Heard learned counsel for the petitioners, learned Additional Chief Standing Counsel as well as Sri D.R. Misra, counsel appearing on behalf of the Director of Education (Basic) and Basic Education Officer.
Rejoinder, short counter affidavit filed on behalf of opposite party no.3 and the affidavit filed by the Director of Education (Basic) are taken on record.
The sole question, which falls for consideration before this Court in the present case is as to whether the Director can proceed to engage a counsel of Basic Shiksha Parishad in respect of the proceedings in which he has been arrayed as contemnor for violating the order of this Court.
Sri D.R. Misra, counsel for the Director has sought to take shelter from the orders passed in Civil Misc. Writ Petition Nos. 29240 of 1997 (Virendra Singh vs. State of U.P. and others) and 48832 of 2006 (Kanhaiya Lal Mishra vs. State of U.P. and others) and submits that the Director acts in dual capacity i.e. Ex-officio Chairman of the Basic Education Board and the Director of Education (Basic) and, therefore, while functioning in the capacity of Ex-officio Chairman of the Board he is entitled to engage a counsel for the Basic Shiksha Parishad ( for short 'Parishad').
Learned Additional Chief Standing Counsel was directed to assist the Court in this regard and he has placed before this Court for perusal a judgment of the apex Court in the case of Commissioner, Agra and others vs. Rohtas Singh and others, (1998) 1 SCC 349 and submits that the Government officers are to be defended through the State Counsel and they are not at liberty to engage any other private counsel as they wish. He has also referred to the Rules of the Court, which have been taken into consideration while rendering the judgment in the aforesaid case. The relevant discussion of the apex Court in the aforesaid judgment is to the following effect:
" It is on account of the mistaken notion that the State has to prosecute an action for contempt of court against the contemnor that the High Court, in the present case, came to the conclusion that the Advocates appointed by the State to represent it in courts of law cannot appear for an officer of the State who is charged with contempt. It is, therefore, open to the State to nominate its advocates to appear for its officials in contempt proceedings. In fact, in the case of the highest law officer of the State-- the Advocate General, this Court, in the case of T.C. Hingorani v. G.P.Misra -2- (1967 Law Reports Lucknow, page 662), held that the State Government could assign to the Advocate General the duty to appear in a contempt proceeding for a contemnor, and the Advocate General was entitled to so appear. This has been reiterated in Mohd. Iqbal Khandey v. Abdul Majid Rather [(1994) 4 SCC 34] where the Court held that there was no justification for the court to direct the counsel for the appellant, namely the Additional Advocate General, not to appear for the appellant or to direct that he should instead, assist the court.
The State is, therefore, entitled to authorise a law officer to appear in cases where the contempt consists of disobedience of an order of the court by an official or employee of the State. The further directions given by the High Court that in all such cases the legal expenses should be borne personally by the alleged contemnor except when he is honourably acquitted also appear to be unwarranted. The High Court seems to have been moved into issuing such a direction because of the large number of contempt cases pending in that court against the officers of the State for their failure to carry out the orders of the Court. It is indeed a disturbing situation. Where the conduct of the official concerned is contumacious, the court can direct him to pay costs personally, if the facts and circumstances of the case so warrant. But a general direction of the kind given by the High Court cannot be sustained."
The argument of Sri D.R. Misra that the Director acts in dual capacity and, therefore, he is entitled to appear through a counsel for the Parishad, requires consideration in the wake of existing controversy as to whether in a particular given situation the officer concerned is acting as a Director of Education (Basic) or as an Ex-officio Chairman of the Board. Where the conduct of the officer as an Ex-officio Chairman is concerned, he may be at liberty to appear through a counsel for the Parishad, but when the conduct of the officer as a Government officer is concerned and when he is discharging his duties as a Government officer separately apart from the activity of the Board, then he is certainly to be represented through Chief Standing Counsel. Para 15.30 of the L.R. Manual relied upon by Sri Misra is in regard to reimbursement of the amount and also the liability of the officer to pay the amount does not apply in respect of the contempt proceedings as the said provisions have been enacted in respect of threatened Suits against the public officers.
The Director while responding to the order/judgment of this Court certainly acts as an officer, who is assigned with various administrative duties and there are various departmental procedures on the basis of which matter to attain finality is to be routed through the Director and only after the approval of the Director/Secretary the matters are finalized and thereafter orders as well as various requirements, which are needed for the Basic Education Department are laid down and finalised. In the present case, the Director, who was required to comply the order of this Court, was not functioning in the capacity of Ex-officio Chairman of the Board, but -3- in fact he was acting as a Government officer and the file has been routed through him for grant of certain budget from the State Government. The said amount has not been sanctioned as yet. Therefore, the observation made by the Hon'ble Single Judges were not in respect of the controversy in question, which is directly in issue before this Court and they are only obiter dicta while deciding a writ petition. The Director, therefore, should have taken prior permission from the State Government for engaging any other counsel apart from the State Counsel while working in the capacity of Director. Sanctioning of amount is not the function of the Parishad and it is not concerned in any manner in respect of such controversy. The budget, which is to be sanctioned is the administrative function of the Director and in that capacity he cannot be deemed to be acting as an Ex-officio Chairman of the Board. This is not the first case, but in some cases I have found that the Director is adopting the same attitude and his adamant attitude is also reflected from the fact that he sticks to his stand to appear through the counsel for the Parishad.
Since the stand taken by the Director has been reiterated and it has been asserted that he was within his authority to appear through a counsel for the Parishad, therefore, the matter requires to be placed before the Principal Secretary, Basic Education, who will take appropriate action in the matter. He will also consider the conduct of the Director while appearing in this Court through counsel for the Parishad and not trough the Chief Standing Counsel.
Let the Principal Secretary, Basic Education take a decision and inform this Court by the next date i.e. 15.2.2010.
List on 15.2.2010.
The amount, which is to be sanctioned by the State Government shall also be sanctioned by the next date, so as to enable the subordinate officers to comply the order of this Court.
13.1.2010 Rao/-