IN THE HIGH COURT OF GUJARAT AT AHMEDABAD WRIT PETITION (PIL) No. 74 of 2012 For Approval and Signature:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as to
4 the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= MANOJKUMAR DAJIJI CHAVDA & 1 - PETITIONER Versus BAR COUNCIL OF INDIA THROUGH SECRETARY & 8 - RESPONDENT ========================================================= Appearance :
MR HARIT N SOMPURA for PETITIONER : 1 - 2.MR JAGDISH ROY for PETITIONER : 1 - 2.
None for RESPONDENT : 1 - 8.
MR. PK JANI, GP WITH MS. SHRUTI PATHAK, AGP for RESPONDENT : 9, ========================================================= CORAM :
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 6/08/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. This petition under Article 226 of the Constitution of India, in the nature of a public litigation, has been preferred with the following prayers :
(A) Be pleased to allow this Public Interest Litigation;
(B) Be pleased to direct the Respondent No. 3 to terminate Respondent No. 4 with immediate effect from the post of In-charge Secretary of Respondent No. 3 and direct competent authority to take appropriate legal actions against all the responsible persons for committing such illegal acts deeds and things while appointing Respondent No. 3;
(C) Be pleased to declare the voters from the list of final Electoral Roll of Respondent No. 3 disqualified for forthcoming election of Bar Council of Gujarat, 2012, who has been illegally admitted as Advocates on the basis of their unrecognized graduate degree and direct the competent authority to investigate that how much persons are holding Sanad on the basis of their unrecognized Bachelor Degree and if found to delete their names from the Roll of Respondent No. 3;
(D) Be pleased to declare the appointment of Respondent Nos. 5 and 6 void as a member of Special Committee of the Respondent No. 3 under the provisions of Act and Rules and direct the Respondent No. 1 to appoint other two members for the Special Committee of Respondent No. 3 under the provisions of law and direct the competent authority to initiate proper action against those persons who committed mischief by sending the name of Respondent Nos. 5 and 6 on a separate sheet of papers before Respondent No. 1 for appointing them as a member of Special Committee without any proper resolution passed by the Board of Respondent No. 3;
(E) Be pleased to pending admission and final hearing of this petition, your Lordship may stay the Election of Respondent No. 3 which is bound to be held on 11.5.2012;
(F) Be pleased to pass such other and further order in the facts and circumstances of the case, and in the interest of justice.
2. The case as made out by the petitioners in this petition may be summarized as under :
2.1 Petitioners are Advocates. They claim that they have filed this petition in the interest of legal fraternity in general, more particularly in the interest of Advocates practicing in the State of Gujarat. Petitioners assert that the respondents are expected to perform their statutory duties as per rules and regulations and not on their whims and caprice.
2.2 It is the case of the petitioners that they do not have any personal or vested interest in filing this petition but petitioner No. 2 in the past, had been a victim of high-handed and arbitrary action of respondent Nos. 4 to 6. This is the reason why this petition has been preferred to ensure that no other advocate practising in any of the courts within the State of Gujarat becomes a victim of the high-handed and arbitrary action of respondent Nos. 4 to 6.
2.3 Petitioner No. 1 is a practicing Advocate at Gandhinagar and the Petitioner No. 2 was practising Advocate at Gandhinagar and Former President of Gandhinagar Bar Association but he was removed from the Roll of the Bar Council of Gujarat with costs of Rs. 50,000/- (Fifty Thousand only) by judgment and order dated 17.5.2011 passed by the Disciplinary Committee No.
IX of the Bar Council of Gujarat in D.C. Case No. 15/2010 (Suo Motu v. Mr. Ajitsinh Gohil, Advocate of Gandhinagar.
2.4 Petitioners have come to learn that respondent No. 4 Mr. J.M. Chauhan, who is holding the charge of Secretary, does not possess the requisite qualifications or degree for the post of Junior Clerk as per Service Rules of respondent No. 3 (Bar Council of Gujarat in short “BCG”) framed by BCG under the provisions of Advocates Act. However, in spite of this, the respondent No. 4 is functioning as In-charge Secretary of BCG.
2.5 As per rules framed by the Respondent No. 3 under the provisions of Section 15(k) read with section 11 of the Advocates Act, 1961, (approved on 5th October, 1962), there is no post of I/C Secretary for Respondent No. 3 but for the vested interest of Respondent Nos. 5 and 6, he has been appointed as an In-charge Secretary of Respondent No. 3 and accordingly, he has been authorised to issue Licenses (Sanad) to Advocates. The Respondent No. 4 does not possess graduation degree as per requirement of the Rules framed by BCG and Respondent No.
4 is holding HSC pass certificate as per the copy of statement (Information regarding employees of the Bar Council of Gujarat their qualification, designation, pay scale, length of service and nature of work carried out by them, etc.) dated 6.6.2003 signed by the then Secretary.
2.6 Respondent No. 4, in collusion with Respondent Nos. 5 and 6, is engaged in Enrolling the candidates as Advocates, who possess unrecognized Bachelor Degree of Journalism and Mass Communication (One year duration course) which is not treated as a qualified degree and equivalent to graduation for the purpose of securing admission in LL.B course.
2.7 Petitioners have quoted instance of one Shri Bhavesh H. Makawana, who was holding one year bachelor degree from Saurastra University and who, at a later stage obtained admission in LL.B. and applied for enrollment before the respondent No. 3. According to the petitioners, respondent No. 1 Bar Council of India had called for the remarks of the Bar Council of Gujarat as to whether Shri Bhavesh H. Makawana was eligible for being enrolled as an Advocate or not.
2.8 Mr. Makawana had obtained B.Com degree securing 42.88% and therefore, he could not have been admitted in the law college as the minimum percentage of marks prescribed by the Bar Council of India in the qualifying examination is 45%. In spite of this, the application of Mr. Makawana was processed and he was enrolled.
2.9 According to the petitioners in spite of certain directions and clarifications issued by respondent No. 1, respondent No. 3 proceeded to issue enrollment certificate (Sanad) in favour of Mr. Makawana vide Enrollment Certificate No.-G/2708/2010.
2.10 According to the petitioners more than 100 persons of the Saurastra University possessing degree of one year course of Bachelor of Journalism and Mass Communication have been enrolled as advocates on the Roll of Respondent No. 3 without knowledge of other members of Respondent No. 3 as well as Respondent No. 1.
2.11 After enrolling such unqualified persons as Advocate, Respondent Nos. 3, 7 and 8 have included such persons in the Electoral Roll of the ensuing election of the Bar Council of Gujarat (BCG) thereby creating bogus voters.
3. It is the case of the petitioners that Respondent No. 3, Bar Council of Gujarat failed to declare the Election of its Members before the expiry of term of five years, and therefore as provided under Section 8 of the Act, Respondent No. 3 convened a meeting of the General Board on 20th November, 2011 and resolved that as the extended term of the Bar Council of Gujarat is to expire on 17.12.2011, the Bar Council of India be requested to appoint a Special Committee as per the provisions of the Advocates Act, 1961 to conduct the proceedings of the Bar Council of Gujarat. The said resolution was forwarded by Respondent No. 4 vide letter dated 23.11.2011 to Respondent No. 1 Bar Council of India for taking necessary action under the provisions of Section 8(A) of the Act. According to the petitioners, the said resolution was forwarded by Respondent No. 4 on a letter-head of Respondent No. 3 without obtaining signature of competent authority and without putting common seal of Respondent No. 3. It is alleged that Respondent No. 4 played mischief by enclosing a separate sheet of paper, suggesting for inclusion of two other names with the name of Advocate General for forming a Special Committee of Respondent No. 3. The two names suggested were of Respondent No. 5 and Respondent No. 6. It is also the case of the petitioners that they have preferred a detailed representation in this regard before respondent Nos. 1, 2, 3, 7 and 8 on 9.3.2012, however, no reply was received except a letter dated 12.3.2012 from the Office of Respondent No. 2 i.e. Advocate General, being Ex. Officio Member and Chairman of the Bar Council of Gujarat, informing to the petitioners that the issues raised in the representation are being looked into by the Advocate General and the decision taken in that behalf would be communicated to the petitioners shortly.
4. Under such circumstances according to the petitioners, they were left with no alternative but to file this petition in the nature of public interest litigation.
5. We heard Mr. Jagdish Roy, learned Advocate appearing with Mr. Harit N. Sompura at length.
6. Learned Advocate appearing for the petitioners mainly contended that the appointment of Respondent No. 4 as In-charge Secretary could be termed as void ab initio and if Respondent No. 4 is permitted to hold the charge of Secretary on officiating basis then that would certainly tarnish the image of Respondent Nos. 1, 2 and 3. Learned Advocate submitted that even if a person holds a temporary charge, such person must possess the necessary qualifications and fulfill eligibility criteria for the said post as prescribed by the Rules. Learned Advocate further contended that the respondents are enrolling candidates as an Advocate on the Roll of Respondent No. 3 in violation of the eligibility criteria fixed by respondent No. 1. Learned Advocate submitted that a candidate must possess minimum 45% in the three years degree course or equivalent degree of a University recognised by the Bar Council of India for admission in 1st LL.B. course of three years or five years. Respondent No. 3 has issued Enrollment Certificates (Sanad) to more than 100 such persons of the Saurastra University, who possess the degree of one year course of Bachelor of Journalism and Mass Communication and who have obtained less than 45% marks in their qualified graduation examination. Learned Advocate submitted that their names are also included in the Electoral Roll of the ensuing Election of the Bar Council of Gujarat and thereby a bogus voters list has been prepared for the forthcoming election of 2012. Learned Advocate lastly contended as regards the irregularities committed by respondent No. 3 so far as the appointment of the Special Committee under Section 8(A) of the Advocates Act, 1961 was concerned.
7. After hearing learned Advocate appearing for the petitioners, we did not deem fit to issue notice on the respondents as we were prima facie not convinced with the merits of the petition being in the nature of public interest litigation. We, therefore, after hearing the learned Advocate reserved the matter for judgment. Under such circumstances, no interim relief of any nature was granted to the petitioners as prayed for in the petition.
8. Ordinarily, Court would allow Litigation in Public Interest if it is found :
(i) That the impugned action is violative of any of the rights enshrined in Part III of the Constitution of India or any other legal right and relief is sought for its enforcement;
(ii) That the action complained of is palpably illegal or mala fide and affects the group of persons who are not in a position to protect their own interest on account of poverty, incapacity or ignorance;
(iii) That the person or a group of persons were approaching the Court in public interest for redressal of public injury arising from the breach of public duty or from violation of some provision of the Constitutional law;
(iv) That such person or group of persons is not a busybody of meddlesome inter-loper and have not approached with mala fide intention of vindicating their personal vengeance or grievance, the part of the State or Public Authority being not justiciable in such litigation;
(vi) That the litigation initiated in public interest was such that if not remedied or prevented would weaken the faith of the common man in the institution of the judiciary and the democratic set up of the country;
(vii) That the State action was being tried to be covered under the carpet and intended to be thrown out on technicalities;
(viii) Public Interest Litigation may be initiated either upon a petition filed or on the basis of a letter or other information received but upon satisfaction that the information laid before the Court was of such a nature which required examination;
(ix) That the person approaching the Court has come with clean hands, clean heart an clean objections;
9. Having heard learned counsel for the petitioners and having gone through the materials on record, the only question for our consideration is as to whether the petitioners are entitled to any relief as prayed for in the petition in exercise of our powers under Article 226 of the Constitution in a public interest litigation.
10. During the course of hearing, we noticed that the Bar Council of Gujarat under Rule 6 of the Rules framed by the Bar Council of Gujarat under Section 15, Clause 2, Sub-clause (a) and (d) approved by the Bar Council of India and Rule 3 of Part-IX of the Bar Council of India Rules framed under Section 49, clause-I, sub- clause (a), clause (i) and clause (j) of the Advocates Act, 1961 had already declared the election programme. As per the Election notice issued by the Returning Officer jointly with Joint Returning Officer, the elections were to be held on 11th May, 2012.
11. The elections as scheduled were held on 11th May, 2012 and a new body consisting of 25 members has been constituted. As such on formation of the new body of 25 members, the Special Committee which was constituted under Section 8(A) of the Act got dissolved.
12. We have noticed that one of the prayers, more particularly, 12(c) is with respect to declaring the voters, figuring in the final Electoral Roll as disqualified as they were not possessing the requisite degree for being enrolled as advocates. If the petitioners' case is that the Electoral Roll was prepared contrary to the Rules and Regulations and Advocates, who were otherwise not qualified to be enrolled, were enrolled only for the purpose of the forthcoming elections, then under such circumstances, there is a remedy provided under the Bar Council of India Rules Part-IX which is with respect to election. Rule-5 as provided under Part-IX of the rules reads as under :
“All election disputes shall be decided by Tribunals constituted by the State Council” It is always open for the petitioners to seek appropriate remedy as provided under the rules.
It would be open for the petitioners to seek appropriate remedy as provided under the afore-stated quoted rule in accordance with law.
13. We are, now left with only one prayer and that is with respect to Respondent No. 4 holding the post of In-charge Secretary. We are of the view that as such, there is no public interest involved. The post of Secretary of Bar Council of Gujarat cannot be said to be a public post and a person holding such charge of Secretary could not be said to be holding a public post. One of the most important conditions which the person seeking a writ of quo warranto must satisfy is that the office in question is a public office and the same is of a public nature. If this condition is satisfied, only in such a case, the court may proceed further to enquire as to whether the appointment to the public office is really in violation of statutory rule and regulations or any provision of law. At this stage, it would be profitable to quote observations made by this very Bench in Letters Patent Appeal No. 2485/2010 decided on 11.4.2012.
“In B.R. Kapur v. State of T.N. [(2001) 7 SCC
231 : AIR 2001 SC 3435], after referring to Halsbury's Laws of England , Words and Phrases and leading decisions on the point, it was observed that a writ of quo warranto is a writ which lies against the person who is not entitled to hold an office of public nature and is only a usurper of the office. Quo warranto is directed to such person who is required to show by what authority he is entitled to hold the office. The challenge can be made on various grounds, including the ground that the possessor of the office does not fulfill the required qualifications or suffers from any disqualification, which debars him to hold such office. It was further stated that on being called upon to establish valid authority to hold a public office, it such person fails to do so, a writ of quo warranto shall be directed against him. It shall be no defence by the holder of the office that the appointment was made by the competent authority, who under the law is not answerable to any court for anything done in performance of duties of his office. The question of fulfilling legal requirements and qualifications necessary to hold a public office would be considered in the proceedings independent of the fact as to who made the appointment and the manner in which the appointment was made.
Any person may challenge the validity of an appointment of a public office, whether any fundamental or other legal right of his has been infringed or not. But the court must be satisfied that the person so applying is bona fide and there is a necessity in public interest to declare judicially that there is an usurpation of public office. If the application is not bona fide and the applicant is a mere pawn or a man of straw in the hands of others, he cannot claim the remedy. Though the applicant may not be an aspirant for the office nor has any interest in appointment, he can apply as a private relator, or an ordinary citizen.
What can be deduced from the term “Public Office” as explained by various authors and the authoritative pronouncements is that a public office is the right, authority and duty created and conferred by law, by which an individual is vested with some portion of the sovereign functions of the Government to be exercised by him for the benefit of the public, for the term and by the tenure prescribed by law. It implies a delegation of a portion of the sovereign power. It is a trust conferred by public authority for a public purpose, embracing the ideas of tenure, duration, emoluments and duties. A public officer is, thus, to be distinguished from a mere employment or agency resting on contract, to which such powers and functions are not attached. The Common Law Rule is that in order for the writ to lie, the office must be of a public nature. The determining factor, the test, is whether the office involves a delegation of some of the solemn functions of Government, either executive, legislative or judicial, to be exercised by the holder for the public benefit. Unless his powers are of this nature, he is not a public officer.”
14. In view of the aforesaid and for the foregoing reasons, we do not find any merit in this petition. In the result, this petition fails and is accordingly rejected. However, in the facts and circumstances of the case, there shall be no orders as to costs.
(BHASKAR BHATTACHARYA, C.J.) (J.B.PARDIWALA, J.) Ashish N.