1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION PUBLIC INTEREST LITIGATION NO.89 OF 2008 Arun Vasantrao Betkekar, ) 004/A-Wing, Matoshri Residency, ) Prarthana Samaj Road, ) Vile Parle (East), Mumbai – 400 057. ).. Petitioner Versus 1. Government of India, ) Department of Atomic Energy, ) Anushakti Bhavan, ) Chatrapati Shivaji Maharaj Marg, ) Mumbai – 400 001. ) 2. Tata Institute of Fundamental ) Research, Dr. Homi Bhabha Road, ) Navy Nagar, Colaba, ) Mumbai – 400 005. ) 3. Dr. Anil Kakodkar, ) Secretary DAE & Chairman AEC, ) Anushakti Bhavan, Chatrapati Shivaji Maharaj Marg, ) Mumbai – 400 001. ) 4. Union of India, ) Ministry of Law, Ayakar Bhavan, ) M.K. Road, Marine Lines, ) Mumbai – 400 020. ).. Respondents -- 2 Shri A.D. Shetty along with Ms Rita Joshi for the Petitioner. Ms A.D. Vhatkar, AGP for the State. Shri K.M. Naik i/by Shri S.P. Salkar for Respondent No.2. Shri D.J. Khambata, Additional Solicitor General along with Shri A.M. Sethna and Mandar Goswami for Respondent-Union of India. -- CORAM : SWATANTER KUMAR, C.J. & A.M. KHANWILKAR, J. Judgment reserved on : 30 th September, 2009 Judgment pronounced on : 15 th October, 2009 JUDGMENT (Per Swatanter Kumar, C.J.) The Petitioner in this Public Interest Litigation, under Article 226 of the Constitution of India, has prayed that a detailed enquiry be conducted by the Central Bureau of Investigation (CBI) or a retired High Court Judge of this Court in to the various complaints/representations made by him about the functioning of Tata Institute of Fundamental Research (hereinafter referred to as the “Institute”) and other Research Institutions and further to quash and set aside the actions of Respondent Nos.1 and 2 in granting extensions and/or appointment of Respondent No.3 as Chairman of Department of Atomic Energy (hereinafter referred to as “DAE”) 3 even after the age of his superannuation being arbitrary, illegal and contrary to the law. The Petitioner has also prayed that the Respondent Nos.1 and 2 be restrained from granting any further extension and/or appointment on the said post to the private Respondent Dr. Anil Kakodkar, Respondent No.3. To the present Petition, the Respondents have raised the following issues for determination. (a) The present Public Interest Litigation is not maintainable as it relates to a service matter and the present Petition is an abuse of the process of law. The Petitioner, who is dismissed employee of the Institute, is trying to make his grievances in the present Petition under the garb of Public Interest Litigation. (b) The questions raised in the present Petition have now become academic and none of the affected persons have raised any grievance against the grant of extension to Respondent No.3. 4 ( c) The present Petition is also not maintainable inasmuch as the Institute is a registered public trust and therefore, is covered under the provisions of the Bombay Public Trusts Act, 1950, hereinafter referred to as the “Act”, and the remedy available to the Petitioner, if any, lies before the Charity Commissioner in terms of Section 41A of the Act. (d) There are good and sufficient reasons recorded by the Competent Authority for granting extensions to Respondent No.3 and the same have been granted in accordance with the provisions of the Proviso to Fundamental Rule 56(d) which itself was introduced by Notification No.25012/6/2001 dated 27th February, 2002. 2. We may refer to basic facts giving rise to the present Public Interest Litigation. The Petitioner claims to be a social 5 worker who has always been in the forefront by taking up various social and other welfare issues beneficial to the public at large. He also claims that he was the General Secretary of a Social organization called “Sthaniya Lokadhikar Samiti Mahasangh” (SLSM). The Institute has a hierarchy and Respondent No.3 is the Secretary of Department of Atomic Energy (DAE) and Chairman of Atomic Energy Commission (AEC). The Petitioner was employed with the Institute and was even promoted in the Officer Category and he claims to have taken steps for the welfare of the staff of the Institute. According to the Petitioner, the Director of the Institute was involved in various fraudulent activities, has misused his powers, fabricated his date of birth, had entered into different transactions to the prejudice of the Institute and did not invest the provident fund money of over Rs.5 crores of the employees in an appropriate manner. As no action was being taken on his various complaints which, according to him, were only illustrative of irregularities being committed in the affairs of the Institute and Respondent No.3 had tried asking him to desist from raising complaints against the Institute and its Director. However, because of personal bias, Respondent No.3 on the basis of some false, vague, 6 fabricated charges, forged documents against him relating to unauthorized absence, involvement in political activities and submitting of false Leave Travel Concession claims, stage managed an inquiry. According to the Petitioner, he had an unblemished record of service and he had been falsely implicated by Respondents as vengeance for the Petitioners lodging complaints. 3. The Department of Atomic Energy was established in August, 1954. The entire funding comes from the Government of India. Respondent No.3 was selected to the post of Chairman and extension to the post of Chairman can be given upto the age of 66 years and Director of Bhabha Atomic Reasearch Centre can be permitted extension upto the age of 62 years. The extensions given to Respondent No.3 in different capacities were unfair, arbitrary and it entirely demoralized the Senior persons of the Institute as there are large number of aspirants in the hierarchy of the Institute for the top post of the Institute. It is also averred by the Petitioner that the Government spent huge amount of money on the activities of the Institute but there is no optimum results from such expenditure and there is huge wastage of the funds supplied. Even out of 4000 MW 7 plus installed capacity of India’s nuclear power plants, over 2000 MW is lying idle which was resulting in wastage of money to the tune of nearly Rs.16,000/- crores of public investment. Referring to various lacunas in the functioning of the Institute and pointing out the specifications which were lacking in the Institute the Petitioner has claimed that the extension of Respondent No.3 does not fall in any of the categories referred to in relevant provisions of the Rules and in any case, no extension could be granted to Respondent No.3 beyond the age of 64 years. While relying upon the judgment of a Division Bench of this Court in the case of R.R. Tripathi & Anr. v. The Union of India & Ors., (2008)4 BCR 688, he has challenged the extension granted to Respondent No.3 as well as prayed, on the aforenoted grounds, that the Respondent Nos.1 and 2 be restrained from granting further extension to Respondent No.3. 4. The Petitioner had also made a reference to the Written Statement filed on behalf of the Institute in Suit No.1637 of 2005 ( Dilip Vasudev Gupta v. Tata Institute of Fundamental Research & 12 Ors.) in which a plea has been taken on behalf of the Defendant No. 1 therein that it is a State within the meaning of Article 12 of the 8 Constitution of India, and as such amenable to writ jurisdiction of this Court. The said suit is still pending on the Original Side of this Court. 5. Reply affidavit was filed on behalf of Respondent No.2- the Institute. Separate Affidavit-in-reply has been filed on behalf of Union of India. While raising objections, the Respondent Nos.1 and 2 have averred that the present Petition is misconceived and is an abuse of process of law. The Petitioner is disgruntled and dissatisfied dismissed employee who had even interfered with the process of administration of justice. Vide order dated 2nd July, 2007 the President of Industrial Court, Mumbai, has observed that the Petitioner had tried to influence the Labour Court Judge who was seized with the Complaint (ULP) No.181 of 2007 filed by the Petitioner. As such, the conduct of the Petitioner is not worthy of granting him any indulgence in terms of Article 226 of the Constitution of India. 6. No financial irregularities were found and the accounts of the Institute were audited by three different bodies, i.e. (i) a firm 9 of Chartered Accountants appointed by the Governing Council of the Institute; (ii) Internal Inspection Wing of Department of Atomic Energy, Mumbai; and (iii) Indian Audit & Accounts Department, Office of the Principal Director of Audit, Scientific Departments, Mumbai. No irregularity or wastage of funds or assets has been noticed by any of these authorities. A chargesheet dated 26th July, 2002 had been served upon the Petitioner and he was dismissed from the service. The present petition lacks bonafide. On merits, it has been averred that Respondent No.3 has been granted extension in terms of amended proviso to Fundamental Rules 56. Sufficient ground existed for grant of such extension and it is submitted that the Court may not interfere as it is a matter of policy decision taken by the concerned authorities. 7. As far as the first objection raised by the Respondents is concerned, we are not impressed with the objections that no public interest litigation could be brought before this Court in relation to a matter which relates to the service under the Union of India. It is a settled principle of law that the Court normally would not interfere in cases relating to service matters simplicitor under the public 10 interest litigation but wherever arbitrariness and discrimination is writ large and the post in question is of such stature and responsibility which would affect larger interest of the public, the Court could interfere in such matters. Reference in this regard can be made to a recent decision of this Court in the case of R.R. Tripathi (Advocate) v. Union of India & Ors. delivered on 23rd July, 2009 in Public Interest Litigation (L) No.63 of 2009 along with Writ Petition No.3568 of 2009, Aurangabad Bench, ( Chief Secretary’s case). 8. It is also a settled principle of law that the High Court has the power to issue a writ not only against the State but also against any authority provided requisite ingredients of finance, administration, management and control of the State which are the ingredients of Article 12 of the Constitution of India are satisfied. Reference can also be made in this regard to a judgment of the Supreme Court in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology & Ors., (2002)5 SCC 111, and a judgment of this Court in Dalsing s/o Shamsingh Rajput v. State of Maharashtra & Ors., 2006(3) Mh.L.J. 592. 11 9. For the aforerecorded reasons, we see no ground to accept this contention of the Respondents. However, a corollary is that the present Petition certainly lacks bonafide. There is no dispute to fact that the Petitioner is a dismissed employee of the Institute and has been litigating against the Institute now for a considerable period of time. The Petitioner also cannot dispute the fact that vide order dated 2nd July, 2007, the Industrial Court, Mumbai, had specifically noticed that “in this proceedings, the said remarks cannot be disclosed as very stern action would have to be taken against the person who had approached the Ld. Judge on behalf of the Applicant for giving favourable judgment in the matter.” 10. The Petitioner has further referred to certain complaints and representations made to the authorities concerned which have been looked into and the accounts of the Institute have been audited and examined by the three different authorities, as aforementioned, and no irregularities or illegalities have been noticed by them. The Petitioner has attempted to blame the authorities concerned, in the 12 hierarchy of the Institute, of various irregularities but they are coupled with the personal grievance of the Petitioner as his services have been terminated by the Institute with reference to chargesheet served upon him on 23rd August, 2002 Exhibit-C to the Reply affidavit of Respondent No.1. Admittedly, the order granting extension to Respondent No.3 was firstly passed in favour of Respondent No.3 on 6th September, 2005 granting him two years’ extension beyond 30th November, 2005 and thereafter vide order dated 22nd October, 2007 extension was granted to the said Respondent upto 30th November, 2009 or until further orders, whichever is earlier. The Petitioner has intentionally and deliberately waited for all this period and has lodged this Petition on 3rd October, 2008 and we find no plausible explanation for such inordinate delay. In these circumstances, we are of the considered view that the Writ Petition of the Petitioner lacks bonafide and the Petition has been instituted with a personal bias. Reference can also be made to judgment of the Supreme Court in the case of S.P. Gupta v. Union of India, (1981) Supp. SCC 87 and T.N. Godavarman Thirumulpad (98) v. Union of India, (2006)5 SCC 28. 13 11. A Division Bench of this Court in Dr. Arvind Kumar Sharma v. The Chief Vigilance Commissioner & Ors., 2009(3)BCR 827 held as under:- “9. We may also notice that public interest litigation would be maintainable only to remedy the public wrong, injury and not for redressal of private or other disputes not genuinely concerned with public interest and the matters covered under the private field would hardly be made subject matter of the public interest litigation. 10. Furthermore, in relation to service matters the concept of public interest litigation cannot be invoked. The Supreme Court in the case of Dattaraj Nathuji Thaware v. State of Maharashtra & Ors., (2005)1 SCC 590. Following the case of Duryodhan Sahu (Dr.) v. Jitendra Kumar Mishra, (1987)7 SCC 273, held that in service matter public interest litigation should not be entertained.” 12. The Petitioner also relied upon the judgment of the Supreme Court in Fertilizer Corporation Kamgar Union (Regd.) Sindri & Ors. v. Union of India Ors., AIR 1981 SC 344 to contend that the 14 Petitioner has a deeper concern in the matter and being a member of a social organisation/body, the present writ petition would be maintainable. The Petitioner can hardly derive any benefit as on facts, this case is of no help to the Petitioner. The Petitioner may be a member or office bearer looking after the affairs of an social organization but his personal litigation with the Institute coupled with the fact that no person eligible to be considered for the post of Chairman has raised any grievance, renders the present writ petition hardly maintainable in the eyes of the law. 13. As the above principles are applicable to the present Petition as well, and the Petition lacks bonafide, thus we would decline to interfere with action of the Respondents even on this count. Despite the above finding, we would still proceed to discuss on the other issues, since the matter was heard at some length on all aspects. 14. The public interest litigation vests the Court with greater power of judicial review which has to be exercised with greater caution depending on the facts and circumstances of a given 15 case. In the cases of the present kind, particularly, the Court has to be careful in applying the settled principle of public interest litigation rigorously. The Supreme Court in the case of Dr. B. Singh v. Union of India & Ors., AIR 2004 SC 1923 held that Public Interest Litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. 15. We may also notice that there is no disputed fact before us that the Respondent No.2-Institute is a public trust. If it is a public trust, primarily, its working and effectiveness would be controlled by the provisions of the Bombay Public Trusts Act, 1950. The powers of the Charity Commissioner in terms of Section 41A of the Act are very wide and the Commissioner has the power not only to examine all applications and the complaints but even has power to issue directions which he may deem appropriate in the facts and circumstances of the case, provided he finds that any property of the trust is in danger of being wasted, damaged, alienated or wrongfully sold, removed or disposed of. As per sub-section (1) of Section 41A, 16 every trustee or of such person responsible for business of the trust is bound to comply with the directions issued by the Charity Commissioner under sub-section (1). Even on this count, part of the grievances raised by the Petitioner can hardly be examined and adjudicated upon by this Court in exercise of its power under Article 226 of the Constitution of India. The Petitioner is at liberty to approach the Charity Commissioner, if he is satisfied with the inspection attempted by the statutory body and can pray for issuance of appropriate direction to the Institute if at all he is genuinely concerned with the betterment of the management of the Institute and proper utilization of the assets and funds. 16. The Respondents, as already noticed above, have contended that extension granted to Respondent No.3 is in accordance with the provisions of Rule 56(d) of Fundamental Rules. Fundamental Rule Rule 56 reads as under: - “F.R. 56. (a) Except as otherwise provided in this rule, every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years: 17 Provided that a Government servant whose date of birth is the first of a month shall retire from service on the afternoon of the last day of the prece3ding month on attaining the age of sixty years. Provided further that a Government servant who has attained the age of fifty-eight years on or before the first day of May, 1998 and is on extension in service, shall retire from the service on expiry of his extended period of service. Or on the expiry of any further extension in service granted by the Central Government in public interest, provided that no such extension in service shall be granted beyond the age of 60 years. (b) A workman who is governed by these rules shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years. NOTE. - In this Clause, a workman means a highly skilled, skilled, semi-skilled, or unskilled artisan employed on a monthly rate of pay in an industrial or work-charged establishment. “(bb) The age of superannuation in respect of specialists included in the Teaching, Non- Teaching and Public Health sub-cadres of Central Health Service shall be 62 years”. ( c) Deleted (cc) Deleted (d) No Government servant shall be granted extension in service beyond the age of retirement of sixty years: 18 Provided that a Government servant dealing with budget work or working as a full-time member of a Committee which is to be wound up within a short period of time may be granted extension of service for a period not exceeding three months in public interest; Provided further that a specialist in medical or scientific fields may be granted extension of service up to the age of sixty-two years, if such extension is in public interest and the grounds for such extension are recorded in writing: Provided also that an eminent scientist of international stature may be granted extension of service up to the age of 64 years, if such extension is in public interest and the grounds for such extension are recorded in writing. Provided also that the Appropriate Authority shall have the right to terminate the extension of service before the expiry of such extension by giving a notice in writing of not less than three months in the case of a permanent or a quasi-permanent Government servant, or, of one month in the case of a temporary Government servant, or pay and allowances in lieu of such notice. Provided also that the Central Government may, if it considers necessary in public interest so to do, give extension in service to the Cabinet Secretary, Defence Secretary, Home Secretary, Director, Intelligence Bureau, Secretary, Research and Analysis Wing and Director, Central Bureau of Investigation for such periods as it may deem proper on case-to-case basis, subject to the condition that the total term of the incumbents of the above posts, who are given such extension in service, does not exceed two years.” 19 17. Vide Notification dated 17th October, 2007, in exercise of the powers conferred by proviso to article 309 of the Constitution, the President made amendments in Fundamental Rules, in Rule 56, in clause (d) after the fifth proviso, the following was inserted. “1. (1) These rules may be called the Fundamental (Amendment) Rules, 2007. (2) They shall come into force on the date of their publication in the Official Gazette. 2. In the Fundamental Rules, in Rule 56, in clause (d), after the fifth proviso, the following proviso shall be inserted, namely:- “Provided also that the Central Government may, if considered necessary in public interest so to do, give extension of service to the Secretary, Department of Space and the Secretary, Department of Atomic Energy, for such period or period as it may deem proper subject to a maximum age of 66 years.” 20 18. As is obvious that this amended Sixth Proviso relates to a particular post of Secretary of Department of Space and Secretary of the Department of Atomic Energy, a special provision which was added for extending their age upto 66 years and to give them extension till that year provided it was necessary in public interest to do so. 19. Thus, it is clear from the above provision that the Competent Authority i.e. Union of India, is vested with the powers to grant extension to the specified post, subject to the maximum age of 66 years. Therefore, the contention of the Petitioner that the Respondents have no power to grant extension to Respondent No.3 again has no merit and ought to be rejected. 20. While granting extension to Respondent No.3 in the year 2007 or even prior thereto, whether the Competent Authorities have kept in mind the public interest or not ? The relevant provision contemplates “if considered necessary in public interest so to do, give extension in service ……….”. It is obvious that the rule 21 requires that the authority concerned has to apply its mind and has to record reasons which would demonstrate application of mind and reasons for public interest. Once there is application of mind and reasons for public interest have been recorded, then sufficiency or qualitative values of the decision is hardly open for judicial review. 21. Asfar as the public interest is concerned, a Division Bench of this Court in the case of Dighi Koli Samaj Mumbai Rahivasi Sangh v. Union of India & Ors., 2009(5) Bom.C.R. 97, while referring to various judgments of the Supreme Court, explained the term “public interest”. The Division Bench of this Court held as under:- “11. ........................ The expression ‘public purpose’ is not capable of precise definition and has not a rigid meaning. It can only be defined by a process of judicial inclusion and exclusion (State of Bihar v Kameshwar Singh, AIR 1952 SC 252). However, a broad test has been formulated and it is that “whatever furthers the general interest of the community, as opposed to the particular interest of the individuals, must be regarded as a public purpose”. The expression “interest of the general public” embraces public security, public order and public morality. (Emperor v Jeshingbhai Ishwarlal Dhobi, AIR 1950 Bom 363). It will not be out 22 of place to mention here something about “public policy”. Public policy is a principle of judicial