1 IN THE HIGH COURT OF BOMBAY AT GOA ` PUBLIC INTEREST LITIGATION NO. 2 /2008 Mr. Anthony Xavier Fernandes Gaurawado, Calangute, Bardez, Goa. ... Petitioner. Versus. 1. State of Goa, Through Chief Secretary, Secretariat, Porvorim, Goa. 2. The Registrar General, .. Respondents High Court of Bombay, Mumbai. Mr. S. S. Kantak, Advocate General with Ms. Rakhi Chodankar, Addl. Govt. Advocate for respondent No.1. CORAM : SWATANTER KUMAR, CJ & N.A. BRITTO, J. DATE : 1ST APRIL, 2008. ORAL JUDGMENT : (PER SWATANTER KUMAR, CJ.) On 12th February, 2008, the Division Bench of this Court passed the following Order : "Considering the grievance about the non-disposal of number of matters pending before the Administrative Tribunal for a long time and as it is 2 revealed that already there is selection for the Additional Judge to the Tribunal, it is not known why the vacancy has not been filled up till this date. In the circumstances, the Registry to register the letter in question as P.I.L. and issue notice to the State of Goa, through the Chief Secretary and the Registrar General of Bombay High Court returnable on 3rd March, 2008." 2. It appears from the record of the case file that respondent No.1 was served. However, service on respondent No.2 was awaited. Thereafter, even respondent No.2 was served. The case remained pending before this Court. However, on 18.3.2008, the learned Advocate General appearing for the State informed the Court that the decision had been taken to establish a separate Tribunal for the South Goa District and that the selection list had lapsed. Keeping in view the facts of the case and the statement made by the learned Advocate General,we had directed the original records to be produced in the Court as well as a proper affidavit to be filed. The matter came up on 19.3.08, on which date further time was prayed by the learned Advocate General which was granted and the matter was directed to be listed today. Despite repeated directions, no affidavit has been filed on behalf of the State till today. However, the learned Advocate 3 General submitted that he has instructions to say even today that the statement made by him before the court on 18th March, 2008 holds good. It would be evident from the discussion in the later part of this judgment that even this statement is not supported by the record produced before us. 3. Keeping in view the larger public interest and finding that correct facts were not brought before the court, we consider it imperative for the court to deal with this case in some detail. The decision of the Law Minister and the stand taken by the State in court appear to be an attempt to over-reach a decision taken earlier in accordance with law to ensure proper administration of justice for the Administrative Tribunal, Goa. The decision is neither in public interest nor is supported by any accepted cannons of administrative functioning in the Government. It appears to be arbitrary and certainly, prejudicial to the interest of the litigants whose cases are pending before the Tribunal for years. Now, we may refer to the facts giving rise to the present Public Interest Litigation. 4 4. As is evident from the order of the Court dated 12.2.08, the Division Bench of this Court had acted on the basis of a petition filed by one Mr. Anthony Xavier Fernandes. According to him, a large number of cases, nearly more than 4000, were pending before the Goa Administrative Tribunal and the post of an Additional President of the Administrative Tribunal was lying vacant despite the process of selection having been completed. It is also averred in the petition that besides the petitioner, large number of litigants are put to great inconvenience and suffering as a result of non-filling of the vacancy in the Administrative Tribunal and there is no saviour in the Government for "Aam admi". It was specifically averred in this application that about 70 to 80 cases are listed every day before the Administrative Tribunal, Panaji. One Judge was unable to handle them and the aggrieved parties were not able to get any hearing despite their best efforts. 5. Earlier, an affidavit was filed on behalf of the State of Goa on 17.3.2008, wherein the facts were hardly disputed. However, it 5 was stated that in Writ Petition No.351/01 decided on 24.7.02 it was held that the appointment to the post of President was set aside on the ground that it was made without prior consultation with the High Court and the appointment of the Additional President was not made at that stage. It was stated that the Rules were amended and the name of the candidate who was first on the merit list was forwarded to the High Court for approval, which was approved by the High Court and now the Government had taken a decision not to revive the select list and thus the post continues to be vacant. 6. A separate affidavit was filed on behalf of respondent No.2 wherein it was admitted that there were 4461 cases pending before the Administrative Tribunal for disposal, as reported by the Government of Goa vide its letter dated 28.1.08. It is further stated that because of the heavy work pendency, it was not possible for the President to deal with the matters and the High Court had granted its approval well in time for appointment of the Additional President of the Administrative Tribunal in public interest and to ensure 6 expeditious disposal. The High Court had also informed that it had no objection for the acceptance of the existing select list of the candidate for the post of Additional President. 7. At this stage itself, it will be appropriate for us to notice the contents of the letter dated 12.12.2007, written by the Government of Goa to the Registrar General of the High Court. It was noted in the said letter that the selection process had begun in the year 2006. The candidates were interviewed on 10.5.06 and based upon the marks obtained by the candidates, a Merit List was prepared and the name of Shri Ulhas B. Pai Raikar was recommended. Paragraphs 3 and 4 of this letter make the stand of the Government absolutely clear in relation to the appointment which reads as under: "3. I would like to bring to your kind notice that one year has already lapsed from the date of selection. The Recruitment Rules do not provide the validity period of the Selection List. However, the O.M. dated 13.06.2000 issued by the Personnel Department, Secretariat, Panaji states that the Select List shall be valid only for a period of one year. Starting the selection process afresh will take considerable time. In view of the large pendency of cases before the Administrative 7 Tribunal and also considering the hardships faced by the litigants and the Advocates, the Government is desirous of relaxing the provisions of the said O.M. 4. I am forwarding herewith the copies of the Minutes of D.S.C. and Select List drawn, with a request to kindly place the same before the Hon'ble the Chief Justice, for approval. The copy of the rules and O.M. dated 13.06.2000 is also forwarded for perusal." 8. Inspite of the fact that a clear decision had been taken by the Government to appoint Additional President of the Goa Administrative Tribunal and that the proposal on the request of the Government was duly approved by the High Court, no appointment was made. Undue delay in implementing the decision added to the misery of the litigants whose cases were pending before the Tribunal. There was further increase, by passage of time, in the pendency before the Tribunal. The cause of common litigant could have pursued the right quarters in the Government to implement that decision at the earliest. Vide order dated 18th March, 2008, we had asked the Government to produce the original records in the court which was produced by the learned Advocate General and perused by us. In 8 order to squarely answer the matter in issue in the present case, reference to the records produced before us is essential. 9. In the note of the Law Secretary dated 29/7/2004,the proposal for appointment of an Additional President of the Administrative Tribunal was being considered by the Government. While referring to the Goa Administrative Tribunal (Amendment) Rules, 2003 it was noticed "It is not out of place to state here that filling up of the post of additional President is very much imperative and the Government is hard pressed now for filling up the said post of the Additional President, which was created way back on 25.2.03. Secondly,of late the workload of the Tribunal has also increased by leaps and bounds, thereby rendering it almost impossible for the President alone to handle all the pending cases as well as new cases that are being filed before it day-in and day-out"(emphasis supplied by us). 10. The matter has drawn attention from various Departments of the Government and of course long notings were made on different 9 occasions. However, on 27.12.04, the matter was referred to the High Court. As consistent with its earlier view, the Government felt that it could not invite applications and fill up the vacant post, without approval of the High Court. It was suggested that the High Court may be informed that if any Judicial Officer was not available then the State Government may be allowed to advertise the post by inviting applications. The matter still remained pending with reference to different matters, including with reference to Clauses (a) to (c) of Rule 2(2) of the Goa Administrative Tribunal Rules, 1966. 11. On 12.1.05, the Government, in its noting noticed that the Selection Committee was headed by a sitting Judge or a retired Judge of the High Court, nominated by the Chief Justice of the High Court and hence it was felt that it would be an effective prior consultation with the High Court and without any further consultation, the appointment should be made. It is not necessary for us to refer to the intervening notings because they relate to various facets, necessary or unnecessary for selection and appointment of 10 the appropriate candidate. As already noticed, the selection process was completed and the candidate was recommended as back as on 10.5.06. 12. On 11.5.06, in the noting recorded by the competent officer in the State hierarchy, the recommendation was sought, inter alia, on the following : "Therefore it is proposed that if agreed to by the Government, the offer of post of Addl. President of Administrative may be given to Shri Raikar and in case the same is accepted by him, we may post him immediately before obtaining the medical Report and Report of Character and Antecedents with a rider that his posting is subject to production of the medical Report and Report of Character and Antecedents. In case the offer is rejected, it is proposed to give the offer to the next candidate in the seniority list." 13. Contrary to the settled principles of law, the administration diverted the main issue and travelled into the field of interpretation of rules and in one of the notings of the file stated "High Court need not be involved in the process of selection". In fact, the decision to appoint Additional President of Administrative Tribunal had already 11 been taken in consultation with the High Court, which for the reasons best known to the authorities, was not implemented. To a large extent, the note dated 5.6.2007 introduced diverse issues. This, however, was not expected to have hampered the appointment of the selected candidate. 14. In the note dated 7.9.07, it was recorded as under : "12. It is, however, to be noted that one year has already lapsed from the date of selection. The Recruitment Rules do not provide the validity period of the Selection List. However, the Office Memorandum dated 13.6.2000, issued by Department of Personnel, states that the Select List shall be valid only for a period of one year. In view of this Circular and considering the exigencies, the Government, in consultation with the High Court, may decide whether to extend the time and to appoint the same candidate or whether to call for fresh applications for the post of Additional President of the Goa Administrative Tribunal" This note was approved by the Chief Secretary on 11.9.07 who wrote "since Shri Raikar has been selected after following the due procedure as per Rules, he may be appointed as Additional President of Goa Administrative Tribunal after consultation with the High Court. He may be asked to sit in Margao, S.Goa and dispose cases from that 12 region." This matter was put up before the Chief Minister, who sought opinion of the learned Advocate General. The learned Advocate General, vide his opinion dated 30.11.07, observed as under : "However at this stage this aspect need not be taken any further since the selection of Shri Raikar is by a Selection Committee on which the High Court had nominated Shri G.D. Kamat, former Judge of Bombay High Court and retired Chief Justice of Gujarat High Court. If necessary in case of any further appointment to be made, said issue of amendment to rule 2(A) can be reexamined. Rule 2(A) can otherwise continue since it provides for selection of a Judge by a Committee comprising of a sitting or retired High Court Judge nominated by Chief Justice and this will enable getting the best talent available." This was put up before the Chief Minister, who recorded the noting "As per the advise of Ld. A.G. at "X" above, L.S. may bring the full facts of the appointment process to the notice of High Court before appointment". That probably resulted in issuance of the letter dated 12.12.07, which letter was replied by the High Court vide its letter dated 31.1.08, which reads as under : "With reference to the subject noted above, I am 13 directed by the Hon'ble the Chief Justice and Judges to inform you that High Court has no objection for acceptance of existing Select List of the candidate for the post of Additional President, Goa Administrative Tribunal." However, for reasons best known to the Law Minister, and in complete contradictions to the decision taken and approved, he made the following note on 21.1.08: "L.M. I had called file during Assembly Session in view of questions raised. The Govt. has decided during my tenure to have separate Tribunal for South Goa and not additional. The period of waiting list as per Govt. rules are also over and we should not break these rules. Accordingly, the C.S. to write to Registrar High Court withdrawing letter No.2-5(4) 91-LD dated 12.12.07." 15. As is evident from the aforestated noting, the Law Minister directed the Chief Secretary to write a letter to the High Court. The Chief Secretary, however, expressed his reservations, and rightly so, and recorded the following note on 4.2.2008 on the file : "After receipt of the file from CM, I find that the High Court has approved the filling up the post of 14 Additional President of Goa Administrative Tribunal on the basis of the letter issued by Law Secretary at page. 284/c. Now that the approval has been received, it may cause unnecessary embarrassment to the Government if we do not issue the appointment order of Shri Ulhas B. Pai Raikar." 16. Despite the above noting of the Chief Minister which suggested that the decision already taken by the Government after seeking approval of the High Court should be implemented, the Law Minister recorded a note contrary to the Government decision. From the record, it appears that the Law Minister, for the reasons best known to him, had obstructed or hampered the finalisation and issuance of the Letter of Appointment as and when it matured. This attitude besides being unexplainable, does not support the idea of good governance and protection of public interest. The noting reads as under: "There is no question of additional President to be appointed. Learned A.G. may immediately work out action of separate Administrative Tribunal for South Goa." 15 17. It must be noticed that the note of the Chief Secretary dated 4.2.08 was not even put to the Chief Minister and the Law Minister took unto himself to undo the result of all efforts of previous years and, that too without any plausible cause. We must also notice that note of the Law Minister is factually incorrect. It has been stated in the note dated 21.1.08 that during his tenure, the Government had taken a decision to have a separate Tribunal for South Goa and not Additional. Perusal of the file shows that no such decision had ever been taken by any authority. Therefore, the note recorded by the Law Minister was based on misconception of facts and was also arbitrary being devoid of any reasoning. The records produced before us which contain even the noting made during the pendency of writ petition does not show that any decision was taken by the Chief Minister or the Cabinet to take recourse to any other method except for selecting and appointing a selected candidate to the post of Additional President of the Goa Administrative Tribunal. It appears that the Law Minister exceeded his authority even under the rules of business in directing action to be taken contrary to the 16 collective decision taken at the highest level of the State administration. This is not in conformity with the rules of administration and even against administrative propriety. The doctrine of public accountability is effectively applicable to the administrative decision and the person taking such a decision is required to ensure that the decision taken is in accordance with rules of law and is in public interest. Furthermore, he is accountable for his decision. The authorities are expected to take into consideration the public necessity and interest of administration of justice system in the State. Both these aspects have been ignored in the noting of the Law Minister dated 21.1.2008 and in fact, the discretion has taken better of the above referred two concepts. 18. In the light of the above facts, we have no hesitation in coming to the conclusion that the directive issued by the Law Minister is violative of constitutional mandate. Apparently,it is not in public interest and in fact, smacks of arbitrariness. The action of the Law Minister was contrary to any known cannons of administrative law and the rules of business. It is unfortunate but true that public interest 17 was the casualty in the whole process. The trend of the noting conveys the intention that will of the Minister must prevail whatever be its consequences. The suffering of the litigants as well as proper administration of justice in the Tribunal was not treated as relevant considerations by the authorities. It is of significance to notice here that the Administrative Tribunal of Goa deals with various jurisdictions. The aggrieved persons raising claims under as many as 27 legislations including Goa, Daman & Diu Agricultural Tenancy Act, 1964, Goa, Daman & Diu Rent Control Act, 1968, Goa, Daman & Diu Mundkar Act, 1975, Goa, Daman & Diu Land Revenue Code, 1968, Goa, Daman & Diu Sales Tax Act, 1964, Goa Panchayat Raj Act, 1993 are entitled to approach the Tribunal for relief, in accordance with law. This is an indicator of the extent of jurisdiction that is vested in the Administrative Tribunal and how important it is for the Tribunal to deal and dispose of the cases expeditiously in the larger public interest. Lest the arrears mount up to such an extent that the importance and purpose of constituting such a Tribunal is undermined. The pendency in the Tribunal has considerably increased 18 firstly as a result of inaction of Government and subsequently, for non-implementation of the decision taken by the Government in accordance with law. 19. It will be appropriate at this stage for us to refer to certain decisions of the Supreme Court and this court, having bearing on the questions that fall for consideration of the Court in the present petition. Law in relation to judicial review of administrative action has now been well settled and can be stated in unambiguous terms. 20. In its recent Judgment in Subhash R. Acharya v. State of Maharashtra, 2007(6) Bom.C.R. 100, the Division Bench of Bombay High Court has discussed the applicability of principles of arbitrariness, doctrine of proportionality and public accountability to administrative decisions and held as under:- "Judicial review of administrative action was further expanded by the Supreme Court in the case of (State of NCT of Delhi and another Vs. Sanjeev Alias Bittoo), 2005 DGLS 298: (2005) 5 S.C.C. 181. The Supreme Court emphasised that the present trend of judicial opinion is to further 19 restrict arbitrariness in the administrative action of the Government referable to executive, legislative or quasi judicial nature. Though the scope of judicial review was stated to be limited but where the decision making process was per se faulty and not in conformity with rules, judicial intervention was permissible. Reference in this regard can also be made to the case of (Tata Cellular Vs. Union of India), 1994 DGLS 649: (1994) 6 S.C.C. 651, wherein the Supreme Court has held that unreasonable decision or a decision without proper application of mind or decision with procedural impropriety were the kind of cases which would squarely fall within the limited scope of judicial intervention. Before we examine the facts of the present case in the light of the above principles, another important facet of the case in relation to the doctrine of public accountability and application of Wednesbury principles in State action would be important to be noted. A Division Bench of this Court in the case of (Mohammed Salim Abdul Karim Vs. The State of Maharashtra and others), Writ Petition No.1513 of 2006, commenting upon the fairness in State action, held as under: In the case of (Shanti Prasad Agarwal and ors Vs. Union of India and ors.), 1990 DGLS 478 : 1991 Supp (2) Supreme Court Cases 296, the Supreme Court clearly stated that the administrative law requires that in an administrative action, while adhering to the 20 principles of natural justice, passing of a speaking order would be desirable. In the case of (Shri Mahender Kumar Vs. Land Acquisition Collector), W.P.(C) No.13380-12 of 2005, dated 11th May, 2006, the Division Bench of the Delhi High Court observed as under: "....Wherever a cause is relatable to breach of statutory or implied duty of a public officer, the rule of law would essentially provide for a remedy even if it is not so specifically spelled out in the provisions of the Act. Arbitrariness and unreasonableness being facets of Article 14 are available as grounds not only for questioning an administrative action but in certain cases may even invalidate subordinate legislation. Timely action is the essence of Government functioning and unreasonable delay questions the very correctness of such orders. Wherever the records offer no explanation for prolonged unreasonable delay, the equity will tilt more in favour of the petitioners than uphold the action of the authorities to be correct, being done in the normal course of its business ........" ".... Concept of public accountability has been applied to the decision making process in the Government by the courts for a considerable time. This concept takes in its ambit imposition of costs and its recovery from the officer concerned for their negligence or acts of prolonged, unexplained delays running into years. In the case of (State of Andhra Pradesh Vs. Food Corporation of India), 2004(13) Supreme Court Cases 53, the Court directed as under:" 21 We are shocked as to the manner in which the State Government is filing petitions in this Court resulting not only in wasting the time of this Court and all others concerned but in total waste of public