Special Appeal No. 390 of 2018

Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 390 of 2018 Paresh Tripathi Appellant Versus Mahesh Chandra Sharma and others. Respondents Mr. C.K. Sharma, Advocate for the appellant. Mr. S.N. Babulkar, Advocate General with Mr. Anil Kumar Bisht, Standing Counsel for the State. Mr. B.D. Pande, Advocate for the writ petitioners. Coram:- Hon ble Rajiv Sharma, J. Hon ble Sharad Kumar Sharma, J. Per - Hon ble Sharad Kumar Sharma, J. Reserved on : 31.10.2018 Delivered on : 12.11.2018 The instant Appeal was preferred by the appellant with an application for leave to appeal as the appellant not being a party in the writ petition, in which the impugned order dated 26.04.2018 has been passed and as the order being adverse to his interest, he has sought permission for leave to appeal, for the reason shown there in the application, the coordinate Bench on 25.06.2018 had granted leave to appeal. 2. The appellant herein the appeal, is the Chief Standing Counsel of the High Court of Uttarakhand at Nainital. He was representing the cause of the State in the writ petition, which has been preferred by the respondent Nos. 1 to 70. The writ petitioners respondents herein (hereinafter referred to be as petitioner Nos. 1 to 70) they had filed the writ petition, praying for that a writ of mandamus to be issued to respondents, directing for the payment of equal pay for equal work, and while paying the salary/wages to the petitioners they have

2 prayed that they may be paid the same salary for the post held by them, at par with the regularly appointed incumbents on the said post i.e. the post of Lab Assistants. 3. On the institution of the writ petition, the learned Single Judge of this Court admitted the writ petition vide its order dated 13.03.2018 directing the respondents to file counter affidavit by the next date fixed i.e. 19.04.2018. 4. In the proceedings, held on 19.04.2018, no counter affidavit could be filed by the respondents on the said date fixed in the proceedings held on 19.04.2018 before the learned Single Judge, the State was represented through Mr. N.P. Sah, Standing Counsel who prayed for further time to enable him to file counter affidavit. The request was turndown by the learned Single Judge and opportunity to file counter affidavit was closed. The Court, while fixing 26.04.2018, the learned Single had directed respondent No. 4 i.e. Director, School Education, Uttarakhand, Dehradun to be present in person in the Court to explain as to why the counter affidavit was not filed within the time provided by the Court. 5. The counter affidavit was filed by respondent No. 7 on 25.04.2018. The writ petition was taken up on the scheduled date i.e. 26.04.2018. The learned Single Judge, while considering the proceedings held on 13.03.2018 and 19.04.2018 had observed that on 13.03.2018, the State was represented by Mr. Anil Dabral, Standing Counsel and on 19.04.2018, Mr. N.P. Sah, Standing Counsel has put in appearance on behalf of the State, it was a deliberate dereliction on part of the State in not filling the counter affidavit. The learned Single Judge expressed the view that looking to the relief sought for, the matter required an exigent consideration.

3 6. We are of the view that looking to the facts of writ petition, and the relief claimed, it cannot be said it was such an exigent matter where the order of the nature dated 26.04.2018 was called for to be passed, the Court seems to have culled out reason for the order dated 26.04.2018, we disagree with the same. Because procedural delay was not such alarming which called for the Court to break its shackles of patience, more particularly, when the writ petition itself was filed and admitted on 13.03.2018, it was not such an inordinate delay atleast for making observation against members of other limb of the legal fraternity which is essential for dispensation of justice, which should be the prime concern of the Courts, rather than taking a predetermined actions. 7. In compliance of the order dated 19.04.2018 and as per the findings recorded in the impugned order dated 26.04.2018, the Director, School Education, Uttarakhand appeared in person before the Court, and he made a statement that the intimation in compliance of the order dated 13.03.2018 was sent to him by the office of Chief Standing Counsel only on 24.04.2018. As a result thereto, 11 days have been taken by the office of Chief Standing Counsel to communicate the order dated 13.03.2018, whereas since only three weeks time was granted by the order dated 13.03.2018 for filing counter affidavit, and 11 days have been consumed by the office of Chief Standing Counsel in sending notices. It was too short a period for the office of Director, School Education to file counter affidavit within the time provided by the order dated 13.03.2018, and hence he pleaded that its not his fault as he has received the information at a belated stage.

4 8. The learned Single Judge has held that for the said reason of belated intimation from the office of Chief Standing Counsel, at least the Director, School Education, who was present in person on the said date cannot be faulted, while recording those findings, the learned Single Judge has proceeded to record a finding that it was rather the office of the Chief Standing Counsel which was at a fault, and following finding was recorded to the effect that the office of the Chief Standing Counsel and the Chief Standing Counsel himself is not taking due care in providing proper assistance to the Court in prompt disposal of the cases, consequently, observed as under:- I feel that respondent No. 4 is not at fault, rather office of the Chief Standing Counsel is at fault. It seems from the working of the Chief Standing Counsel s office that Chief Standing Counsel is not taking due care in assisting the Court for prompt disposal of the litigation. In my opinion, there are many reasons for such negligent act. I would like to mention here, a few:- (i) The first reason is that Chief Standing Counsel has a big office and lot of work. Instead of discharging his responsibilities on Government side, he has engaged three juniors in private practice, from their hands he is practicing on private side. He was cautioner regarding the same earlier also. (ii) Besides this, Chief Standing Counsel has been engaged as counsel for Hemwati Nandan Bahuguna University, G.B. Pant University and some other Corporations. Having so much work on private side, he is unable to work properly as a Chief Standing Counsel. For the fault of Chief Standing Counsel, respondents cannot be held responsible for non filing of counter affidavits within stipulated period.

5 9. While concluding with the aforesaid reasons, the learned Single Judge has observed that the Chief Standing Counsel has failed to perform his duties to protect the interests of the State, and consequently directed that the copy of the order to be sent to the Principal Secretary, Law/L.R Government of Uttarakhand so as to apprise the State Authority with the order of the Court. It is part of this order, which has been put to challenge in the present Special Appeal by the learned Chief Standing Counsel, Mr. Paresh Tripathi in person with leave of the Court as far it makes adverse observations against him. 10. At the appellate stage, an interim order dated 25.06.2018 was granted, later on, it was made absolute on 30.07.2018, and the finding recorded so far it related to the Chief Standing Counsel, regards his functioning in person to the effect that it seems from the working of the Chief Standing Counsel s office that Chief Standing Counsel is not taking due care was stayed. The ground of challenge, as raised by the Chief Standing Counsel (i.e. appellant herein) is to the effect that the order dated 26.4.2018 so far it makes an observation against the functioning of the Chief Standing Counsel in persona, was absolutely uncalled for because at least he could not be personally attributed to the alleged negligence of sending a belated letter to the Director, School Education for filing counter affidavit. His argument was to the effect that the finding which has been recorded in persona against him apart from the fact that it was without hearing him, it would also further, in future, tarnish his professional career and his repute and would also maligning the dignity of the office of Chief Standing Counsel, which has been occupied by him.

6 11. In response, he, while challenging the impugned order dated 26.04.2018 had submitted that: in person, he cannot be made responsible for dereliction, if there is any slackness on part of the other law officers deputed in his office, as according to the working system, it is the duty of law officer who was representing a case before the Court to make all the communications of the orders to the authorities as directed by the Court. Since the communications of the orders dated 13.03.2018 and 19.04.2018 were the communications, which were required to be made by the other law officers who were attending the case on those dates then delayed communication by 11 days cannot be harnessed upon the Chief Standing Counsel in persona. We are of the view that taking of other remedial measure against them is altogether, is a different administrative act of the Chief Standing Counsel, which, atleast the Courts are not supposed to regulate. 12. The argument of learned counsel for the appellant is that once the Court while passing of the order dated 26.04.2018 proceeds to condone the delay and accepts the counter affidavit, filed on behalf of respondent No. 4 on record, as a matter of fact, by the orders of the Court itself the earlier dereliction, if at all has chanced in delayed filing of counter affidavit stood exonerated by the orders of the Court, itself by accepting the counter affidavit on record. Learned counsel for the appellant submits that the challenge has also been given to the observations made in the impugned order as it suffers from the vices of personal vendetta, as prior to passing of the order which obviously has an adverse effect on the functioning of the office of Chief Standing Counsel, and in particular the Chief Standing Counsel himself as there had been number of such situation where similar orders were passed by the learned

7 Single Judge against the appellant, he ought to have been noticed and heard the appellant prior to passing an adverse order, and directing the order to be send to the Principal Secretary, Law/L.R Government of Uttarakhand for necessary information. We have considered the argument and are of the view that, even otherwise, logically, the Chief Standing Counsel who is one of the superior authorities amongst State law officers has to regulate the activities of the other subordinate State law officers who are invariably deputed in different courts of the High Court in all the cases in which State is a party. It is practically not possible for him in person to comply with the order and make the communication in all the cases. Hence, at least he could not have been made responsible in person for the delayed communication. The practical difficulty which appellant faces in his functioning as Chief Standing Counsel was also expected to be visualized by the learned Single Judge, that the office of the Chief Standing Counsel has its own ministerial staff, and its laid down procedure which does entail certain time to communicate with the authorities concerned in furtherance of the orders passed by this Court and a reasonable time is bound to be consumed on the same. And if it happen so, that there was delay in communication, once again it is reiterated that at least the Chief Standing Counsel in persona cannot be made responsible for the same and in particular, for the learned Single Judge to come to a conclusion that the Chief Standing Counsel is not diligent in his functioning, and that too, without considering any material before it, and without hearing him. 13. It is also reflected from the arguments and pleadings of the learned counsel for the appellant that it is not the case that when the writ petition was called up for hearing

8 before the learned Single Judge, it was not represented by any State law officer. It was duly attended, and the Chief Standing Counsel, at least, cannot be supposed to be an omnipotent, because as argued by him on that date i.e. 26.04.2018 throughout the day, he was held up before the Division Bench, constituted of Hon ble the Chief Justice in which one of us (Sharad Kumar Sharma, J.) was a member of the Bench, in a bunch of matters, which was being argued in continuity throughout the day. So, at least, he could not have appeared before the learned Single Judge on the said date, but the fact remains that interest of the State was taken care of. His stand has been further that apart from the fact that the condemnation of appellant cannot be ex parte without hearing. He had further substantiated himself in his stand as pleaded in the Memorandum of Appeal that he had been consistently appearing and conducting the cases of the State in the various Courts before the High Court and there had been no grievance by any other court so far. We are also of the view that the order dated 26.04.2018 so far it relates to recording an adverse observation against the Chief Standing Counsel in persona, cannot be sustained for the following reasons: (i) Individually, the Chief Standing Counsel since being the head of the State law officers, representing the State, he, as per procedure is not supposed to make all communications himself to the authorities in compliance of the orders passed by different Courts as its not practically possible. (ii) As per the division of work, it is obvious that the State law officer dealing with the cases in the Court is supposed to communicate about the proceedings with the authorities.

9 (iii) (iv) (v) (vi) There are various other procedural formalities, which are to be undergone in the office of Chief Standing Counsel before the letter is dispatched to the authority. It was also expected to be kept in mind before passing of impugned order. On the said date i.e. 26.04.2018, the appellant was busy in a bunch of matters before the Division Bench of this Court headed by Hon ble the Chief Justice which continue for the whole day. There cannot not be any condemnation, which may have a civil consequence effecting professional career of appellant without hearing a person. The order impugned does not show any type of notice or prior opportunity of hearing was provided to the appellant while recording finding against him and before writing to the State. Even the inference which has been drawn by learned Single Judge with regard to the fact that the Chief Standing Counsel is having a big office and lot of work on private side; having three juniors who are engaged in private practice and through them, he is engaged on a private side is without any material, and the manner in which the finding has been recorded, it seems that it is based on assumption and presumption of the learned Single Judge. 14. Another reason which has been assigned by the learned Single Judge that the appellant has been counsel for the University and other Corporations, thus practices on private side. We are of the view that it is absolutely the prerogative of the employer, i.e. clients, which may be either the University, or the Corporations or even the State to take care of their interests, while engaging a counsel. At least, the choice of

10 counsel by the litigant cannot be an issue which is to be dealt with by the Courts, as it does not constitute to be the concern of the learned Single Judge as to the manner in which the administration of justice has to be catered by the Courts. If the State its employer feels that the appellant can function as Chief Standing Counsel while continuing to be as the counsel with the University or the other Corporations, it would be an exclusive choice of the State, for which the learned Single Judge, atleast, has got nothing to do to sit in advisory capacity to State, and it would not fall to be within the functioning of the Court when dealing with the lis except if it is barred by any law. So far as recording of this finding is concerned, even the learned Single Judge has not considered nor has recorded any law under which such an inference has been drawn by the Court. 15. Even otherwise also, if the swearing clause of any affidavit, which has been filed before the Court is considered, it could be seen with the contents of the affidavit 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 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 and if they are sworn inappropriately. Even according to the Oaths Act, 1969, the said Act does not hold the counsel to be responsible for the contents of the affidavit.

11 16. There was no material either considered or placed before the learned Single Judge or before any other Court of this Court to come to a conclusion that the learned Chief Standing Counsel was not protecting the interest of the State resulting to the failure in discharging of his official responsibilities. Apart from the fact that the finding which has been recorded, it has not been established that there was any dereliction by the Standing Counsel or there had chanced any such circumstances, where he has failed to discharge is official responsibilities. Since the finding has an adverse effect, and tarnishes the image of the Chief Standing Counsel, the appellant herein, and that too, without considering any material or providing an opportunity of hearing, the said finding deserves to be quashed. Consequently, the Appeal succeeds resulting into quashing of the impugned order dated 26.04.2018. 17. Accordingly, the Special is allowed, the impugned order dated 26.04.2018 as far as it records the findings against the Chief Standing Counsel i.e. appellant is quashed. (Sharad Kumar Sharma, J.) Shiv 12.11.2018 (Rajiv Sharma, J.)