Bar & Bench ( IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 464 of Vs.

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1 Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 464 of 2018 Paresh Tripathi...Appellant Vs. Smt. Rachna Tonk and others...respondents Mr. C.K. Sharma, Advocate for the appellant. Mrs. Neetu Singh, Advocate for respondent no. 1. Mr. S.N. Babulkar, Advocate General assisted by Mr. Anil Kumar Bisht, Standing Counsel for the State of Uttarakhand/respondent nos. 2 to 6. Judgment Reserved : Judgment Delivered : Coram: Hon ble Rajiv Sharma, J. Hon ble Sharad Kumar Sharma, J. Per : Hon ble Sharad Kumar Sharma, J. In this Special Appeal, we are called upon to answer a very precarious question, which has been posed by the appellant i.e. Mr. Paresh Tripathi, the Chief Standing Counsel of High Court of Uttarakhand, Nainital. The appellant, in this Special Appeal, has given challenge to the orders dated and , passed by the learned Single Judge of this Court in Writ Petition (S/S) No of 2017 Smt. Rachna Tonk Vs. State of Uttarakhand and others, where during the course of the proceedings of the writ petition, it is contended that learned Single Judge has made certain observations and recorded findings against the appellant, regarding his professional conduct and mode of his carrying the office of Chief Standing Counsel.

2 2 2. Principally, the petitioner to the writ petition had filed the writ petition for the following reliefs: (a) Issue and appropriate order, Writ or directions in the nature of Certiorari commanding the Respondents to quash the Impugned Order No. vkns k la[;k@fof/k izdks V ¼ek/;fed½@570@ @ fnukad 11 vxlr 2017 (annexed herewith as Annexure -12) issued by the Respondent No.-2, in the interest of justice to the Petitioner. (b) Issue an appropriate order, Writ or directions in the nature of Mandamus commanding the Respondents to allow the Petitioner to continue to work at her present place of posting at Dehradun, in the interests of justice to the Petitioner. (c) Issue an appropriate order, Writ or directions in the nature of Mandamus commanding the Respondents to make payment of salary to the Petitioner as per the LPC (Last Pay Certificate) submitted at Dehradun Trasury Office. (c) Issue any other order or any further directions which this Hon ble Court may deem fit and proper in the facts and circumstances of the case to mould the relief and render justice to the petitioner. (d) Award the cost of the present writ petition to the petitioner. For this act of kindness the petitioner shall ever pray as in duty bound 3. Though, we being conscious that the merits of the writ petition are not required to dealt by us, while the appellant challenges the impugned orders in appeal, but for a logical scrutiny to the impugned orders in the appeal, were required to have a birds eye view of the case to conclude a to whether at all it was necessary for the learned Single Judge to pass the order impugned in the

3 3 appeal, particularly, when the Writ Petition itself was yet to be decided on merits and is pending consideration. 4. The factual backdrop, under which the present writ petition was filed before this Court, in short, was that as a consequence of an order of transfer dated , the petitioner was transferred from Government Girls Inter College, Joshimath, District Chamoli to Government Girls Inter College, Dehradun being Government Order No1058(I)/XXIV-uol`ftr/16-13(07)/2011 dated The State of Uttarakhand, in that situation, has proceeded to issue yet another Government Order No. 06/XXIV-Nav Shrijit /1713/ (04)/2008 dated , whereby the State of Uttarakhand has stayed the implementation of transfer orders, including the one issued transferring the petitioner on from Chamoli to Dehradun. The stay order dated was made effective till further orders were passed by the competent authorities. 5. In a subsequent development, there was yet another Government Order issued being Government Order No. 465(1)/XXIV-uol`ftr/ (07)2011 dated , whereby the earlier stay order dated , staying the transfer order dated , was vacated and consequent thereto, the teachers, who were covered by the transfer orders dated , were directed to be relieved and a direction was issued to respondent no. 2 i.e. the Director of School Education to implement the earlier transfer orders of all the teachers, including that of petitioner. Ultimately, the petitioner, like other teachers, was relieved pursuant to the order of transfer dated to enable her to join at the place of transfer.

4 4 The State Government, and in particular, respondent no. 3 to the writ petition i.e. Additional Director of Education, in compliance of the Government Order dated , as referred above, had directed all Chief Education Officers and all District Education Officers working under his subordination to ensure the implementation of the transfer orders of all the teachers dated , which were earlier made and later on was made effective by the vacation of the Stay Order by order dated , and thus respondent no. 3 too was directed to ensure compliance of relieving of the teachers concerned immediately. Ultimately, on , in compliance of the aforesaid correspondences, as referred above, respondent no. 5, under whom the petitioner was working at the time when the initial order of transfer dated was passed, relieved the petitioner to enable her to join at Government Inter College, Rajpur Road, Dehradun and hence transfer order dated , in fact, was made effective. 6. The petitioner s case is that she was issued Last Pay Certificate and a communication of the same was made to the Sub-Treasury Officer, Joshimath, District Chamoli. In the chain of events as narrated, the petitioner had joined her duties and the order taking charge was passed being Order No. vkns k la[;k@ dk;zhkkj xzg.k 06 / dated (Annexure No. 7 to the writ petition). In compliance of the order and as a consequence of his joining, it is the case of the petiitner that he has shifted her entire family from Joshimath, District Chamoli to District Dehradun and the petitioner had proceeded to even admit her children in the schools at Dehradun. But for some reasons, respondent no. 4 had passed the

5 5 impugned order under challenge in the writ petition, Order No. vkns k Lka[;k@fof/k izdks"b ¼ek/;kfed½@570@2017&18 dated (Annexure 12 to the Writ Petition), whereby the transfer order as well as the relieving order issued in favour of the petitioner was cancelled and the petitioner was directed to rejoin the place of earlier posting i.e. Joshimath. It is this order, which is impugned on the ground that the initial order of transfer dated , as a matter of fact, has been enforced and has lost its utility and significance after the petitioner has joined the transferred place on and settled her family. 7. The argument of learned counsel in the writ petition was that in shifting of the petitioner from her earlier place, i.e. Joshimath to Dehradun, number of allied domestic responsibilities were required to be discharged by her and the action taken of cancellation of the transfer order would be arbitrary and was not necessary. This necessitated for the petitioner to file Writ Petition, being Writ Petition (S/S) No of 2017 Smt. Rachna Tonk Vs. State of Uttarakhand and others challenging the order dated The said writ petition was disposed of by this Court on directing that the representation of the petitioner to be considered by the competent authorities. Ultimately, on being served with the judgment of this Court dated , respondent no. 2 rejected the representation of the petitioner by the impugned order under challenge in the present writ petition dated It is the case of the petitioner that as a consequence of the rejection of the representation and sustaining the order dated , she has been made as a pendulum and is unable to discharge her duties

6 6 either at her previous place of posting i.e. Joshimath, District Chamoli or at her transferred place at Dehradun. 8. All these facts, though at this stage may not be relevant while considering the Special Appeal against the impugned orders under challenge, but the narration of those facts became necessary so as to determine as to whether the Single Judge was justified to step forward beyond the scope of the writ petition and pass the impugned orders, which have got no nexus to the merits of the writ petition. 9. On scrutiny of the impugned orders dated and under challenge in the present Special Appeal by Mr. Paresh Tripathi, the Chief Standing Counsel of this Court, what has revealed from argument and the order sheet, is that, after entertaining the writ petition, a counter affidavit was called for by the Court vide its order dated and in response thereto, respondent nos. 2 and 3 to the writ petition had filed their counter affidavit(s) on but respondent nos. 1, 4 and 5 had not filed the same. 10. The controversy, in appeal as sought to be agitated, in fact, arises out of the findings, which have been recorded by the learned Single Judge in paragraph no. 10 onwards of the impugned judgment dated , whereby, the learned Single Judge has proceeded to observe and that too on the basis of the exclusive statement of Mr. Mahavir Singh Bisht, Additional Director, Secondary Education, Garhwal Mandal Pauri, wherein, he has stated parting over of the instructions to the Chief Standing Counsel, the appellant, herein, he has also

7 7 stated to have parted of instructions as regard to the orders passed from time to time in relation to the controversy. The Additional Director, Secondary Education, Gahrwal had also made a statement before the learned Single Judge that draft of the counter affidavit was prepared by the Chief Standing Counsel and while swearing the affidavit, it has been sworn on the basis of record without there being any record annexed in support thereto and it was done so on the instruction and legal advise of Chief Standing Counsel. He stated that he cannot be held responsible if the documents are not annexed with the counter affidavit, though the paragraph has been pleaded on basis of record, despite being supplied by him to the Chief Standing Counsel, who drafted the counter affidavit. The learned Single Judge, extracting the said lacunae in swearing of the affidavit, of which some of the paragraphs were sworn on the basis of the records though actually without there being any record annexed in respect thereto, had inferred that the swearing was in violation of the provisions contained under Order 19 Rule 6 of the Code of Civil Procedure, Order 19 Rule 6 of the Code of Civil Procedure, 1908 is quoted hereunder: 6. Format and guidelines of affidavit of evidence. An affidavit must comply with the form and requirements set forth below: (a) such affidavit should be confined to, and should follow the chronological sequence of, the dates and events that are relevant for proving any fact or any other matter dealt with; (b) where the Court is of the view that an affidavit is a mere reproduction of the pleadings, or contains the legal grounds of any party s case, the Court may, by order,

8 8 strike out the affidavit or such parts of the affidavit, as it deems fit and proper; (c) each paragraph of an affidavit should, as far as possible, be confined to a distinct portion of the subject; (d) an affidavit shall state (i) (ii) which of the statements in it are made from the deponent s own knowledge and which are matters of information or belief; and the source for any matters of information or belief; (e) an affidavit should (i) (ii) (iii) (iv) have the pages numbered consecutively as a separate document (or as one of several documents contained in a file); be divided into numbered paragraphs; have all numbers, including dates, expressed in figures; and if any of the documents referred to in the body of the affidavit are annexed to the affidavit or any other pleadings, give the annexures and page numbers of such documents that are relied upon. 11. We are of the view that the Court of learned Single Judge had lost sight of the fact that he was sitting over in a writ jurisdiction under Article 226 of the Constitution of India dealing with the service matter, in which strict principles/provisions of Code of Civil Procedure, 1908, have not been made applicable; only the wider principles

9 9 of the same would apply. Apart from it, in the writ jurisdiction, there is no specified recognized format of pleading and verification, which is required to be strictly and mandatorily adhered to by the parties to the proceedings. The intention and purpose of the Constitutional Courts is to ensure dispensation of substantial justice instead of engaging in intricate technicalities of law of pleadings and that too as already said when specific law of pleading will not be attracted in writ jurisdiction where Code of Civil Procedure, 1908 has not been made applicable. 12. It is essential for us to consider the aspect regarding the applicable of Code of Civil Procedure in the proceedings of Writ Jurisdiction which is the foundation of the impugned judgment. Section 141 of the C.P.C. reads as under : Miscellaneous proceedings. - The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction. [Explanation. In this section the expression proceedings includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution.] The effect of the explanation as inserted in Section 141 of the Code of Civil Procedure by the amending Act of 1976, would be that the procedure prescribes in the Code of Civil Procedure, which obviously would include Order 19 Rule 6, will not apply on its own force to the proceedings of Writ Courts under Article 226 of the Constitution of India. It only enshrines that some of the wider salutary provisions enshrined in the Code of Civil

10 10 Procedure governing the Civil Proceedings may be applied, but then we are of the view that for drawing a proceedings against the appellant or making adverse observations based on the provisions of the Code of Civil Procedure which is otherwise not applicable under Explanation to under Section 141 of the C.P.C. would not be an appropriate and rationale finding. In the authority reported in AIR 1996 SC 1092, Puran Singh and others Vs. State of Punjab and others, lays that there is no specific provisions which would limit the procedural provision of Writ Courts and Writ Court has to adopt its own procedure, which is reasonable and expeditious, with an objective to meet the ends of justice. Paragraph 5 of the said judgment reads as under :- 5. The question with which we are concerned is as to whether the aforesaid provisions made under Order 22 of the Code are applicable to proceedings under Articles 226 and 227 of the Constitution. Prior to the introduction of an explanation by Civil Procedure Code (Amendment) Act 1976, Section 141 of the Code was as follows: 141. Miscellaneous proceedings. The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. The explanation which was added by the aforesaid Amending Act said: Explanation. In this section, the expression proceedings includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution. There was controversy between different courts as to whether the different provisions of the Code shall be applicable even to writ proceedings under Articles 226 and 227 of the Constitution. Some High Courts held that writ proceedings before the High Court shall be deemed to be proceedings in any court of civil jurisdiction within the meaning of Section 141 of the Code. (Ibrahimbhai Karimbhai v. State of Gujarat; Asstt. Distt. Panchayat Officer v. Jai Narain Pradhan; Krishnalal Sadhu v. State of W.B.; Sona Ram Ranga

11 11 Ram v. Central Govt.; Annam Adinarayana v. State of A.P.) However, in another set of cases, it was held that writ proceeding being a proceeding of a special nature and not one being in a court of civil jurisdiction Section 141 of the Code was not applicable. (Bhagwan Singh v. Addl. Director of Consolidation; Chandmal Naurat Mal v. State of Rajasthan; Khurjawala Buckles Mfg. Co. v. CST; Ramchand Nihalchand Advani v. Anandlal Bapalal Kothari; Bharat Board Mills Ltd. v. R.P.F. Commr. Even before the introduction of the explanation to Section 141 of the Code, this Court had occasion to examine the scope of the said section in the case of Babubhai Muljibhai Patel v. Nandlal Khodidas Barot. It was said: (SCC p. 715, para 10) It is not necessary for this case to express an opinion on the point as to whether the various provisions of the Code of Civil Procedure apply to petitions under Article 226 of the Constitution. Section 141 of the Code, to which reference has been made, makes it clear that the provisions of the Code in regard to suits shall be followed in all proceedings in any court of civil jurisdiction as far as it can be made applicable. The words as far as it can be made applicable make it clear that, in applying the various provisions of the Code to proceedings other than those of a suit, the court must take into account the nature of those proceedings and the relief sought. The object of Article 226 is to provide a quick and inexpensive remedy to aggrieved parties. Power has consequently been vested in the High Courts to issue to any person or authority, including in appropriate cases any government, within the jurisdiction of the High Court, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. It is plain that if the procedure of a suit had also to be adhered to in the case of writ petitions, the entire purpose of having a quick and inexpensive remedy would be defeated. A writ petition under Article 226, it needs to be emphasised, is essentially different from a suit and it would be incorrect to assimilate and incorporate the procedure of a suit into the proceedings of a petition under Article 226. It can be said that in the judgment aforesaid, this Court expressed the view that merely on basis of Section 141 of the Code it was not necessary to adhere to the procedure of a suit in writ petitions, because in many cases the sole object of writ

12 12 jurisdiction to provide quick and inexpensive remedy to the person who invokes such jurisdiction is likely to be defeated. A Constitution Bench of this Court in the case of State of U.P. v. Dr Vijay Anand Maharaj said as follows: It is, therefore, clear from the nature of the power conferred under Article 226 of the Constitution and the decisions on the subject that the High Court in exercise of its power under Article 226 of the Constitution exercises original jurisdiction, though the said jurisdiction shall not be confused with the ordinary civil jurisdiction of the High Court. This jurisdiction, though original in character as contrasted with its appellate and revisional jurisdictions, is exercisable throughout the territories in relation to which it exercises jurisdiction and may, for convenience, be described as extraordinary original jurisdiction. When the High Court exercises extraordinary jurisdiction under Article 226 of the Constitution, it aims at securing a very speedy and efficacious remedy to a person, whose legal or constitutional right has been infringed. If all the elaborate and technical rules laid down in the Code are to be applied to writ proceedings the very object and purpose is likely to be defeated. According to us, in view of the conflicting opinions expressed by the different courts, Parliament by the aforesaid amending Act introduced the explanation saying that in Section 141 of the Code the expression proceedings does not include any proceedings under Article 226 of the Constitution and statutorily recognised the views expressed by some of the courts that writ proceedings under Article 226 of the Constitution shall not be deemed to be proceedings within the meaning of Section 141 of the Code. After the introduction of the explanation to Section 141 of the Code, it can be said that when Section 141 provides that the procedure prescribed in the Code in regard to suits shall be followed, as far as it can be made applicable in all proceedings in any court of civil jurisdiction it shall not include a proceeding under Article 226 of the Constitution. In this background, according to us, it cannot be held that the provisions contained in Order 22 of the Code are applicable per se to writ proceedings. If even before the introduction of the explanation to Section 141, this Court in the case of Babubhai v. Nandlal had said that (SCC Headnote p. 707) the words as far as it can be

13 13 made applicable occurring in Section 141 of the Code made it clear that, in applying the various provisions of the Code to the proceedings other than those of a suit, the court has to take into consideration the nature of those proceedings and the reliefs sought for after introduction of the explanation the writ proceedings have to be excluded from the expression proceedings occurring in Section 141 of the Code. If because of the explanation, proceeding under Article 226 of the Constitution has been excluded, there is no question of making applicable the procedure of Code as far as it can be made applicable to such proceeding. The procedures prescribed in respect of suit in the Code if are made applicable to the writ proceedings then in many cases it may frustrate the exercise of extraordinary powers by the High Court under Articles 226 and 227 of the Constitution. 13. Let us even assume for the time being that the swearing of the affidavit filed by Mr. Mahavir Singh Bisht, Additional Director, Secondary Education was not in consonance with Order 19 Rule 6 of the Code of Civil Procedure, 1908, but it has to be borne in mind by the Court of law, in particular, Writ Courts that it is not the counsel, who is responsible for searing its always the deponent who reads the affidavit and signs it before Oath Commissioner, who explains its contents to him (the deponent). The counsel who has drafted the affidavit, cannot be held to be responsible for its contents in case if there are some negligible lacunae, which chanced in the swearing of the affidavit. It is always the deponent of the affidavit, who swears the contents of it, who could be said to be responsible even in accordance with the provisions contained under Order 19 Rule 6 as even Order 19 Rule 6 does not speak or shoulder responsibility on counsel. It would be too hypothetical and farfetched preposition as drawn by learned Single Judge because if we accept the same, it will lay a precedent that wherever their chances

14 14 any defect in the swearing clause or in the pleadings of the affidavit, if the counsel has to be made responsible as being propounded by learned Single Judge, it may lead to a situation where if any litigant loses his/her case on account of lack of pleadings or imperfect pleadings or wrongful swearing of affidavit, the blame would always be put upon the legal practitioners drawing the proceedings on behalf of the party to a litigation on the basis of an authority of vakalatnama, the same has been done by the learned Single Judge by the impugned orders under challenge in the appeal. 14. Also considering the dispute from another view point, regarding the clauses of swearing, we are of the view that the swearing clause in the affidavit is as per the Oaths Act,1969 in the following manner : FORMS OF OTHHS OR AFFIMATIONS Form No. 1 (witnesses):- Swear in the name of God I do that what I shall state Solemnly affirm shall be the truth, the whole truth and nothing but the truth. Form No. 2 (Jurors):- Swear in the name of God I do that I will well and truly Solemnly affirm try and true deliverance make between the State and the prisoner (S) at the bar, whom I shall have in charge, and a true verdict give according the evidence. Form No. 3(Interpreters):- Swear in the name of God

15 15 I do that I will well and truly Solemnly affirm interpret and explain all questions put to and evidence given by witnesses and translate correctly and accurately all documents given to me for translation. From No. 4 (Affidavits):- Swear in the name of God I do that this is my name Solemnly affirm and signature (or mark) and that the contents of this may affidavit are true. 15. The format, which is being followed, adopted and used in the High Court, the Clause reads as under :- Verification I the deponent above named do hereby verify that the contents of paragraph no... of the affidavit are true to my personal knowledge in the case, those of the contents of paragraph nos.. of affidavit are based on perusal of record of this case, those of paragraph no... of the affidavit are based on legal advice in the case, which all I believe to be true and no part of this affidavit is false and nothing material has been concealed therein. SO HELP ME GO Deponent I,. Advocate, High Court, Nainital do hereby declare and verify that the person making this affidavit and alleging himself to be the deponent is know to me from the perusal of papers produced before me in this case. Solemnly affirmed before me this. Day of at about, I have satisfied myself by examining the deponent that he has fully understood the contents of this affidavit which have been read over and explained to him by me. OATH COMMISSIONER

16 Oath means an oath made by the party to the proceedings, who swears the pleadings and contents of the affidavit. At least the identity of the counsel cannot be diluted with the litigant as for swearing of contents of the affidavit is concerned. Hence the finding, which has been recorded by the learned Single Judge holding the Chief Standing Counsel i.e. Mr. Paresh Tripathi, as to be made responsible for a wrongful swearing in the affidavit, would be a misnomer and misinterpretation of Order 19 Rule 6 of the Code of Civil Procedure, 1908, because it does not lay any responsibility on a counsel for a perfect drafting and proper swearing, as in accordance with the Clauses of affidavit, it is the deponent who swear affidavit, the counsel only identifies the deponent, by documents produced by him before his counsel and the Oath Commissioner. 17. There is another rationale, which has been assigned by the learned Single Judge, as against the appellant i.e. Chief Standing Counsel in persona was that since he has drafted the counter affidavit and that as some of the paragraphs of the affidavit, which were not verified by the Oath Commissioner, it was he, i.e. appellant, who would be required to shoulder the responsibility as the Chief Standing Counsel and he has to be blamed for it. We disagree with the reasons of learned Single Judge for the reason that verification of affidavit is not the responsibility of the counsel who identified that deponent, nor he has any role in the process of verification which is done by the Oath Commissioner, who reads its contents to the person swearing the affidavit and who signs the same after understanding its contents.

17 Even otherwise also, if the swearing clause of any affidavit, which has been filed before the High Court, is considered, it could be seen that the contents of the affidavit are sworn by the deponent, who verifies the paragraphs as given in the said affidavit. As far as the counsel s role is concerned, if we scrutinize two clauses, the counsel only identifies the person swearing the affidavit on the basis of the document and the papers produced before him. Hence, at least, the counsel, in person, is not instrumental at all in the verification of the contents of the paragraphs mentioned in the affidavit, which are sworn by the deponent. Hence, also atleast, the counsel cannot be held responsible, if paragraphs of the affidavits are not sworn or verified and if they are sworn inappropriately. Even according to the Oaths Act, 1969, the said Act does not anywhere hold the counsel to be responsible for the contents of the affidavit. 19. We are of a considered view that yet again swearing of affidavit is an issue, which is to be looked into by the Oath Commissioner, before whom the affidavit is sworn by the deponent, it is the Oath Commissioner who owes a responsibility to properly verify the paragraphs of an affidavit and if some paragraphs skip verification, there cannot be any rationale to make the counsel responsible who had drafted affidavit. The counsel representing a party to the proceedings or drafting an affidavit cannot be burdened with the said responsibility. 20. There is a practical aspect of the controversy also, which the learned Single Judge should have thought of as he also hails from same fraternity of advocates, prior to His elevation to Bench, which the Advocates, as a

18 18 professional of the Courts also face and he has to acknowledge the fact that normally in profession these types of minor errors do creep in, but it is not that under law such type of mistakes of non-adherence to Order 19 Rule 6 of the Code of Civil Procedure of 1908 or inappropriate swearing of affidavits or non-verification of some of the paragraphs of an affidavit caused due to inadvertent human error which is bound to occur at times are not curable. The law itself contemplates and provides for the procedure for curing such type of mistakes and these errors should not be derived to impede dispensation of justice, more particularly, when it chances in Writ Jurisdiction, which we are of a considered view, that these technicalities should not be attracted by the Constitutional Courts unless deliberate to mislead the Court, at least to deceive the very spirit of its creation of extraordinary jurisdiction for dispensation of justice by engaging itself in making counsel, who are part and parcel of the process of dispensation of justice and one of its integral limb, to be made personally responsible for the same. Hence, we are of a considered view that the learned Single Judge has overstepped by making the counsel personally responsible for the said negligible and curable lacunae. 21. Even according to the finding, which has been recorded in paragraph no. 12 of the order impugned passed by the learned Single Judge dated , it is clear that a prematured inference, has been drawn by the learned Single Judge itself that the Chief Standing Counsel is deliberately not appearing before the said Court, as he was cautious of the lacunae, which have chanced in the swearing of the affidavit. Yet again, we are constrained to observe that such type of an inference as

19 19 had been drawn by learned Single Judge has had to be made cautiously and not by preponderance as it effects a counsel s integrity and prestige, effecting his career. Under the Rules of the Court, it nowhere provides that if an individual counsel, who has drafted an affidavit and, in particular, when the counsel is the State Law Officers, it is that particular counsel only, who has to appear to defend the case. It has been argued by appellants counsel that under the arrangement, as prevalent in the Office of the learned Advocate General/Chief Standing Counsel, the duties are assigned to the counsel, in respective Courts, irrespective of the fact that it may be that the pleadings have been filed by some other State Law Officer. The only precaution, which has to be taken by the Advocate General s Office and the Office of the Chief Standing Counsel, is that the cases in which States interest is involved, it should not remain unattended by the State; since law nowhere contemplates that the same counsel has to appear. Even, we are in disagreement with the finding recorded by the learned Single Judge, taking averse view as to why Mr. Paresh Tripathi, the Chief Standing Counsel, himself, who has drafted the counter affidavit, has not appeared, as under no law he has mandatorily required to appear merely because he was drafted the counter affidavit. 22. We have been called upon to answer the questions, posed by the appellant counsel during the course of arguments, as regards to the other order, which is impugned in the Special Appeal i.e. the order dated In the order dated , there is a reflection, as if the conclusion has been drawn by the learned Single Judge by making direct interaction with the

20 20 litigant regarding supply of a document in support of its pleading and not annexing the same with the paragraph, in which the pleading has been made in relation to those documents. This aspect has been wrongly construed as to be a misconduct and an effort to suppress material fact and we are of a considered view that it cannot be construed to be an act of misleading and suppression of fact, that too when the said analogy could have been derived only when the person, who is held responsible for misleading, is provided with an opportunity to have a say, because any finding of an attempt to mislead would be stigmatic. The statement of the official concerned that he has supplied the documents, but he was advised not to annex the same with the counter affidavit by the Chief Standing Counsel, may not be taken as to be a gospel truth because there are various factors which are to be considered by the learned Single Judge including the fear psychosis which the Court exerts on the party, when under duress and threat he make a statement to save himself and has career due to threat of probable administrative action by Court. That discharge of professional duties while making the choice of documents, which are to be filed before the Courts depends upon one s individual wisdom and acumen. Hence, at least if a document is not filed, it will not be misconduct on the part of the counsel. If at all it could be said, it would be the misconduct on the part of the litigant. Even, we think that before the Single Judge concluded that non filing of a document was an effort of misleading or concealment of material fact, then it was necessary on the Single Judge to have considered as to how the documents referred in the para which were not filed were relevant and were affecting the adjudication on merits of the lis, and also as to how

21 21 the State is going to be benefited by not producing the same before the Court. As no finding has been recorded by the learned Single Judge to the said effect, it would vitiate the order impugned dated In the order dated , the learned Single Judge, in paragraph no. 11, has made the following observations: 11. It appears to this Court that Mr. Paresh Tripathi, C.S.C. is not ready to accept the responsibility, being highest law officer. This Court has already observed in its previous order that he is not capable to do work in the interest of the State Government. Several orders, passed by this Court, have been communicated to the State Government to look into the matter and to do the needful. Orders passed by this Court also sent to the Chief Secretary, State of Uttarakhand and Secretary (Law) cum L.R., State of Uttarakhand but this Court feels that any of the order, sent by this Court, has not been complied with yet. Form the working style of C.S.C. it would reveal that C.S.C., who is having such highest position of law officer, failed to discharge its duties properly and to save the interest of State Government. Earlier, it was observed by this Court that files are not being allotted to a particular Lawyer to conduct the case on behalf of the State so that a particular Lawyer may appeared on behalf of the State and take responsibility and credit of the case. The file, on several dates, goes in the hands of a new Lawyer who is not acquainted with the facts, rather new State Lawyer who come on behalf of the State waste the valuable time of the Court, as they are not aware of the correct facts of the case and proceedings of previous stage of the case. 24. The directions issued by the learned Single Judge directing the Secretary Law as well as the State Government for taking action against Chief Standing Counsel, wherein the Court has drawn a conclusion that

22 22 the Chief Standing Counsel is not competent and is incapable to protect the interest of the State, at least, we think that it is not an act, which forms part of dispensation of justice by the Court in making stigmatic remarks against a counsel and recording a finding on the same. As competence always happens to be a variable factor depending from individual to individual and his perception; its interpretation by any judicial finding, at least, of intellect of an advocate ought to be avoided by the Courts, more particularly, when it has an effect of tarnishing his/her professional career and capabilities and becomes an issue of discussion and example to be quoted by the rival aspirants for the post, who may derive to take advantage out of it, as these posts are political appointments depending upon pleasure and displeasure. Even if it is assumed for a moment that the Court can do it since it is a finding pertaining to the capability of a particular counsel, the Court ought to have issued a showcause notice to enable the counsel against whom the observations are made to have a say in the matter, if any lacuna existed. 25. We also think that having pondered a lot that even we as Judges are not expected to act as an expert to assess the individual competence of an Advocate in the absence of any expertise, as it may at times such assessment be influenced by personal bias of a Judge towards an individual, as reflected herein, which has chanced recurringly in number of cases against the appellant. Apart from it, Judges too,` are human being, they are atleast not devised with self installed mechanism which can detect and measure the competence of an individual as it is always dependent ones own capacity to

23 23 assess, because a person can be a perfect professional for one person, and may not be so far the other. Hence, we hold that at least the Courts should refrain and exercise self restraint in assessing the competence of individual Advocate and that too reflecting the same in his judicial verdicts / orders and obviously when it will mar and tarnish his professional career. 26. It has been argued by Mr. C.K. Sharma, learned counsel for the appellant that the finding of capability is a finding, which affects the professional career of the appellant as it will provide an impetus to the rival in fray for the post and thus it cannot be recorded without an opportunity of hearing. We are of the view that the argument, as extended is absolutely sustainable because once any judicial finding is recorded by the Court, which affects the professional career of a counsel, he/she ought to be heard. Even otherwise, recording a finding against the professional capability of a counsel in proceedings of a writ court would always amount to be an issue, which is beyond the controversy, which was ceased before the Court. At least the learned Single Judge should have conferred himself on the merits of the matter rather than raising personal accusations against a counsel, i.e. appellant, herein. 27. In paragraph no. 11 of the of the order dated , the learned Single Judge, has also made reference to the earlier orders passed by him directing the State Government to take action against the Chief Standing Counsel, who according to him happens to be highest law officer, being incapable and unable to protect the interest of the State. The argument, which has been

24 24 extended by the counsel of the appellant is that as soon as the Court makes a remark that the Court has earlier issued direction to the Law Secretary for action, it means that the Court was sitting with a preconceived mind set against the Chief Standing Counsel because in the various appeals, which have been preferred by him, before the Division Bench invariably in all the appeals, such type of directions have been issued by the learned Single Judge as against the Chief Standing Counsel. What is remarked at this stage is that why such type of a direction has flown only from one particular Court, i.e. learned Single Judge, herein, and against one particular counsel, i.e. Paresh Tripathi, the Chief Standing Counsel. He submits that these observations are preconceived and malicious and with a pre-thought of vengeance against the Chief Standing Counsel. 28. Although, it would be premature and without any material to accept the said argument at this stage but appropriately we feel when the learned Single Judge consistently passes an order recurringly in all proceedings directing the client, who has engaged the services of a professional for taking an action against his counsel, it does smacks malice. 29. There is another aspect that the finding, which has been given by the learned Single Judge directing the Law Secretary to take an action, in compliance of the directions issued in paragraph no. 11 of the order dated and in compliance of the several other earlier communications made to the State Government, was uncalled for. The reason for the same is that relationship between a client and his counsel has been termed to be a

25 25 contractual relationship which binds them only. It is always the choice of a litigant to choose his counsel and the said choice of the litigant is dependent upon his wisdom to assess the capability of his counsel and if he chooses an incapable counsel, it is the litigant, who has to be blamed and who has to face the consequences. At least the Courts have got no role to advice a client, which in the instant case happens to be the State Government to take action against his counsel, which in the instant case happens to be the Chief Standing Counsel to take an action against him and do the needful. 30. Hence, we are not in agreement with the findings, which have been recorded, issuing directions to the State Government for taking action against the Chief Standing Counsel being beyond the scope and ambit of judicial proceedings. 31. In that view of the matter, this Special Appeal is allowed. The impugned orders dated and will stand set aside. 32. However, there would be no order as to costs. Shiv (Sharad Kumar Sharma, J.) (Rajiv Sharma, J.)