IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Transcription

1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 478 of 2018 Paresh Tripathi Versus Ganesh Prasad Badola and others...appellant. Respondents. Present: Mr. C.K. Sharma, Advocate for the appellant. Mr. S.N. Babulkar, Advocate General with Mr. Anil K. Bisht, Standing Counsel for the State of Uttarakhand. Mr. Navnish Negi, Advocate for the writ petitioner. JUDGMENT Coram: Hon ble Rajiv Sharma, J. Hon ble Sharad Kumar Sharma, J. Judgment reserved : 31 st October, 2018 Judgment Delivered : 12 th November, 2018 SHARAD KUMAR SHARMA, J. (Oral) The Special Appeal has been preferred by the appellant, who happens to be the Chief Standing Counsel of the State of Uttarakhand, representing the cause of the State in the cases, which are filed by or against the State Government. 2. The appellant, herein, has challenged the judgment and order dated 24 th May, 2018, as rendered by the learned Single Judge in Writ Petition No. 287 of 2018, Ganesh Prasad Badola Vs. State of Uttarakhand and others. 3. Precisely, the case of the petitioner to the Writ Petition was that he was posted as Lecturer (Biology) in Government Inter College, Adharyakhal, District Pauri Garhwal w.e.f. 10 th August, His case was further that he was not transferred on the basis of the service point required to be considered for promotion in accordance the provisions laid down in the Transfer Policy prevalent at the relevant time

2 2 Consequent to the inaction on the part of the Authorities to consider the transfer of the writ petitioner/respondent No.1, herein, he earlier prefer a Writ Petition, being Writ Petition No of 2017, which came up for consideration before this Court and the same was disposed of on with the direction to decide the representation of the petitioner by speaking and reasoned order, as early as possible, but not later than three weeks. Consequent to the judgment dated 2 nd November, 2017, the petitioner filed a representation on Respondent No. 3 to the Writ Petition, i.e. Additional Director of Education, Pauri Garhwal, had rejected the representation of the petitioner without assigning any cogent and reasoned order and, consequently, the petitioner has preferred the present Writ Petition with the following reliefs : I. Issue Writ, Order or direction in the nature of Certiorari Quashing the Impugned Order dated 25/1/2018 Contained in annexure no. 6 of the writ petition. II. Issue Writ, order or direction in the nature of Mandamus Commanding the Respondent no. 3 to consider the Application dated 16/7/2017 Contained in Annexure no. 2 for the Transfer at the opted place. III. Issue any other direction or order as this Hon ble Court may deem fit and proper under the circumstances of the case. IV. Award costs of the writ petition to the petitioner. 4. The writ petition was admitted on 15 th February, 2018 and a counter affidavit was called upon from the respondent No. 3, directing respondent No. 3 that in the counter affidavit, he should specify as to why pick and choose policy has been adopted. Failure to file counter affidavit within time provided respondent No. 3 was directed to appear in person on the next

3 3 date fixed, i.e The matter was taken up before the learned Single Judge on 14 th March, The learned Single Judge, while considering the stand taken by the Additional Director, Secondary Education, in the counter who appeared in person on the said date, had observed that on affidavit which was filed on The perusal of the letter which was brought on record in the counter affidavit, dated 14 th December, 2017, the Court prima facie concluded that the respondents have been adopting pick and choose policy in transferring the Assistant Teachers, as on the one hand, one Smt. Shagupta Khan was transferred while, on the other hand, the petitioner s request for transfer as directed to be considered by this Court s order dated , was rejected by the impugned order dated 25 th January, Single Judge further observed that it seems that on some statements made by the Additional Director that the transfer of the petitioner was withheld on account of some instructions received from the superior officers. On asking of the Court, the name of the superior officers, who had parted of the instructions withholding the transfer of the petitioner, it was not disclosed and Additional Director had expressed his inability to disclose the name because he has only joined as Additional Director, Secondary Education on 22 nd May, 2017 and he was not made aware of the name of the officer concerned, and was only informed about the said fact by the Office Assistant. Interpreting the said statement, the learned Single Judge had drawn an inference that it was rather the Additional Director who has appeared in person before the Court, was trying to mislead the court by making false statements. Thereby, by grating time to the Additional Director to verify the aforesaid fact within a week, the Court directed that supplementary counter affidavit may be filed and on the next date fixed, i.e. 22 nd March, 2018, the

4 4 Director, Secondary Education; Chief Education Officer Pauri and Office Assistant were directed to remain present in person. 6. The case was taken up on 22 nd March, 2018 and on the said date Court exempted the personal appearance of the Director and the Chief Education Officer. In the proceedings held further on 3 rd May, 2018, the learned Single Judge has held that the Authorities are deliberately concealing the material facts from being brought to the knowledge of the Court despite orders dated , and for extraneous reasons and for the reasons best known to the officers concerned. Certain further information was sought for from State with regard to the relationship of the Lecturers with serving bureaucrats and politician. Further, it was directed that the State Government henceforth to pass all orders in writing. The matter was directed to be listed before the learned Single Judge on 24 th May, 2018 and the impugned order has been passed. 7. The learned Single Judge in its order dated 24 th May, 2018, had made the following observations, which is impugned in the present Appeal :- Mr. Navnish Negi, Advocate, for the petitioner. Mr. Pankaj Purohit, Dy. A.G. for the State. This writ petition came up for hearing before this Court on , the respondents were granted two weeks time to file counter affidavit with the directions that they shall specify as to why respondent no. 3 has adopted pick and choose policy. In case, counter affidavit is not filed within the stipulated period, respondent no. 3 shall appear before this Court on The matter was listed on it was adjourned and directed to list tomorrow, then this writ petition listed on , this Court has observed that the respondent authorities are adopting dual policy; on one hand, they are rejecting transfer request of the teachers on the ground that transfers have been withheld on the oral instruction of the higher officials whereas on the other hand, transfer orders are being passed adopting pick and choose policy.

5 5 After considering the conduct of the respondents this Court has directed that on the next date, the respondent No. 2 Director, Secondary Education, Uttarakhand, respondent No.4-Chief Education Officer, Pauri Garhwal and Mr. Vikas Dhyani, Officer Assistant shall present before this Court along with their records. Respondent no. 3 Mr. M.S. Bisht shall also remain present on the next date fixed. When this writ petition was listed on before His Lordship Justice Rajiv Sharma, Mr. Paresh Tripathi, C.S.C. appeared on behalf of the State, on his request the personal appearance of respondent No. 2 Director, Secondary Education, Uttarakhand, respondent No.4-Chief Education Officer, Pauri Garhwal was exempted by His Lordship Justice Rajiv Sharma. Thereafter the matter was listed on before His Lordship Justice Rajiv Sharma and on behalf of the State Mr. K.N. Joshi, Dy. A. G. appeared. An application for extension of time No of 2018 was filed to comply with the order passed by this Court and the same was dismissed. It was directed that the compliance affidavit be filed by the next date of hearing on Learned counsel for the State supplied the list of those teachers, in more than 500 pages and the same shall be taken on record. This Court, despite the several requests made to the Advocate General and C.S.C. that a particular case be pointed out to a particular lawyer being on behalf of the State may take responsibility of the case, but despite request of this Court no steps have been taken in this regard. This court has also noticed that Mr. Paresh Tripathi, C.S.C., who appears to use in other Courts is deliberately avoiding this Court even in those cases who has filed the counter affidavit. This Court has also noticed that Mr. Mr. Paresh Tripathi, C.S.C. is not working to save the interest of State Government being the C.S.C he is duty bound to contest the case on behalf of the State Govt. or assign the case to the competent Govt. pleader. But in view of this Court he failed to discharge his duties efficiently, properly and in diligently manner. Therefore, the copy of the order passed by this Court today be sent to the Chief Secretary State of Uttarakhand and Secretary Law-cum-L.R. for appropriate action and to ensure that the matter listed before this Court a competent Govt. pleaders be appointed to contest the cases on behalf of the State Govt. before this Court.

6 6 Since the case pertains to the State Govt. are not being allotted to individual Govt. pleader and on every date to file gone to a new Govt. pleader, who has no acquaintance of the case and also not aware of the previous proceedings of the case and most of the time waste the valuable time of the Court and failed to answer the query of the Court pertaining with the matter. Though, several requests were made by this Court to the C.S.C. that competent Govt. pleader be appointed to contest the cases on behalf of the State Govt., who have acquaintance with the particular cases, but the request of this Court has never been considered by the C.S.C. rather he started to not appear before this Court. Since, C.S.C. is not appearing before this Court, I have no option except to make a request to the State Govt. to ensure that in my Court the matter be assigned to the competent Govt. pleader, so they may come prepare before me and assist the Court in a proper manner to administer the justice to the litigants. Copy of this order be sent to the Chief Secretary and Secretary Law cum L.R., Uttarakhand. Personal appearance of the Officer was secured and to apprise the Court about the progress of the case as none of the Govt. pleader able to convince the court on the behalf of the State Govt. as and when the matter listed before me as well as in another Bench and for that reasons the personal appearance of the Officer concerned was secured, but this Court arrived to the conclusion that in fact the State Law Officers are not performing their duties, more, particularly the C.S.C. in allotment of the cases, that is why the presence of the officer was secured and they appeared time and again in the matter. Since the Officers concerned cannot contest the cases without proper assistance by the State Law Officer to the Court, therefore, they cannot be held responsible. Thus, the personal appearance of the officers concerned is exempted. As prayed, one week s time is granted to learned counsel for the petitioner to file rejoinder affidavit. List thereafter. 8. It is, these findings, which have been made by the learned Single Judge to the following effect, are under challenge in the appeal :-

7 7 1. The Court directed Chief Standing Counsel that a particular case be pointed out to a particular lawyer, but no steps have been taken. 2. Mr. Paresh Tripathi, the Chief Standing Counsel used to appear in other Courts but is avoiding the Court of learned Single Judge, whose order is under challenge. 3. Mr. Paresh Tripathi has not appeared even in those cases where the Chief Standing Counsel has filed the counter affidavit. 4. It was observed by learned Single Judge that Mr. Paresh Tripathi, in his capacity, as Chief Standing Counsel, is not working to safeguard the interest of the State. 5. Being the Chief Standing Counsel, he is duty bound to assign the cases to the competent government pleader, hence, Mr. Paresh Tripathi, has failed to discharge his duties efficiently and deliberately. 6. He has failed to comply with the directions given to him and the Advocate General to assign cases to individual Law Officers, who may take the responsibility of the case. 7. Consequently, the order was directed to be sent to the Chief Secretary of the State of Uttarakhand and the Secretary, Law-cum-L.R. for appropriate action for ensuring appearance of a competent pleader. 8. The learned Single Judge has directed the State Government to appoint any competent Advocate / pleader, as Chief Standing Counsel is not appearing before His Court. 9. It is, these findings, which the appellant contends are the findings recorded against him without material, without affording opportunity and with prejudiced mind. Thus, it affects

8 8 his career and tarnishes his professional career and prestige. He has challenged the same in the present Appeal. 10. The appeal was instituted with an application Leave to Appeal, as appellant, who was not party to the Writ Petition, but is affected by the order and findings recorded by it and the same was pending consideration, when appeal, itself is being heard on merits. Looking to the grounds and the allegations raised, we think the application for Leave to Appeal deserves to be allowed and the Appeal, itself, was heard finally. Accordingly, the same is allowed. 11. In the Memorandum of Appeal, the grounds which have been taken by Mr. Paresh Tripathi, Chief Standing Counsel is to the effect that very serious observations with regard to his professional conduct has been raised by the learned Single Judge, which was uncalled for, as he was not at all responsible for the nature of accusations made against him. Apart from the same, it is based on no material on record, rather on the conclusion drawn by the learned Single Judge being swayed by earlier directions issued in number of Writ Petitions by him, rather he submits he has some pre-determined notions as reflected from consistent orders passed by the learned Single Judge against him. 12. He has questioned the findings of the learned Single Judge to the effect that the observations made by learned Single Judge that the Law Officers deputed in his Court are not competent, calling for a change is rather a whimsical and generalized and derogatory remarks made against the functioning of the Office of the Chief Standing Counsel. He has attributed the findings of the learned Single Judge to be malicious and an expression of personal annoyance against him which he contends that he has experienced to have been recorded by the

9 9 learned Single Judge in number of cases, which were listed before the said Court. The expression of annoyance, which has been reflected in the ordersheet, apart from the fact that it will be tarnishing his reputation, it will further have an impact on his dignity as a professional and will affect his career and, in particular, the office of the Chief Standing Counsel, in which he was occupying. Because it is in common knowledge that these are political appointments and there are number of rival aspirants, attempting to pull him down from the post. They may take advantage of the findings recorded by the Court to be utilized against him. 13. His argument is that before making any observations that the Chief Standing Counsel is not appearing before the said Court, the Single Judge ought to have also considered the fact that it was not a case where the State s interest remained unrepresented. There are State Law Officers representing cases by or against the State. He submits that he is unable to visualize what is so particular in it that the Single Judge wants to ensure the appearance of the Chief Standing Counsel only before him. There are number of Deputy Advocate General, Additional Chief Standing Counsel and Standing Counsel, who were deputed in the Court and were taking care of the State s interest. His argument is that the Chief Standing Counsel since being, one of the superior Law Officers, has to ensure his appearance before the Court of Chief Justice or before the Court of Senior Judge (which are 1 st Courts) and in important assigned cases. He cannot make himself omnipotent in each and every case and in each and every Court. His non-appearance before the learned Single Judge concerned cannot be taken averse and intentional attempt of derogation. His argument is further that the normal administrative practice which is being followed in the office of Chief Standing Counsel with regard to the preparation of the

10 10 Counter affidavit has been consistently adhered to and if there are some minor mistakes, they cannot be taken so averse to personally harnessed upon personal responsibility on the Chief Standing Counsel to amount to any deliberate dereliction for the observations as consistently recorded against him. 14. The argument of the learned counsel for the appellant is that the findings recorded in the impugned order is arbitrary because before making any personal observation against the Chief Standing Counsel or with regard to his conduct, it is always expected from the Court of Law at least, in particular, Court exercising Constitutional power, to have at least given prior notice of hearing to the appellant against whom findings are recorded so that he may have his say, failing which, the reference made to the State Government by the impugned order by observing that that the appellant has failed to protect the interest of the State while functioning in the capacity of the Chief Standing Counsel and making an observation that he has failed to discharge his duties efficiently, properly and diligently, is an adverse remark without hearing the appellant. 15. The argument further extended by the appellant is to the effect that since the management of the Office of Chief Standing Counsel is an absolute prerogative of Advocate General and, thereafter, the Chief Standing Counsel, next in hierarchy, it ought not to be administratively interfered by the judicial directions of the Court as to how and in what manner, the office of the Chief Standing Counsel is to manage its administrative affairs, pertaining to the allocation of cases because the allocation of work always depends upon the quantum of work, number of available Courts, the nature of litigation, impact of the litigation in public, its intensity and issue involved and henceforth. It is on a holistic consideration of these aspects, the Chief Standing

11 11 Counsel has to take a decision as to which Law Officer has to be deputed and assigned with the responsibility to represent the Court and, at least the Court should exercise some self restraint and ought not issue administrative direction as to how to manage the internal affairs of the Office of the Chief Standing Counsel which falls in exclusive administrative control of Advocate General or Chief Standing Counsel. He further argues that the finding which have been recorded by the learned Single Judge to the effect that the competent State Law Officer to be appointed in his Court, is yet again, a derogatory remarks without a prior assessment because for assessment of competence, there cannot be a common yardstick, to be adopted for each individual a it is always a variable fact which, depends upon one s perception. 16. Apart from that, he argues that by observing to appoint competent State Law Officer in his Court, it could be inferred that the Court had observed that the Officers appointed, were otherwise incompetent. He submits that that the choice of a counsel whether competent or incompetent is always the choice of the litigants to whom, he wants to engage. Because the ultimate consequence of the litigation if the litigant chooses to be represented by incompetent counsel has to suffer by him as it would affect his representation in the Court. The litigant in the instant case is the State Government and, at least, the Court cannot direct as to how and in what manner, the litigant has to choose his counsel to represent him in the Court. 17. On a rational consideration of the part of the findings, which have been put to challenge by the Chief Standing Counsel, in persona, so far it raises an allegation pertaining to his personal competence; so far it raises an allegation of his deliberate avoidance to appear before the Court; so far it relates to issuing the direction to the State Government for taking an action; so far

12 12 it relates to an appointment of competent State Law Officers / Pleaders and so far its relates to the act of non-appearance of counsel before the Court, we are of the considered view that all these observations made were uncalled for as it should not be the concern of the Court while deciding a case. 18. The reasons being that it is absolutely a choice of the litigant to choose his counsel and it is not the concern of the Court as to whom the client would engage as his counsel. It is not the Court s concern to assess the competence of the counsel because if a litigant chooses a wrong counsel or an incompetent counsel, it is he, who has to suffer and for which, at least, the Court cannot issue any direction. 19. We are of the further view that the findings which have been recorded by the learned Single Judge to the effect that Mr. Paresh Tripathi, the Chief Standing Counsel had not protected the interest of the State is rather without any material on record and without even there being anyone s case argued before the Court. Even if, let us presume that the Court was drawing an inference that the Chief Standing Counsel has failed to protect the interest of the State, then at least when an allegation is against an individual which has an effect on his professional career or tarnishes his image, he ought to have been given a prior notice and heard before recording those findings and the Court without issuing any prior notice calling any explanation and hearing the Chief Standing Counsel, issuesd direction to the Secretary Law for taking an action against the Chief Standing Counsel. 20. It is further settled procedural law that if a counsel engaged by a litigant, which is in the instant case happens to be the Chief Standing Counsel, engaged by the litigant, i.e. State, if

13 13 he does not appear in a case allotted to him, which was supposed to be argued by him, then atleast, the Court cannot draw an adverse inference that he is deliberately avoiding the Court on its own whims and without there being any material. The only scope which is open for the Court is to proceed to hear the matter and decide it on its own merit rather than making personal accusations against the counsel. 21. For the reasons assigned above, we are of the view that the findings as quoted above and under challenge in the Appeal, deserve to be quashed. 22. Accordingly, the Special Appeal is allowed. The impugned order dated 24 th May, 2018, as far as it records the findings against the Chief Standing Counsel is quashed. Shiv (Sharad Kumar Sharma, J.) (Rajiv Sharma, J.)