The High Court dismissed the Public Interest Litigation seeking a CBI enquiry and quashing of extensions to Dr. Anil Kakodkar, holding the petition lacks bonafide nature, is premature, and the extension decision, with recorded reasons, is not open to judicial review.
null
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION NO.89 OF 2008
| Arun Vasantrao Betkekar, | ) |
|---|---|
| 004/A-Wing, Matoshri Residency, | ) |
| Prarthana Samaj Road, | ) |
| Vile Parle (East), Mumbai – 400 057. | ).. Petitioner |
| Versus | |||
|---|---|---|---|
| 1. | Government of India, |
) | |
| Department of Atomic Energy, Anushakti Bhavan, |
) ) |
||
| Chatrapati Shivaji Maharaj Marg, Mumbai – 400 001. |
) ) |
||
| 2. | Tata Institute of Fundamental Research, Dr. Homi Bhabha Road, Navy Nagar, Colaba, Mumbai – 400 005. |
) ) ) ) |
|
| 3. | Dr. Anil Kakodkar, Secretary DAE & Chairman AEC, Anushakti Bhavan, |
) ) |
|
| Chatrapati Shivaji Maharaj Marg, Mumbai – 400 001. |
) ) |
||
| 4. | Union of India, | ) | |
| Ministry of Law, Ayakar Bhavan, | ) | ||
| M.K. Road, Marine Lines, | ) | ||
| Mumbai – 400 020. | ).. | Respondents |
2
Shri A.D. Shetty along with Ms Rita Joshi for the Petitioner. Ms A.D. Vhatkar, AGP for the State. Shri K.M. Naik i/by Shri S.P. Salkar for Respondent No.2. Shri D.J. Khambata, Additional Solicitor General along with Shri A.M. Sethna and Mandar Goswami for Respondent-Union of India.
CORAM : SWATANTER KUMAR, C.J. & A.M. KHANWILKAR, J.
Judgment reserved on : 30th September, 2009 Judgment pronounced on : 15th October, 2009
JUDGMENT (Per Swatanter Kumar, C.J.)
The Petitioner in this Public Interest Litigation, under Article 226 of the Constitution of India, has prayed that a detailed enquiry be conducted by the Central Bureau of Investigation (CBI) or a retired High Court Judge of this Court in to the various complaints/representations made by him about the functioning of Tata Institute of Fundamental Research (hereinafter referred to as the “Institute”) and other Research Institutions and further to quash and set aside the actions of Respondent Nos.1 and 2 in granting extensions and/or appointment of Respondent No.3 as Chairman of Department of Atomic Energy (hereinafter referred to as “DAE”)
3
even after the age of his superannuation being arbitrary, illegal and contrary to the law. The Petitioner has also prayed that the Respondent Nos.1 and 2 be restrained from granting any further extension and/or appointment on the said post to the private Respondent Dr. Anil Kakodkar, Respondent No.3. To the present Petition, the Respondents have raised the following issues for determination.
(a) The present Public Interest Litigation is not maintainable as it relates to a service matter and the present Petition is an abuse of the process of law. The Petitioner, who is dismissed employee of the Institute, is trying to make his grievances in the present Petition under the garb of Public Interest Litigation.
(b) The questions raised in the present Petition have now become academic and none of the affected persons have raised any grievance against the grant of extension to Respondent No.3.
4
( c) The present Petition is also not maintainable inasmuch as the Institute is a registered public trust and therefore, is covered under the provisions of the Bombay Public Trusts Act, 1950, hereinafter referred to as the “Act”, and the remedy available to the Petitioner, if any, lies before the Charity Commissioner in terms of Section 41A of the Act.
(d) There are good and sufficient reasons recorded by the Competent Authority for granting extensions to Respondent No.3 and the same have been granted in accordance with the provisions of the Proviso to Fundamental Rule 56(d) which itself was introduced by Notification No.25012/6/2001 dated 27th February, 2002.
5
worker who has always been in the forefront by taking up various social and other welfare issues beneficial to the public at large. He also claims that he was the General Secretary of a Social organization called “Sthaniya Lokadhikar Samiti Mahasangh” (SLSM). The Institute has a hierarchy and Respondent No.3 is the Secretary of Department of Atomic Energy (DAE) and Chairman of Atomic Energy Commission (AEC). The Petitioner was employed with the Institute and was even promoted in the Officer Category and he claims to have taken steps for the welfare of the staff of the Institute. According to the Petitioner, the Director of the Institute was involved in various fraudulent activities, has misused his powers, fabricated his date of birth, had entered into different transactions to the prejudice of the Institute and did not invest the provident fund money of over Rs.5 crores of the employees in an appropriate manner. As no action was being taken on his various complaints which, according to him, were only illustrative of irregularities being committed in the affairs of the Institute and Respondent No.3 had tried asking him to desist from raising complaints against the Institute and its Director. However, because of personal bias, Respondent No.3 on the basis of some false, vague,
6
fabricated charges, forged documents against him relating to unauthorized absence, involvement in political activities and submitting of false Leave Travel Concession claims, stage managed an inquiry. According to the Petitioner, he had an unblemished record of service and he had been falsely implicated by Respondents as vengeance for the Petitioners lodging complaints.
August, 1954. The entire funding comes from the Government of India. Respondent No.3 was selected to the post of Chairman and extension to the post of Chairman can be given upto the age of 66 years and Director of Bhabha Atomic Reasearch Centre can be permitted extension upto the age of 62 years. The extensions given to Respondent No.3 in different capacities were unfair, arbitrary and it entirely demoralized the Senior persons of the Institute as there are large number of aspirants in the hierarchy of the Institute for the top post of the Institute. It is also averred by the Petitioner that the Government spent huge amount of money on the activities of the Institute but there is no optimum results from such expenditure and there is huge wastage of the funds supplied. Even out of 4000 MW
7
plus installed capacity of India’s nuclear power plants, over 2000 MW is lying idle which was resulting in wastage of money to the tune of nearly Rs.16,000/- crores of public investment. Referring to various lacunas in the functioning of the Institute and pointing out the specifications which were lacking in the Institute the Petitioner has claimed that the extension of Respondent No.3 does not fall in any of the categories referred to in relevant provisions of the Rules and in any case, no extension could be granted to Respondent No.3 beyond the age of 64 years. While relying upon the judgment of a Division Bench of this Court in the case of R.R. Tripathi & Anr. v. The Union of India & Ors., (2008)4 BCR 688, he has challenged the extension granted to Respondent No.3 as well as prayed, on the aforenoted grounds, that the Respondent Nos.1 and 2 be restrained from granting further extension to Respondent No.3.
1 therein that it is a State within the meaning of Article 12 of the
8
Constitution of India, and as such amenable to writ jurisdiction of this Court. The said suit is still pending on the Original Side of this Court.
the Institute. Separate Affidavit-in-reply has been filed on behalf of Union of India. While raising objections, the Respondent Nos.1 and 2 have averred that the present Petition is misconceived and is an abuse of process of law. The Petitioner is disgruntled and dissatisfied dismissed employee who had even interfered with the process of administration of justice. Vide order dated 2nd July, 2007 the President of Industrial Court, Mumbai, has observed that the Petitioner had tried to influence the Labour Court Judge who was seized with the Complaint (ULP) No.181 of 2007 filed by the Petitioner. As such, the conduct of the Petitioner is not worthy of granting him any indulgence in terms of Article 226 of the Constitution of India.
of the Institute were audited by three different bodies, i.e. (i) a firm
9
of Chartered Accountants appointed by the Governing Council of the Institute; (ii) Internal Inspection Wing of Department of Atomic Energy, Mumbai; and (iii) Indian Audit & Accounts Department, Office of the Principal Director of Audit, Scientific Departments, Mumbai. No irregularity or wastage of funds or assets has been noticed by any of these authorities. A chargesheet dated 26th July, 2002 had been served upon the Petitioner and he was dismissed from the service. The present petition lacks bonafide. On merits, it has been averred that Respondent No.3 has been granted extension in terms of amended proviso to Fundamental Rules 56. Sufficient ground existed for grant of such extension and it is submitted that the Court may not interfere as it is a matter of policy decision taken by the concerned authorities.
10
interest litigation but wherever arbitrariness and discrimination is writ large and the post in question is of such stature and responsibility which would affect larger interest of the public, the Court could interfere in such matters. Reference in this regard can be made to a recent decision of this Court in the case of R.R. Tripathi (Advocate) v. Union of India & Ors. delivered on 23rd July, 2009 in Public Interest Litigation (L) No.63 of 2009 along with Writ Petition No.3568 of 2009, Aurangabad Bench, ( Chief Secretary’s case).
11
and representations made to the authorities concerned which have been looked into and the accounts of the Institute have been audited and examined by the three different authorities, as aforementioned, and no irregularities or illegalities have been noticed by them. The Petitioner has attempted to blame the authorities concerned, in the
12
hierarchy of the Institute, of various irregularities but they are coupled with the personal grievance of the Petitioner as his services have been terminated by the Institute with reference to chargesheet served upon him on 23rd August, 2002 Exhibit-C to the Reply affidavit of Respondent No.1. Admittedly, the order granting extension to Respondent No.3 was firstly passed in favour of Respondent No.3 on 6th September, 2005 granting him two years’ extension beyond 30th November, 2005 and thereafter vide order dated 22nd October, 2007 extension was granted to the said Respondent upto 30th November, 2009 or until further orders, whichever is earlier. The Petitioner has intentionally and deliberately waited for all this period and has lodged this Petition on 3rd October, 2008 and we find no plausible explanation for such inordinate delay. In these circumstances, we are of the considered view that the Writ Petition of the Petitioner lacks bonafide and the Petition has been instituted with a personal bias. Reference can also be made to judgment of the Supreme Court in the case of S.P. Gupta v. Union of India, (1981) Supp. SCC 87 and T.N. Godavarman Thirumulpad (98) v. Union of India, (2006)5 SCC 28.
13
Supreme Court in Fertilizer Corporation Kamgar Union (Regd.) Sindri & Ors. v. Union of India Ors., AIR 1981 SC 344 to contend that the
14
Petitioner has a deeper concern in the matter and being a member of a social organisation/body, the present writ petition would be maintainable. The Petitioner can hardly derive any benefit as on facts, this case is of no help to the Petitioner. The Petitioner may be a member or office bearer looking after the affairs of an social organization but his personal litigation with the Institute coupled with the fact that no person eligible to be considered for the post of Chairman has raised any grievance, renders the present writ petition hardly maintainable in the eyes of the law.
greater power of judicial review which has to be exercised with greater caution depending on the facts and circumstances of a given
15
case. In the cases of the present kind, particularly, the Court has to be careful in applying the settled principle of public interest litigation rigorously. The Supreme Court in the case of Dr. B. Singh v. Union of India & Ors., AIR 2004 SC 1923 held that Public Interest Litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking.
16
every trustee or of such person responsible for business of the trust is bound to comply with the directions issued by the Charity Commissioner under sub-section (1). Even on this count, part of the grievances raised by the Petitioner can hardly be examined and adjudicated upon by this Court in exercise of its power under Article 226 of the Constitution of India. The Petitioner is at liberty to approach the Charity Commissioner, if he is satisfied with the inspection attempted by the statutory body and can pray for issuance of appropriate direction to the Institute if at all he is genuinely concerned with the betterment of the management of the Institute and proper utilization of the assets and funds.
“F.R. 56. (a) Except as otherwise provided in this rule, every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years:
17
Provided that a Government servant whose date of birth is the first of a month shall retire from service on the afternoon of the last day of the prece3ding month on attaining the age of sixty years.
Provided further that a Government servant who has attained the age of fifty-eight years on or before the first day of May, 1998 and is on extension in service, shall retire from the service on expiry of his extended period of service.
Or on the expiry of any further extension in service granted by the Central Government in public interest, provided that no such extension in service shall be granted beyond the age of 60 years.
NOTE. - In this Clause, a workman means a highly skilled, skilled, semi-skilled, or unskilled artisan employed on a monthly rate of pay in an industrial or work-charged establishment.
18
Provided that a Government servant dealing with budget work or working as a full-time member of a Committee which is to be wound up within a short period of time may be granted extension of service for a period not exceeding three months in public interest;
Provided further that a specialist in medical or scientific fields may be granted extension of service up to the age of sixty-two years, if such extension is in public interest and the grounds for such extension are recorded in writing:
Provided also that an eminent scientist of international stature may be granted extension of service up to the age of 64 years, if such extension is in public interest and the grounds for such extension are recorded in writing.
Provided also that the Appropriate Authority shall have the right to terminate the extension of service before the expiry of such extension by giving a notice in writing of not less than three months in the case of a permanent or a quasi-permanent Government servant, or, of one month in the case of a temporary Government servant, or pay and allowances in lieu of such notice.
Provided also that the Central Government may, if it considers necessary in public interest so to do, give extension in service to the Cabinet Secretary, Defence Secretary, Home Secretary, Director, Intelligence Bureau, Secretary, Research and Analysis Wing and Director, Central Bureau of Investigation for such periods as it may deem proper on case-to-case basis, subject to the condition that the total term of the incumbents of the above posts, who are given such extension in service, does not exceed two years.”
19
of the powers conferred by proviso to article 309 of the Constitution, the President made amendments in Fundamental Rules, in Rule 56,
in clause (d) after the fifth proviso, the following was inserted.
“1. (1) These rules may be called the Fundamental (Amendment) Rules, 2007.
“Provided also that the Central Government may, if considered necessary in public interest so to do, give extension of service to the Secretary, Department of Space and the Secretary, Department of Atomic Energy, for such period or period as it may deem proper subject to a maximum age of 66 years.”
20
21
requires that the authority concerned has to apply its mind and has to record reasons which would demonstrate application of mind and reasons for public interest. Once there is application of mind and reasons for public interest have been recorded, then sufficiency or qualitative values of the decision is hardly open for judicial review.
“11. ........................ The expression ‘public purpose’ is not capable of precise definition and has not a rigid meaning. It can only be defined by a process of judicial inclusion and exclusion ( State of Bihar v Kameshwar Singh, AIR 1952 SC 252). However, a broad test has been formulated and it is that “whatever furthers the general interest of the community, as opposed to the particular interest of the individuals, must be regarded as a public purpose”. The expression “interest of the general public” embraces public security, public order and public morality. ( Emperor v Jeshingbhai Ishwarlal Dhobi, AIR 1950 Bom 363). It will not be out
22
of place to mention here something about “public policy”. Public policy is a principle of judicial legislation or interpretation founded on the current needs of the community. The interest of the whole public must be taken into account. ( Murlidhar Agarwal v State of U.P, (1974) 2 SCC 472). ( Reference : “The Phantom of ‘Public Interest’, article by Prof. (Dr) D.C. Jain, [1986] 3 SCC (J) 30]).
“11. At this point of time, the public interest litigation came to be filed on 19.5.1999 knocking the doors of the High Court when it was closed for summer vacation. The High Court felt that the issue raised in the petition calls for its attention. Notices were issued to CIDCO and other respondents. By an interim order proceedings for acceptance of the tenders and thereafter were directed to remain stayed. The High Court soon realized that the issue of public interest raised in the writ petition required the conduct of the case not to be left in the hands of the writ petitioner alone, and therefore, by its order dated 7.12.1999 appointed an amicus curiae to assist the Court. However, a little later it was brought to the notice of the High Court that
23
the original writ petitioner was not carrying on well with the amicus curiae and to avoid the conflict the High Court chose to proceed with the hearing of the petition dispensing with the assistance of the amicus curiae. The fact remains that the litigation had assumed the character of a public interest litigation of wider scope, not necessarily confined to grievance raised by the writ petitioner and the High Court was intervening to bring under its scrutiny, on the well-settled parameters of public interest, the proceedings of CIDCO relating to attempted disposal of developable land. While hearing a public interest litigation the constitutional court acts as a sentinel on the qui vive discharging its obligation as custodian of the constitutional morals, ethics and code of conduct – well defined by a series of judicial pronouncements. The Court is obliged to see while scrutinizing the conduct and activities of a public body constituted with the avowed object of serving the society to see that its activities bear no colour except being transparent, are guided with the object of public good and are within the four corners of law governing the same. The holder of every public office holds a trust for public good and therefore his actions should all be above board. Whatever may have been the grievance raised in the writ petition filed by the original writ petitioner, vide its order dated 28.4.2000 the High Court framed the following four questions laying down the scope of hearing before it.
24
We have set out the abovesaid part of the High Court proceedings to meet the plea raised by the appellants before us which complains of want of pleadings and denial of necessary opportunity of defending themselves at the hearing in the writ petition. The High Court had, by having framed the abovesaid questions, put all the parties before it on notice that it proposed to enter into issues wider than what may have been raised in the writ petition filed before it. The nonpetitioners in the High Court, including the appellants before us, were put on notice of the issues on which the High Court proposed to dwell upon and they were allowed full opportunities of defending themselves by bringing in such pleadings and documents as they proposed to do in their defence. The High Court called for the record of CIDCO
25
and subjected the same to scrutiny under its magnifying glass of judicial review. The nonpetitioners in the High Court were well aware of CIDCO’s record of proceedings and the findings of the High Court are based on the facts discernible from the records and the factual inferences necessarily and inevitably flowing therefrom. In public interest litigation jurisdiction of the constitutional court is mobilized and acts for redressal of public injury, enforcement of public duty, protection of social rights and upholding constitutional and democratic values. Technicalities do not deter the court in wielding its power to do justice, enforcing the law and balancing the equities. We are unhesitatingly of the opinion that the appellants before us cannot raise any grievance on the ground of want of necessary pleadings.”
judgment in the case of Dr. M.M. Furquan v. Jet Airways India Ltd. and Others, 2008(1) MhLJ 6 and held as under:-
“14. The Public Interest Litigation besides the above principles has to be a bona fide Writ Petition and should not be intended to sub-serve the private purpose. In light of the above principles, if we examine the present case, it can in no way be said that it is an abuse of the process of the Court, Petition lacks the bona fide or that it does not
26
specify any of the ingredients of a Public Interest Litigation. The very fact that so many Government Departments are involved in the process of clearance or issuing no objection certificates to Respondent No.6 before starting and commencing its project itself is sufficiently indicative of the fact that it is a matter of some importance and is likely to affect either way the environment, ecology and public interest of the residents of that village. Thus, we find that the objection raised by the Respondents in regard to the maintainability of the Petition or the locus of the Petitioner does not have any merit and is hereby rejected. “
23. In light of the above principles now we may revert back
to the facts of the present case. Respondent No.3 admittedly was granted extension in the year 2005 and thereafter in the year 2007. The extension is to lapse on 30th November, 2009. In one way the question in the Writ Petition would largely be academic but we would be compelled to examine this question at the behest of the Petitioner, as according to him, the said Respondent No.3 cannot be granted any further extension. Again this question is academic as
what action should be taken by the Respondents in future is not for
us to examine, at this stage. Then the prayer in this Petition, besides being untenable, in any case would become premature. The
27
extension given to Respondent No.3 in the year 2007 has been questioned before us after a considerable period, as already noticed above. Upon a direction of the Court, the Respondents never hesitated to produce the original record before us. We have examined the records right from the year 2007 and found that a detailed note was submitted to the Competent Authority justifying the grant of extension to Respondent No.3 and the reasons for grant of such extension which would serve the larger public interest. The Institute, besides being a trust, is involved in large public interest relating to the affairs of the country with regard to Atomic Energy, matters relating to Space and the Respondent is stated to be eminent person of international repute in the field and has contributed immensely to the advancement of science and technology. As per the note, it is widely recognized that India has gained in last five years in area of space and atomic energy due to the contribution of Respondent No.3, and so also the projects under his guidance as the Chairman of AEC and Secretary of DAE, it has also been stated in the note and recorded that it was in the public interest to grant extension to Respondent No.3.
28
values of reasoning recorded is not open to judicial review. We further add that it would be open for the Competent Authority to apply its mind and consider as to whether the extension would be in public interest or not ? Once such finding is recorded, which is not patently arbitrary or absurd, the Court would be very reluctant to interfere in such a matter. We have already noticed that the Respondents and the Competent Authorities have recorded reasons in an appropriate note which was duly considered by the Authorities concerned before granting such extension. The Petitioner can hardly derive any benefit from the judgment of this Court in R.R. Tripathi’s case (supra), as in that case no reasons of any nature whatsoever had been recorded for grant of extension and apparently there was no application of mind. Therefore, on facts, the Petitioner cannot derive any advantage from the earlier judgment of this Court, as referred above.
29
Petition and the same is dismissed, however, we leave the parties to
bear their own costs.
CHIEF JUSTICE
A.M. KHANWILKAR, J
3 issues framed by the court
Whether the Public Interest Litigation is maintainable despite the petitioner's dismissed status and personal grievance.
Whether the extension to Dr. Anil Kakodkar beyond age 64 is arbitrary or contrary to law.
Whether the High Court should intervene in the extension decision under Article 226.
Colour shows how this judgement treated each authority
R.R. Tripathi & Anr. v. The Union of India & Ors.Relied on
R.R. Tripathi & Anr. v. The Union of India & Ors., (2008)4 BCR 688
R.R. Tripathi (Advocate) v. Union of India & Ors.Referred
R.R. Tripathi (Advocate) v. Union of India & Ors., delivered on 23rd July, 2009
Dalsing s/o Shamsingh Rajput v. State of Maharashtra & Ors.Referred
Dalsing s/o Shamsingh Rajput v. State of Maharashtra & Ors., 2006(3) Mh.L.J. 592 · Who else cites this
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology & Ors.Referred
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology & Ors., (2002)5 SCC 111 · Who else cites this
Dr. Arvind Kumar Sharma v. The Chief Vigilance Commissioner & Ors.Relied on
Dr. Arvind Kumar Sharma v. The Chief Vigilance Commissioner & Ors., 2009(3) BCR 827
Fertilizer Corporation Kamgar Union (Regd.) Sindri & Ors. v. Union of India Ors.Referred
Fertilizer Corporation Kamgar Union (Regd.) Sindri & Ors. v. Union of India Ors., AIR 1981 SC 344 · Who else cites this
Dattaraj Nathuji Thaware v. State of Maharashtra & Ors.Referred
Dattaraj Nathuji Thaware v. State of Maharashtra & Ors., (2005)1 SCC 590 · Who else cites this
Duryodhan Sahu (Dr.) v. Jitendra Kumar MishraReferred
Duryodhan Sahu (Dr.) v. Jitendra Kumar Mishra, (1987)7 SCC 273 · Who else cites this
S.P. Gupta v. Union of IndiaReferred
S.P. Gupta v. Union of India, (1981) Supp. SCC 87 · Who else cites this
T.N. Godavarman Thirumulpad v. Union of IndiaReferred
T.N. Godavarman Thirumulpad v. Union of India, (2006)5 SCC 28 · Who else cites this
Padma v Hiralal Motilal Desarda and OthersReferred
Padma v Hiralal Motilal Desarda and Others, (2002) 7 SCC 564 · Who else cites this
Dr. M.M. Furquan v. Jet Airways India Ltd. and OthersReferred
Dr. M.M. Furquan v. Jet Airways India Ltd. and Others, 2008(1) MhLJ 6 · Who else cites this
Dighi Koli Samaj Mumbai Rahivasi Sangh v. Union of India & Ors.Referred
Dighi Koli Samaj Mumbai Rahivasi Sangh v. Union of India & Ors., 2009(5) Bom.C.R. 97 · Who else cites this
2 provisions across 2 enactments
Arun Vasantrao Betkekar
Government of India
Tata Institute of Fundamental Research
Dr. Anil Kakodkar
Union of India
Swatanter Kumar
A.M. Khanwilkar
As recorded by the court registry
Litigation brought on behalf of the public interest rather than a personal grievance, relaxing the usual rule of locus standi.
Judgements on the same questions, provisions and authorities, from every court
