, which mandates the consultation with the Chief Justice for each and every appointment.
9. No rejoinder affidavit thereto was filed.
10. The learned Single Judge noticed the argument about the absence of any demand and its refusal and has held as follows:
"12. The second objection is regarding the petition being premature as there is no demand and its refusal. This objection again is unacceptable. It is unquestionably an important rule that there must be a demand and its subsequent refusal, before a person invokes a writ of mandamus, yet this is again not an inflexible rule. It would not apply in a case where the demand is a mere formality or an eyewash. As per the petitioner, there is no fair and transparent method by which Law Officers are to be selected. The process is opaque and is hardly known even to the practicing lawyers, hence, there is no question of an application for appointment, since appointments, according to the petitioner, are not being made on merit or on any objective assessment, but it is simply a distribution of State largesse, a favour to be given to some chosen few. The claim of the petitioner indeed will be seen on its merit, but the petition must at lease be heard, and it cannot be dismissed on ground that there is no demand and refusal as yet."
11. As regards absence of locus standi with the writ petitioner, the learned Single Judge held as follows:
7"7. Ultimately, what the petitioner has raised before this Court is a question of great public importance. He is concerned with the lack of transparency in appointment of Law Officers by the State Government, which he alleges is the state of affairs in Uttarakhand. Since this question stands settled by the Hon'ble Apex Court in a recent judgment, which has been referred above, the petitioner merely seeks the implementation of the directions given by the Hon'ble Apex Court in the above judgment. Whether it can be done is another matter, it has to be examined, but can the petition be dismissed at the threshold on a technicality.
8. In my respectful opinion the aspect of locus standi has to be examined, inter alia, in the context of the subject or in context of the issues raised by him before this Court. The undisputable fact before this Court is that the petitioner is a practicing lawyer before this Court. He has relied upon a decision of the Apex Court where the Court has given general directions (to which we will refer shortly), for setting a procedure in place for appointment of Law Officers, a procedure which is fair and transparent. Can it be said that the petitioner has no right to seek this relief and this writ petition should hence be dismissed on ground of locus standi! In my humble opinion, this Court would be failing in its duty if it does that. Not only the matter is too important to be dismissed at the threshold, on a technicality, but this Court also has no doubt in its mind that the petitioner would come within the settled parameters of a "person aggrieved". Moreover, the rules of procedure are but a handmaid of justice.
9. A lawyer does not have a legal right to be appointed as a Government Counsel, or a Law Officer. Nevertheless, when a lawyer offers himself for appointment or reappointment as a Law Officer, his claim must be considered on its merit by the Government, without any extraneous considerations. To that extent, 8 every lawyer has a right, and logically therefore he has a remedy too. When this is not being done the only remedy for a lawyer is to file a writ petition before this Court. A lawyer practicing before this Court has a legitimate expectation that when lawyers are appointed as Law Officers before this Court, the State being a trustee of the people will act in a fair and just manner. Is this too much of an expectation? He is not a stranger to the cause he has espoused, when he does that! He is not a busy body or an interloper. He is definitely a "person aggrieved". A person who has a personal or individual right in the subject matter of the petition, is a person aggrieved. Even when an action or inaction on the part of a State or its instrumentality prejudicially affects a person, he becomes a "person aggrieved" and can, therefore, seek a writ of mandamus from this Court.
10. A Full Bench of Kerala High Court, as far back as in 1969 had considered the aspect of "locus standi' in a writ petition, where the wide concept of "person aggrieved" was discussed. It relied upon a decision of Privy Council, in Attorney-General of the Gambia v. N'Jie, 1961-2 All ER 504 at p. 511, which emphasized the wide scope of the words "person aggrieved", as under:
"The words 'person aggrieved' are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busy-body who is interfering in things which do not concern him; but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests."
11. Indeed, when a person seeks a writ of mandamus, the aspect of locus gets confined, as compared to other writs such as Habeas 9 Corpus, Quo Warranto or even Certiorari; yet considering that a practicing lawyer of this Court who is concerned with the manner of selection and appointment of Law Officers of the State has come before this Court as the petitioner, it cannot be said that the action or inaction on the part of the State does not prejudicially affect his interest, in case the procedure for selection is not fair and transparent, as it is alleged. In such a case a lawyer can come before this Court, exdebito justitiae; as a matter of right!"
12. Having cleared the obstacles, which were sought to be posed for a probe into the merit of the matter, the learned Single Judge referred to the judgment of the Hon'ble Apex Court, which was sought to be enforced, and took the view as follows:
"25. This may or may not be the situation in the State of Uttarakhand. This Court sincerely hopes that it is not, yet it would only be fair and reasonable and in step with good governance, if the State Government makes an assessment of its requirement, assessment based on the work load in the High Court and then makes these appointments, as otherwise we too may have a situation like the one referred to in Brijesh Singh Chahal case, and this was the precise apprehension of the Hon'ble Apex Court."
13. Thereafter, the learned Single Judge found as follows:
"30. After hearing the learned Advocate General for the State, this Court finds that as far as the initial process of selection is concerned, the State already has a policy in the shape of its "Litigation Policy, 2011", which is annexed with the counter affidavit, wherein in Chapter III, it has laid down a 10 process under which Law Officers for the High Court are to be selected, which is by a Committee under the Chairmanship of the Chief Secretary of the State, with the following four members:
(i) Principal Secretary/Secretary, Law and Legal Remembrancer - Member
(ii) Principal Secretary/Secretary, Home, Government of Uttarakhand - Member
(iii) Additional Secretary, Law and Additional Legal Remembrancer, Government of Uttarakhand - Member
(iv) Joint Secretary, Law and Joint Legal Remembrance -Member Secretary
31. Under the Policy the Committee will examine the eligibility, experience and the suitability of only such candidates who have been Advocates for atleast three years. There are other guidelines as well. It has further been said in the Policy subject to the need and requirement, the Government may also consult either the Chief Justice or the Advocate General regarding the suitability or eligibility of a particular candidate as a Law Officer.
32. Later a Government Order was again passed on 10.02.2016, making it a part of the L.R. Manual, where broad guidelines for selection and appointment of Law Officers are given not only in the High Court but at all levels. As per this Government Order dated 10.02.2016 eligibility has been given for appointment of a Senior Additional Advocate General, Additional Advocate General, Deputy Advocate General, Chief Standing Counsel, Government Advocates, etc. For example in the said Government Order, the qualifications for a Senior Additional Advocate General would be minimum 10 years of practice in the High Court and a designated Senior Advocate.
Similar is the qualifications for an Additional Advocate General. For Deputy Advocate General it is 10 years of practice in the High Court, which is again the same for the Chief 11 Standing Counsel and Additional Chief Standing Counsel and Government Advocate, etc. Therefore, the argument of the learned Advocate General would be that even if the directions as contained in Brijesh Singh Chahal case are to be read with the directions pertaining to Uttarakhand, these are in any case met and already exist in Uttarakhand and, therefore, there is no need for any further directions or improvement.
34. As far as the second aspect regarding the selection and appointment as Law Officers is concerned, this Court is of a considered view that by and large, there is already a system in place in Uttarakhand. The process referred above as the Litigation Policy, etc. do meet the requirement as laid down by the Apex Court. Even though there is an objection to this by the learned counsel for the petitioner, which is that there could be no fair selection unless the Government invites application from the eligible candidates, but this, however, does not seem to be mandatory, as what has also been stated in Brijesh Singh Chahal is that the Committee which is set up for the selection can invite applications from eligible candidates for different positions. It may, hence, not be mandatory."
14. But also, the learned Single Judge proceeded to take the view as follows:
"33. After hearing both the parties and after examining the Scheme, which has been placed before this Court, this Court is of a considered opinion that admittedly there has been no assessment of actual requirement of Law Officers as no study as to the actual work load and requirement of Law Officers has been made and therefore, to that extent, it is directed that some mechanism must be set in place to do this as that would only be transparent and fair, before appointing the Law Officers for the High Court. The State 12 Government must make a reasonable and fair assessment for the actual number of Law Officers required, and the number of Law Officers should never exceed the requirement. This would be only reasonable, fair and just. It is made clear that in case such an exercise already undertaken, there would be no need for doing it again.
35. Regarding the consultation with the Chief Justice the clear and unambiguous direction is contained in para 50 of the judgment, which has already been referred above and this Court can do no better but to reproduce what has already been stated in by the Apex Court in the judgment that "the States would do well to reform their system of selection and appointment to make the same more transparent, fair and objective, if necessary, by amending the relevant LR Manuals/Rules and Regulations on the subject". This would imply the need for a consultation with the Hon'ble Chief Justice of the High Court, as per the directions of the Hon'ble Apex Court, and unless it is done the process would not be a fair, transparent and un-discriminatory."
15. It is feeling aggrieved that the appellants are before us.
16. We have heard Mr. S.N. Babulkar, learned Advocate General assisted by Mr. Paresh Tripathi, learned Chief Standing Counsel on behalf of the Appeal filed by the State and Mr. C.K. Sharma, learned counsel appearing on behalf of the appellants in other two Appeals and also Mr. A.D. Tripathi, learned counsel for the writ petitioner.
1317. Learned counsel for the appellant would contend that this is a clear case, where there is no locus standi. The writ petitioner cannot be said to be a person aggrieved. There was no demand or refusal. The instant policy in the State of Uttarakhand, regarding appointment of the Government Advocates, was reiterated. In fact, it is pointed out that the said provisions are more stringent than the provisions obtained in the State of Punjab & Haryana. Therefore, there was no occasion to give relief in the writ petition, as was done. There is no legal right of the petitioner involved, which has suffered a legal injury, which justified issuing any direction in the matter. It is pointed out that more than 300 applications have already been received in the form of bio-data. It is further pointed out that the observations of the Hon'ble Apex Court in the judgment sought to be enforced by the petitioner would reveal that the Hon'ble Apex Court has only observed that if it is necessary, the existing criteria may be amended in the light of the Hon'ble Apex Court judgment and it is not binding as such.
18. Per contra, learned counsel for the writ petitioner would submit that the writ petitioner has locus standi having regard to the fact that he is a practicing Advocate in this High Court. He sought to draw considerable support from the judgment of the Hon'ble Apex Court in the matter of "S.P. Gupta vs. Union of India and another" reported in 1981 (Supp) SCC 87. He referred to paragraph nos. 17, 18 and 25 of the said judgment, which read as under:
14"17. It may therefore now be taken as well established that where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case of breach of any fundamental right of such person or determinate class of persons, in this Court under Article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons. Where the weaker sections of the community are concerned, such as under- trial prisoners languishing in jails without a trial inmates of the Protective Home in Agra or Harijan workers engaged in road construction in the Ajmer District, who are living in poverty and destitution, who are barely eking out a miserable existence with their sweat and toil, who are helpless victims of an exploitative society and who do not have easy access to justice, this Court will not insist on a regular writ petition to be filed by the public spirited individual espousing their cause and seeking relief for them, This Court will readily respond even to a letter addressed by such individual acting pro bono publico. It is true that there are rules made by this Court prescribing the procedure for moving this Court for relief under Article 32 and they require various formalities to be gone through by a person seeking to approach this Court. But it must not be forgotten that procedure is but a handmaiden of justice and the cause of justice can never be allowed to be thwarted by any procedural technicalities. The Court would 15 therefore unhesitatingly and without the slightest qualms of conscience cast aside the technical rules of procedure in the exercise of its dispensing power and treat the letter of the public minded individual as a writ petition and act upon it Today a vast revolution is taking place in the judicial process; the theatre of the law is fast changing and the problems of the poor are coming to the forefront. The Court has to innovate new methods and devise new strategies for the purpose of providing access to justice to large masses of people who are denied their basic human rights and to whom freedom and liberty have no meaning. The only way in which this can be done is by entertaining writ petitions and even letters from public spirited individuals seeking judicial redress for the benefit of persons who have suffered a legal wrong or a legal injury or whose constitutional or legal right has been violated but who by reason of their poverty or socially or economically disadvantaged position are unable to approach the Court for relief. It is in this spirit that the Court has been entertaining letters for Judicial redress and treating them as writ petitions and we hope and trust that the High Courts of the country will also adopt this pro-active, goal-oriented approach. But we must hasten to make it clear that the individual who moves the Court for judicial redress in cases of this kind must be acting bona fide with a view to vindicating the cause of justice and if he is acting for personal gain or private profit or out of political motivation or other oblique consideration, the Court should not allow itself to be activised at the instance of such person and must reject his application at the threshhold, whether it be in the form of a letter ad-dressed to the Court or even in the form of a regular writ petition filed in Court. We may also point out that as a matter of prudence and not as a rule of law, the Court may confine this strategic exercise of jurisdiction to cases, where legal wrong or 16 legal injury is caused to a determinate class or group of persons or the constitutional or legal right of such determinate class or group of persons is violated and as far as possible, not entertain eases of individual wrong or injury at the instance of a third party, where there is an effective legal aid organisation which can take care of such cases.
18. The types of cases which we have dealt with so far for the purpose of considering the question of locus standi are those where there is a specific legal injury either to the applicant or to some other person or persons for whose benefit the action is brought, arising from violation of some constitutional or legal right or legally protected interest. What is complained of in these cases is a specific legal injury suffered by a person or a determinate class or group of persons. But there may be cases where the State or a public authority may act in violation of a constitutional or statutory obligation or fail to carry out such obligation, resulting in injury to public interest or what may conveniently be termed as public injury as distinguished from private injury. Who would have standing to complain against such act or omission of the State or public authority? Can any member of the public sue for judicial redress? Or is the standing limited only to a certain class of persons? Or there is no one who can complain and the public in-Jury must go unredressed. To answer these questions it is first of all necessary to understand what is the true purpose of the Judicial function. This is what Prof. Thio states in his book on "Locus Standi and Judicial Review";
Is the judicial function primarily aimed at preserving legal order by confining the legislative and executive organs of government within their powers in the interest of the public (Jurisdiction de droit objectif) or is it mainly directed towards the protection of private 17 individuals by preventing illegal encroachments on their individual rights (jurisdiction de droit subjectif)? The first contention rests on the theory that Courts are the final arbiters of what is legal and illegal ....Requirement? of locus standi are therefore unnecessary in this case since they merely impede the purpose of the function as conceived here. On the other hand, where the prime aim of the judicial process is to protect individual rights, its concern with the regularity of law and administration is limited to the extent that individual rights are infringed.
We would regard the first proposition as correctly setting out the nature and purpose of the judicial function, as it is essential to the maintenance of the rule of law that every organ of the State must act within the limits of its power and carry out the duty imposed upon it by the Constitution or the law. If the State or any public authority acts beyond the scope of its power and thereby causes a specific legal injury to a person or to a determinate class or group of persons, it would be a case of private injury actionable in the manner discussed in the preceding paragraphs. So also if the duty is owed by the State or any public authority to a person or to a determinate class or group of persons, it would give rise to a corresponding right in such person or determinate class or group of persons and they would be entitled to maintain an action for judicial redress. But if no specific legal injury is caused to a person or to a determinate class or group of persons by the act or omission of the State or any public authority and the injury is caused only to public interest, the question arises as to who can maintain an action for vindicating the rule of law and setting aside the unlawful action or enforcing the performance of the public duty. If no one can maintain an action for redress of such public wrong or public 18 injury, it would be disastrous for the rule of law, for it would be open to the State or a public authority to act with impunity beyond the scope of its power or in breach of a public duty owed by it. The Courts cannot countenance such a situation where the observance of the law is left to the sweet will of the authority bound by it, without any redress if the law is contravened. The view has therefore been taken by the Courts in many decisions that whenever there is a public wrong or public injury caused by an act or omission of the State or a public authority which is contrary to the Constitution or the law, any member of the public acting bona fide and having sufficient interest can maintain an action for redressal of such public wrong or public injury. The strict rule of standing which insists that only a person who has suffered a specific legal injury can maintain an action for judicial redress is relaxed and a broad rule is evolved which gives standing to any member of the public who is not a mere busy-body or a meddlesome interloper but who has sufficient interest in the proceeding. There can be no doubt that the risk of legal action against the State or a public authority by any citizen will induce the State or such public authority to act with greater responsibility and care thereby improving the administration of justice. Lord Dip-lock rightly said in Rex v. Inland Revenue Commrs. (1981) 2 WLR 722 at p. 740:
It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation, or even a single public-spirited taxpayer, were prevented by out-dated technical rules of locus standi from bringing the matter to the attention of the Court to vindicate the rule of law and get the unlawful conduct stopped.... It is not, in my view, a sufficient answer to say that judicial review of the actions of officers or departments of central government is 19 unnecessary because they are accountable to Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a Court of Justice for the lawfulness of what they do, and of that the Court is the only judge.
This broadening of the rule of locus standi has been largely responsible for the development of public law, because it is only the availability of judicial remedy for enforcement which invests law with meaning and purpose or else the law would remain merely a paper parchment, a teasing illusion and a promise of unreality. It is only by liberalising the rule of locus standi that it is possible to effectively police the corridors of powers and prevent violations of law. It was pointed out by Schwartz and H.W.R. Wade in their book on "Legal Control of Government" at page 354:
Restrictive rules about standing are in general inimical to a healthy system of administrative law. If a plaintiff with a good case is turned away, merely because he is not sufficiently affected personally, that means that some government agency is left free to violate the law, and that is contrary to the public interest. Litigants are unlikely to expend their time and money unless they have some real interest at stake. In the rare cases where they wish to sue merely out of public spirit, why should they be discouraged?"
It is also necessary to point out that if no one can have standing to maintain an action for judicial redress in respect of a public wrong or public injury, not only will the cause of legality suffer but the people not having any judicial remedy to redress such public wrong 20 or public injury may turn to the street and in that process, the rule of law will be seriously impaired. It is absolutely essential that the rule of law must wean the people away from the lawless street and win them for the court of law.
25. Before we part with this general discussion in regard to locus standi, there is one point we would like to emphasise and it is that cases may arise where there is undoubtedly public injury by the act or omission of the State or a public authority but such act or omission also causes a specific legal injury to an individual or to a specific class or group of individuals. In such cases, a member of the public having sufficient interest can certainly maintain an action challenging the legality of such act or omission, but if the person or specific class or group of persons who are primarily injured as a result of such act or omission, do not wish to claim any relief and accept such act or omission willingly and without protest, the member of the public who complains of a secondary public injury cannot maintain the action, for the effect of entertaining the action at the instance of such member of the public would be to foist a relief on the person or specific class or group of persons primarily injured, which they do not want."
19. He would submit that, actually, there is no provision under which applications, which are referred to by the learned Advocate General, could have been made and yet they are received. The petitioner has approached this Court only for the interest of the institution.
20. The Appeals arise from a writ petition filed under Article 226 of the Constitution of India. As has 21 been held, not infrequently, powers of the High Court under Article 226 of the Constitution of India are very wide. In a sense, it is wider than the powers under Article 32 of the Constitution of India. This is for the reason that, while power under Article 32 of the Constitution of India applies for the enforcement of the fundamental rights, the petition under Article 226 can be maintained for not only enforcement of fundamental rights; but, for any other purpose. Courts, exercising jurisdiction under Article 226 of the Constitution of India, are not constrained by technicalities, which shackle the Courts in England. There are different writs, which are in vogue as of today. They include mandamus, prohibition, certiorari, habeas corpus and quo-warranto.
21. As far as the writ of quo-warranto is concerned, it cannot be in dispute that the action will lie at the instance of any person. Consideration of delay, which would, in respect of other writs matter, does not detain the Court. In respect of writ of Habeas Corpus also, though not as wide as a writ of Habeas Corpus in the matter of standing, yet it is not necessary that a person, who is actually detained, should come to the Court. Anybody can apply on his behalf, who is his relative or friend. As far as a writ of certiorari is concerned, the Courts have insisted on standing based on the concept of person aggrieved. We need only refer to the judgment of the Hon'ble Apex Court in the matter of "Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed & others", reported in (1976) 1 SCC 671, 22 where three Judges had occasion to consider, whether the proprietor of a cinema theatre, holding a licence for exhibiting cinematograph films, is entitled to seek a writ of certiorari challenging the No Objection Certificate granted to a rival. The Court, inter alia, held as follows:
"12. According to most English decisions, in order to have the locus standi to invoke certiorari jurisdiction, the petitioner should be an "aggrieved person" and, in a case of defect of jurisdiction, such a petitioner will be entitled to a writ of certiorari as a matter of course, but if he does not fulfil that character, and is a "stranger", the Court will, in its discretion, deny him this extraordinary remedy, save in very special circumstances.
13. This takes us to the further question:
Who is an "aggrieved per son" and what are the qualifications requisite for such a status ? The expression "aggrieved person" denotes an elastic, and, to an extent, an elusive concept. It cannot be confined within the bounds of rigid, exact and comprehensive definition. At best, its features can be described in a broad, tentative manner. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest, and the nature and extent of the prejudice or injury suffered by him. English Courts have sometimes put a restricted and sometimes a wide construction on the expression "aggrieved person". However, some general tests have been devised to ascertain whether an applicant is eligible for this category so as to have the necessary locus standi or 'standing' to invoke certiorari jurisdiction."23
22. Thereafter, the Court exhaustively reviewed the case law of England and of India and further held as follows:
"34. This Court has laid down in a number of decisions that in order to have the locus standi to invoke the extraordinary jurisdiction under Article 226, an applicant should ordinarily be one who has a personal or individual right in the subject matter of the application, though (1) the case of some of the writs like habeas corpus or quo warranto this rule is relaxed or modified. In other words, as a general rule, in fringement of some legal right or prejudice to some legal interest in hearing the petitioner is necessary to give him a locus standi in the matter see The State of orissa v. Madan Gopal Rungta(4); Calcutta . Gas Co. v. The State of West Bengal(5); Ram Umeshwari Suthoo v. Member, Board of Revenue, orissa(6); Gadda Venkateshwara Rao v. Government of Andhra Pradesh(7); State of orissa v. Rajasaheb Chandanmall(8); Dr. Satyanarayana Sinha v. M/s. S. Lal & Co.(9)].
35. The expression "ordinarily" indicates that this is not a cast-iron rule. It is flexible enough to take in those cases where the applicant has been prejudicially affected by an act or omission of an authority, r even though he has no proprietary or even a fiduciary interest in the subject- matter. That apart, in exceptional cases even a stranger or a person who was not a party to the proceedings before the authority, but has a substantial and genuine interest in the subject matter of the proceedings will be covered by this rule. The principles enunciated in the English cases noticed above, are not inconsistent with it.
36. In the United States of America, also, the law on the point is substantially the same. "No matter how seriously infringement of the Constitution may be called into question, "said Justice Frankfurter in Coleman v.24
Miller(10) "this is not the tribunal for its challenge except by those who have some specialized interest of their own to vindicate apart from a political concern which belongs to all". To have a "standing to sue", which means locus standi to ask for relief in a court independently of a statutory remedy, the plaintiff must show that he is injured, that is, subjected to or threatened with a legal wrong. Courts can intervene only where legal rights are invaded(11). "Legal wrong" requires a judicially enforceable right and the touch stone to justiciability is injury to a legally protected right. A nominal or a highly speculative adverse affect(12) on the interest or right of a person has been held to be insufficient to give him the "standing to sue"
for judicial review of administrative action. Again the "adverse affect" requisite for "standing to sue" must be an "illegal effect''(l). Thus, in the undermentioned cases, it was held that injury resulting from lawful competition, not being a legal wrong, cannot furnish a "standing to sue" for judicial relief.
37. It will be seen that in the context of locus standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories: (i) 'person aggrieved'; (ii) 'stranger';
(iii) busybody or meddlesome interloper. Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things which do not concern them. They masquerade as crusaders for justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect. They indulge in the pastime of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some applicants in this category, may be no more than spoking the wheels of administration. The High Court 25 should do well to reject the applications of such busybodies at the threshold.
38. The distinction between the first and second categories of applicants, though real, is not always well-demarcated. The first category has, as it were, two concentric zones; a solid central zone of certainty, and a grey outer circle of lessening certainty in a sliding centrifugal scale, with an outermost nebulous fringe of uncertainty. Applicants falling within the central zone are those whose legal rights have been infringed. Such applicants undoubtedly stand in the category of 'persons aggrieved'. In the grey outer-circle the. bounds which separate the first category from the second, intermix, interfuse and overlap increasingly in a centrifugal direction. All persons in this outer zone may not be "persons aggrieved".
39. To distinguish such applicants from 'strangers', among them, some broad tests may be deduced from the conspectus made above. These tests are not absolute and ultimate. Their efficacy varies according to the circumstances of the case, including the statutory context in which the matter falls to be considered. These are: Whether the applicant is a person whose legal right has been infringed ? Has he suffered a legal wrong or injury, in the sense that his interest, recognised by law. has been prejudicially and directly affected by the act or omission of the authority, complained of ? Is he a person who has suffered a legal grievance, a person "against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something" ? Has he a special and substantial grievance of his own beyond some grievance or inconvenience suffered by him in common with the rest of the public ? Was he entitled to object and be heard by the authority before it took the impugned action? If so, was he 26 prejudicially affected in the exercise of that right by the act of usurpation of jurisdiction on the part of the authority ? Is the statute, in the context of which the scope of-the words "person aggrieved" is being considered. a social welfare measure designed to lay down ethical or professional standards of conduct for the community ? or is it a statute dealing with private rights of particular individuals ?"
23. We may also refer to paragraph nos. 49 & 50 of the said judgment, which read as follows:
"49. It is true that, in the ultimate analysis, the jurisdiction under Article 226 in general, and certiorari in particular, is discretionary. But in a country like India where writ petitions are instituted in the High Courts by the thousand, many of them frivolous, a strict ascertainment, at the outset, of the standing of the petitioner to invoke this extraordinary jurisdiction, must be insisted upon. The broad guide lines indicated by us, coupled with other well established self-devised rules of practice, such as the availability of an alternative remedy, the conduct of the petitioner etc., can go a long way to help the courts in weeding out a large number of writ petitions at the initial stage with consequent saving of public time and money.
50. While a Procrustean approach should be avoided, as a rule the Court should not interfere at the instance of a 'stranger' unless there are exceptional circumstances involving a grave miscarriage of justice having an adverse impact on public interests. Assuming that the appellant is a 'stranger', and not a busybody, then also, there are no exceptional circumstances in the present case which would justify the issue of a writ of certiorari at his instance. On the contrary, the result of the exercise of these discretionary powers, in his favour, will, on balance, be against public 27 policy. It will eliminate healthy competition in this business which is so essential to raise commercial morality; it will tend to perpetuate the appellant's monopoly of cinema business in the town; and above all, it will, in effect, seriously injure the fundamental rights of respondents 1 and 2, which they have under Article 19(1) (g) of the Constitution, to carry on trade or business subject to 'reasonable restrictions' imposed by law'."
24. We may refer to the judgment of the Hon'ble Apex Court in "S.P. Gupta vs. Union of India and another" reported in 1981 (Supp) SCC 87. The Court proceeded to consider a number of writ petitions with different prayers. In one of the writ petitions, which was filed by J.L. Kalra and others, who were Advocates practicing in the Delhi High Court, they prayed for a writ of mandamus directing the Central Government to make an assessment of the number of permanent and Additional Judges required by the Delhi High Court having regard to its current business and the accumulated arrears, to create such number of posts of permanent and Additional Judges as may be necessary to make appointments in these posts. The other writ petitions were essentially directed against the Circular Letter issued by the Law Minister. Therein, the Hon'ble Apex Court, inter alia, held as follows:
"14. The traditional rule in regard to locus standi is that judicial redress is available only to a person who has suffered a legal injury by reason of violation of his legal right or legal protected interest by the impugned action of the State or a public authority or any other person or who is likely to suffer a legal injury by reason of threatened violation of his legal 28 right or legally protected interest by any such action. The basis of entitlement to judicial redress is personal injury to property, body, mind or reputation arising from violation, actual or threatened, of the legal right or legally protected interest of the person seeking such redress. This is a rule of ancient vintage and it arose during an era when private law dominated the legal scene and public law had not yet been born. The leading case in which this rule was enunciated and which marks the starting point of almost every discussion on locus standi is Ex parte Sidebotham (1980) 14 Ch D 458. There the Court was concerned with the question whether the appellant could be said to be a 'person aggrieved' so as to be entitled to maintain the appeal. The Court in a unanimous view held that the appellant was not entitled to maintain the appeal because he was not a 'person aggrieved' by the decision of the lower Court. James, L. J. gave a definition of 'person aggrieved' which, though given in the context of the right to appeal against a decision of a lower Court, has been applied widely in determining the standing of a person to seek judicial redress, with the result that it has stultified the growth of the law in regard to judicial remedies. The learned Lord Justice said that a 'person aggrieved' must be a man "who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something." Thus definition was approved by Lord Esher M. R. in In Re Reed Bowen & Co. (1887) 19 QBD 174 and the learned Master of the Rolls made it clear that when James L. J.
said that a person aggrieved must be a man against whom a decision has been pronounced which has wrongfully refused him of something, he obviously meant that the person aggrieved must be a man who has been refused something which he had a right to demand. There have been numerous subsequent decisions of the English Courts 29 where this definition has been applied for the purpose of determining whether the person seeking judicial redress had locus standi to maintain the action. It will be seen that, according to this rule, it is only a person who has suffered a specific legal injury by reason of actual or threatened violation of his legal right or legally protected interest who can bring an action for judicial redress. Now obviously where an applicant has a legal right or a legally protected interest, the violation of which would result in legal injury to him, there must be a corresponding duty owed by the other party to the applicant. This rule in regard to locus standi thus postulates a right- duty pattern which is commonly to be found in private law litigation. But, narrow and rigid though this rule may be, there are a few exceptions to it which have been evolved by the Courts over the years.
15. In the first place a rate payer of a local authority is accorded standing to challenge an illegal action of the local authority. Thus, a rate payer can question the action of the municipality in granting a cinema licence to a person, vide : K.R. Shenoy v. Udipi Municipality . Similarly, the right of a rate payer to challenge misuse of funds by a municipality has also been recognised by the Courts vide : Varadarajan v. Salem Municipality. The reason for this liberalisation of the rule in the case of a tax payer of a municipality is that his interest in the application of the money of the municipality is direct and immediate and he has a close relationship with the municipality. The Courts in India have, in taking this view, followed the decisions of the English Courts. Secondly, if a person is entitled to participate in the proceedings relating to the decision making process culminating in the impugned decision he would have locus standi to maintain an action challenging the impugned decision. Vide : Queen v. Bowman (1898) 1 QB 663 where it was held that any member of the 30 public had a right to be heard in opposition to an application for a licence and having such right, the applicant was entitled to ask for mandamus directing the licensing Justices to hear and determine the application for licence according to law. Thirdly, the statute itself may expressly recognise the locus standi of an applicant, even though no legal right or legally protected interest of the applicant has been violated resulting in legal injury to him. For example, in J.M. Desai v. Roshan Kumar , this Court noticed that the Bombay Cinematograph Act. 1918 and the Bombay Cinema Rules, 1954 made under that Act, recognised a special interest of persons residing, or concerned with any institution such as a school, temple, mosque etc, located within a distance of 200 yards of the site on which the cinema house is proposed to be constructed and held that as the petitioner, a rival cinema owner, did not fall within the category of such persons having a special interest in the locality, he had no locus standi to maintain the petition for a writ of certiorari to quash the No Objection Certificate granted by the District Magistrate, to respondents Nos. 1 and 2. It is obvious from the observations made at page 72 (of SCR) : (at p. 586 of AIR of the Report that if the petitioner had been a person falling within this category of persons having a special interest in the locality, he would have been held entitled to maintain the petition. There is also another decision of this Court illustrating the situation where a statute expressly gives locus standi to persons to complain against a public wrong and that is the decision in Ratlam Municipality v. Vardhi Chand . The statutory provision which came up for consideration in this case was Section 133 of Criminal P. C. which empowers a Magistrate on receiving the report of a police officer or other information to make an order for remedying a public nuisance. What happened in this case was that the Ratlam Municipality failed to carry out its statutory duty of constructing a drain pipe to carry the 31 filth etc. on a particular road. The local residents decided to invoke Section 133 of Criminal P. C. against the Municipality. The Magistrate made an order requiring the Municipality to construct drain pipes and this order was confirmed in appeal by this Court. The Municipality pleaded lack of funds but this was not accepted as a valid defence. However, to have a viable scheme keeping in view the financial position of the Municipality, this Court examined the three schemes submitted to it and directed the Municipality to implement one of them. The standing of the local residents to move the Magistrate was recognised since Section 133 of Criminal P. C. expressly conferred such right on them."
25. It is, thereafter, that the Hon'ble Apex Court proceeded to lay down what has been done in paragraphs, which we have already adverted to, which was relied on by the learned counsel for the petitioner. Paragraph no. 25 of the said judgment reads as under:
"25. Before we part with this general discussion in regard to locus standi, there is one point we would like to emphasise and it is that cases may arise where there is undoubtedly public injury by the act or omission of the State or a public authority but such act or omission also causes a specific legal injury to an individual or to a specific class or group of individuals. In such cases, a member of the public having sufficient interest can certainly maintain an action challenging the legality of such act or omission, but if the person or specific class or group of persons who are primarily injured as a result of such act or omission, do not wish to claim any relief and accept such act or omission willingly and without protest, the member of the public who complains of a secondary public injury cannot maintain the action, for the effect of entertaining the action at the instance of such 32 member of the public would be to foist a relief on the person or specific class or group of persons primarily injured, which they do not want."
We are unable to perceive how the writ petitioner can derive any support from the said para.
26. Therefore, in regard to the writ of certiorari, the law may be taken as the right to apply for certiorari is ordinarily available to a person, who is personally aggrieved, as noted therein; but, it may be possible that, in certain situations, right to apply would also extend to a stranger as noticed by us. We are, in this case, not dealing with the case of certiorari; but with the writ of mandamus. We need only refer to the judgment of the Full Bench of Madras High Court, in the matter of "Seethalakshmi Ammal vs. The State of Tamil Nadu & another", reported in AIR 1993 Madras 1. Therein also, reference is made to the judgment of Hon'ble Apex Court. The Full Bench, inter alia, held as follows:
"7. The principles enunciated in Jashbhai Desai's case have been reiterated so many times by now that no one entertained any doubt to the proposition that the meaning of the words "person aggrieved" may vary according to the context of the statute and that even a stranger may be found to have locus standi although he may not have any personal interest of his own, provided he is not a busybody or meddlesome interloper, and although a stranger, he moves the Court for a right in common with the general public.
8. The question as to locus standi had arisen in Jashbhai Desai's case on the objection that a competitor in a cinema 33 business had no right to invoke the writ jurisdiction. The Supreme Court noticed in substance that Jashbhai Desai's stand was that the setting up of a rival cinema house in the town would adversely affect his monopolistic commercial interest, causing pecuniary harm and loss of business from competition and held, "Such harm or loss is not wrongful in the eye of law because it does not result in injury to a legal right or a legally protected interest, the business competition causing it being a lawful activity.... the firm injuria being here used in its true sense of an act contrary to law. The reason why the law suffers a person knowingly to inflict harm of this description on another, without holding him accountable for it, is that such harm done to an individual is a gain to society at large.
In the light of the above discussion, it is demonstrably clear that the appellant has not been denied or deprived of a legal right. He has not sustained injury to any legally protected interest. In fact, the impugned order does not operate as a decision against him, much less does it wrongfully affect his title to something. He has not been subjected to a legal wrong. He has suffered no legal grievance. He has no legal peg for a justiciable claim to hang on. Therefore he is not 'person aggrieved' and has no locus standi to challenge the grant of the No Objection Certificate."
9. The reason why the Supreme Court took the above view in Jashbhai Desai's case is explained by it in these words:
It is true that in the ultimate analysis, the jurisdiction under Article 226 in general, and certiorari in particular is discretionary. But in a country like India where writ petitions are instituted in the High Courts by the thousand, many of them frivolous, a strict ascertainment, at the outset, of the standing 34 of the petitioner to invoke this extraordinary jurisdiction, must be insisted upon. The broad guidelines indicated by us, coupled with other well-established self-devised rules of practice, such as the availability of an alternative remedy, the conduct of the petitioner etc. can go along way to help the courts in weeding out a large number of writ petitions at the initial stage with consequent saving of public time and money.
While a Procrustean approach should be avoided, as a rule, the Court should not interfere at the instance of a 'stranger' unless there are exceptional circumstances involving a grave miscarriage of justice having an adverse impact on public interests. Assuming that the appellant is a 'stranger', and not a busybody, then also there are no exceptional circumstances in the present case which would justify the issue of a writ of certiorari at his instance. On the contrary, the result of the exercise of these discretionary powers, in his favour, will, on balance, be against public policy. It will eliminate healthy competition in this business which is so essential to raise commercial morality; it will tend to perpetuate the appellant's monopoly of cinema business in the town; and above all, it will in effect, seriously injure the fundamental rights of respondents 1 and 2, which they have under Article 19(1)(g) of the Constitution, to carry on trade or business subject to 'reasonable restrictions imposed by law.""
27. The Court also referred to the judgment of S.P. Gupta's case in paragraph no. 10. There is further reference to Public Interest Litigation also in subsequent paragraphs.
28. As far as writ of mandamus is concerned, it is settled law that the writ applicant must have, in himself, 35 a legal right and the respondent, against whom it is sought, must have a legal duty to perform. This is the foundation for a writ of mandamus. Undoubtedly, a writ of mandamus is a writ of the widest magnitude, though it is not a writ of course. In certain cases where it is a ministerial act, which is not performed, the Court may indeed direct to perform the same. We need only refer to the judgment of the Hon'ble Apex Court in the matter of "Comptroller and Auditor-General of India & another vs. K.S. Jagannathan & another", reported in (1986) 2 SCC
679. Therein, the Hon'ble Apex Court, inter alia, held as follows:
"In Halsbury's Laws of England, Fourth Edition, Volume I, Paragraph 89, it is stated that the purpose of an order of mandamus "is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.
20. There is thus no doubt that the High Courts in India 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 Government 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 or 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 or the policy for implementing 36 which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion."
29. We may also refer to the decision of the Hon'ble Apex Court in the matter of "Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust & others vs. V.R. Rudani and others", reported in (1989) 2 SCC 691. Therein, the Hon'ble Court, inter alia, held as follows:
"22. Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, Professor de Smith states: "To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract." We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available 'to reach injustice wherever it is found'. Technicalities should not come in the way of 37 granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition."
30. Therefore, there can be no doubt that a writ of mandamus is a powerful remedy available to the concerned writ applicant and it is also settled that the Court should not be astute to find reasons why it should be denied and, rather, it should be made available to remedy injustice.
31. The question, however, must also be posed as to whether it becomes available to any person, even if he does not have any legal right in the matter. Can the remedy be available, even if there is no legal duty with the answering respondent? The answer would be in negative.
32. It is true that it is available for the purpose of compelling performance of public duties. Equally, it is available to ensure that an authority does not do an illegal act. Thus, a mandamus can be issued to restrain the authority from doing an illegal act, as much as it can be issued to command a public authority to perform a public duty. It will also lie against inferior tribunals not to proceed with a matter in which they have no jurisdiction. We need not deal with the niceties relating to the writ of prohibition as that will be out of place in connection with the question, which is raised before us.
3833. Having made these prefatory remarks, we may consider another aspect which also arises in this case. This writ petition is filed seeking a writ of mandamus or direction in the nature therein. The petitioner has admittedly not made a demand to the authority, calling upon it to put in place a system for the purpose of appointment of the Government Advocates. Equally, there is no dispute that the petitioner has not approached the Government to enforce the judgment of the Hon'ble Apex Court.
34. The learned Single Judge, as we have already noticed in paragraph no. 12, has taken the view that this omission on the part of the petitioner is not fatal to maintain the writ petition. Secondly, as we have already noticed, the learned Single Judge has also found that the petitioner has locus standi.
35. As far as demand and refusal, which is the ordinarily rule to maintain a writ of mandamus is concerned, this is a principle, which is insisted upon with a purpose. A cause of action for a writ of mandamus will arise only when a demand is made and either there is refusal or there is inordinate delay. This is to afford an opportunity to the public functionary or even a private person (who is saddled with the public duty). Insisting on this cannot be an idle formality in the ordinary circumstances. If parties come to the Court without making a demand and waiting for the refusal or without waiting for a reasonable time, Courts, which are already burdened with docket explosion, would be faced 39 with the cases, which are filed, where they could get relief before the authorities, if they had approached them. However, it is also true that there can be situations where a mandamus will be an appeal from caesar to caesar's wife. It would be an absolute exercise in futility. For instance, if Government has already enunciated a policy and the officers, under the Government, are expected to abide by the policy and yet Courts insist that the applicant must approach the authority to act contrary to the policy. Thus, as noticed by the learned Single Judge himself, exercises in formality are not insisted upon by Courts and, in such cases, where the demand would be unfruitful, it is always open to the parties to approach the Court seeking a writ of mandamus or direction in the nature thereof without making a demand. Applying the said principles to the facts of this case, actually, we would think that the learned Single Judge may not be justified in taking the view that a demand made to the Government to comply with the judgment of the Hon'ble Apex Court or to put in place a system was avoidable on the ground that it would have produced no results. We would think that the petitioner should have made an approach to the authorities to put in place reasonable norms for the appointment of the Government Advocates and even when the Hon'ble Apex Court, if according to him, had laid down the law binding on all authorities in India to comply with the same. Therefore, we would think that the reasoning, as such, may not be correct; but, we do not wish to rest our judgment on the said basis alone.
4036. Moving on the issue of locus standi, the case of the petitioner appears to be that he is a legal practitioner and also that he has raised an important issue. In fact, in an appeal from the interlocutory order passed by the learned Single Judge, in which the undertaking of the learned Advocate General was recorded that the Government would not make any appointments, we have set-aside the order, where the issue of standing was answered by the learned Single Judge by holding that the issue raised is important and the petitioner is a practicing Advocate. We, in our order dated 01.05.2017, had taken the following view:
"13. Coming to maintainability, the learned Single Judge has rejected the preliminary objection regarding maintainability on two grounds. Firstly, it is observed that the matter is of importance and, therefore, the objection of the State is not correct. Secondly, learned Single Judge noted the fact that the writ petitioner is a practicing Advocate of this Court. We would think that as far as finding based on the aspect that the matter is important may not be justified. A mere fact that a matter is important may not clothe the writ applicant with locus, if he does not have locus otherwise. Locus standi is a concept evolved to test, whether a person, who approaches the writ court, is aggrieved. The mere fact that a person brings an important issue to the Court cannot lead the Court to hold that he has a locus standi, if he is not otherwise having locus. Therefore, this reasoning clearly does not appeal to us. We also notice that the learned Single Judge has not left this question open to be decided later on in the petition and has given the garb of finality to the finding. As regards the other issue relating to the writ petitioner being an Advocate by itself as to whether it will confer 41 locus standi to maintain the writ petition seeking the relief, which he has sought, also in our view, requires greater attention and focus. Admittedly, he is not an applicant as the appellant is. His interest appears to be that of an Advocate, who is practicing in this Court. Whether in law that would sufficient to confer locus on him, we would think that the matter requires more detailed examination. In such circumstances, we would dispose of the appeal as follows:
We set-aside the finding rejecting the objection based on absence of locus; but, we hasten to add that this is not to say that we have expressed any view other than what is made very clear hereinbefore, namely relating to the importance of the issue not being sufficient to give locus to a party. We leave the issue open to be decided by the learned Single Judge in the final hearing. As we have already noticed, this is a case where undertaking given by the learned Advocate General, originally recorded in the impugned order, has been extended, subsequently, and it continues as of today. We would think that we should allow the appellant to also seek to intervene before the learned Single Judge, where he can raise all the contentions.
To the extent that the learned Single Judge rendered his finding on the maintainability of the appeal, same will stand set-aside. We leave open question relating to the locus in the manner, we have observed earlier. We leave open all the contentions of the appellant and he will be free to seek intervention/ impleadment and we request the learned Single Judge to dispose of the matter at the earliest."
37. We would think that it is necessary to reiterate that the mere fact that an issue is projected in the writ petition, which is important, by itself may not 42 entitle the writ applicant to approach the Court under Article 226 of the Constitution of India and successfully repel the objection raised that he has no standing. The importance of issue cannot, in our view, be associated with locus standi, particularly, in a writ of mandamus or in a writ of certiorari. He must show that there is a legal right and is approaching the Court for a performance of a public duty or it may be open to show that he has legal right in the performance of discretion by the statutory authority, which is not being performed. He could also point out that a public authority in a matter, in which he has an interest, is acting under dictation, and therefore, the discretion is not being exercised. In all these things, running as a golden thread, is a requirement of an interest, which has blossomed into a legal right.
38. Being an Advocate, practicing in the High Court, a question may be raised, as to whether does he not have a legal right to ensure that his workplace, namely, the High Court is rendered an effective mechanism for the dispensation of justice by the Government Advocates being appointed, who are highly competent, meritorious and where political patronage is reduced to an irrelevant minimum. Government today is the largest litigant. The impact of judgments rendered in litigation, involving Governments, has a public interest element. At stake may be enormous sums of money, which, in turn, would have an effect on the public exchequer and, consequently, on public interest. In the said sense, it would ultimately have an effect on the destiny of a common man, for whom after all, it is that 43 we have a system of Rule of Law and the administration of justice through Courts. It is, indeed, indisputable that the Government Advocate plays a pivotal role in the dispensation of justice. It is, therefore, a matter, which has a deep impact on public interest that Advocates, who are appointed as Government Advocates, are highly meritorious, men of the highest character and imbued with the utmost dedication to the sublime work that is entrusted by the Government. The Government, in a manner of speaking, must act as trustees on behalf of the people of the State. These remarks, which we have made, are apposite in the context of appreciating the argument of Mr. A.D. Tripathi, who referred us to the judgment of the Hon'ble Apex Court in S.P. Gupta's case. As we have noticed, the perusal of paragraph no. 17 onwards would show that the judgment of the Hon'ble Apex Court in the said case marks a milestone in constitutional law, insofar as, it firmly established the principle that the rigor of locus standi could be relaxed when a person, though he may not have any legal interest in the matter nor his legal rights infringed, could take up cudgels on behalf of the public or a section of the public. At that time, it was not formally known as Public Interest Litigation. Subsequently, the said jurisdiction has indeed witnessed remarkable growth in all the High Courts. By now, Courts are specifically designated to deal with the Public Interest Litigation as per the roster. There can be no doubt in our mind that had this petition been filed as a Public Interest Litigation, we would have the least difficulty in agreeing with the contention of Mr. A.D. Tripathi regarding the 44 maintainability of the writ petition; but, as we have noticed that the learned Single Judge has instead entertained the writ petition as Writ Petition Miscellaneous. In the matter of entertaining such a writ petition and granting relief, there can be no doubt that the petitioner was obliged to establish locus standi, as it is understood with reference to the particular writ, which was sought, namely, writ of mandamus.
39. We may also bear in mind, at this juncture, if this case had come as a Public Interest Litigation or, instead of entertaining the petition, the learned Single Judge made over the same to this Bench 'under the roster dealing with the Public Interest Litigation', we may have been compelled to consider the matter specifically on merits. So, therefore, we need not refuse to consider the matter on merits also, though strictly speaking, we could see that the writ petition, as a miscellaneous petition, seeking the relief, may not have been entertainable for absence of locus.
40. We may notice that what the learned Single Judge has done in the writ petition. Learned Single Judge has appreciated the fact that there is a policy in place in the State of Uttarakhand in regard to the appointment of Government Advocates. This finding shows that the statement made in the writ petition that there was no policy or norms in the State of Uttarakhand, is absolutely wrong and incorrect. There is some justification for the appellants to complain that the petitioner has not taken care to make correct 45 statements in the writ petition in this regard. Substance of the policy appears to be as follows:
There is a Committee consisting of the Chief Secretary & other Government Secretaries. Various periods of practice are mentioned for appointment as Advocate General, Additional Advocate General, Deputy Advocate General, Chief Standing Counsel, Standing Counsel etc. It is also requirement in respect for the post of Advocate General, Additional Advocate General, Deputy Advocate General, that they should be Senior Advocates. For other Advocates also, experience of certain period is insisted upon. It is also pointed out that, as per the policy, Government insists on the reference to the Income Tax paid for the previous three years, which relates to the earning from the legal profession itself; number of cases conducted and specialization in any subject, if any.
41. In fact, the learned Single Judge also has taken a view that there is a policy. Learned Single Judge has found that there is no requirement that applications must be called for from the Advocates. Thereafter, the learned Single Judge, as we have noted, has taken the view that there is a duty to make a study regarding number of lawyers as there has been no assessment of the actual requirement of Law Officers and, thereafter, the learned Single Judge has said that Government must make a reasonable and fair assessment for the actual number of Law Officers required, and the number of Law Officers should never exceed the requirement. This would be only reasonable, fair and just. It is also made 46 clear that if such an exercise is already undertaken, there will be no need for doing it again. In this regard, we may notice that the learned Advocate General would submit that scrutiny is done and the appointments will be made on the basis of need, which is proportionate to the number of cases, which are listed and also taking into account optimum number of cases an Advocate can deal with. We record the said stand of the learned Advocate General.
42. As far as the specific issue relating to the enforcement of the judgment of the Hon'ble Apex Court is concerned, we would think that, as is evident from paragraph no. 51.6, the direction was clearly given to the State of Punjab & Haryana; but, the Hon'ble Apex Court has, undoubtedly, stated that yet other States would do well to reform their system of selection and appointment to make the same more transparent, fair and objective if necessary by amending the relevant LR Manuals/Rules and Regulations on the subject. Paragraph no. 51.6 of the said judgment reads as under:
"51.6. We further clarify that although we are primarily concerned with the procedure regarding selection and appointment of law officers in the States of Punjab and Haryana and although we have confined our directions to the said two States only yet other States would do well to reform their system of selection and appointment to make the same more transparent, fair and objective if necessary by amending the relevant LR Manuals/Rules and Regulations on the subject."47
43. The learned Single Judge has already taken notice of the policy, which is placed in the State of Uttarakhand. Learned Single Judge, in paragraph no. 35, only reiterated what is stated in the said paragraph; but, thereafter, we noticed that the learned Single Judge has proceeded to hold as follows:
"This would imply the need for a consultation with the Hon'ble Chief Justice of the High Court, as per the directions of the Hon'ble Apex Court, and unless it is done the process would not be a fair, transparent and un- discriminatory."
44. We would think that, as already noticed, the directions given by the Hon'ble Apex Court, in the matter of "State of Punjab another vs. Brijeshwar Singh Chahal & another", reported in (2016) 6 SCC 1, relied on by the petitioner, are issued only in respect of the State of Punjab & Haryana, as is being made clear. When the Hon'ble Apex Court decides the matter and states that the State could do well to reform their system of selection and appointment to make the same more transparent, fair and objective if necessary by amending the relevant LR Manuals/Rules and Regulations on the subject, undoubtedly, even though the State of Uttarakhand was not a party, being a decision of the Hon'ble Apex Court, it becomes binding on the State of Uttarakhand also to the extent of the observations contained therein.
45. Stand of learned Advocate General is that the policy, which is already in existence, is more stringent 48 than the policy prevalent in the State of Punjab & Haryana. We record this submission also.
46. As far as direction that the statement in the judgment of the Hon'ble Apex Court do imply the need for a consultation with the Chief Justice, and unless it is done, the process would not be a fair, transparent and un-discriminatory, we would think that the said cannot be sustained and there is no basis for binding the Government with the said conclusion. As already noticed, the direction given by the Hon'ble Apex Court was not to the State of Uttarakhand; but, it is to the State of Punjab & Haryana. It is also important to notice that, under the existing policy, there is a provision that, where found necessary, consultation with the Chief Justice is provided for, if necessary.
47. Subject to the observations, which we have made, we find that the Appeals filed against the judgment of the learned Single Judge must be allowed. Accordingly, we allow the Appeals filed against the judgment of the learned Single Judge and the writ petition will stand dismissed, subject to the observations, which we have made. The judgment of the learned Single Judge is set-aside. The Appeal filed against the interim order is closed as infructuous.
(V.K. Bist, J.) (K.M. Joseph, C.J.)
09.05.2017
Arpan