1. Whether a statement, made in or outside the court by or on behalf of T, that 'X has been discriminated against 'Y, while appointing 'Y to a particular post in public employment, in preference to 'X', on the ground that 'Y belongs to a particular religion, can be regarded as a communal statement ? This is the moot question, which this miscellaneous application has raised. 2. Connected with the above question is the question as to whether a court shall make 'disparaging remarks' against a counsel, if the counsel had made the statement, as indicated above, on the basis of written instructions received from his client, particularly, when the instructions are supported by affidavit of the client. Yet another question, which has arisen for determination in this application, is: Whether it is open to a court to make 'disparaging remarks' against a counsel even if the counsel has withdrawn the submission or statement made by him. 3. Before I come to the factual background, wherein the above questions have arisen for determination, imperative it is to point out, at the very outset, that this court, while dealing with the present miscellaneous application, is not sitting as a court of appeal; rather, this court has to treat the order, which has been the subject of the present miscellaneous application, seeking expunction of the remarks made, in an order, against the counsel, as if the order was passed by this court. 4. With the prefatory remarks made above, let me turn, now, to the background facts. Background facts 5. In order to understand the background of this present Misc. Application, the events, which preceded the making of the remarks against the present applicant in the judgment and order, dated 9.11.2005, passed in WP(C) No.4400/1999 [Saleha Begum v. State of 'Assam and Ors., 2006 (1) GLT 86] are necessary to be recalled. The relevant paragraphs of the judgment and order, dated 9.11.2005, 'aforementioned are, therefore, extracted below: "(1) The challenge made in this writ petition is in respect of termination of the services of the petitioner as Assistant Teacher (honorary basis) by the Managing Committee of the school. (2) The petitioner was first appointed as assistant Teacher on honorary basis in the school in question by the Managing Committee of the school by its order dated 22.1.1989 in response to the application submitted by the petitioner on 8.1.1989. (2) The petitioner was first appointed as assistant Teacher on honorary basis in the school in question by the Managing Committee of the school by its order dated 22.1.1989 in response to the application submitted by the petitioner on 8.1.1989. According to the petitioner she was the second senior most teacher of the school after one Sri Anser Ali. Upon his resignation from the post of Headmaster of the school with effect from 26.3.1998 accepted by the Managing Committee on 25.5.1998, she was under expectation to be appointed as in-charge Headmistress of the school. However, contrary to such expectation, the Managing Committee circulated an advertisement on 12.5.1998 confining the candidatures only to the male candidates. According to the petitioner, same was done with a view to deprive her from the post of Headmistress. (3) In the aforesaid situation, the petitioner approached this court by filing a writ petition being Civil Rule No. 28137/1998 and by interim order dated 10.6.1998 the advertisement was stayed. Later on, the petitioner withdrew the writ petition on 11.8.1999. In between, the Managing Committee of the school terminated her service by its resolution adopted on 27.6.1998. It is the case of the petitioner that the Managing Committee, being annoyed with her in view of her filing the aforesaid writ petition, adopted such a course of action. (4) The petitioner filed the instant writ petition on 26.8.1999 making a challenge to the impugned order of termination, dated 27.6.1998, i.e.', after about 15 months of such termination of service. In the writ petition, the petitioner has not even obliquely stated about the subsequent developments that took place in respect of the post earlier being held by her. While entertaining the writ petition, an interim order was passed directing the respondents to allow the petitioner to continue in her service. Such an order was passed on 29.9.1999. Being aggrieved, the Managing Committee of the school represented by the respondents Nos. 4 and 5 filed Misc. Case No. 1184/1999 disclosing the developments that took place after termination of services of the petitioner. It was stated in the application that the post earlier being held by the petitioner had since been filled up firstly by one Sri Himan Kumar Saikia and than by the respondent No. 7. 4 and 5 filed Misc. Case No. 1184/1999 disclosing the developments that took place after termination of services of the petitioner. It was stated in the application that the post earlier being held by the petitioner had since been filled up firstly by one Sri Himan Kumar Saikia and than by the respondent No. 7. It was contended that since the post had been filled up on 9.9.1998 much before the interim order passed on 29.9.1999, the order would put the management in difficulty since there was no post to accommodate the petitioner. Be it stated here that the post in question is Assistant Teacher in Assamese presently being held by the respondent No. 7. (5) The interim order passed on 29.9.1999 was vacated by order dated 24.11.1999 taking note of the aforesaid facts and circumstances. The respondent No. 7 was not made a party to the writ proceeding, but later on as per order of this court passed on 24.11.1999, she was added as respondent No. 7 on the verbal prayer of the petitioner. Although, she stood impleaded in the writ proceeding, there is no challenge to her appointment in this proceeding. In fact, no averments have been made in respect of her selection and appointment. (6) The petitioner has not stated anything as to how the action of the Managing Committee of the school without any control over it of any governmental authorities could be amenable to writ Jurisdiction. During the course of hearing of the writ petition, the question of maintainability of the writ petition was raised on behalf of the respondent Nos. 4 and 5. Be it stated here that these two respondents although have not filed any separate counter affidavit, but projected the aforesaid Misc. Case No. 1184/1999 to be their counter affidavit, the same having exhaustively dealt with the contentions raise in the writ petition. (7) Noticing the question of maintainability of the writ petition, this court by order dated 23.9.1999 directed the petitioner to file an affidavit as to the status of the school, whether it was a provincialised or an aided school. The petitioner filed an additional affidavit enclosing therewith certain documents relating to permission for opening of classes, provisional recognition for only one section on each class and sanctioning of ad hoc grants to the school. The petitioner filed an additional affidavit enclosing therewith certain documents relating to permission for opening of classes, provisional recognition for only one section on each class and sanctioning of ad hoc grants to the school. Apart from annexing such documents, no statement has been made in the additional affidavit as to whether the school was a provincialised one or an aided one. One the other hand the respondent Nos. 4 and 5 in their Misc. Case has made the following statements paragraphs 14 and 15 : "14. That the school has the full strength of teacher permissible in respect of recognized school which is not receiving any grants from the government and such it would not be possible for the school's Managing Committee to allow the writ petitioner to continue serving the school as she has been terminated from her service op 27.6.1998 and her post has been filled up long back. 15. That Barpathar High School is not a provincialised school or Government school and as such the action of the Managing Committee of the said school are not amenable to the writ jurisdiction of this hon'ble Court and as such the Writ Petition (C) No. 4400/99 filed by Mrs. Saleha Begum is liable to be dismissed on his ground alone and the interim order dated 29.9.1999 is liable to be recalled as well." (emphasis supplied) 6. Since the observations made by the court, in paragraph 8 of the above decision, has given rise to the present miscellaneous application, whereby the applicant, who was the counsel for the writ petitioner in WP(C) No.4400/1999, has sought for expunction of the remarks made therein against him, the observations made by the learned Single Judge, in paragraph 8, are reproduced below: "8. Mr. M. U. Mahmud, learned counsel for the petitioner during the course of hearing made an unusual and unfortunate submission somewhat communalizing the issue contending that the petitioner has been discriminated she being Muslim and that the respondent No. 7, has been preferred, she being Hindu. Another submission made was that the respondent No. 7 has been appointed mala fide and in colourable exercise of power by the respondent Nos. 4 and 5. On being asked as to whether any such allegations have been made in the writ petition including any challenge to the appointment of the respondent No. 7. Mr. Another submission made was that the respondent No. 7 has been appointed mala fide and in colourable exercise of power by the respondent Nos. 4 and 5. On being asked as to whether any such allegations have been made in the writ petition including any challenge to the appointment of the respondent No. 7. Mr. Mahmud, learned counsel for the petitioner, withdrew the submission so made and, in fact, expressed his regret for making such a submission. He submitted that the action on the part of the respondent No. 4 and 5 being violative of the principles of natural justice, same is not sustainable and consequently, the impugned order/resolution of the Managing Committee is liable to be set aside." (emphasis supplied) 7. By making the present Misc. Application seeking expunction of the remarks of the court, which were made against the present applicant to the effect that the applicant (who was the counsel for the writ petitioner in the said writ petition) had made a somewhat communal statement during the course of hearing of the writ petition, the applicant has stated to the effect, inter alia, that though the matter was heard as far back as on 15.3.2005, and, then, on 28.7.2005, yet the decision was given as late as on 9.11.2005, i.e., more than three months after the writ petition had been heard. The applicant contends that he was not aware of the remarks, which had been recorded by the learned Single Judge, in paragraph 8 of the decision, which came to be reported as Saleha Begum (supra), and it was long after the case had been reported that it came to his knowledge that the remarks, as indicated above, had been made against him. 8. The applicant has, therefore, sought for expunction of the remarks. The learned Single Judge, who had disposed of the writ petition and to whom was laid this Misc. Application, which gave rise to Misc. Case No. 3412/2008, pointed out in his order, dated 21.3.2009, that the Application had been made belatedly, which, has a copy of a letter, dated 30.3.2005, 'purportedly addressed to him by the writ petitioner'. 9. The learned Single Judge, who had disposed of the writ petition and to whom was laid this Misc. Application, which gave rise to Misc. Case No. 3412/2008, pointed out in his order, dated 21.3.2009, that the Application had been made belatedly, which, has a copy of a letter, dated 30.3.2005, 'purportedly addressed to him by the writ petitioner'. 9. In the order, dated 21.3.2009, the learned Single Judge has observed that even if the letter of the writ petitioner, dated 30.3.2005, was taken on its face value, the contents of the letter, as stand recorded in paragraph 8 of the judgment, would not justify the communal statement made by the counsel (who is the present applicant) of the writ petitioner inasmuch as it was an attempt to bring this court to disrepute. 10. At any rate, having expressed the views, as indicated above, the learned Single Judge observed that having regard to the facts and circumstances of the case and in the interest of proper administration of justice, it was appropriate to lay the matter before hon'ble the Chief Justice so as to place the matter before another appropriate Bench. The relevant observations made by the learned Single Judge, in his order, dated 23.1.2009, reads as under : "Having regard to the facts and circumstances involved in the case and in the interest of proper administration of justice, I deem it fit and proper to place the matter together with the aforesaid statements of facts, before hon'ble the Chief Justice for such directions towards placing the matter before another appropriate Bench so that the matter comes to its logical conclusion upholding the majesty, dignity and authority of law and the court." 11. By the order of the hon'ble the Chief Justice, the matter was laid on 30.1.2009, before another learned Single Judge (Ranjan Gogoi, J as His Lordship, then, was). In order to ascertain the authenticity of the letter, dated 30.3.2005, which the applicant had relied upon as the basis of his submissions, which stand recorded in paragraph 8 of Saleha Begum (supra), the court, by order, dated 30.1.2009, directed Musstt. Saleha Begum to be brought to the court, under police protection, making it clear that the Deputy Commissioner, Chirang, within whose jurisdiction Musstt. Saleha Begum resides, shall inform Musst. Saleha Begum to be brought to the court, under police protection, making it clear that the Deputy Commissioner, Chirang, within whose jurisdiction Musstt. Saleha Begum resides, shall inform Musst. Saleha Begum, that on her appearance, in the court on 3.2.2009, at 10.15 a.m., she would be required to state as to whether she had written and signed the letter, dated 30.3.2005, and, if so, the materials on the basis of which the allegations, mentioned in the said letter, had been made". 12. In course of time, Saleha Begum appeared in the court and, to a query made by the court (Ranjan Gogoi, J, as His Lordship, then, was), she stated before the court that she had, indeed, written the letter, dated 30.3.2005, aforementioned addressed to her counsel, (i.e., the present applicant). The court, then, took specimen handwriting and signature of Musstt. Saleha Begum and sent the same to handwriting expert in the Forensic Laboratory along with the letter, dated 30.3.2005, for examination making it clear that the police, who had escorted Musstt. Saleha Begum to the court, would take her back to her home and that the supervision of the police personnel, as had been directed earlier, would continue until further order. 13. Thereafter, on 26.2.2009, another order was passed in this miscellaneous application, which shows that the court perused the report of the senior Scientific Officer, Questioned Document Division, Directorate of Forensic Science, Government of Assam, and also perused the affidavit, dated 16.2.2009, filed by Musstt. Saleha Begum pursuant to the court's order, dated 5.2.2009. In paragraph 6 of her affidavit, Musstt. Saleha Begum stated, "........In that letter, I wrote that Mrs. Maromi Medhi, who was appointed against my post, has some chain of links with the Judge/Lawyer in the court related to the case with some positive expectation that she will win the case." 14. By an order, dated 3.9.2010, the court directed the Registry to obtain necessary orders from the hon'ble Chief Justice for assignment of the case to any appropriate Bench. Thereafter, the case has been made over to me for disposal. 15. I have heard Mr. N. Dutta, learned senior counsel, appearing on behalf of the applicant. None has appeared on behalf of the State and/or the private respondent. 16. Thereafter, the case has been made over to me for disposal. 15. I have heard Mr. N. Dutta, learned senior counsel, appearing on behalf of the applicant. None has appeared on behalf of the State and/or the private respondent. 16. In the face of the admitted position, that Saleha Begum had written the letter, dated 30.3.2005, aforementioned, to her counsel (i.e., the present applicant) stating to the effect that Mrs. Maromi Medhi, who had been appointed against, her post, has some chain of links with the Judge/Lawyer in the court related to the case with some positive expectation that she would win the case and, in the face also of the admitted position that the report of the handwriting expert confirms that the letter, in question, had been, indeed, written by Musstt. Saleha Begum, let me, now, turn to what have been submitted on behalf of the applicant. 17. Before proceeding further, it is wholly indispensable to point out that during the course of hearing of the present miscellaneous application, it was pointed out by me to Mr. Dutta, learned counsel for the applicant, that it would, perhaps, be more appropriate, on, my part, if I do not hear this miscellaneous application and direct the matter to be laid before the hon'ble Chief Justice for necessary order to list the present Misc. Application before another Bench, What Mr. Dutta submitted to the observations, so made by me, is, to my rnind, extremely important not only for this case, but for the justice delivery system, as a whole, inasmuch as we decide cases, in the court of law, without being influenced by the caste, creed, religion, language or place of birth of a party or his/her counsel. 18. Reacting to the views expressed by this court, that I should not, perhaps, take up this case, Mr. N. Dutta, learned senior counsel, in his usual flair, drew the attention of this court to the famous statement made by the renowned Jurist, Prof. Jennings, to the effect that the day on which a lawyer, in England; would have the liberty to choose his client, that day would be the last day of the rule of law and, taking this statement as a basis, Mr. Jennings, to the effect that the day on which a lawyer, in England; would have the liberty to choose his client, that day would be the last day of the rule of law and, taking this statement as a basis, Mr. Dutta, submits that it would be the death nail to the independence and majesty of the Indian judiciary if a Judge declines to take up a case merely because the decision given by the judge may be misunderstood. A Judge, according to Mr. Dutta, should not have the choice of deciding as to which case it would hear and which case it would not unless the Judge is, directly or indirectly, interested or involved in the matter. In the case at hand, since the situation is not that this court is, in any manner, directly or indirectly, connected with the matter or has any interest in the matter, Mr. Dutta contends, and I find considerable force in his contention, that it is appropriate, on the part of this court, to deal with this case, no matter as to what result would follow. Imbibed by the spirit, which the submission of Mr. Dutta generates, I have decided to take up the case, hear and decide the same. 19. Appearing on behalf of the applicant, Mr. Dutta begins his arguments by pointing out that this court is a Court of Record and, since this is a Court of Record, it must keep its records clean and clear and in such a manner that even if centuries hereafter, a research is conducted, the record of the case reveals that the Judges decided the disputes dispassionately and in accordance with law and refrained from doing what ought not to have been done, while dealing with the judicial proceedings. Extending his argument, Mr. Dutta submits that one of the precautions, which the courts must take, is that it must not make any disparaging or objectionable remarks or observations against any party or his counsel unless such a remark or observation is absolutely indispensable for deciding the controversy raised before the court. Mr. Dutta has referred, in this regard, to the case of Raghubir Saran v. State of Bihar, AIR 1964 SC 1 . 20. Mr. Dutta has referred, in this regard, to the case of Raghubir Saran v. State of Bihar, AIR 1964 SC 1 . 20. Bearing in mind, therefore, the principles, which the court must adhere to, namely, that no disparaging or objectionable remarks or observations shall be made against a party or its counsel unless such remarks or observations are indispensable for a just decision of the case, let me, now, revert to paragraph 8 of the decision, wherein some remarks were made against the present applicant, which the present applicant seeks to get expunged. The court has recorded, at paragraph 8, points out Mr. Dutta, that"......during the course of the hearing, the counsel made an unusual and unfortunate submission somewhat communalizing the issue contending that the petitioner has been discriminated she being Muslim and that the respondent No. 7, has been preferred, she being Hindu". Another submission made, according to the learned court, was that the "respondent No. 7 has been appointed mala fide and in colourable exercise of power by the respondent No. 4 and 5". But, on being asked by the learned Single Judge as to whether such allegations had been made, in the writ petition, the counsel, (i.e., the present applicant), had conceded that such allegation had neither been made in the writ petition nor had such a statement been made in the additional affidavit. The learned Single Judge has, however, recorded that the present applicant, as counsel, withdrew the submission made by him, namely, that the writ petitioner had been discriminated against on the ground that she was a Muslim and respondent No. 7 was preferred on the ground that she was a Hindu. The learned Single Judge also records that, in fact, the present applicant, as counsel of the petitioner, expressed his regret for his submission and the present applicant submitted to the court, in the writ petition, that the action of the respondent Nos. 4 and 5 being violative of the principles of natural justice, the same was not sustainable and, consequently, the impugned order and resolution of the Managing Committee were liable to be set aside and quashed. 21. 4 and 5 being violative of the principles of natural justice, the same was not sustainable and, consequently, the impugned order and resolution of the Managing Committee were liable to be set aside and quashed. 21. It is the observation, made by the learned court, that the present applicant, as counsel of the petitioner, "...made an unusual and unfortunate submission somewhat communalizing the issue contending that the petitioner has been discriminated she being Muslim and that the respondent No. 7, has been preferred, she being Hindu", which the present applicant seeks to get expunged by making the present Misc. Application. 22. Referring to the provisions of articles 15 and 16 of the Constitution of India, Mr. Dutta points out that article 15 prohibits the State from discriminating against any citizen on the ground of, amongst others, religion and, as far as article 16 is concerned, article 16, while guaranteeing equality of opportunity in matters of public employment, clarifies, vide sub-clause (2) thereof, that no citizen shall, on the ground of religion, race, caste, sex, etc., be ineligible for, or discriminated against, in respect of any employment or office under the State. Taking together these two articles, namely, article 15 and article 16, Mr. Dutta submits that the Constitution has made it clear that the State cannot discriminate against a citizen on the ground of his/her religion, nor can the State make any discrimination, in the arena of public employment, on the ground of, amongst others, religion. 23. When, therefore, points out Mr. Dutta, a person, as a petitioner, or his counsel, makes a statement that he/she has been discriminated against on the ground of his/her religion, such a statement, being within the Constitutional Scheme of Governance, can never ever be recorded as a communal statement. It would be a dark day for democracy, in India, submits Mr. Dutta, if a person is estopped from ventilating his/her grievance if he/she happens to have been discriminated against on the ground of religion. Whether such a statement, if made, is or is not true is an entirely different question. Continuing his argument, Mr. It would be a dark day for democracy, in India, submits Mr. Dutta, if a person is estopped from ventilating his/her grievance if he/she happens to have been discriminated against on the ground of religion. Whether such a statement, if made, is or is not true is an entirely different question. Continuing his argument, Mr. Dutta submits that the very secular fabric, which runs through the scheme of the Constitutional Governance, in India, gives a right, to every citizen to make a public statement, or a statement in a court, that he/she has been discriminated, on the ground of religion, in the matters of public employment or otherwise. Seen in this light, it becomes clear, submits Mr. Dutta, and I have no option but to agree to, that a mere statement made, in or outside the court, to the effect that a person has been discriminated against on the ground of his or her religion, cannot be treated as a 'communal statement', or a statement 'communalizing the issue'. A plea, therefore, that a person has been discriminated against on the ground of religion may or may not be accepted by the court; but the plea cannot be estopped from being raised on the ground that such a plea would be a communal plea. 24. In the case at hand, what is also important to note, points out Mr. Dutta, is that the present applicant, as counsel, had withdrawn his statement, expressed his regret for making such a statement. When the applicant, as the counsel, had withdrawn his statement and had, in fact, expressed his regret for making such a statement, there was no reason, submits Mr. Dutta, and I find considerable force in his submission, that this court should have had attributed not much of importance to the applicant's submissions made in the writ petition, when the submission was tacitly not communal and the same, having been withdrawn, was not required at all for the purpose of deciding the issue, which had been raised in the writ petition before the court. 25. 25. Bearing in mind the scheme of constitutional governance in India vis-a-vis articles 15 and 16 of the Constitution, the statement of the present applicant (as the counsel of the petitioner in the said writ petitioner), made in the court, alleging that the writ petitioner had been discriminated on the ground of religion, did not deserve, in the considered view of this court, to be termed as 'communal statements' or, 'statements somewhat communalizing the issue', for, there can be a situation, wherein an applicant for a post of teacher in a Madrassa may deny appointment on the ground that the applicant is a Hindu/Christian and not a Muslim and, if the Madrassa happens to be receiving aid and assistance of the State, the rejected candidate can always challenge the denial to his appointment as a discrimination against him on the ground of his religion, namely, that he is a Hindu/Christian, and, that is why, he has not been appointed and if the aggrieved person makes such a statement, it cannot be regarded that the aggrieved person's such statement is a communal statement and if a counsel makes a statement in the court, in support of such a case, the counsel's statement can also not be regarded as communal statement, nor the counsel be said to be communalizing the issue. 26. Situated thus, I am firmly of the view that the observations made, in paragraph 8, which reads, "Mr. M.U. Mahmud, learned counsel for the petitioner during the course of hearing made an unusual and unfortunate submission somewhat communalizing the issue contending that the petitioner has been discriminated she being Muslim and that the respondent No. 7, has been preferred, she being Hindu..............." need to be expunged inasmuch as the same, if I may reiterate, cannot be regarded as a communal, submission and the same, having been withdrawn, need not have been recorded and deserves to be, now, expunged, particularly, when the same were not required for the purpose of determination of the real controversy in the writ petition. The observations made by a Division Bench of this court, in Registrar (I&E), Gauhati High Court, Guwahati and Arun Ch. Upadhyay v. Amarjit Borgohain and Ors., 2009(1) GLT 8581, which Mr. Dutta relies upon, are relevant and are, therefore, reproduced below : "(13) In the backdrop of the above discussion, two proposition of law emerged for consideration of this court. The observations made by a Division Bench of this court, in Registrar (I&E), Gauhati High Court, Guwahati and Arun Ch. Upadhyay v. Amarjit Borgohain and Ors., 2009(1) GLT 8581, which Mr. Dutta relies upon, are relevant and are, therefore, reproduced below : "(13) In the backdrop of the above discussion, two proposition of law emerged for consideration of this court. Firstly, it is axiomatic about the existence of inherent power and jurisdiction of this court, as such, aperson aggrieved by any disparaging or objectionable remark/observation made by a court against him can approach the High Court invoking its inherent power and plenary jurisdiction to consider for expunction of the same from the judicial record. Secondly, the consistent policy of the court in such matter is to exercise restraint from passing any disparaging or objectionable remark/observation against individual, officer, counsel, etc. unless such disparaging or objectionable remark I observation is absolutely required for deciding the controversy raised before the court and such disparaging or objectionable remark/observation should also necessarily form an integral part of the judgment and order of the court." (emphasis added) 27. In the result and for the reasons discussed above, this Misc. Application is allowed and the observations, made in paragraph 8 of the decision, in Saleha Begum (supra), which read, "Mr. M.U. Mahmud, learned counsel for the petitioner during the course of hearing made an unusual and unfortunate submission somewhat communalizing the issue contending that the petitioner has been discriminated she being Muslim and that the respondent No. 7, has been preferred, she being Hindu"...... are hereby expunged. 28. With the above observations and directions, this Misc. Case stands disposed of. 29. No order as to costs. _____________