^^ ^ ^/\1 ^lr fi >^i\ Amended Petition IN THE HIGH COURT OF JUDICATURE OF CHHATTISGARH AT BILASPUR PETITIONER RESPONDENTS VERSUS 1. 2. c,'"" ^""" A^'..^ 3. s' WRITPETITION No. 33/2005 Surya Kumar Tiwari S/o. Late Bhaskar Datta Tiwari, Aged about- 67 years, Retired Judge of M.P. & Calcutta High Courts, R/o. 27 Kholi Vikasnagar, District- Bilaspur (Chhattisgarh) State of Chhattisgarh Through Secretary, Law and Legislation Department, State of Chhattisgarh D.K.S. Bhawan, Mantralaya, Raipur (Chhattisgarh) Hon'ble High Court of Chhattisgarh, Through: - the Registrar General, Bilaspur (Chhattisgarh) Advocate General, State of Chhattisgarh Bilaspur (Chhattisgarh) 4. State Legal Service Authority Through its Patron in Chief Being Hon'ble the ChiefJustice of Chhattisgarh, High Court, Bilaspur (Chhattisgarh) PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF iNDIA FOR THE ISSUANCE OF WRIT IN THE NATURE OF MANDAMUS AND CERTIORARI AND FQR^RDERS AND FOR DIRECTIONS IN THE NATURE OF WRITS:^ ^\ ^K HI^H CQVRT QF CHHATTISGARH. BILASPUR W.P. No. 33 of 2005 Surya KumarTiwari Vs. State of Chhattisgarh and others RESPONDENTS: WRTT PETmON UNDER ARTICLE 226 OF THE CONS7TTUTION OF INDIA APPEARANCE Mr. Pramod Verma, Sr. Advocate with Mr. Sumeet Verma, counsel for the petitloner. Mr. Vinay Harit, Dy. Advocate General with Mr. Suryakant Mishra/ for the State/respondents 1 & 3. ORAL JUDGMENT 16.07.2010 I.M. OUDDUSI. J Heard. 2. The petitioner/ who is retired Judge of the M.P & Calcutta HSgh Courts, was nomlnated as Executtve Chalrman of the Chhattisgarh State Legal Services Authority vlde order dated 24.09.2003 for a period of 3 years. The term of 3 years was to expire on 23.09.2006. However, respondent no.l in consultation with respondent no.2 made amendment to Rule 5 of the Chhattisgarh State Legal Servtces Authority Rules 2002 (for short Rules, 2002) which was communicated vide notlfication dated 04.12.2004, resultlng in recall of the appointment order dated 24.09.2003. Being aggrieved, the petitioner has flled the instant writ petition challenging the amendment to Rule 5 of the said Rules as ^^^,, %. h -^.^^^.^" .4^ 1^^?^^-^ also the impugned order dated 04.01.2005 whereby the order dated 24.09.2003 has been recalled. 3. The amended Rule 5 ofthe Rules, 2002 reads as under: nThe Executive Chatrman of the State Authortty, whether a serving or retired Judge of the High Court shall hold office durina the Dleasure_o£tfcig Governor/' In vlew of the above amendment, vide order dated 04.01.2005 the appointment order of the petltioner was recalled by respondent no.l. Consequently, the petttloner had to cease the functton as Executive Chalrman, Chhattlsgarh State Legal Services Authority. 4. Mr. Pramod Verma, learned Sentor Advocate submits that the Chhattisgarh Legal Services Authority has been constituted in accordance with the Legat Services Authorities Act, 1987 (for short Act, 1987) and the Rules 2002 have been framed In accordance with the satd Act. He draws our attention to unamended Rule 5 of Rules 2002 and contends that the tenure of the Executive Chairman has been flxed for a period of 3 years wlth a provtslon of its renewal, however, the State/respondent no.l In consultation wjth Chief Justlce of the High Court, incorporated amendment in Rule 5 of Rules 2002 providing for such tenure to the Executive Chatrman during the pleasure of the Governor and as a consequence, the appointment order of the petitloner was recalted by ^^ impugned order dated 04.01.2005 which is violatlve of constitutional provisions and the aforesaid Act, 1987. 5. Article 310 of the Constitution provldes fbr tenure of ofRce of persons serving the Unlon or a State. Clause (1) ofArticle 310 is relevant here and quoted below: WExcept as expressly provided by this Constltution, every person who Is a member of a defence service or of a dvll service of the Union or of an all-India service or holds any post connected with defence or any dvll post under the Union holds office durina the pleasure of the President, and every person who is a member of a dvil sen/lce of a State or holds any civll post under a State hotds office durinq the pleasure of the Governor." On perusal of Article 310(i) of the Constltutlon it shows that no tenure of ofRce of persons servlng the Union or State has been flxed but it is at the pleasure of the Presldent or Governor, as the case may be. Even, there is no mention about the term of Executlve Chairman of State Legal Servjces Authortty In the Act of 1987. Sub-section (2) of Section 6 of the Act, 1987 is more relevant here and quoted below: (2) A State Authority shall consist of ~ (a) The Chief Justice of the High Court who shall be the Patron in Chlef; (b) a servlng or retired judge of the Hlgh Court, to be nomlnated by the Governor, in consultation with the Chlef Justice of y- .,^^^ f t.... 11 8 ^ 1 & •'^^ u^ ••%^-Jr.^r i,^ ^ t a / ;"m^.^ the High Court, who shatl be the Executive Chalrman; and (c) such number of other members, possessing such experience and quallfications as may be prescribed by the State Government, to be nomlnated by that Government in consultation with the Chief Justlce of the High Court. If we look into the provisions Article 310(1) together with section 6(2) of the Act, 1987 it would show that there is no mention of specific term of office of an authority, but the tenure of the authority has been prescribed in Rule 5 of the unamended Rules, 2002 which stands amended vide notificatjon dated 04.12.2004, which is Inconsonance with the constitutional provisions of clause (i) of the Article 310 oftheConstitution. 6. It is the domain of the State to make amendment In the Rules which cannot be sald to be against the spirit of the Constitution as in the constitution itself it has been provided in Artide 310 as quoted above that the person who is a member of a particular service holding the partjcular Post under the Unton or the State shall hold the offlce during the pleasure of the President or Governor, as the case may be. Therefore, the amendment incorporated In Chhattlsgarh State Legal Servlces Authoritles Rules 2002 amending Rule 5 are in consonance wlth Clause (1) oftheArtide 310 and It cannot be said that the same ultra vires the Constltution. More over, the tenure of three years was given In the ^^^-^;^ '£"^ <rj^. •^;.^- ^ \v^\ y appointment order dated 24.9.2003 in respect of the petitioner, which woutd have automaticatly come to an end on 23.09.2006 had he been continued as Executive ChaSrman and as such no dlrection, as prayed for, can be issued at this stage that is in the year 2010. 7. Besides the above, Hon'ble the Apex Court in case of Suoreme Court Bar AssodQtion -vs- Union oflndia repofted in 2007 4 SCC 353 while deprecating the practice of havlng a retlred Judge as the Head of the State Legal Services Authority held that normally the Executive Chairman should be a sitting Judge of the High Court. The Apex Court, after discussing the provisions of section 6(2) of the Act, further held that the position of the Chairperson of the Legal Services Authority at State Level js very cruclal. A sittlng Judge will be a far better person and he can exerdse his powers more effectlvely compared to a rettred Judge. Since the head of the National Leaal Servlces Authoritv has to be the Chief Justice of India and the head of the District Leaal Services Authoritv has to be the Dlstrict Judae, the Scheme of the Act should be understood to be that the head of the State Leaal Services Authoritv also should be a sittlna Judae of the Hiah Court {Emphasis supplied). Paras 7 & 11 are also relevant here and quoted below: W7. In some cases, earlter a sitting Judge was functioning as the Chalrman of the State Legal Servlces Authority. We could not flnd any reason as to why a departure from the long standlng practice of appointing a sittlng 3udge 8. \^5 as the Chairman of the State Legal Services Authority was departed from." wll. In some States the retired Judges have functioned for some time. The State Governments concerned are directed to reconsider the matter with the consujtation of the Chlef Justlce of the State concerned and do the needful within a period offour months." Learned counsel for the petitioner furi:her contends that no reason has been assigned in removlng the pefcltioner by passing the impugned order. In this regard, the return filed by the State js liable to be perused in which it has been spedflcally indlcated that the Government had an intention to appoint a sitting judge in consultation with the Chief Justice of the Chhattisgarh High Court so as to lighten the finandal llabllity on them and as such it cannot be said that no reason has been given and therefore, the cause of action of removing the petltioner cannot be ruled out. 09. In case of State of N.C.T. ofDelhi -vs- Sanieev alias Bittoo. reported 'm AIR 2005 S.C. 2080 the Apex Court held that the Courts cannot interfere in the administrative polfcy dedsion of the Executive unless It seems to be arbltrary, irrational or there is procedural impropriety. None of them could be established in the instant matter. Paras 15 of the said decision is quoted below: w15. One of the points that falls for determination is the scope for judicial interference in matters of administrative decisions. Administrative action Is stated to be referable to broad area 6f v V[ fc governmental activities in which the repositories of power may exercise every dass of statutory function of executive, quashlegislative and quasi-judiclal nature. It is trtte law that exerdse of power, whether legislative or administrative, will be set aside if there is manifest error in the exercise of such power or the exerdse of the power is manifestly arbitrary (see State of U.P. and others Vs. Renusagar Power Co. and others (AIR 1988 SC 1737). At one time, the traditional view in England was that the executive was not answerable where its actlon was attributable to the exerdse of prerogative power. Professor De Smith in hls dasslcal work "Judicial Review of Adminlstrative Action:, 4th Edn. At Pg.285-287 states the legal position in his own Terse language that the relevant principles formulated by the Courts may be broadly summarized as follows. The authority in which discretion is vested can be compelled to exercise that discretion, but not to exerdse it in any parttcular manner. In general, dlscretton must be exercised only by the authority to which it is committed. That authorlty must genuinely address itself to the matter before it; it must not act under the dictates of another body or disable itself from exerclsing dlscretion in each indivjdual case. In the purported exercise of its dlscretion, It must not do what it has been forbidden to do, nor must it do what it has not been authorlzed to do. It must act in good faith, must have regard to all relevant conslderations and must not be tnfluenced by jrrelevant consideratjons, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarlly or caprldously. ^•^-"^^ //"^^^ 'i ^,. ./, (^U -f These several principles can convenlently be grouped in two main categories: (t) falture to exercise a dlscretion, and (ii) excess or abuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account, and where an authorlty hands over Its dlscreti'on to another body Jt acts ultra vires." 10. In view of the above facts and drcumstances discussed above, the writ petition is misconceived and ts therefore dismissed. 11. No order as to costs. Sd/- I.M. Quddusi Judge Sd/- N. K. Agarwal Judge fl