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Judgment
The Judge of Judges (Members of Bar) has approached this Court under Article 226 of the Constitution of India feeling aggrieved with the allotment list released by the Registry prepared by a Committee of this Court allotting newly constructed chambers within the premises of Lucknow Bench of High Court of Judicature at Allahabad. The question cropped up for adjudication is; whether without notifying any criteria or procedure for allocation of chambers, the action of the Committee can be held just and proper under the facts and circumstances of the present case? The brief facts of the case are discussed here as under:
Fifty four chambers have been constructed within the premises of Lucknow Bench of Allahabad High Court on the basis of finance extended by the State Government. After completion of chambers, a Committee was constituted consisting of three Hon''ble Judges of this Court headed by Senior Judge of Lucknow Bench of Allahabad High Court. In pursuance to the decision taken by the Committee applications were invited from the Members of the Bar. The various items as reflected from the format circulated by the Registry inviting applications from the Members of the Bar are reproduced as under:
PROFORMA
Name of the applicant in Block Letters
Full address of residence and office, if any
Date of enrolment and registration No. of Bar Council
Length of practice in High Court, Lucknow Bench, Lucknow
Registration No. and year of registration in Awadh Bar Association
(Proof for Pt. No.3, 4 & 5 be annexed)
Sl.
No.
Name in Block letters
Full address of
residence
and office, if any.
Date of enrolment and
Registration No. of Bar
Council
Length of practice in
High Court, Lucknow
Bench, Lucknow.
Registration No. and
years registration in
Awadh Bar Association.
Note: Proof for Pt. No.3, 4 & 5 be annexed.
I undertake that the information given above is true. In case any of the information is found to be fake the applicant shall loss his right of allotment and even after, the Committee shall the absolute right to cancel the allotment.
Date 3rd March 2006
Place, Lucknow. Signature of Applicant.
Subject to above, admittedly, 1357 applications were moved for allotment of 54 chambers. From the record, it emerges that the Committee was constituted by the Hon''ble the Chief Justice and on 10.7.2006 the Committee resolved that the chambers should be allotted to the Advocates, Junior Advocates and Lady Advocates keeping in view their length of practice subject to their appearance in Court. However the resolution dated 10.7.2006 does not disclose the number of chambers allotted or earmarked for three categories of advocates. The Committee further taken a decision dated 9.10.2006 that advocates shall pay an amount of Rs.25,000/ as security, which shall be refundable. Rs.15,000/ were charged as rental fee. On 17.12.2006, the Committee took a decision that 50 chambers should be allotted and four chambers should be kept reserved to meet out the contingency, if any.
During the course of hearing records were summoned and following observations were recorded in the order sheet dated 18.6.2007.
�We have perused the record.
From the record it appears that 1357 applications were moved for allotment of 54 chambers. On 10th July 2006, the Committee constituted for allotment of chambers by the Hon''ble Chief Justice resolved that chambers should be allotted to the Advocates keeping in view the length of practice, junior advocates and Lady Advocates subject to their appearance. However, resolution dated 10th July 2006 passed by the Committee does not disclose the number of chambers, which were earmarked for these three groups of Advocates keeping in view in their appearance in this Court. By resolution dated 9th October 2006, the Committee decided that in lieu of security, the Advocates are directed to deposit Rs.25,000/ as license fee. On 17th December 2006, the Committee took a decision that 50 chambers should be allotted. Keeping in view the Committees'' decision, chambers were allotted. Four chambers were reserved to meet out the contingency, if any. On 15th May 2007 the allotment list prepared by Committee for allotment of chambers was finalized and it was approved by Hon''ble the Chief Justice on 17th May, 2007.
Specific query has been made by this Bench from the learned Additional Advocate General as to what was the criteria to decide the merit of the Advocates to include their names in three categories for allotment of chambers; whether any quota was fixed for all the three categories. So far as quota is concerned, the proceeding of the Committee does not disclose that any quota was fixed for the Lady Advocates, or Young Advocates, Record does not show that any spate work was done by the Registry to find out the names of the candidates to meet out the requirement as decided by the Committee on 10th July 2006. However, there is no material on record, which may be guiding factor to decide the entitlement of Advocates being Lady Advocates or young advocates. What principle was adopted for excluding the names of advocates, who had applied for allotment of chambers calls for reply by the respondents?
Learned Additional Advocate General wants further time to reply the query of Court.
Put up on 20.6.2007 for further hearing.
Interim order shall continue till then.�
While finally hearing the petition on merit, the records were again perused by this Court and the resolution dated 10.7.2006 was taken into consideration by which the Committee had taken decision to give due representation to ladies and young advocates. The order sheet dated 21.6.2007 is reproduced as under:
�Short counter affidavit filed, taken on record.
Though, Sri D.K. Upadhyay, learned Chief Standing Counsel initially made a request for adjournment of the case on the ground that the Members of the Committee are not present, who released the list, but later on, he argued the case on merit. He proceeded to submit that petitioner has already submitted a representation. Though, there was no quota for young and lady advocates but a decision was taken to give due representation to young and lady advocates. It has been further submitted that the maintenance cost of a chamber has been assessed by Public Works Department, Lucknow, is Rs.6500/. Accordingly, an amount of Rs.40,000/ is neither excessive nor unjustified. The entire records have also been produced before this Court alongwith the minutes of Committee dated 10.7.2006. The minutes of the meeting, as is evident from the record, are reproduced as under:
Minutes of meeting of the Chamber Allotment Committee held on 10.7.2006 at 4:15 P.M. in the Chamber of Hon''ble the Senior Judge, Present
Hon''ble Mr. Justice Jagdish Bhalla, the Senior Judge.
Hon''ble Mr. Justice Pradeep Kant.
Hon''ble Mr. Justice Abdul Mateen,
The following resolutions have been passed unanimously in the said meeting
Agenda Resolution
Sri H.S. Jain, learned counsel, appearing for the petitioner proceeded to submit that the petitioner''s grieveance is not against the Members of the Committee or the decision taken against allotment of chambers to the members of the Bar. The emphasis of the counsel for the petitioner is that the procedure adopted by the Committee while allocating the chambers does not conform to the test of Article 14 of the Constitution of India. It has also been submitted that the members of Scheduled Caste and Backward Community have not been represented and no person belonging to Scheduled Caste community has been allocated chamber. Sri H.S. Jain, learned counsel for the petitioner while assailing the impugned select list has relied upon almost 20 cases of the Apex Court and submitted a related chart. The cases relied upon by the petitioner''s counsel are as under:
State of West Bengal v. Anwar Ali Sarkar, reported in 1952 SCR, page 284, 310, 312, 316, 355.
Kathi Raning Rawat v. State of Saurashtra, reported in 1952 SCR page 435, 448, 460, 61, 63.
Kedar Nath Bajoria v. State of West Bengal, reported in 1954 SCR page 30, 41.
Ram Krishna Dalmia v. Justice Tendolkar, reported in 1959 SCR page 279, 296, 306.
Hari Chand Sharda v. Mizo District Council, reported in 1967 (1) SCR page 1012, 1020, 1021.
Jai Singhani v. U.O.I., reported in 1967 (2) SCR page 703 at 718.
Satwant Singh v. A.P.O., New Delhi, reported in 1967 (3) SCR page 525, 542.
State of Andhra Pradesh v. Raja Reddi, reported in 1967 (3) SCR page 28, 46.
State of Mysore v. S.R. Jayaram, reported in 1968 (1) SCR page 349.
D.S. Nakara v. U.O.I., reported in 1983 (1) SCC page 305, 316 to 318 paragraphs 12, 13, 14, 15, 16.
D.K. Yadav v. JMA Industries, 1993 (3) SCC 259 para 10.
Union of India v. Hindustan Development Corporation, 1993 (3) SCC page 499, paga 7, 8, 9.
Delhi Science Forum v. Union of India, 1996 (2) SCC 405 para 13.
Praveen Singh v. State of Punjab; 2000 (8) SCC 633 para 1, 8.
Om Kumar and Others v. U.O.I., 2001 (2) SCC 386.
Bannari Amman Sugars Ltd. v. C.T.O., 2005 (1) SCC page 625 para 9.
State of N.C.T. of Delhi v. Sanjeev; 2005 (5) SCC 181 para 15, 25.
Center Public Interest Litigaiton v. U.O.I.; 2005(8) SCC 202 para 18.
M.Nagraj v. U.O.I.; 2006 (8) SCC 212 para 106, 118.
Maneka Gandhi v. Union of India; 1978 (1) SCC 248.
R.D. Shetty v. International Airport Authority; 1979 (3) 489.
Air India v. Nargesh Meerza; 1981 (4) SCC 335 para 71.
Since only legal issue has been raised by the petitioner''s counsel, and keeping in view the fact that the controversy should be settled at rest, after hearing the learned counsel for the parties, we reserved the judgment.�
Feeling aggrieved with the impugned list, 137 members of the Oudh Bar Association had submitted a representation to the Hon''ble Chief Justice of the Allahabad High Court as well as the Hon''ble Senior Judge of this Court sitting at Lucknow. The sum and substance of the allegation mentioned in the representation is that before allocating the chambers the Committee did not frame any rule, regulation or guideline. The criteria for allocation of chambers was not communicated to the Bar. Chambers have been allotted ignoring the rights of hundreds of senior and junior members of Bar by pick and choose method. The Committee has not proceeded to allocate the chambers in just and fair manner. On the one hand it has been submitted that more than hundred of advocates having more than 20 years of practice have been denied the allotment of chambers and on the other hand 16 advocates having 8 and 7 years of practice have been allocated chambers. Ten advocates having 10 years of practice have been allocated chambers by the impugned list. Their names find place at serial Nos.7, 17, 22, 30, 33, 35, 43, 14, 18, 20, 26, 30, 33, 39, 44, 46, 5, 7, 26, 36, 41, 41, 42, 44 46 and 48. The further submission is that no persons have been allotted chambers who have rendered 14 to 20 years of practice as a member of Bar. It has also been submitted that aobut 150 Advocates have not been allotted chambers though they are junior than the persons to whom the chambers have been allotted. The representation, a copy of which has been filed as Annexure No.3 to the writ petition, contains the names of 28 persons who have applied but denied the allotment of chamber, possess more than 20 years of practice, they are Sri Indra Pal Singh, Sri P.K. Srivastava, Sri Ajay Shukla, Sri Bal Ganga Dhar Tripathi, Sri M.B. Singh, Sri Satrughan Lal, Sri Vijay Shankar Tripathi, Sri K.K. Singh, Sri R.K. Kaushik, Sri K. Srivastava, Sri Pradeep Sinha, Sri A.N. Mishra, Sri Sanjeev Dubey, Sri Vishnu Swaroop Srivastava, Sri Umesh Verma, Sri B. Singh, Sri Rakesh Kumar Srivastava, Sri Satya Bhushan Verma, Sri Ram Lal Patil, Sri C.B. Singh, Sri I.P. Singh, Sri Sushil Kumar, Sri Sanjay Singh, Sri S.K. Srivastava, Sri Rakesh Pratap Singh, Sri Bal Keshwar Srivastava, Sri Brij Raj Tripathi, Sri Ravindra Kumar and Sri K.L. Vishkarma.
According to the petitioner''s counsel some of the advocates, who rendered 7 or 8 years of practice, have been denied the allotment of chambers, are Sri Anil Kumar Tripathi, Sri K.N. Mishra, Sri Mahesh Chandra Shukla, Sri Noorul Hassan Khan, Sri Rajeev Kumar, Sri Saurabh Chandra Shukla, Sri Pushkar Bagel, Sri M.K. Shukla, Sri D.C. Pathak, Sri Gyanendra Kumar Srivastava, Sri D.K. Singh, Sri Sanjay Awasthi, Sri S.P. Singh, Sri R.P. Singh, Sri Ram Kumar Mishra, Sri K.K. Singh, Sri M.E. Khan, Sri B.M. Singh and Sri Manish Kumar Yadav etc.
It has also been submitted that out of three joint secretaries, who have rendered 7 or 8 years of practice, only one has been allotted chamber and Others have not been considered. The submission of the petitioner''s counsel is that all these persons, whose names have been referred hereinabove, are regular practitioner of High Court of Lucknow Bench but their names have not been considered. It has also been submitted that in case the respondents would have formulated the criteria with prior intimation to Bar such anomaly could not have been taken place. According to the petitioner''s counsel in the format provided by the respondents inviting applications it has not been indicated that chambers have been reserved for junior advocates or lady advocates. It has also not been indicated in the format that any material should be supplied relating to appearance in the Court. The submission is that in case the respondents would have informed the petitioner and other members of the Bar to indicate in the application form the cases in which they appear and argue, it could have been indicated while filling the application forms. It has been further stated that petitioner or other advocates who have been excluded are active practitioner with regular appearance in the Court. The submission is that either the Committee should have framed the criteria before finalizing the list with due circulation to Bar or Committee should not have travelled beyond the items provided in the application form reproduced hereinabove.
It has been further submitted by the petitioner''s counsel that not even a single person of Scheduled Caste community has been allocated chamber by the Committee. The persons of Backward and other communities are negligible in number. It has been submitted that a large number of candidates belonging to Scheduled Caste and Scheduled Tribe category have moved applications but no efforts have been made to give them due representation. Chambers have been allocated by following the procedure, which has never seen the light of the day.
In response to the argument advanced by the learned counsel for the petitioner, Sri D.K. Arora, Additional Advocate General as well as Sri D.K. Upadhyay, learned Chief Standing Counsel have proceeded to submit that the Committee had allocated chambers with intention to give due representation to junior advocates, lady advocates as well as senior advocates keeping in view their appearance in the Courts. It has also been submitted that allocation of chambers falls within the administrative domain of the Committee constituted by the Hon''ble Chief Justice and calls for no interference by this Court under Article 226 of the Constitution of India. However, learned counsel for the respondents failed to inform this Court; as to how the junior lawyers and lady advocates have been chosen from such a large number of applicants? What was the criterion to chose the advocates keeping in view their juniorship or being a lady advocate of this Court? How the interse merit or seniority was decided among the junior or senior members of Bar or the lady advocates? Whether, only because the decision was taken on the administrative side, more so by the Committee consisting of Hon''ble Judges, power under Article 226 of the Constitution of India should not be exercised?
Before proceeding ahead it shall be appropriate to consider whether the persons, whose names have been included in the list, should be issued notice to seek their reply. In this context it may be noticed that no fundamental or statutory right of the candidates shall violate in case the impugned list is setaside. Moreover the persons whose names have been included in the impugned select list are only beneficiaries and their rights shall always be subject to fairness and just action of the Committee. Moreover, for the reasons discussed hereinafter, since the chambers were allocated on unsustainable grounds and in the absence of material while considering the eligibility of selectees, no purpose will solve by keeping the matter pending or inviting objections from the persons who have been allotted chambers. Moreover, till date agreement has not been signed between the Registry and the persons whose names have been included in the list. It shall be useless formality to call for a response vide 1991 (3) SCC 368; Munindra Kumar and Others v. Rajiv Govil and Others.
The Apex Court in a case reported in 2006 (2) SCC 315; Mohd. Sartaj and another v. State of U.P. and Others, held that there may be exception to the principle of natural justice. The present case falls under such category. One another case has been reported in 1980 (4) SCC 379; S.L. Kapoor v. Jagmohan, laying down same proposition of law. Keeping in view the facts and circumstances of the case it is not necessary to call a response from the persons whose names have been included in the impugned select list.
After hearing learned counsel for the parties there appears to be no factual dispute between the parties. So far as the procedure adopted by the Committee finalizing the list is concerned, the question crops up; whether the procedure adopted by the Committee, may be on administrative side, was just and fair and meet out the requirement of Article 14 of the Constitution of India? What is the extent of administrative discretion, which may be held to be just and fair?
According to Webster''s Encyclopaedia Unabridged Dictionary (1994), p.411, the �Discretion� means the power, right or liberty to decide one way or the other, to act according to one''s own judgment; freedom of choice; to be completely under one''s power or control; the freedom to decide what should be done in a particular situation.
In Rooke case, (1598) 5 Co Rep 99b (100a), the �Discretion� proclaimed Coke, �is a science of understanding to discern between falsity and truth, between right and wrong, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to their wills and private affections.
In Sharp v. Wakefield, reported in 1891 AC 173, 179, Lord Halsbury rightly observed as under:
�''[D]iscretion'' means when it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice, not according to private opinion��according to law and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself���
The submission of Sri H.S. Jain, learned counsel, who appeared for the petitioner, is that the chambers have been allotted to the persons who were already possessing in view of old allotment. The name of such one person has been referred to be at serial No.26. An Advocate has been shown at two places i.e. at serial No.18 and 27. It has been submitted by the petitioner''s counsel that the impugned list was circulated on 18.5.2007, a copy of which has been filed as Annexure No.1 to the writ petition. However, when the objections were raised and a large number of Members of Bar protested against the list, a list was recirculated on 21.5.2007. In the first list only the names were mentioned. However, the second circulated list mentions the length of practice of the Advocates in whose favour the chambers have been allotted.
Neither Sri D.K. Arora, Additional Advocate General nor Sri D.K. Upadhyay, learned Chief Standing Counsel has invited attention towards any case law or judgment of this Court or Apex Court which may falsify the argument advanced by Sri H.S. Jain, learned counsel for the petitioner.
In Corpus Juris Secundum, vol.27 p.289, the �Discretion� has been defined as under:
�The word ''discretion'' connotes necessarily an act of a judicial character, and, as used with reference to discretion exercised judicially, it implies absence of a hard and fast rule, and it requires an actual exercise of judgment and a consideration of the facts and circumstances which are necessary to make a sound, fair and just determination, and a knowledge of facts upon which the discretion may properly operate.�
In Black''s Law Dictionary the words, �Discretion�, �Administrative Discretion� and �Discretionary Power� have been defined as under:
�Discretion 1. A public official''s power or right to act in certain circumstances according to personal judgment and conscience. Also termed discretionary power.
Administrative Discretion A public official''s or agency''s power to exercise judgment in the discharge of its duties.
Discretionary Power (Of an act or duty) involving an exercise of judgment and choice, not an implementation of a hardand fast rule. Such an act by a Court may be overturned only after a showing of abuse of discretion.�
According to Black''s Law Dictionary, the words ''abuse'', ''abuse of discretion'' and ''abuse of process'' have been defined as under:
�Abuse 1. To depart from legal or reasonable use in dealing with (a person or thing); to misuse. (2) To injure (a person) physically or mentally, (3) to damage (a thing).
Abuse of Discretion 1. An adjudicator''s failure to exercise sound, reasonable, and legal decisionmaking. (2) An appellate Court''s standard for reviewing a decision that is asserted to be grossly unsound, unreasonable, or illegal. See Discretion.
Abuse of Process The improper and fortious use of a legitimately issued Court process to obtain a result that is either unlawful or beyond the process''s scope. Also termed abuse of legal process; malicious abuse of process; malicious abuse of legal process; wrongful process; wrongful process of law. Cf. Malicious prosecution.�
Long back the Constitution Bench of Hon''ble Supreme Court in a case reported in AIR 1952 SC 75; The State of West Bengal v. Anwar Ali Sarkar and another, ruled that if an uncontrolled and unguided power is conferred without any reasonable and proper standards or limits, such power may be held to be violative of Article 14 of the Constitution of India. Relevant portion from the judgment of Anwar Ali Sarkar (supra) is reproduced as under:
�Discretion may not appear in the statute itself but may be evident in the administration of law. If an uncontrolled and unguided power is conferred without any reasonable and proper standards or limits being laid down in the enactment, the statute itself may be challenged and not merely the particular administrative act. Citing the cases of �Sunday Lake Iron Co. v. Wakefield� (1918) 247 U.S. 350), Roya v. Alabama� and �Concordia Fire Ins. Co. v.Illinois�, Prof. Weaver says at p.404 of his compendious book on Constitutional Law under the heading of ''DISCRIMINATION IN THE ADMINISTRATION OF THE LAWS:
�Discretion may exist in the administration of the laws and it is the purpose of the equal protection clause to secure all the inhabitants of the state from intensional and arbitrary discrimination arising in their improper or prejudiced execution, as well as by the express terms of the law itself. The validity or invalidity of a statute often depends on how it is construed and applied. It may be valid when given a particular application and invalid when given another.�
The Apex Court further held that mere conferment of naked or uncontrolled power is no violation of due process or equality clauses but such entrustment or delegation is subject to condition that the authority conform that such power must act reasonably without unjustness and uncertainty with uniformity.
18A. Hon''ble Supreme Court in a case reported in 2004(2) SCC 590; Union of India v. Kuldeep Singh, has held that the discretion is to know through law what is just. To quote:
�Discretion is to know through law what is just. Where a judge has and exercises a judicial discretion his order is unappealable unless he did so under a mistake of law or fact or in disregard of principle, or after taking into account irrelevant matters. It will help to show this if it can be shown that there were no materials on which he could exercise his discretion in the way he did���
Their Lordships of Apex Court further proceeded to held as under:
�20. When anything is left to any person, Judge or Magistrate to be done according to his discretion, the law intends it must be done with sound discretion, and according to law. (See Tomlin''s Law Dictionary) In its ordinary meaning, the word �discretion� signifies unrestrained exercise of choice or will; freedom to act according to one''s own judgment; unrestrained exercise of will; the liberty or power of acting without control other than one''s own judgment. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of Others. Discretion is to discern between right and wrong; and therefore, whoever hath power to act at discretion, is bound by the rule of reason and law. (See Tomlin''s Law Dictionary)
Discretion, in general, is the discernment of what is right and proper. It denotes knowledge and prudence, that discernment which enables a person to judge critically of what is correct and proper united with caution; nice discernment, and judgment directed by circumspection; deliberate judgment; soundness of judgment; a science or understanding to discern between falsity and truth, between wrong and right, between shadown and substance, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons. When it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice, not according to private opinion; according to law and not humour. It is to be not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of his office out to confine himself (per Lord Halsbury, L.C., in Sharp v. Wakefield). (Also see S.G. Jaisinghani v. Union of India)
The word ''discretion'', standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking. The word in itself implies vigilant circumspection and care; therefore, where the legislature concedes discretion it also imposes a heavy responsibility. �the discretion of a judge is the law of tyrants; It is always unknown. It is different in different men. It is casual, and depends upon constitution, temper and passion. In the best it is offen times caprice; in the worst it is every vice, folly, and passion to which human nature is liable.� Said Lord Camden, L.C.J., in Hindson and Kersey.�
In view of above in case the discretion vests in an authority then such discretion should be exercised not in arbitrary, vague and fanciful manner. It must be reflected from the outcome of event that the authority concerned has exercised discretion with the sound principle of law, skill and wisdom with vigilant circumspection and care. The discretionary power imposes a heavy responsibility on a person or authority. The latitude or liberty accorded by statute, Circular or Order of the higher authority does not permit to exercise such power in unjust and unfair manner. In the case of Kuldeep Singh (supra), their Lordships of Apex Court further held as under:
�If a certain latitude or liberty is accorded by a statute or rules to a judge as distinguished from a ministerial or administrative official, in adjudicating on matters brought before him, it is judicial discretion. It limits and regulates the exercise of discretion, and prevents it from being wholly absolute, capricious, or exempt from review.�
The Constitution Bench of Hon''ble Supreme Court while giving a new life to administrative law in a famous leading case reported in AIR 1970 SC 150; A.K. Kraipak and Others v. Union of India and Others, held that the dividing line between the administrative power and quasijudicial power is quite thin and is being gradually obliterated. While discharging duty on administrative side it shall be obligatory for authorities to take a decision which may fulfil the requirement of Article 14 of the Constitution of India. The Hon''ble Supreme Court further held that the decision taken by the authorities, Committee or Board even on administrative side, may be subject to judicial review, in case such decision does not fulfil the requirement of Article 14 of the Constitution of India. Relevant portion from the judgment of A.K. Kraipak (supra) is reproduced as under:
�13. The dividing line between an administrative power and a quasi judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasijudicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. In a welfare State like ours it is inevitable that the organ of the State under our Constitution is regulated and controlled by the rule of law. In a welfare State like ours it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose its validity if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision. In recent years the concept of quasijudicial power. The following observations of Lord Parker, C.J. In Reg. v. Criminal Injuries Compensation Board; Ex parte Lain, 19672 QB 864 at p.881 are instructive����..�
�We have as it seems to me reached the position when the ambit of certiorari can be said to cover every case in which a body or persons of a public as opposed to a purely private or domestic character has to determine matters affecting subjects provided always that it has a duty to act judicially. Looked at in this way the board in my judgment comes fairly and squarely, with the jurisdiction of this Court. It is, as Mr. Bridge said, a servant of the Crown charged by the Crown, by executive instruction, with the duty of distributing the bounty of the Crown. It is clearly, therefore, performing public duties.�
The Court of Appeal of New Zealand has held that the power to make a zoning order under Dairy Factory Supply Regulation 1936 has to be exercised judicially, see New Zealand and Dairy Board v. Okita Cooperative Dairy Co. Ltd., 1953 NZLR 366. This Court in Purtabpore Co. Ltd. v. Cane Commisisoner of Bihar, Civil Appeal No.1464 of 1968, D/ 21.11.1968 (SC) held that the power to alter the area reserved under the Sugar Cane (Control) Order, 1966 is a quasijudicial power. With the increase of power of the administrative bodies it has become necessary to provide guidelines for the just exercise of their power. To prevent the abuse of that power and to see that it does not become a new despotism, Courts are gradually evolving the principles to be observed while exercising such powers. In matters like these public good is not advanced by a rigid adherence to precedents. New problems call for new solutions. It is neither possible nor desirable to fix the limits of a quasijudicial power. But for the purpose of the present case we shall assume that the power exercised by the selection board was an administrative power and test the validity of the impugned selections on that basis.�
In a famous case of Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, reported in (1948) 1 KB 223, the principle of law propounded is know as Wednesbury''s principle highlight the circumstances under which the Court may exercise power of judicial review and may interfere and quash an action being illegal and ultra vires. Wednesbury''s principle denotes extreme behaviour which may amount to bad baith or the decision being absurd or perverse. The standard of judge is something overwhelming to treat the action as so unreasonable that no reasonable man in his senses can over come to it.
Hon''ble Supreme Court in the case of State of U.P. v. Mohd. Nooh, reported in 1958 SC 86, Pratap Singh v. State of Punjab, reported in AIR 1964 SC 72, Fashih Chaudhary v. D.G. Doordarshan, reported in 1989(1) SCC 189 held that it the act complained of is without jurisdiction or is in excess of authority conferred by statute or there is abuse or misuse of power, a Court can interfere. In such an eventuality, mere fact that there is denial of allegation of malafide or oblique motive or of its having taken into consideration improper or irrelevant matter does not preclude the Court from enquiring into the truth of allegations levelled against the authority and granting appropriate relief to the aggrieved party.
In number of cases the Apex Court ruled that any arbitrary action, whether in the nature of legislative or administrative or quasijudicial exercise of power, is liable to attract the prohibition of Article 14 of the Constitution of India vide AIR 1974 SC 555; E.P. Royappa v. State of Tamil Nadu, 1979 (3) SCC 489; R.D. Shetty v. International Airport Authority, 1978 (1) SCC 248; Maneka Gandhi v. Union of India, 1981 (1) SCC 722; Ajay Hasia v. Khalid Mujib, 1990 (3) SCC 223; Shri Sitaram Sugar Co. Ltd. v. Union of India.
In a case reported in AIR 1954 SC 297; State of Rajasthan v. Rao Manohar Singhji, the Apex Court held that classification must always bear a reasonable and just relation to the things in respect of which it is proposed. The Supreme Court found that different standard adopted by the State Government by way of classification among Jagirdars of two States, who are similarly situated, was not justified.
In a case reported in AIR 1997 SC 764; Angarki Cooperative Housing Society Ltd. v. State of Maharashtra and Others, Hon''ble Supreme Court up held the order of High Court setting aside the allotment of plots of society without the procedure provided by law. Allotment of plots done in arbitrary and unjustified manner was held to be bad in law.
In one another case reported in 1997 (5) SCC 298; State of Bihar v. Kumar Promod Narain Singh and Others, where the question involved was relating to appointment by the Service Selection Board for class III post, the Supreme Court held that selection and appointment done without following the criteria for allocation of posts by pick and chose method is arbitrary. The judgment of High Court was upheld by the Supreme Court on the ground that no merit list was prepared consisting the names of candidates who have aptitude for certain jobs or entitlement for appointment. Options were not called on hence the selection was bad in law.
In M.I. Builders Pvt. Ltd. v. Radhey Shyam, reported in (1999) 6 SCC 464, the Apex Court ruled that the decision is unlawful if it is one to which no reasonable authority could have come.
Keeping in view the proposition of law, discussed hereinabove, in the present case, at the face of record it appears that no criteria was formulated by the Selection Committee to allocate the chambers to the Members of Bar, which may fulfil the requirement of Article 14 of the Constitution of India. The Committee has chosen 16 advocates having 7 or 8 years of practice. How the quota was confined to 16 advocates and how the advocates were chosen for allocation of chambers holding them junior members of Bar, is not apparent from record. Whether the date of enrolment of advocates or membership of Awadh Bar Association was the criteria, is not reflected from the record. In case some preference or quota was to be provided then it should have been provided (for the junior members or lady advocates) by notifying the criteria depicting the grounds of inclusion or exclusion relating to allotment of chambers. The Bar Association should have been informed the criteria adopted for allocation of chambers. How the seniors have been chosen for allocation of chambers? Undoubtedly, a large number of junior and senior advocates, whose names have been pointed out by the learned counsel for the petitioner during the course of argument, are active practitioners of this Court having frequent appearance. Why such persons have been excluded and not allocated chambers? Learned counsel for the petitioner has invited attention of this Court towards the rules relating to allotment of chambers to the advocates on record practicing in Supreme Court of India. Either rule with uniform pattern should have been framed by the respondents or criteria evolved for allotment of chambers should have been informed to Bar. Advocates have right to know what criterion has been framed for allocation of chambers. It cannot be ruled out that sometimes in spite of all precautions and bonafides, error are committed by the authorities. Even the Judges of this Court while discharging duty on administrative side may commit mistakes. To rule out such possibilities it shall always be necessary that there should be transparency in action based on sound guidelines more so when an incident relates to Members of Bar, who are the Officers of the Court.
The Constitution Bench of Hon''ble Supreme Court in a case reported in AIR 1991 SC 101; Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Others, had repelled the presumption that person holding high office does not commit wrong. Discretion enjoyed by the persons holding high offices should not be left to the good sense of individuals. Relevant portion from the judgment of Delhi Transport Corporation (supra) is reproduced as under:
�There is need to minimize the scope of the arbitrary use of power in all walks of life. It is inadvisable to depend on the good sense of the individuals, however highplaced they may be. It is all the more improper and undesirable to expose the precious rights like the rights of life, liberty and property to the vagaries of the individual whims and fancies. It is trite to say that individuals are not and do not become wise because they occupy high seats of power, and good sense, circumspection and fairness does not go with the posts, however high they may be. There is only a complaisant presumption that those who occupy high posts have a high sense of responsibility. The presumption is neither legal nor rational. History does not support it and reality does not warrant it. In particular, in a society pledged to uphold the rule of law, it would be both unwise and impolitic to leave any aspect of its life to be governed by discretion when it can conveniently and easily be covered by the rule of law����.
The �high authority� theory socalled has already been adverted to earlier. Beyond the selfdeluding and selfasserting righteous presumption, there is nothing to support it. This theory undoubtedly weighed with some authorities for some time in the past. But its unrealistic pretensions were soon noticed and it was buried without even so much as an ode to it. Even while Shah, J. in his dissenting opinion in Moti Ram Deka v. General Manager, N.E.P. Railways, Maligaon, Pandu, (1964) 5 SCR 683: (AIR 1964 SC 600) had given vent to it, Das Guptam H. in his concurring judgment but dealing with the same point of unguided provisions of Rule 148 (3) of the Railways Establishment Code, had not supported that view and had struck down the rule as being violative of Article 14 of the Constitution. The majority did not deal with this point at all and struck down the Rule as being void on account of the discrimination it introduced between railway servants and other government servants.�
As held by Supreme Court in a case reported in 1995 (5) SCC 457; C. Ravichandran Iyer v. Justice A.M. Bhattacharjee, judicial office is essentially public trust. The standard and conduct of a judge is higher than expected of a layman and also higher than advocate or State authorities. The society expects that whether it is on judicial side or on administrative side the functioning of High Court or its judges should be �torch bearer� or �role model� not only to inspire confidence in administration of justice but also to show the ways and means to discharge duty in just and fair manner. A little negligence may be inadvertently or arbitrariness on the part of a member of judiciary even on administrative side shall impair the confidence of people in the temple of justice.
A perusal of the resolution dated 10.7.2006 alongwith formal of application provided by the respondents to the members of Bar, indicate that no column has been provided in the application form to the advocates to indicate therein or place on record the necessary material relating to appearance in this Court. Humanly it is not possible for a person or the Committee to find out who have got frequent appearance in the High Court out of 1357 persons who have applied for allotment of chambers. The selection committee should not have travelled beyond the information required from the advocates through the application forms.
Undoubtedly, adequate representation of junior and lady advocates should have been secured then how the junior and lady advocates should have been chosen, is the question relating to which no guideline or criteria was formulated by the Selection Committee. Adequate quota should have been disclosed by pointing out the number of persons of respective category as well as criteria to chose such persons from among the large number of applicants, which has not been done.
Record does not indicate that what was the mode and method and the grounds to chose advocates on the basis of length of practice. A close scrutiny of impugned select list reveals that no uniform pattern was adopted while choosing candidates for the allocation of chambers either on the basis of seniority or keeping in view the tenure of practice of junior or lady advocates or on the basis of enrolment to State Bar Council or membership of the Oudh Bar Association. Obviously, the Committee has not exercised power in the manner which may fulfil the requirement of Article 14 of the Constitution of India.
In a case reported in AIR 1968 SC 346; The State of Mysore v. S.R. Jayaram, where the rules were silent on the question as to how the Government will find out the suitability of the candidates for a particular cadre for recruitment in class II and class I, the Supreme Court held that it cannot be left to sweet will of the Government to find out which candidates is more suitable for a particular cadre or to whom it may deprive to join a cadre keeping in view the preference indicated in the application form. Hon''ble Supreme Court declared the relevant rules giving unfettered power to Government to make selection as arbitrary and ultravires to Constitution being violative of Article 14 and 16(1) of the Constitution of India. Rule was struck down by the Apex Court. (Para 5 & 6)
In the famous case reported in 1983 (1) SCC 304; D.S. Nakara and Others v. Union of India, though the Hon''ble Supreme Court permits classification but subject to satisfy twin test to the effect that the classification founded on intelligible differentia and have rational nexus to the objects sought to achieve. Thus, differentia must have rational nexus to the objects sought to be achieved. However, steps taken for the adequate representation of junior and lady advocates seems to be reasonable step but that should have been done with transparent and sound principle of law relying upon certain reasonable guidelines, criteria and material.
In Om Kumar v. Union of India, reported in 2001 (2) SCC 368, Hon''ble Supreme Court reiterated the applicability of Wednesbury''s principle to decide whether an administrative order is arbitrary and rational. To quote:
�67. But where an administrative action is challenged as �arbitrary� under Article 14 on the basis of Royappa (as in cases where punishments in disciplinary cases are challenged), the question will be whether the administrative order is �rational� or �reasonable� and the test then is the Wednesbury test. The Courts would then be confined only to a secondary role and will only have to see whether the administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether his view is one which no reasonable person could have taken. If his action does not satisfy these rules, it is to be treated as arbitrary. [In G.B. Mahajan v. Jalgaon Municipal Council (SCC at p.111).] Venkatachaliah, J. (as he then was) pointed out that �reasonableness� of the administrator under Article 14 in the context of administrative law has to be judged from the stand point of Wednesbury Rules. In Tata Cellular v. Union of India (SCC at pp.67980), Indian Express Newspapers Bombay (P) Ltd. v. Union of India (SCC at p.691), Supreme Court Employees'' Welfare Assn. v. Union of India (SCC at p.241) and U.P. Financial Corpn. v. Gem Cap (India) (P) Ltd. (SCC at p.307) while judging whether the administrative action is �arbitrary� under Article 14 (i.e. otherwise then beign discriminatory), this Court has confined itself to a Wednesbury review always.
Thus, when administrative action is attacked as discriminatory under Article 14, the principle of primary review is for the Courts by applying proportionality. However, where administrative action is questioned as �arbitrary� under Article 14, the principle of secondary review based on Wednesbury principle applies.�
The Supreme Court in 2005 (5) SCC 181; State of NCT of Delhi and another v. Sanjeev alias Bittoo, upheld the right of judicial review under Article 226 on the basis of illegality in decision making process coupled with irrationally and perversity. While holding that decision is irrational and Court may look into the material on record. (Paragraphs 16, 17 and 21)
Hon''ble Supreme Court further held in the case of Sanjeev (supra) that if the administrative or judicial power has been exercised on nonconsideration or nonapplication of mind to relevant factors, such exercise shall stand vitiated. Relevant portion from the judgment of Sanjeev (supra) is reproduced as under:
�If the power has been exercised on a nonconsideration or nonapplication of mind to relevant factors, the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated.�
In Centre for Public Interest Litigation and another v. Union of India, reported in 2005 (8) SCC 202, the Hon''ble Supreme Court reiterated the settled proposition of law that every administrative action should be reasonable and fair. Hon''ble Supreme Court further held that the procedure adopted by the Administrative body should not be only fair but also seems to be just, fair and proper.
In one recent judgment reported in 2006 (8) SCC 212; M. Nagaraj and Others v. Union of India and Others, the Constitution Bench of Apex Court ruled that Article 14 confers personal right by enacting a prohibition which is absolute. Equality of treatment under Article 14 is an objective test. It is not the test of intention. To quote from M. Nagaraj (supra):
�The gravaman of Article 14 is equality of treatment. Article 14 confers a personal right by enacting a prohibition which is absolute. By judicial decisions, the doctrine of classification is read into Article 14. Equality of treatment under Article 14 is an objective test. It is not the test of intention. Therefore, the basic principle underlying Article 14 is that the law must operate equally on all persons under like circumstances.�
It is not necessary to discuss the other cases relied upon by the petitioner''s counsel in view of discussion made hereinabove. So far as the representation of Scheduled Caste, Scheduled Tribe and Backward candidates are concerned, their cases should have been considered alongwith Others on merit on the basis of preframed guidelines. Advocates as a whole constitute a class and possess autonomy under Advocates'' Act. It is a competitive field where everyone commands respect because of knowledge and ability. Possession of chamber is prerequisite for the smooth functioning and discharge of duty by an advocate. In the absence of a chamber lawyer faces unlimited problems. It is a necessity to meet out the professional requirement. Accordingly, every candidate who is the member of profession of law and practicing in this Court has got right to be considered for allocation of chamber and for that purpose it is necessary that appropriate reasonable guidelines should be framed so that it may appear that justice have been done to them. For the purpose of framing of guidelines, the chamber allotment rules governing the allotment in Supreme Court and other High Courts may be taken into consideration to meet out the procedural requirement.
The next question relates to charge of fee of Rs.40,000/ from the members. It is not disputed that entire cost of the chambers has been borne by the State Government. However, the respondents have to bear the cost of maintenance, electricity etc. Learned Chief Standing Counsel has informed this Court that according to assessment made by PWD, per chamber maintenance cost comes to Rs.6500/. In the earlier allotment of chambers in Lucknow Bench the fee was charged as Rs.4000/ from a person and in every chamber four persons were adjusted. It has been informed that at Allahabad High Court the chambers have been allotted by charging fee @ Rs.2500/. Electricity charges were to be borne by the allottee. However, the Court has further been informed that lawyers never use to pay the electricity bills. Opinion formulated by the Committee on the basis of reports relating to expenditure for maintenance is the subject matter which cannot be adjudicated by this Court under extraordinary remedy. However, amount of Rs.40,000/ is too excessive and majority of junior members of bar shall not be able to pay the amount. Keeping in view the fee structure of the practising lawyers at Lucknow Bench it shall be appropriate that the amount of Rs.40,000/ may be slashed down as far as possible.
To sum up, there was no material before the Selection Committee, neither any guideline was framed nor evolved to find out the appearance of advocates in this Court. No reasonable procedure was evolved laying down the criteria for allotment of chambers to junior or lady advocates for the purpose of their adequate representation. No specific quota was provided and candidates were chosen neither on the basis of seniority nor keeping in view their juniorship. As discussed hereinabove, the Committee has not adopted any criteria to find out as to who should be treated as junior advocate and how the principle of length of practice should be considered for the purpose of allotment of chambers. The procedure adopted by the Committee while finalizing the list seems to be unjust and unfair. Members of Bar Association should have been informed by preparing appropriate quidelines or laying down the procedure for the allotment of chambers. In any way it seems that the Committee was not empowered to travel beyond the grounds given in the application form relating to which the advocates have communicated information, as discussed in the preceding paragraphs.
In view of above, as the impugned allotment of list of chambers seems to be not sustainable under law and is violative of Article 14 of the Constitution of India. Writ petition deserves to be allowed.
A writ in the nature of certiorari is issued quashing the impugned allotment list of chambers dated 18.5.2007 followed by subsequent list dated 21.5.2007 collectively filed as Annexure No.1 to the writ petition with consequential action. Opposite parties may proceed afresh to allot the chambers after formulating the criteria keeping in view the observation made in the present judgment expeditiously. Let the records and judgment be sent to Registrar General immediately for follow up action.
(Petition allowed)