1 IN THE HIGH COURT OF BOMBAY AT GOA. WRIT PETITION NO. 704 of 2009 1. Shri Kashinath Shetye, Major of age, Indian National, Resident of Babino Building, Alto Fondvem, Ribandar, Goa. 2. Adv. Swetlana George, Major of age, Indian National, Resident of Goa Velha Goa. 3. Shri Gautam Bene, Major of age, Indian National, Resident of Tilamol, Quepem-Goa. 4. Shri Vassudev Prabhu, Major of age, Indian National, Resident of Government Quarters, Altinho, Panaji, Goa. 5. Adv. Atish Mandrekar, Major of age, Indian National, Resident of Vodlebhat, Taleigaon, Goa. 6. Adv. Suraj Naik, Major of age, Indian National, Resident of H. No. E 71 Bhatlem, Panaji, Goa. 7. Shri Adityaprasad Prabhu, Major of age, Indian National, Resident of Nirankal Ponda Goa. 8. Shri Mahesh Kamat, Major of age, Indian National, 2 Resident of Near Loyola High School, Margao Goa. 9. Shri Navin Desai, Major of age, Indian national, Resident of Dogri Navelim, Salcete-Goa. 10. Shri Prashant Naik, Major of age, Indian National, Resident of Opp. PWD Fatorda, Margao-Goa. 11. Shri Suryakant Tengali, Major of age, Indian National, Resident of Porvorim, Bardez, Goa. .. Petitioners V e r s u s 1. The Hon'ble High Court of Bombay, Through the Registrar General, Having his office at the High Court of Bombay, Fort, Mumbai, Maharashtra. 2. Shri Pandurang Naik, Section Officer (retired) Currently re-employed at the High Court of Bombay at Goa, Altinho, Panaji, Goa. 3. Smt. Luisa Fernandes, Section Officer (retired), Currently re-employed at the High Court of Bombay at Goa, Altinho, Panaji, Goa. 3 4. Shri Tipu Gauns, Section Officer (retired), Currently re-employed at the High Court of Bombay at Goa, Altinho, Panaji, Goa. 5. Shri Devidas Pai Vaidya, Superintendent (Retired) of the District and Session Court, South Goa, Margao Goa, Currently re-employed at the High Court of Bombay at Goa, Altinho, Panaji, Goa. 6. Smt. Roshan Brahme, Superintendent (retired) of the District and Session Court, South Goa, Margao Goa, Currently re-employed at the High Court of Bombay at Goa, Altinho, Panaji, Goa. 7. Shri Shaik Fakru, Superintendent (Retired) of the Court of the Civil Judge, Senior Division & JMFC, Bicholim, Goa, Currently re-employed at the High Court of Bombay at Goa, Altinho, Panaji, Goa. 8. Shri Anand C. Naik, Section Officer (retired), Currently re-employed at the High Court of Bombay at Goa, Altinho, Panaji, Goa. 4 9. Shri Joaquim Hillario da Costa, Superintendent (retired) of the District and session Court, South Goa, Margao, Goa, Currently re-employed at the High Court of Bombay at Goa, Altinho, Panaji, Goa. .. Respondents Mr. Kashinath Shetye, Petitioner No.1 in person. Mr. Atish Mandrekar, Advocate/Petitioner No.5 in person. Mr. S.S. Kantak, Advocate General with Mr. A. Kamat, Addl. Government Advocate for respondent no.1. CORAM: SMT. V.K. TAHILRAMANI & N. A. BRITTO, JJ. DATE : 17TH NOVEMBER, 2009 ORAL ORDER : (Per N.A. Britto, J.). 1. This petition is filed in public interest. 2. The petitioners have raised two issues. The first is regarding re-employment on temporary basis for a period of six months of the retired officers of this Court as well as Subordinate Courts (respondents no. 2 to 9) as Section Officers. The contention of the petitioners is that 5 the re-appointment of the said employees is arbitrary, illegal and unconstitutional as it deprives other officers in the service of this Court of their valuable right of being considered for promotion. It is also stated that this Court has in clandestinely and in secretive manner has filled the said vacancies with persons of their choice without following due procedure of law and have deprived eligible candidates from applying for appointment against the said vacancies. The second is that there should be an Appellate Authority under the Right to Information Act, 2005, stationed at Goa and its orders ought to be made subject to the jurisdiction of the Goa Information Commission as First Appellate Authority i.e. The Registrar General has his office at Mumbai and filing of appeal before the First Appellate Authority i.e. Registrar General of the High Court at Mumbai is beyond the means of the petitioners (petitioner no.1?) and is otherwise contrary to the legislative intent behind the Right to Information Act, 2005. The petitioners, therefore, have prayed for Mandamus directing this Court (on the administrative side) from re-employing retired officers of the High Court or its Subordinate Courts and for a further Mandamus to designate as interim measure some officer at Goa as First Appellate Authority under the Right 6 to Information Act and to make his orders subject to the jurisdiction of the Goa Information Commission. 3. The petitioner no.1 appeared before this Court and as an issue of locus standi of the petitioners was involved, petitioner no.1 was asked whether he would like to engage the services of an advocate. The petitioner no.1 stated before us, that he had approached some advocates to put appearance on behalf of the petitioners, but none were willing. Then it was noticed that three of the petitioners were practicing advocates and the petitioner no.1 was requested, that any of the said petitioners/advocates could make their submissions in support of the petition particularly regarding its maintainability, and as a result of the said suggestion, petitioner no.5 appeared before us, took time and then has argued the matter. 4. Petitioner no.5/ Advocate Shri Mandrekar, as regards the locus standi of the petitioners to file this petition, has submitted that the petitioners as citizens, are concerned about the practice followed by this Court of granting re-appointment without giving opportunity to all eligible members of the public and in support of the submissions, 7 Learned Counsel has placed reliance on several Judgments. The first is the case of Umadevi and others (AIR 2006 SC 1806) wherein the Apex Court observed as follows:- 34. While answering an objection to the locus standi of the Writ Petitioners in challenging the repeated issue of an ordinance by the Governor of Bihar, the exalted position of rule of law in the scheme of things was emplasized, Chief Justice Bhagwati, speaking on behalf of the Constitution Bench in Dr. D.C. Wadhwa & Ors. Vs. State of Bihar & Ors. (1987 (1) S.C.R. 798) stated: “The rule of law constitutes the core of our Constitution of India and it is the essence of the rule of law that the exercise of the power by the State whether it be the Legislature or the Executive or any other authority should be within the constitutional limitations and if any practice is adopted by the Executive which is in flagrant and systematic violation of its constitutional limitations, petitioner No.1 as a member of the public would have sufficient interest to challenge such practice by filing a writ petition and it would be the constitutional duty of this Court to entertain the writ petition and adjudicate upon the validity of such practice”. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, 8 a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of 9 the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates. 5. Reliance is also placed on three other Judgments of this Court of Division Benches. The first is Judgment dated 14th and 15th February, 2008 in Public Interest Litigation (Lodging) No.93 of 2007 in the case of R.R. Tripathi and another V/s. The Union of India 10 and others, the second is Judgment dated 5th and 23th July, 2009 in Public Interest Litigation (L) No.63 of 2009 in the case of Shri R.R. Tripathi (Advocate) and Union of India and others. The second Judgment has proceeded on the basis of the first Judgment and Shri Kantak, learned Advocate General has been quick enough to point out that the first Judgment was taken in appeal before the Apex Court in Special Leave to Appeal, bearing No.5459 of 2008, and the Apex Court observed that since the respondent nos. 7 and 8 who were given three months extension had already retired, they were not inclined to entertain the petition. At the same time question raised by the petitioner (Secretary, Home Department, Government of Maharashtra) regarding maintainability of public interest litigation in such matter was left open. Therefore, the said Judgments are of no help to the petitioners. The third is a Full Bench Judgment dated 26th April, 2007 in Writ Petition No. 1721 of 2004 in the case of Sangharaj Damodar Rupawate and two others V/s Nitin Gadre and two others. In this case, the Full Bench was considering an expression “any person having any interest” appearing in Section 96 of the Criminal Procedure Code and the Full Bench held that the said expression could not be given restricted meaning 11 and it could be extended to a citizen having an interest in the right to be informed as a larger part of his right of freedom of speech and expression. On behalf of the petitioner some interim orders have also been referred to in Writ Petition No.438 of 2009 and Public Interest Litigation No.85 of 2008, to which we may not refer to, as they are interim orders. 6. Admittedly, none of the petitioners are the employees of the High Court at Goa or ex-employees of this Court or for that matter of the Subordinate Courts. Petitioner nos. 1 and 4 are the Junior Engineers in the Electricity Department of the Government of Goa. Petitioner nos. 2, 5 and 6 are Advocates practicing in various Courts. Petitioner no.3 is employed with the Goa State Agriculture Board, as a Market Supervisor. The remaining petitioners are either retired employees or having their own business or are salesmen. 7. It is not the case of the petitioners, atleast in the petition, that they look forward to be appointed in the High Court at Goa in as much as none of them also represent any association of the employees working in the High Court. As can be seen from the petition, the trust of the 12 petition is that by re-employment of the retired employees of this Court and of the Subordinate Courts, the other officers in the service of this Court are being denied their valuable right of being considered for promotion. In other words, their concern is that the employees of the High Court would be denied of their right of being considered for promotion. The Writ Petition, therefore, is in connection with the service of the employees of the High Court at Goa and therefore can be considered as a service matter. 8. The Division Bench of this Court in the case of Public Grievance Forum and another V/s. State of Goa and another (Judgment dated 29th June, 2004) in Writ Petition No.10 of 2000 was dealing with the challenge to the Notifications dated 5.5.1999 and 15.7.1999 issued by the Government of Goa in exercise of the powers conferred by proviso to Clause 3 of Article 320 of the Constitution of India so as to amend the Goa Public Service Commission (Exemption from Consultation) Regulations, 1988. The question which arose therein was whether the petition involved a service matter which in the opinion of the Division Bench on the basis of the recent Judgments of the Supreme Court ought not to be allowed to be agitated in public interest 13 and the Division Bench after referring to Ashok Kumar Pandey V/s. State of West Bengal and others (AIR 2004 SC 280) and other Judgments including of Dr. Duryodhan Sahu v/s. Jitendra K. Mishra (AIR 1999 SC 114) came to the conclusion that the petitioners did not have any interest by which their legal rights or liabilities could be said to be affected. The Court observed that none of the said rights were demonstrated and it was further observed that none of the petitioners were in Government employment or even aspired to be in such employment and came to the conclusion that the petition was not intended to protect the basic rights of the disadvantaged who on account of the poverty, helplessness or disabilities could not approach the Court for relief. The petition was on behalf of a largely a literate class who are quite capable of approaching this Court, in case they are aggrieved. Reference was also made to Balco Employees' Union (Regd.) V/s. Union of India {(2002) 2 SCC 333} wherein it was observed as follows:- “PIL is not a pill or a panacea for all wrongs. It was essentially meant to protect basic human rights of the weak and the disadvantaged and was a procedure which was innovated where a public-spirited person files a petition in effect on behalf of such persons who on account of poverty, helplessness or economic and social 14 disabilities could not approach the court for relief. There have been, in recent times, increasingly instances of abuse of PIL. Therefore, there is a need to re-emphasize the parameters within which PIL can be resorted to by a petitioner and entertained by the court. This aspect has come up for consideration before this Court and all we need to do is to recapitulate and re- emphasize the same”. And ultimately the Court came to the conclusion that the petition ought not be entertained at the instance of the petitioners in public interest, the petitioners having been found not to have sufficient interest to activise the jurisdiction of the Court and proceeded to dismiss the petition. 9. The case of Dr. Duryodhan Sahu V/s. Jitendra Kumar Mishra (AIR 1999 SC 114) was followed in Ashok Kumar Pandey V/s. State of West Bengal {(2004) 3 SCC 349} and it was observed as follows:- “Though the parameters of public interest litigation have been indicated by this Court in a large number of cases, yet unmindful of the real intentions and objectives, courts are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases. Though in Duryodhan Sahu (Dr.) v. Jitendra Kumar Mishra this Court held that in 15 service matters PILs should not be entertained, the inflow of so-called PILs involving service matters continues unabated in the courts and strangely are entertained. The least the High Courts could do is to throw them out on the basis of the said decision”. The Apex Court also referred to the case of Janata Dal ({1993 SCC (Cri) 36} particularly paras 62, 98 and 109 wherein it was observed as follows:- “62. Be that as it may, it is needless to emphasise that the requirement of locus standi of a party to a litigation is mandatory, because the legal capacity of the party to any litigation whether in private or public action in relation to any specific remedy sought for has to be primarily ascertained at the threshold”. 98. While this Court has laid down a chain of notable decisions with all emphasis at their command about the importance and significance of this newly developed doctrine of PIL, it has also hastened to sound a red alert and a note of severe warning that courts should not allow its process to be abused by a mere busybody or a meddlesome interloper or wayfarer or officious intervener without any interest or concern except for personal gain or private profit or other oblique consideration”. “109. It is thus clear that only a person acting bonafide and having sufficient 16 interest in the proceeding of PIL will alone have a locus standi and can approach the court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly, a vexatious petition under the colour of PIL brought before the court for vindicating any personal grievance, deserves rejection at the threshold”. In para 18, the Court observed: “In Gupta case it was emphatically pointed out that the relaxation of the rule of locus standi in the field of PIL does not give any right to a busybody or meddlesome interloper to approach the court under the guise of a public interest litigant. It has also left the following note of caution: (SCC p. 219, para 24). 24. But we must be careful to see that the member of the public, who approaches the court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The court must not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain a political objective”. The case of Dr. Duryodhan again came for consideration before the Apex Court in the case of Dattaraj Nathuji Thaware (AIR 2005 SC 540), 17 wherein the Apex Court has observed that:- “A time has come to weed out the petitions, which though titled as public interest litigations are in essence something else. It is shocking to note that Courts are flooded with large number of so called public interest litigations where even a minuscule percentage can legitimately be called as public interest litigations. Though the parameters of public interest litigation have been indicated by the Court in large number of cases, yet unmindful of the real intentions and objectives, Courts are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases. Though in Dr. Duryodhan Sahu and others V/s. Jitendra Kumar Mishra and others (AIR 1999 SC 114) the Court held that in service matters PILs should not be entertained, the inflow of so-called PILs involving service matters continues unabated in the Courts and strangely are entertained. The least the High Courts could do is to throw them out on the basis of the said decision”. The Court also referred to S.P. Gupta v/s. Union of India (1981 SUPP SCC 87) and noted that it was emphatically pointed out that the relaxation of the rule of locus standi in the field of PIL does not give a right to a busybody or meddlesome interloper to approach the Court under the guise of a public interest litigant. The Court also noted that it 18 is a disturbing feature which needs immediate remedial measure by the Bar Councils and the Bar Association to see that the process of law is not abused and polluted by its member. 10. In Neetu V/s. State of Punjab and others (AIR 2007 SC 758) the Apex Court observed 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. It is to be used as an effective weapon in the armoury of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be allowed to be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. The Court must not allow its process to be abused for oblique considerations by masked phantoms who monitor at times from behind. Such petitions deserve to be thrown out by rejection a the threshold, and in appropriate cases with exemplary costs”. 11. It is also not the case of the petitioners that there were any 19 qualified candidates to be appointed as section officers. It is also not their case that re-appointment of retired employees is a regular feature of appointment. As already stated, the petitioners can have no interest in re-appointment of retired employees of this Court or of the Subordinate Courts and if at all the employees of this Court are affected thereby, they are always free to approach the High Court either on administrative or judicial side. In our considered view, the petitioners have no locus standi to challenge the said re-appointments. The petition appears to have been filed with oblique motive. 12. As regards the second issue, the contention is that the Assistant Registrar, as Public Information Officer, has not provided all the information to them and they cannot file an appeal with the Registrar General, the appellate authority, as he is stationed in Mumbai. Petitioner no.5 submits that going to Mumbai and arguing the appeal before him is tedious. On behalf of the petitioners it is stated in the affidavit that they cannot afford. Considering the background of the petitioners or the class to which they belong that has to be considered as an understatement. When petitioner no.5 was asked whether the appeal 20 could not be filed by post, petitioner no.5 has submitted that they would like to argue the appeal in person. The least which was expected of the petitioners, particularly those who are Government servants and advocates, that in case they wanted the appellate authority to be stationed here at Panaji, Goa, was to approach Hon. the Chief Justice, and in case it was too tedious for any of them to go to Mumbai and meet him, then, they could have met him on various occasions when the Hon. the Chief Justice had his sittings at Panaji, but that