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B.L. Yadav, J.—What are the contours and ambit of the judicial review against an order dated 4.6.1994 (Annexure 5) passed by the then Hon''ble the Chief Justice of the Patna High Court (Hon''ble K.S. Paripoornan) directing literate Mazdoors (daily wages) to be appointed against Class III posts of Assistant, Translator and Typist on ad-hoc basis, provided they had requisite qualification of a Graduate, and the orders granting extension of service for a period of one year to Shri Nagendra Ojha, Principal Private Secretary to Hon''ble the Chief Justice, Shri N.K. Nandkeolyar, Assistant Registrar and Shri Md. Samiullah, Secretary to Hon''ble Judge, after they attained the age of superannuation, under the Proviso added to Rule 73 of the Bihar Service Code, 1952, the rules framed by the Hon''ble Chief Justice in exercise of his power under Article 229 of the Constitution of India, and as to whether the present writ petition at the behest of an Advocate of this Court, as Public Interest Litigation is maintainable?
The factual matrix of the case is that the Petitioner is an Advocate practising in this Court and he has filed this petition under Articles 226/227 of the Constitution of India as a "Public Interest Litigation" (P.I.L. for short). The Petitioner has claimed relief that orders passed by the then Hon''ble Chief Justice appointing literate Mazdoors (daily wages) to posts of Assistant, Translator, Typist etc., on ad-hoc basis, provided they have requisite qualifications, and granting extension to the aforesaid three employees of this Court, be quashed by issuing a writ of certiorari and a writ of mandamus, directing the Respondents to ensure proper functioning of the Patna High Court, as the working has been substantially paralysed, due to the members of the Ministerial Staff Association, judgment Writers'' Association and the Class-IV Employees of the Patna High Court having gone on strike since the 7th of July, 1994, as their demands for withdrawal of the orders of the then Hon''ble the Chief Justice were not accepted by the present Hon''ble the Chief Justice (Hon''ble Kundaswami Venkataswami), and a direction be given to the Registrar General of this Court (Respondent No. 2) to direct the employees to withdraw the strike and resume their work.
The aforesaid Employees Association held general meeting on the 23rd of July (sic), 1994 at 1.30 P.M. and considered the extension granted to the aforesaid three employees and the appointments of Assistant/Translator/Typist as literate Mazdoors on ad-hoc basis, provided they were qualified. The grievance of the said Employees Association was also against officiation of Shri Digree Singh, Deputy Secretary to the Hon''ble the Chief Justice, whereas he holds the post of Translator. The Employees Association raised their demands before the present Hon''ble the Chief Justice to concede to their demands before the 5th of July, 1994, failing which they shall go on strike for an indefinite period from the 7th of July, 1994. As the demands of the employees were not conceded, hence they proceeded on indefinite strike, as a consequence the working of the High Court has been substantially paralysed on account of the absence of the members of the Employees Associations, who were working on different posts. As the strike since the 7th of July, 1994 was not withdrawn, the present writ petition was filed as P.I.L. on the 22nd of July, 1994.
The grievance of the Petitioner in this P.I.L. has been summarised in paragraph 6 and other paragraphs of the writ petition, to the effect that Respondent No. 4, Shri Mundrika Prasad, Registrar (Inspection) of this Court is of the H.J.S. Cadre. He has earlier been in this Court as Deputy Registrar for a number of years and few years back he was transferred from this Court as Additional District Judge, Patna and remaining there for a short while, he again was appointed in April, 1994 as Registrar (Inspection) of this Court. He has submitted a report to the Hon''ble Chief Justice on 6.6.1994 (vide Annexure 4) to the effect that there were 23 vacant posts of Assistants, 3 posts of Typists in Issue Section, 13 posts of Typists in Copying Department and 9 posts of Translators for regular appointment, which could not be made, hence out of the literate qualified Mazdoors, appointments were to be made on ad-hoc basis. The Hon''ble the Chief Justice, however, directed that the vacancies should be filled up strictly in accordance with the seniority and qualification, amongst the literate Mazdoors, and on 7.6.1994 the Hon''ble the Chief Justice approved the said notes of the Registrar (Inspection) in view of the indications made by letters ''A'', ''B'', ''C and ''D''. This is clear from the perusal of Annexure 4 (page 37 of the brief). A detailed order also was passed by the Hon''ble the Chief Justice (vide Annexure 4) and it was directed that for ad-hoc appointments of Assistants/Translator/Typists seniority shall be observed and a register shall be prepared forthwith on that basis.
In view of the aforesaid direction contained in Annexure 4 and the order of the Hon''ble the Chief Justice contained in Annexure 5 appointments were made and appointment letters were also issued.
The grievance of the Petitioner in P.I.L. in spousing the cause of the employees of this Court (Class-III and Class-IV) having gone on strike, is that even the direction of the Hon''ble the Chief Justice was not complied with while issuing appointment letters and the several literate Mazdoors who were seniors, were left out and juniors were appointed against Class-III post of Assistant/Translators etc. on ad-hoc basis and pick and choose policy was adopted at the behest of the Respondents and even some persons who did not possess requisite qualifications, were appointed.
On the direction of the Hon''ble the Chief Justice a Committee consisting of Hon''ble S.K. Mukherjee, Hon''ble B.N. Agrawal and Hon''ble B.P. Singh was constituted to submit a report in the matter to diffuse the stalemate, but nothing tangible could come out of it.
A counter affidavit has been filed on behalf of Respondents Nos. 1 and 2 by Shri Anirudh Prasad Choudhary, Registrar General of this Court, wherein it has been averred that the writ petition, not having been filed by the individual aggrieved person but by an Advocate of this Court as P.I.L, hence it is not maintainable, as an Advocate cannot be aggrieved when the employees proceeded on strike, and further the strike by the Non-Gazetted Employees of this Court amounts to contempt of Court. The impugned order of the Hon''ble the Chief Justice directing the 48 Class-III posts of Assistant, Translator and Typist to be filled up by promotion on ad-hoc basis from amongst the Mazdoors having requisite qualification of a Graduate or its equivalent, is perfectly correct. But in Anr. developments these 48 persons have resigned and that part of the impugned order has been withdrawn. The other part of the order granting extension of service to Nagendra Ojha, P.P.S., Shri N.K. Nandkeolyar, Assistant Registrar and Shri Md. Samiullah, Secretary was made on public grounds in view of the Proviso to Rule 73 of the Bihar Service Code, added with an Amendment dated 21.1.1975 to Rule 73 of the Bihar Service Code, 1952, that after attaining the age of superannuation extension of service can be granted on public grounds. The impugned order neither contains any infirmity nor the same can be said to be erroneous and, that the writ petition being devoid of merit, deserves to be dismissed.
A plea about the maintainability of the P.I.L. filed by an Advocate of this Court was taken as a preliminary point by Shri Basudeo Prasad, the learned senior counsel for the Respondents. In reply to that, Mr. Banwari Sharma, learned senior counsel for the Petitioner contended that the P.I.L. is now well known since decades in the past and its horizon is widely extending day by day. It constitutes a new Chapter in "Justice Delivery System", which had acquired a significant role in modern Legal Jurisprudence. It is rather too late in the day to raise a preliminary objection to that effect. It is further contended that this Justice-Delivery-System is not confined to this Court or to our country alone, rather it is prevalent and accepted to be effective in many parts of the world, based on sacrosanct principle (Liberty and Justice for all). Mr. Sharma further contended that P.I.L. lexically means any legal action initiated in a Court of law for encouragement of public interest, in which a class of community or public has interest by which their legal right and liability are effected. There are catena of decisions of the Apex Court and other Courts explaining the expression "P.I.L." apart from day-to-day working of this Court, granting relief in the writ petition not presented by sizeable section of the society. Every citizen of this State may not be so conscious of his rights and liabilities. Consequently in order to provide justice to all, this system was encouraged and accepted by the Apex Court and also the High Courts in the country to provide a new hope to the justice starved millions. In other words, the concept of P.I.L. is being accepted and encouraged by judicial activities with a view to provide justice to the unrepresented persons.
It is further contended by Mr. Sharma that it is small aspect of social justice, as justice, social, economic and political are in the Preamble of the Constitution. Normally the individual person seeking redress must himself initiate the proceeding by filling writ petition for an appropriate relief, but in the litigation where the public at large, is interested, as in the present case, an innocent public if he wants to seek justice from the High Court is not able to get the same. On account of the Non-Gazetted Employees having gone on strike, entire work of this Court has been paralysed. Even the learned Advocates who are not on strike, are adversely affected on account of the Non-Gazetted Employees having gone on strike. In such situation if an enthusiastic Advocate, like the Petitioner Sri S.K. Singh, has taken trouble to bring the grievance and the sufferings of the innocent public to get justice from the High Court and has filed the present writ petition in a bona fide manner, it cannot be said that he has no right or any locus standi to file such writ petition. As he himself has interest in maintaining action for judicial redress for public in general by putting the judicial machinery in motion, i.e. Actiomepuliris (Human law), and as such the present writ petition, according to the learned Counsel for the Petitioner, is maintainable. The learned Counsel for the Petitioner leaned heavily on the Supreme Court Advocates-on-Record Association and another Vs. Union of India, ; Janta Dal v. H.S. Chowdhary and Ors. (1992) 4 S.C.C. 395 ; and S.R. Bommai and others Vs. Union of India and others etc. etc., .
By the time this petition is being disposed of, the daily wages employees, who were promoted on ad-hoc basis as Assistants etc., have tendered resignation and that was accepted, hence he argument in connection with that part of the impugned order need not be considered or discussed.
It was next urged that the part of the order in respect of extension of the aforesaid three employees, after attaining the age of superannuation, was not consistent with the provisions of Article 229 of the Constitution, inasmuch as the Hon''ble the Chief Justice, being the Head of the Judiciary, is custodian of the Constitutional principles and maintenance of rule of law in this State. To use the correct expression the Judges are most visible actors in the Administration of Justice and the decision taken by the Judges are most out come. The Hon''ble the Chief Justice is prime course and head in the High Court under Article 229 of the Constitution, but at the same time, he is not an absolute ruler, but he is expected to uphold the Constitution. The order was also not consistent with the proviso to Rule 73 of the Bihar Service Code, and that it was not covered by expression "public grounds" nor the same was recorded in writing, and, even the expression "public grounds" has not been defined. It appears that by amendment of the Bihar Service Code a proviso was added to Rule 73 of the said Code. But it does not appear to have been framed by the Hon''ble the Chief Justice in exercise of power conferred under Article 229 of the Constitution. In this connection reliance was placed on H.C. Puttaswamy and others Vs. The Hon''ble Chief Justice of Karnataka High Court, Bangalore and others, .
Mr. Basudeo Prasad, learned Senior Counsel for the Respondents, on the other hand, refuted the submissions of the learned Counsel for the Petitioner. He urged that an Advocate belongs to the profession of law and he has his professional duty indicated under the Advocates Act, 1961. He can defend a litigant, but it was derogatory to the exalted status to be a litigant himself by filing a writ petition in his own name. It was further urged that the Hon''ble the Chief Justice has correctly passed order for promotion of the eligible Mazdoors of the High Court having requisite qualifications of a Graduate and other equivalent educational qualifications to be promoted on ad-hoc basis against class-III posts of Assistant, Translator, Typist etc. The other part of the order pertaining to retention of the aforesaid three employees in service after attaining the age of superannuation was in public interest and reasons were recorded. It was correct and consistent with the provisions of Article 229 of the Constitution and the Proviso added to Rule 73 of the Bihar Service Code. No case for interference was made out. It was contended in the alternative that as the Mazdoors promoted, have tendered resignations and applications for those posts have been invited, hence that part of the order need not be considered. (See Smt. Gitarani Paul Vs. Dibyendra Kundu alias Dibyendra Kumar Kundu, ; Lalit Mohan Das Vs. Advocate-General, Orissa, ; Shri Baradakanta Mishra Vs. The Registrar of Orissa High Court and Another, ).
Having scrutinised the submissions of the learned Counsel for the parties, as the Mazdoors having requisite qualifications and having been promoted on ad-hoc basis against Class-III posts of Assistant, Translator, Typist etc., tendered their resignation which has been accepted and applications for those posts have already been invited, hence it is not necessary to consider that part of the submission of the learned Counsel for the parties. Before this petition could be disposed of the strike by the employees of this Court was also withdrawn, hence that part of relief also needs no consideration.
14A. The only salient and substantial legal questions which loom for our determination are:
(a) Whether the present writ petition was maintainable as P.I.L.?
(b) Whether the part of the impugned order pertaining to retention of services of the said three employees after attaining the age of superannuation was consistent with the power of Hon''ble the Chief Justice under Article 229 of the Constitution of India, and the same was correctly passed under the Proviso added to Rule 73 of the Bihar Service Code?
(c) Whether the said order was based on public grounds? and
(d) Whether those grounds were recorded in writing and what were the contours and ambit of judicial review in such matter?
As regards the first question about the maintainability of this petition by an Advocate of this Court as P.I.L., suffice it to say that the P.I.L. means a legal action initiated in a Court of Law for enforcement of the public interest or general interest, in which the, public or the class of community has pecuniary interest or some interest by which their legal rights/or liabilities are affected. In fact the concept of P.I.L. is being fostered by judicial activism and it has become very important at a time when interest of the unrepresented and under-represented comes for consideration before the Court. In these matters no hard and fast rule can be laid down. In the present case the writ petition has been filed by an Advocate of this Court, who is an Officer of this Court. He is equally affected by the strike in this Court, as any other common litigant or any other member of the society at large in seeking justice from the High Court. Sizeable number of the Advocates belonging to the noble profession of law have to depend on their income of daily earnings. Daily income and insecurity is the definite ladder of development of the persons concerned. It has been well said that "Security is the mortal''s chiefest enemy". This is in fact a reality of this great legal profession. By any stretch of imagination it cannot be said that the Petitioner who is an Advocate, was not interested in bringing the strike by the employees of this Court to an end. To put it differently it can also not be said that his interest was not involved or that he was not adversely affected. In my view, no "rigid litmus test" can be applied as broad concept of P.I.L. are still developing space. Apparently there appears divergent views on several aspects of the concept. Primary object of the P.I.L is to ensure/observance of the provisions of the Constitution or the law and this can be achieved only by permitting any person acting bonafide and having sufficient interest in maintaining an action for judicial redress for public injury to put the judicial machinery in motion. It is in one way like "ACTIO POPULARIS" of Roman law whereby any citizen could bring such an action in respect of a public grievance. The Apex Court has enlarged the scope of the P.I.L by relaxing and liberalising the rules of standing by treating letters or petitions sent by any person or association complaining violation of any fundamental rights and seeking similar relief from the Court.
The matter pertaining to the P.I.L can be angulated from Anr. perspective. As a matter of fact litigation in the nature of P.I.L comes within real mode of social justice. It needs no mention that justice-social-economic Political are preambles of our Constitution. We need not feel shy in stating that millions of people of this country have no financial resources nor they are equipped with proper advice to seek their remedy through proper forum. The Administration of Justice can no longer be merely protector of legal rights of those litigants who are not possessed of sufficient funds and also equipped with proper legal advice. The Preamble of the Constitution is in fact a vehicle of aspirations of the Indian people. A great responsibility has been I thrushed upon the High Court and the Apex Court by founding fathers of the Constitution in the matters of dispensation of social justice.
Benthem''s principles of greatest happiness of greater number has to be made a reality in every day life. The technicalities and abstracted rules need not dominate any dispensation of justice. In case P.I.L was not entertained in a liberal way so as to make the innocent people to receive justice from Courts, that would amount to denial of social justice. So far as this Court as dispenser of social justice is concerned, every human being either possessed with sufficient fund and equipped with legal advice or he may be a pauper and having no information or knowledge about the legal advice is expected to come to this Court and get relief. Nevertheless efforts have to be made to make him seek justice to which he is entitled. In case the suggestion made by Mr. Basudeo Prasad, learned Senior Counsel for the Respondents that unless a writ petition has been filed by a person aggrieved, no relief need be granted is accepted in that event the concept of social justice and the justice to the innocent millions ceases to remain an ideal. In this situation, in my humble opinion, the aspiration and ideals of the people in the words of Lord Diplock would be converted into a veritable Rogue''s Charter. Lord Diplock refused to interpret certain provisions of Sections 71 to 80 of the Employment Protection Act, 1975 in such a way as suggested in Devis and Sons Ltd. v. Atkins (1977) A.C. 931 , as that would convert it into veritable Rouge''s Charter. The concept of social justice and the P.I.L has to be so construed so as to advance its object and purpose and not to defeat the same. Such interpretation of concept of P.I.L and social justice must be avoided which can frustrate its very object. In such matters sine observations of Hor''ble Desai, J. in R.S. Nayak Vs. A.R. Antulay, may be referred where his Lordship was pleased to observe that interpretation of certain provisions must be in such a way so as to advance its object and not to operate as Rogue''s Charter (as Lord Diplock has observed as indicated above).
In such delicate situation the duty of a Judge is put on a higher plane. I cannot refrain from referring to Lord Denning''s picturesque words as follows:
Law does not stand still. It moves continually. Once this is recognised, then the task of a Judge is put on a higher plane. He must consciously mould the law so as to serve the needs of the time. He must not be a mere mechanic, a mere working mason, laying brick on brick without thought to the over all design. He must be an architect-thinking of the structure as a whole-building for society a system of law which is strong durable and just. It is on his work that "civilised society depends.
In the present case the Petitioner a practising lawyer of this Court, has acted bona fide partly for his own cause and party (sic) for the cause of the public at large. Great legal giants and legal luminaries of this State of Bihar, including late Dr. Rajendra Prasad, who have made tremendous sacrifice for Ors. . Nobody can be said to be more interested in the proper functioning of the High Court than an Advocate practising in the Court or a common litigant or a common member of the society or community. (See Janata Dal Vs. H.S. Chowdhary and Others, .
Reverting to the question of contours and ambit of the judicial review against the impugned order dated 4.6.1994 (Annexure 5). EX ABUNDANIT CAUTELA the provisions of Article 229 of the Constitution are:
Officers and servants and the expenses of High Courts.- (1) Appointments of officers and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the Court as he may direct:
Provided that the Governor of the State * * * may by rule require that in such cases as may be specified in the rule no person not already attached to the Court shall be appointed to any office connected with the Court save after consultation with the State Public Service Commission.
(2) Subject to the provisions of any law made by the Legislature of the State the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose:
Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State * * *.
(3) The administrative expenses of a High Court, including all salaries, allowances and pensions payable to or in respect of the officers and servants of the Court, shall be charged upon the Consolidated Fund of the State, and any fees or other moneys taken by the Court shall form part of the Fund.
Before construing the aforesaid Article it is better to notice certain principles of interpretation of the Constitution. Long ago Justice Oliver Wendell Holmes in Compers v. United States and Ors. 233 U. S. 604 at page 610 observed as follows:
Provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil, their significance is vital, not formal it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth.
The cardinal rules of interpretation of the Constitution are that the meaning and intention of framers of the Constitution must be ascertained from the language used or in the words that have not withered or grown sterile with years. (See Higgins, J. in A.G. for N.S.W. v. Brewery Employee Union (1908) 6 C.L.R. 469, Victoria v. Common Wealth (1971) 122 C.L.R. 396).
In re the C.P. and Berer Act, 1938 case (1939) F.C.R. 18, after quoting observations of James v. Common Wealth (1936) A.C. 578, it was observed that the Constitution must not be construed in a narrow or pedantic manner and the construction must be made in the widest possible amplitude. A broad and liberal spirit should inspire those whose duty is to interpret the Constitution, but at the same time the language need not be stretched in the interest of any constitutional theory, or for the purposes of supplying omissions or of correcting supposed errors. A Constitution as a living and organic thing, which of all instruments has greatest chain to be construed "UT RES MAGIS WALEAT QUAM PERFAT, it is better that it should live, then it should perish.
Dr. Wynes in Legislative, Executive and Judicial power in Australia (5th Edition page 26) observed that the words of a Constitution must be given generic interpretation. The generic interpretation asserts no more than that new developments of the same subject.
Prof. Cross in his admirable and illuminating treatise "Statutory Construction" (1975) stated that no one would suggest that a written Constitution should be construed, for all times as if the Court was sitting the day it was enacted.
It would not be inapt to add that the Privy Council has to consider in Minister of Home Affairs v. Fisher 1980 A.C. 319 the meaning of the word "child" in'' Section 11(5) of the Bermuda Constitution. it can be said that there was a more redical solution to the problem of interpretation namely, to treat a constitutional instrument, like the Bermuda Constitution as suigeneric calling for principles of interpretation of its own, suitable to its character, without necessarily accepting all the presumptions that were relevant to probate laws-legislations.
That is not correct to say that the principles of interpretation of the statutes were not found in the Indian Jurisprudence before the foreigners invaded this country and later on they got administrative control over the entire Nation. Thousands of years before B.C. in our country we had matured and much advanced principles of Jurisprudence particularly in the field of the interpretation, even though the statutes were not in the present form but the procedures adopted by the MIMAMSAKAS (interpreter) applied the principles of interpretation to the provisions of VEDIC AND SMIRTI CONTEXT and those principles equally applied to the interpretation of the present statutes. One of the CELEBRATED PRINCIPLES OF INTERPRETATION those days was as is claimed by great MIMAMSAK (interpreter) named KUMARIL as follows:
fo"k;ksa fo''k;�zpSo iwoZ i{kLr;ks�kje A
fu.kZ;�zpsfr i�pka�a ''kkL=s � f/kdj.kaLe`re~ AA
The aforesaid Sanskrit Slok connotes that the interpretation of the specific provisions has to be considered first. Thereafter we must ascertain the meaning and also doubt expressed by the other party and other interpreter about the same and hear the first side and the other side and thereafter reach to the conclusion. This all would constitute ADHIKARANA. The interpretation to be made of the particular provision must be textual and also contextual and also the views of the first side or the other side have to be considered and thereafter conclusion must be recorded about the correct meaning to be assigned to the particular provisions.
Apart from the number of other principles of authoritative interpretation of those days the more significant was the principles of interpretation by Sabar in his illuminating and admirable treatise Sabar Bhashya (in three volumes) and the English version has been made by Sir Ganga Nath Jha. These principles of interpretation in the ancient India do indicate much advanced and systematic way in which specific provisions were interpreted by the interpreters of great eminence. This was also one of the cardinal principles that no part of the statutes must be rendered OTIOSE. This was called in the ancient Indian authoritative principles of interpretation as follows:
vukFkZD; nksik%
Keeping in view the aforesaid principles of interpretation the provisions of Article 229 of the Constitution may be considered. This Article is in three parts. The first part is to the effect that the officers and servants of the High Court shall be appointed by Hon''ble the Chief Justice of the Court or such other Judge or Officer as he may direct. There is a Proviso added to it, that in case any person not already attached to the High Court, has to be appointed, in that event he shall be appointed to any office in the High Court only after consultation with the State Public Service Commission.
Article 229(b)(2) of the Constitution is material provision which requires interpretation. There is a Proviso added to this provision. This Proviso postulates that subject to the provisions of any law made by the legislature of the State the conditions of service of the officers and servants of the High Court shall be such as may be prescribed by the rules framed by the Chief Justice or by some other Judge authorised by him to make rules for the purpose. The power under Article 229(2) of the Constitution authorising the Chief Justice to frame rules in respect of the conditions of service of the employees of the Court was prima facie unfettered, but the Founding Fathers of the Constitution added a Proviso therein.
Main function of the Proviso is to carve out an exception to the main enactment or to qualify some thing enacted therein, which but for Proviso would be within the purview of the enactment. To be precise it is better to state the words of Lord Mecnaghten in a Local Government Bords v. South Stonehem Union 1909) A.C. 57 (H.L.) to the effect that a Proviso may be a qualification of the preceding enactment which is expressed in terms too general.
In S. Sundaram v. V.R. Pattaviram AIR 1985 S.C. 588 it was indicated by the Apex Court that the purpose of the Proviso is to qualify or accept certain provisions from the main enactment. In some cases it may entirely change the very concept of the enactment by insisting on certain mandatory conditions. In some cases, however, it is so embedded in the provision itself as to become an integral part of the enactment. (See A.N. Sehgal and others Vs. Raje Ram Sheoram and others, ). The obvious meaning to be assigned to the Proviso in the present context is that in case such rule framed pertains to salary and allowances etc., the same would require approval of the Governor. In other words the power of the Chief Justice under Article 229(2) of the Constitution is not an absolute power to frame rules but in case it is in respect of the salaries and other allowances etc., approval of the Governor is mandatory.
The third part of Article 229(3) of the Constitution is not however very material for the present and it is to the effect that all administrative expenses of the High Court, including salaries and other allowances payable to the officers or the servants of the Court shall be charged upon a Consolidated Fund of the State and any fee or other money taken by the Court shall from a part of that Fund. In other words in the matter of appointment of the officers and the servants of the High Court it is the Chief Justice or his nominee who is a Supreme Authority and there cannot be contemplated any interference by the executive except to the limited extent provided in the Article. This is with a view to maintain the independence of the High Court. it is to be noticed that in the matters of making rules pertaining to the service of the employees of the High Court, the Founding Fathers of the Constitution did not rely upon the Legislature of the State, rather this power was given solely to the Chief Justice of the High Court. By a Proviso only this has been modified that in case rules are in respect of salaries and other allowances etc. of the employees of the High Court, in that event approval of the Governor of the State would be required, as the salaries and allowances etc. of the employees of the Court would effect the finance. Consequently, the State Government has to approve the same. (See M. Gurumoorthy Vs. Accountant-General, Assam and Nagaland and Others, ; State of Assam v. Bhubhan Chandra AIR 1975 S.C. 839).
The relevant provisions of Rule 73 of the Bihar Service Code, as framed by the Chief Justice are set out as under:
The date of compulsory retirement of a Government servant is the date on which he attains the age of 58 years. He may be retained in service after the date of compulsory retirement with the sanction of the State Government on public grounds, which must be recorded in writing.
The following further amendment in the Bihar Service Code, 1952 as amended from time to time, is made by the Governor of Bihar in exercise of the powers conferred by the provisions of the said Code apply to Government servants employed in connection with the affairs of the State:
Amendment
In the said Code to Rule 73, the following Proviso shall be added, namely:
Provided that the officers and servants of the Patna High Court (including those of Circuit Bench at Ranchi), under the rule making authority of the Chief Justice may, with the sanction of the Chief Justice, be retained in the service of the said Court after the date of their compulsory retirement on public grounds which shall be recorded in writing.
This amendment shall take immediate effect.
The proviso to the aforesaid Rule was, however, added by the said Amendment dated 21.1.1975. This Proviso has to be read along with main Provision of Rule 73 of the said Code, as this Proviso qualifies and creates an exception to the main provision of Rule 73 of the Code. In case the said Proviso would not have been added on 21.1.1975 there could have been no power of the Chief Justice to pass an order retaining certain employees of the Court after attaining the age of superannuation on public grounds and for reasons to be stated. It qualifies, generality of the main enactment by providing an exception by taking out a portion, which but for the Proviso would fall within the main enactment. To put it differently the Chief Justice would have no power to grant extension to the employees or the officers of the Court but for the Proviso added to the aforesaid rule, this power has to be exercised within the parameter indicated in the aforesaid Proviso. Such extension of service can, however, be granted on public grounds and for the reasons to be stated.
Whether the impugned order was covered by the Proviso to Rule 73 would be considered after as(sic)aining the parameter, contours and ambit of the judicial review, i.e. to the area of justifiability. It is not inapt to refer to the statements of law in respect of judicial review, in "Administrative law" by H.W.R. Wade (5th Edition) at page 34, to the effect that the scope of judicial review is radically different from an appeal. In the hearing of appeal the Court is concerned with the merits of the decision under appeal. In judicial review the Court is concerned with its legality. In an appeal the question is "right or wrong". In the matter of judicial review the question is lawful or unlawful. The order in appeal is statutory. The judicial review in exercised under the Court''s inherent power. In appeal the appellate court substitutes its own decision after the decision of the Court below; whereas in the judicial review the Court remains concerned as to whether the order under judicial review must be allowed to stand or not.
In Puhlhofer v. Hiltingdon London Borough Council (1986) 1 ALL. E.R. 467 it was held:
Where the existence or non-existence of a fact is left to the judgment and direction of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the Court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.
In S.A. De Smith''s Judicial Review of Administrative Action it is stated:
Judicial Self-restraint was still more marked in cases where attempts were made to impugn the exercise of discretionary power by alleging abuse of the discretion itself rather than alleging nonexistence of the state of affairs on which the validity of its exercise was predicated. Quite properly, the courts were slow to read implied limitations into grants of wide discretionary powers which might have to be exercised on the basis of broad considerations of national policy. But in some instances they were too ready to disclaim power to review an exercise of discretion in which the policy element was comparatively small.
In Halsbury''s Laws of England (Vol. 1 (1), Fourth Edition, Reissue; (Butter-worths London, 1989) under para 60, page 91-92 the ambit of Judicial Review, in such matters, has been stated as follows:
Judicial review is the process by which the High Court exercised its supervisory jurisdiction over the proceeding and decisions of inferior-courts, tribunals and other bodies or persons who carry out quasi-judicial functions or who are charged with the performance of public acts and duties. This jurisdiction was originally derived from the common law, and was exercised by the issue of the prerogative writs of mandamus, certiorari and prohibition, but it is now conferred and regulated by statute and rules of court.
Judicial reviews is concerned with reviewing not the merits of the decision in respect of which the application for judicial review is made, but the decision making process itself. It is thus different from an ordinary appeals. The purpose of the remedy of judicial review is to ensure that the individual is given fair treatment by the authority to which he has been subjected, it is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question. Unless that restriction on the power of the Court is observed the Court will under the guise of preventing the abuse of power, be itself guilty of usurping powers. That is so whether or not there is a right of appeal against the decision on the merits. The duty of the Court is to confine itself to the question of legality. Its concern is with whether a decision making authority exceeded its power, committed an error of law, committed a breach of the rules of natural justice, reached a decision which no reasonable tribunal could have reached or abused its powers. The grounds upon which administrative action is subject to control by judicial review have been conveniently classified as threefold. The first ground is illegality; the decision maker must understand correctly the law that regulates his decision-making power and must give effect to it. The second is ''irrationality''; namely, Wednesbury''s unreasonableness. The third is ''procedural impropriety ....
(See Council of Civil Service Union v. Minister for the Civil Service- (1985) A.C. 374 at 408; R.V. Local Concern for Administration (1979) Q.B. 287; Chief Constable of the North Wales Police v. Evans (1982) 3 All E.R. 141; R.V. Panel on Take-Over and Mergers (1987) Q.B. 815 at 842).
The contours and ambit of judicial review may be summarised. In our opinion, judicial review provides means by which judicial control of administrative action is exercised. It is a process by which this Court exercises its supervisory jurisdiction over proceedings and decisions of tribunals or other bodies or persons who perform public acts. But it is not like power of appeal. In hearing appeal the Court is concerned with merits of appeal, but in judicial review the Court is concerned with its illegality. No doubt, judicial review is the basic feature of our Constitution. To put it differently, it is the constitutional duty and responsibility to exercise judicial review as sentinal on the qui-vive. It is concerned with the manner in which the decision was taken. In one sense it is different than justifiability by the Court. The justifiability of the decisions of the tribunal or the person exercising administrative functions, is one of the exercise of power by the Court. Justifiability is one of the considerations to be kept in mind in exercising-judicial service rules. Their Lordships of the Supreme Court have majority judgment in S.R. Bommai and others Vs. Union of India and others etc. etc., that judicial review is confined to examine whether the order was tainted by mala fide, perversity or irrational exercise of power and was there any illegality in the procedure adopted to arrive at the decision or was there any irrationality or procedural impropriety
The next point emanating from the preceding one is as to whether a writ would lie against the Chief Justice or any Judge of the Court acting in administrative capacity. But now in view of the observations of the Apex Court in Pradyat Kumar Bose Vs. The Hon''ble The Chief Justice of Calcutta High Court, , it is now settled point that a writ would lie against the Chief Justice of High Court or any Judge acting in administrative capacity. It is better to quote the relevant para 16, 420, page 1684 of H.M. Seervai''s illuminating and admirable commentary on Constitutional Law of India (Vol. 2, Fourth Edition) as follows:
In Mahesh Prasad v. Abdul Khair (1971) AA 205 the Court held that though the Sup. Ct. had not decided the question whether a writ lay against the Chief Justice or any Judge acting in an administrative capacity, the Sup. Ct. observations in Pradyat Kumar Bose v. Chief Justice of the High Court of Calcutta (1955) 2 R.C.R. 1331 : (1956) A.S.C. 285 would suggest that a writ would he, and that the grant of a writ raised only a question of propriety. Following T.N. Duraswami v. Madras (1958) A.M. 53 and Pranatha Kath v. Chief Justice of Calcutta (1961) A. Cal. 545) the Court held that a writ lay against the Chief Justice acting in his administrative capacity, and confirmed the order under appeal which had quashed the C.J.S. Ors. (1971) A.A. 207). The Court observed that the administrative act of the C.J. was not the act of the High Court because Articles 221 to 228 and Articles 233 to 235 speak of the High Court as a collective body whereas Article 222 confers power on the C.J. individually, thus making distinction between the High Court collectively and the C.J. It has been held that where a Judge of a High Court contends that he has reached the age of superannuation notwithstanding a decision by the Union Govt. to the contrary, communicated to him and the Chief Justice of the High Court does not allot work to such Judge, a rule nisi for a mandamus should issue, even if there are disputed questions of fact to investigate. (See Jyoti Prakash v. K.K. Bose C.J.- 1963 A Cal. 483.
The next baffling question is as to whether in passing the impugned order, there is any mistake in the decision making process itself or is there any irrationality or procedural impropriety or arbitrariness. A perusal of the aforesaid Rule 73 makes it vivid that the age of superannuation of the employees of the High Court is 58 years, but a Proviso has been added by the Chief Justice by an Amendment dated 21.1.1975 that an employee of this Court can be retained in service on public grounds, recorded in writing after the age of his superannuation. In other words, the general provision of Rule 73, i.e. the age Of superannuation as 58 years, is modified by addition of the aforesaid Proviso. The Hon''ble Chief Justice while passing the impugned order was conscious about the said Proviso to the effect that the High Court employees even after attaining the age of superannuation can be retained in service on public grounds to be recorded in writing.
In the case of Shri Nagendra Ojha, Principal Private Secretary to the Hon''ble Chief Justice, a detailed order has been passed and reasons pertaining to public grounds have been recorded. It has been indicated that the post of the Principal Private Secretary is pivotal and is a confidential and sensitive post. He attained the age of superannuation on 30.2.1992, and granting twice six months extension he was retained till 30.6.1994 and that Shri Ojha was a sincere and trustworthy person. Consequently considering the totality of the circumstances indicated on public grounds which was recorded in writing, the order dated 18.5.1994 retaining him in service for a period of Anr. one year from 1.7.1994 was passed. The impugned order was consistent with the provisions of Rule 73 read with the aforesaid Proviso. Similarly an order was also passed on public grounds which was recorded in writing in the case of Shri N.K. Nandkeolyar, Assistant Registrar and also the same was passed in the case of Shri Md. Samiullah, Secretary attached to Hon''ble Mr. Justice B.N. Agrawal. From perusal of these impugned orders we are satisfied that the impugned orders have been passed on public grounds, which have been recorded in writing. We have examined the decision making process and we are satisfied that there is no irrationality, procedural impropriety and/or arbitrariness nor there is any illegality in the procedure. The impugned orders indicate that the decision maker was conscious about the law that regulated his decision-making power and he has given effect to it. Consequently, in our opinion, the impugned orders are beyond the ambit of judicial review.
A few words suffice in respect of the cases cited by the learned Counsel for the Respondents. There was a speech in Journal Section of Smt. Gitarani Paul Vs. Dibyendra Kundu alias Dibyendra Kumar Kundu, delivered by Hon''ble Mr. Ranganath Mishra, the then Chief Justice of India on 24.11.1990 on the occasion of Law Day about the conduct of the Advocates, particularly in respect of the lawyers resorting to strike. There can be no two opinion that the Advocates belonging to noble profession of law, being the officers of the Court, need not resort to strike. Their conduct must be above board. As the Petitioner, being an Advocate of this Court, has filed the present writ petition as P.I.L., it does not militate against his conduct, rather that indicates that he has aptitude of public service. His interest was also involved, inasmuch as, in case the strike by the employees of this Court was called off, in that event the Court will start its normal function and the litigants would come in large number and get relief in different cases and that would be positively for the benefit of the lawyers. The problems of the Advocates as daily bread-earner, can be appreciated only by the persons who have sufficient experience of that and rubbing their shoulders with them. In filing the present writ petition the Petitioner, Sailesh Kumar Singh has rendered tremendous public service. His conduct instead of being appreciated and applauded, cannot be deprecated as suggested by the learned Counsel for the Respondents.
In Lalit Mohan Das Vs. Advocate-General, Orissa, relied upon by the learned Counsel for the Respondents, was a case indicating professional misconduct. There can be no two opinion that the professional misconduct must not be committed by an Advocate. It is very surprising how the filing of the writ petition has anything to do with the misconduct of the Advocate. In our opinion, the ratio in this case has no bearing to the facts of the present writ petition.
Shri Baradakanta Mishra Vs. The Registrar of Orissa High Court and Another, relied upon by the learned Counsel for the Respondents is clearly distinguishable and it was a case pertaining to the contempt of Court and disciplinary control over the subordinate judiciary.
Raghu Pati v. State of Bihar 1990 Lab. I.C. 1038 was a case pertaining to the writ petition filed by a person in-charge of the Election Campaign Committee desirous for issuance of a writ for quashing an order of transfer of 8 officers. It was held by the Apex Court that for approach of any public duty and illegal order, any person can file a writ petition, but the Court may decline to interfere and in proper cases it may insist the individual persons aggrieved, to come before the Court. This case also does not help the Respondents.
Before parting with the case, the Petitioner being an Advocate of this Court, has filed the present writ petition and we record our appreciation for public service rendered by him with a view to obtain social justice for the benefit of the helpless and innocent litigants suffering on account of the work of the Court being substantially paralysed.
In view of the premises aforesaid, the present writ petition lacks merits and the same is dismissed but without any order as to costs.
A.K. Ganguly, J.
In this case I have had the benefit of going through the judgment prepared by my learned brother Justice B.L. Yadav, I concur with the conclusion that the writ petition fails and is dismissed, but I reach the same conclusion for the reasons which are slightly different from those which prevailed with brother Yadav, J., and as such I propose to give my findings separately.
As the facts have been noted in the judgment of brother Yadav, J., I need not deal with the same again.
This writ petition has been styled as a Public Interest Litigation having been filed by an Advocate of Patna High Court in respect of the demands of the Patna High Court Ministerial Staff Association, Patna High Court judgment Writers'' Association as also the Grade IV Employees'' Association. The ostensible purpose of filing this writ petition, as has been stated in various paragraphs thereof, is to ensure administration of justice in Patna High Court. But for doing so it seeks a mandate from this Court for the fulfillment of the grievances of the employees. Therefore, the so called purpose of ensuring due administration of justice in the High Court ceases to be the dominant and the real purpose and it appears to me that under the guise of that purpose, the real attempt is to obtain an order from this Court for enforcing the demand of its employees. I have come to this conclusion from a perusal of the following paragraphs of the writ petition:
2(iv). Whether by not taking appropriate and suitable action by the Hon''ble High Court on the demand of the Employees'' Association, the Hon''ble High Court is paralysing the administration, Justice and equity of fair play and Hon''ble High Court is also forcing the citizens of this State to take the law in their own hand?
That the grievance of the Employees'' Association is genuine and prima facie they have got the case and the people in general are suffering a lot in view of the closure of the Hon''ble High Court and the demand of the Employees'' Association is not for their personal gain rather same are for the benefits of the society and for preserving the rule of law.
Paragraphs 5 and 7 of the second supplementary affidavit filed by the writ Petitioner also support the same conclusion. They are set out below:
That in place of waiting for the amicable and Hon''ble settlement the authorities of the Hon''ble Court have started taking repressive measures against the employees and on 28-7-1994 after 21st day of strike prohibitionary order u/s 144 of the Code of Criminal Procedure has been imposed in spite of the fact that the strike was and has been peaceful.
That from abovementioned facts, it appears that the Respondents do not want to take steps to normalise the situation. It is clear from the demand of the employees that they are fighting for equity and justice and to preserve the values as enshrined in the Constitution of India.
Keeping the aforesaid averments in mind, if we consider the scope and ambit of Public Interest Litigation which had come up for judicial consideration before the Apex Court in various decisions, I am compelled to conclude that the instant petition cannot be called a Public Interest Litigation.
Public Interest Litigation has been evolved as an instrument ''to innovate new methods and to devise new strategies'' in order to make justice delivery system more effective and purposeful. For achieving this purpose the Court at times has converted a letter into a petition. It has sufficiently relaxed the rules of standing and also the traditional concept of cause of action but at the same time the Apex Court has not failed to sound a few words of caution in clearly demarcating the parameters of such litigations. In the case of Janata Dal Vs. H.S. Chowdhary and Others, , the Apex Court has more or less summarised all the leading authorities on Public Interest Litigation and in paragraph 101 at page 346 it has quoted with approval Anr. judgment of the Supreme Court in the case of Shri Sachidanand Pandey and Another Vs. The State of West Bengal and Others, in which it has been stated as follows:
Today public spirited litigants rush to courts to file cases in profusion under this attractive name. They must inspire confidence in courts and among the public. They must be above suspicion. (SCC p. 331, para 46).
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Public Interest Litigation has now come to stay. But one is led to think that it poses a threat to courts and public alike. Such cases are now filed without any rhyme or reason. It is, therefore, necessary to lay down clear guidelines and to outline the correct parameters for entertainment of such petitions. If Courts do not restrict the free flow of such cases in the name of Public Interest Litigations, the traditional litigation will suffer and the courts of law, instead of dispensing justice, will have to take upon themselves administrative and executive functions. (SCC p. 334, para 59).
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I will be second to none in extending help when such help is required. But this does not mean that the doors of this Court are always open for anyone to walk in. It is necessary to have some self-imposed restraint on public interest litigants.
Similar caution has been sounded by Sarkaria, J., in Anr. decision of the Supreme Court in the case of Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed and Others, which has also been noted in paragraph 104 of the said judgment in the case of Janta Dal (Supra). Relevant portion therefrom is set out below:
It will be seen that in the context of locus standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories:(i) ''person aggrieved'': (ii) ''stranger'': (iii) busybody or meddlesome interloper. Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things which do not concern them. They masquerade as crusaders for justice. They pretend to act in the name of pro bono publics, though they have no interest of the public or even of their own to protect. They indulge in the pastime of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some applicants in this category, may be no more than spoking the wheels of administration. The High Court should do well to reject the applications of such busy bodies at the threshold.
(emphasis added).
In paragraphs 109 and 110 of the said judgment in the case of Janta Dal (Supra) principles have been summarised which are set out below:
It is thus clear that only a person acting bonafide and having sufficient 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 P.I.L. brought before the court for vindicating any personal grievance, deserves rejection, at the threshold.
It is depressing to note that on account of such trumpery proceeding initiated before the courts, innumerable days are wasted which time otherwise would have been spent for the disposal of the cases of the genuine litigant. Though we are second to none in fostering and developing the newly invented concept of P.I.L. and extending our long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievances go un-noticed, un-represented and un-heard; yet we cannot avoid but express our opinion that while genuine litigants with legitimate grievances relating to civil matters involving properties worth hundreds of millions of rupees and criminal cases in which persons sentenced to death facing gallows under untold agony and persons sentenced to life imprisonment and kept in incarceration for long years, persons suffering from the undue delay in service matters, Government or private persons awaiting the disposal of tax cases wherein huge amounts of public revenue or un-authorised collection of tax amounts are locked up, the deter expecting their release from the detention orders etc. etc.-are all standing in a long serpentine queue for years with the fond hope of getting into the courts and having their grievances redressed, the busybodies, meddlesome interlopers wayfarers or officious interveners, having absolutely no public interest except for personal gain or private profit either for themselves or as proxy of Ors. or for any other extraneous motivation or for glare of publicity break the queue muffling their faces by wearing the mask of public interest litigation, and get into the courts by filing vexatious and frivolous petitions, and thus criminally waste the valuable time of the courts and as a result of which the queue standing outside the doors of the Court never moves which piquant situation creates a frustration in the minds of the genuine litigants and resultantly they lose faith in the administration of our judicial system.
(emphasis added).
Having regard to the aforesaid authoritative pronouncement of the Supreme Court, on the scope and ambit of the Public Interest Litigation, I am onstrained to hold that the instant proceeding has been used, in the language of the Supreme Court, as a "proxy of Ors. or for any other extraneous motivation or for glare of publicity". It cannot be said that the employees of the High Court who are on strike and for whose benefits the instant writ petition was filed were prevented by reason of poverty or ignorance or other grounds of social oppression from approaching the Court and filing the instant writ petition as a Public Interest Litigation. As such I hold that the writ petition as a Public Interest Litigation is not maintainable.
This decision on the maintainability of the said petition could have disposed of the same but the learned Counsel for both sides urged the Court to decide the matter on merits and invited the decisions of the Bench on the grievances raised in the said petition. As such I propose to briefly indicate my view on the merits of the controversy raised in the writ petition.
By and large two grievances have been raised in the writ petition, namely, that certain Mazdoors who were working with the High Court administration have been appointed to the posts of Assistants. According to the writ Petitioner such appointments have been made without proper advertisement and publicity and favouritism has been shown by the High Court administration in making the said appointments. It is common ground that the appointments in question were made for a temporary period and no right has been conferred on the appointees. In fact the posts on which the so called appointments were made were advertised by the High Court administration within a short period after making the appointments and the persons so appointed did not continue with their appointments for a long period but on their own submitted their resignation and as such the posts to which Mazdoors were appointed became vacant even before the hearing of this writ application commenced before this Court. As such the grievances, if any, on the score of appointment of Mazdoors did not survive when the matter had been heard by this Court.
The other question which has been agitated before this Court is about the propriety of certain extension of service granted to some of the Officers of the High Court. It is alleged that after the employees concerned, in fact three of them, attained their age of superannuation, extension has been given to them by the then Chief Justice of the High Court without any material and the exercise of discretion by the then Chief Justice of this High Court has been unreasonable and arbitrary.
I must say that the allegations, even though levelled against a person occupying a high office, cannot be brushed aside by this Court inasmuch as this Court is of the view that however high a person may be, the law is still higher than him. As such this Court called for the records relating to such grant of extension and examined them very carefully.
On an examination of the relevant record, I found that in each case of extension of service mind was applied to the relevant materials and after due and necessary consideration, extensions have been granted. Grant of extension by the then Hon''ble the Chief Justice, therefore, cannot be said to be without proper application of mind nor can it, be labelled an arbitrary exercise of power without any material or without regard to the relevant law.
The next question which has been urged by the learned Counsel for the writ Petitioners is that the Court by way of judicial scrutiny should interfere with the exercise of discretion of the Chief Justice insofar as it relates to extension of service of the Officers concerned.
It is well settled that the scope of judicial scrutiny over the exercise of discretionary power by a public functionary is governed by the nature and character of the power which has been exercised by the public functionary. It is common ground that in the instant case the Court is concerned with the exercise of power of the Hon''ble the Chief Justice under Article 229 of the Constitution of India read with the relevant statutory rules. Therefore, the guidelines given by the Supreme Court relating to nature of the power of the Hon''ble the Chief Justice under Article 229 of the Constitution of India must be kept in view. In this connection reference may be made to the decision of the Supreme Court in the case of M. Gurumoorthy Vs. Accountant-General, Assam and Nagaland and Others, . At page 143 paragraph 11 thereof the following observations have been made:
The unequivocal purpose and obvious intention of the framers of the Constitution in enacting Article 229 is that in the matter of appointment of officers and servants of a High Court it is the Chief Justice or his nominee who is to be the supreme authority and there can be no interference by the executive except to the limited extent that is provided in the article. This is essentially to secure and maintain the independence of the High Court.
Therefore, the aforesaid nature of the power would also in this case determine the extent of judicial scrutiny.
It is obvious that having regard to the nature of jurisdiction exercised by the then Hon''ble the Chief Justice under Article 229 of the Constitution of India, the extent of Judicial scrutiny must be a very limited one.
The recent decision of the Supreme Court in the case of S.R. Bommai and others Vs. Union of India and others etc. etc., , similar principles have been reiterated in paragraph 332 at page 247 of the judgment, the relevant portions whereof are set out below:
The extent and scope of judicial scrutiny depends upon the nature of the subject-matter, the nature of the right affected, the character of the legal and constitutional provisions applicable and so on.
Supreme Court has also consistently held that while acting in exercise of power of judicial scrutiny, the Court is not concerned with the correctness of the decision which is being scrutinised unless of course the decision in question is patently perverse. The Court is primarily concerned with the question of decision making process. If the decision making process in reaching the decision in question is not tainted with any illegality, the Court must fold its hands and must not try to alter the decision even if it does hot agree with the decision in question. This principle has also been repeated in the case of S.R. Bommai and others Vs. Union of India and others etc. etc., .
Following the said principles, I discern no error or illegality in the order of the then Hon''ble the Chief Justice in granting extension of service to the Officers in question.
Therefore, both the contentions fail and in my opinion, the instant writ application is not maintainable as a Public Interest Litigation and also on merit as stated above. This writ petition is accordingly dismissed. There will be no order as to cost.