vil Miscellaneous Peti tion No 25533 of 1986
IN THE MATTER OF TV CHOUDHARY A MEMBER OF 148 THE INDIAN ADMINISTRATIVE SERVICE UNDER SUSPENSION WITH Special Leave Petition No 14045 of 1985
From the Judgment and Order dated 18101985 of the Andhra Pradesh High Court in WP No 891 of 1985
PP Rao Mrs Shyamla Pappu B Kanta Rao Ms Malini Poduval B Parthasarthi Mrs Indra Sawhney and BB Sawh ney for the Petitioner
Dr YS Chitale TVSN Chaff Ms Vrinda Grover and Ms Sunila Monigude for the Respondents
The Judgment of the Court was delivered by SEN J
This is an application made by one TV Choud hary a Member of the Indian Administrative Service under suspension for recalling the Court s orders dated May 5 1986 and August 11 1986 passed in Special Leave Petition No 14045 of 1985
We shall first deal with the Special Leave Petition of ES Reddi a member of the Indian Administrative Service belonging to Andhra Pradesh cadre and who worked as the Vice Chairman cum Managing Director of the Andhra Pradesh Mining Corporation
It is directed against a judgment of the Division Bench of the High Court dated October 18 1985 reversing the judgment and order of a learned Single Judge dated September 2 1985 and dismissing his petition under article 226 of the Constitution
By the writ petition the petitioner had called in question the validity of an order of the State Government of Andhra Pradesh dated February 11 1985 placing him under suspension under sub r
1 of r 13 of the Andhra Pradesh Civil Services Classification Con trol  Appeal Rules 1963
The main grievance of the peti tioner before the High Court was that the impugned order of suspension was wholly mala fide arbitrary and irrational and violative of article 14 of the Constitution as there was no justification for the differential treatment meted out to him while the applicant TV Choudhary also a member of the Indian Administrative Service who worked in various capaci ties viz as General Manager Functional Director Member Board of Directors and Vice Chairman cure Managing Director and 149 was involved in the commission of the alleged irregulari ties had merely been transferred from the Corporation and posted as Managing Director Andhra Pradesh State Textile Development Corporation
That objection of his was sustained before the learned Single Judge who by his judgment dated September 2 1985 quashed the impugned order of suspension
The Division Bench however by the judgment under appeal has reversed that judgment and dismissed the writ petition holding that the findings arrived at by the learned Single Judge are not warranted by the material on record
Civil Miscellaneous Petition No 255 1086 is filed by R Parthasarthy a member of the Indian Administrative Service who was Vice Chairman cum Managing Director of the Corporation for the period from March 1979 to October 1979 and was working as the Commissioner of Commercial Taxes while Civil Miscellaneous Petition No 2553386 is by TV Choudhary also a member of the Indian Administrative Serv ice and who was working as the Managing Director of the Andhra Pradesh State Textile Development Corporation
These two applications are for recalling the Court s orders dated May 5 1986 and August 11 1986 on the ground that they prejudicially affect the applicants
The matter relates to defalcation of a huge amount of Rs 150 crores by certain officers of the State Government whose services were placed on deputation with the Corporation
Admittedly the Anti Corruption Bureau Andhra Pradesh has registered a case against these officers for having committed alleged offences punishable under section 120B read with section 420 of the Indian Penal Code and section 51d of the Prevention of Corruption Act 1947 as its preliminary report revealed a prima facie case against them
On December 12 1985 the Court issued notice on the Special Leave Petition
It appeared from the counter affida vit filed by the State Government that the Anti Corruption Bureau had finalised the investigation and the Director General had submitted his report dated March 25 1986 which was under consideration of the Government
It also appeared that the State Government of Andhra Pradesh had addressed letters dated May 2 1984 for sanction of the Central Gov ernment under section 61a of Prevention of Corruption Act 1947 for the prosecution of R Parthasarthy and of the State Government of Maharashtra for the prosecution of P Abraham IAS as he is borne on the Maharashtra cadre and was on deputation to the Andhra Pradesh
In compliance with the Court s order the State Government placed before us the letter of the State Government dated May 2 1984 150 as also the report of the Director General Anti Corruption Bureau Andhra Pradesh dated May 25 1986
After hearing the parties on May 5 1986 we made the following order In compliance to this Court s order Shri P Ram Reddy learned counsel for the State Government places before us the letter of the State Government dated May 2 1984 as also the report of the Director General Anti corrup tion Bureau Andhra Pradesh dated March 25 1986
It appears from the letter that sanction of the Central Government is necessary under section 61a of the Prevention of Corruption Act 1947 for the prosecution of R Partha sarthy IAS and that of the State Government of Maharashtra for the prosecution of P Abraham we have perused the report of the Director General and it cannot be said that the charges levelled against the petitioner are groundless
It is somewhat surprising that the petitioner alone should have been placed under suspension by the State Government pending contemplated departmental enquiry under r 13 of the AP Civil Services Clas sification Control  Appeal Rules 1963 and not the other two officers TV Choudhary and SM Rao Choudhary the then Managing Director who it appears are equally culpable
The matter is adjourned till after vacation to enable the State Government to obtain the requisite sanction from the Central Government for the prosecution of R Partha sarthy and that of the State Government of Maharashtra for the prosecution of P Abraham under section 61a of the Act
Shri P Ram Reddy learned counsel for the State Government shall in the meanwhile convey to the State Govern ment the concern expressed by this Court that the petitioner alone could have been placed under suspension and not the other officers who are alleged to be co accused
We are afraid if the State Government does not pass any order placing the other officers under suspension it may become necessary for the Court to revoke the suspension of the peti tioner at the next hearing
 When the matter came up after vacation on August 18 1986 it had to be adjourned with a direction that the State Government should in the meanwhile pass necessary orders for suspension of the delinquent officers
In anticipation of action by the State Government the 151 two applicants R Parthasarthy and TV Choudhary moved applications on September 2 and September 3 1986 for re calling the directions made on May 5 1986 and August 11 1986
The applications were listed for directions on Septem ber 5 1986
On motion being made by learned counsel appear ing for the applicants it was directed that the applica tions be placed for heating on September 9 1986
The State Government in the meanwhile on September 6 1986 passed orders for suspension of P Parthasarthy and TV Choudhary under r 131 of the Rules
We were apprised of this fact when the applications came up for heating on September 9 1986 that the State Government had already placed them under suspension
In the special leave petition the only contention of the petitioner ES Reddi was that the action of the State Government in making selective suspension suffered from the vice of arbitrariness and offended against article 14 of the Constitution inasmuch as persons like the applicant TV Choudhary who were equally culpable have merely been trans ferred while he has been singled out and placed under sus pension under sub r
1 of r 13 of the Rules without any rational basis and that such arbitrary action of the State Government was tantamount to denial of equal treatment to persons similarly placed
In view of the subsequent order passed by the State Government on September 6 1986 placing other officers including the applicant TV
Choudhary under suspension under r 131 of the Rules pending their prose cution the special leave petition has become infructuous
It is accordingly dismissed
That takes us to CMP Nos
2551086 and 2553386 filed by R Parthasarthy and TV Choudhary respectively
We impressed upon the learned counsel appearing for them that the proper course for the applicants was to move the Govern ment by way of appeal andor representation against their suspension and not by these applications for recalling the Court s orders
After the matter was heard at a considerable length Smt
Shyamala Pappu learned counsel appearing for R Parthasarthy very properly prayed for leave to withdraw CMP NO
255 1086 as the applicant had already made a representation to the State Government
She prayed that a direction be made requiring the Government to consider the representation at an early date
Dr YS Chitale learned counsel appearing for the State Government fairly agreed that the said representation would be considered by the Government on merits
Turning next to CMP No 2553386
We must strongly depre 152 cate the conduct of the applicant TV Choudhary a member of the Indian Administrative Service and working as Managing Director of the Andhra Pradesh State Taxtile Development Corporation to have made reckless allegations and cast aspersions on the Court
After denying his complicity the applicant TV Choudhary goes on to assert The Order of this Hon ble Court directing the Government to suspend the other delinquent officers is made without affording an opportu nity to the Applicant and presumably without considering the relevant provisions of law case law and the parameters of judicial power and the necessity to observe the principles of natural justice
It is submitted that the Order of this Hon ble Court dated 11th August 1986 is illegal insofar as it directed the Government to suspend the applicant and others in view of the fact that the Government has exercised its discretion and transferred the applicant taking into consideration the recommendation of the Anti corruption Bureau
It is well settled that a Court of law cannot compel a statutory authority to exercise its statutory discretion in a particular manner
The legis lative will in conferring discretion in an essentially administrative function cannot be interfered with by Courts
 To say the least the averments are highly objectionable
It was expected that the applicant who is a very senior member of the Indian Administrative Service should have shown greater responsibility before making such unfounded allega tions and uncalled for aspersions
On a motion being made on September 5 1986 by Shri PP Rao learned counsel for the applicant it was directed that the application shall be listed for hearing on September 9 1986
At the same time we drew the attention of the learned counsel to the improper and objectionable averments made by the applicant
We were given the impression that the application had been settled by the learned counsel without noticing the offending aver ments
We wish we could have rested content with concluding the judgment with the operative portion of our conclusions on the merits of the case but we find with a sense of anguish and heaviness of heart that we have to express our disap proval of the manner in which the arguments were advanced before us on behalf of the applicant TV Choudhary
153 Not only were the arguments advanced with undue vehemence and unwarranted passion reflecting identification of inter est beyond established conventions but were of degrees not usual of enlightened senior counsel to adopt
The majesty of law and the dignity of courts cannot be maintained unless there is mutual respect between the Bench and the Bar and the counsel act in full realisation of their duty to the Court alongside their duty to their clients and have the grace to reconcile themselves when their pleas and arguments do not find acceptance with the Court
It is needless for us to say that neither rhetoric nor tempestuous arguments can constitute the sine qua non for persuasive arguments
By virtue of the pre eminence which senior counsel enjoy in the profession they not only carry greater responsibili ties but they also act as a model to the junior members of the profession
A senior counsel more or less occupied a position akin to a Queen s counsel in England next after the Attorney General and the Solicitor General
It is an honour and privilege conferred on advocates of standing and experi ence by the Chief Justice and the Judges of this Court
They thus become leading counsel and take precedence on all counsel not having that rank
A senior counsel though he cannot draw up pleadings of the party can nevertheless be engaged to settle ie to put the pleadings into proper and satisfactory form and hence a senior counsel settling pleadings has a more onerous responsibility as otherwise the blame for improper pleadings will be laid at his doors
Lord Reid in Rondel vs Worsley  has succinctly set out the conflicting nature of the duties a counsel has to perform in his own inimitable manner as follows Every counsel has a duty to his client fear lessly to raise every issue advance every argument and ask every question however distasteful which he thinks will help his client s case
As an officer of the court concerned in the administration of justice he has an overriding duty to the court to the standards of his profession and to the pub lic which may and often does lead to a con flict with his client s wishes or with what the client thinks are his personal interests
Counsel must not mislead the court he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession he must not withhold authorities or documents which may tell against his cli ents but which 154 the law or the standards of his profession require him to produce
By so acting he may well incur the displeasure or worse of his client so that if the case is lost his client would or might seek legal redress if that were open to him
 Again as Lord Denning MR in Rondel vs W would say he the counsel has time and again to choose between his duty to his client and his duty to the Court
This is a conflict often difficult to resolve and he should not be under pressure to decide it wrongly
When a barrister or an advocate puts his first duty to the Court he has nothing to fear 
In the words of Lord Denning It is a mistake to suppose that he is the mouthpiece of his client to say what he wants  
He must disregard the most specific instructions of his client if they conflict with his duty to the court
The code which requires a barrister to do all this is not a code of law
It is a code of honour
If he breaks it he is offending against the rules of the profession and is subject to its discipline
 We are constrained to give expression to our views with a feeling of remorse to remind the counsel of that sense of detachment and non identification they are expected to maintain with the causes espoused by them and not with a view to belittle the profession or cast aspersions on coun sel
After bestowing our dispassionate consideration of the matter we found ourselves left with no other alternative but to dismiss the application made by TV Choudhary which was clearly misconceived and we direct the applicant to pay Rs5000 as costs to the State Government in view of the disapprobation his case and conduct has warranted
HLC Petitions dismissed


Summary:
An officer involved in a defalcation case who was sus pended challenged the order of suspension under article 14 of the Constitution on the ground that another officer similar ly situate had merely been transferred
The order was quashed by a Single Judge of the High Court but on appeal his judgment was reversed by the Division Bench
The matter came up before the Court by way of a Special Leave Petition
The counter affidavit filed by the State Government indicated that it had initiated action to prosecute two other officers involved in the case
When the Special Leave Petition came up for hearing the Court made an interim order directing the counsel to convey to the State Govern ment the Court s concern at the petitioner alone having been placed under suspension and indicating that if the State Government did not pass any order placing the other offi cers who on a perusal of the investigation report ap peared to be equally culpable under suspension it may become necessary lot the Court to revoke the suspension of the Special Leave Petitioner at the next hearing
When the matter came up again it had to be adjourned by the Court with another interim order directing the State Government to pass necessary orders for suspension of all the delinquent officers
In anticipation of action by the State Government two other officers involved in the case filed applications praying for recall of the two interim orders aforesaid
However the two officers in question were also placed under suspension before the matter finally came up for hearing
The Court impressed upon counsel appearing for the applicants who had prayed for recall of the interim orders that the proper course for them was to move the State Gov ernment by way of appeal andor representation against their suspension
While counsel for one of the applicants accepted that suggestion and withdrew the application counsel for the other applicant did not do so
The latter applicant had 147 in his application made certain reckless allegations and cast aspersions on the Court
The counsel appearing for him gave the impression that the application had been settled by him without noticing the offending averments but went on to advance arguments with undue vehemence and unwarranted passion
The Court while dismissing the Special Leave Petition as infructuous and expressing disapproval of the manner in which arguments had been advanced on behalf of one of the applicants
HELD By virtue of the pre eminence which Senior Coun sel  enjoy in the profession they not only carry greater responsibilities but they also act as a model to the junior members of the profession
A senior counsel more or less occupies a position akin to a Queen s counsel in England next after the Attorney General and the Solicitor General
It is an honour and privilege conferred on Advocates of standing and experience by the Chief Justice and the Judges of this Court
They thus become leading counsel and take precedence on all counsel not having that rank
A senior counsel though he cannot draw up pleadings of the party can nevertheless be engaged to settle ie to put the plead ings into proper and satisfactory form and hence a senior counsel settling pleadings has a more onerous responsibility as otherwise the blame for improper pleadings will be laid at his doors
153C E In this case not only were the arguments advanced with undue vehemence and unwarranted passion reflecting identi fication of interests beyond established conventions but were of degrees not usual of enlightened senior counsel to adopt
The majesty of law and the dignity of Courts cannot be maintained unless there is mutual respect between the Bench and the Bar and the counsel act in full realisation of their duty to the Court alongside their duty to their cli ents and have the grace to reconcile themselves when their pleas and arguments do not find acceptance with the Court
Neither rhetoric nor tempestuous arguments can constitute the sine qua non for persuasive arguments
153A C Rondel vs W and Rondel vs Worsley   referred to