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2018 DIGILAW 479 (UTT)

PARESH TRIPATHI v. TRILOK SINGH BISHT

2018-11-12

RAJIV SHARMA, SHARAD KUMAR SHARMA

body2018
JUDGMENT Hon'ble Sharad Kumar Sharma, J. The Special Appeal has been preferred by the Chief Standing Counsel alongwith an application for Leave to Appeal. The Special Appeal is taken up for hearing. On hearing counsel for the parties, considering contents and reasons of the Application for Leave to Appeal as annexed alongwith Special Appeal, the same would stand allowed. 2. The instant Special Appeal has been preferred by the appellant Mr. Paresh Tripathi, who is the Chief Standing Counsel of High Court of Uttarakhand at Nainital, wherein he has partly challenged the order passed by learned Single Judge of this Court dated 08.05.2018 in Writ Petition (S/S) No.329 of 2018 “Trilok Singh Bisht Vs. State of Uttarakhand", where in the court while issuing directions to the State Government for taking appropriate action against officials had made observations against him. 3. The petitioner in the writ petition claims to have been appointed as a Forest Guard in the Pay-Scale of Rs. 330-7-365-381-EB-8-405-9-450-EB-9-495 vide order dated 28.11.1983 in Kedarnath Kastura MrigVihar/Valley of Flowers/Nanda Devi National Park, his case is that as he has worked regularly without there being any complaint against him, and to the utmost satisfaction of the superior authorities, his case was, that after having put in 26 years of uninterrupted service as a Forest Guard the petitioner was promoted on Ad-hoc basis on the post of Forester on 01.08.2009, carrying the scale of 5200-20200. The case of the petitioner is that he was regularly and substantially promoted as Forester vide Forest Order No. 08/1-12-7 dated 04.10.2012. As a consequence of the enforcement of the Assured Career Progression Scheme by the State on 06.11.2013, which has been made effective w.e.f. 01.09.2008, the petitioner contended to claim the benefit of the ACPs, as per the said Government Order, on completion of 10, 16 and 26 years of continuous and satisfactory service. The case of the petitioner in the writ petition was that he has completed 26 years of service but the benefits of IIIrd ACP has been denied to him by the order dated 15.11.2017 contending thereof that as the petitioner has been paid an excess payment due to wrong fixation of salary and as a consequence thereof respondent has passed impugned order directing the petitioner to deposit by way of refund a sum of Rs. 3,95,333/- in accordance with the appendix contained in the impugned order dated 15.11.2017. 3,95,333/- in accordance with the appendix contained in the impugned order dated 15.11.2017. Thus, he has filed a writ petition with the following prayers:- a) Issue a writ, order or direction in the nature of Certiorari to call for the record and to quash the illegal and arbitrary order contained in letter No. 1924/1-1 dated, Gopeshwar dated 15.11.2017 passed by the respondent no.4, filed as Annexure No.7, b) Issue a writ, order or direction in the nature of Mandamus commanding the respondents not to effect any recovery from the petitioner pursuant to the order dated 15.11.2017 and to pay him his regular salary as has been paid after pay fixation on grant of the benefits of Assured Career Progression (ACP) to the petitioner. 4. The writ petition was taken up as fresh case and the Court of leaned Single Judge, by an order dated 23.02.2018, while admitting the writ petition, had stayed the effect and operation of the order dated 15.11.2017 impugned in the writ petition and directed the respondents to file their counter affidavits. Ultimately, the proceedings of the writ petition reached to the stage of proceedings as held on 08.05.2018, on which the impugned order was passed, a part of which is under challenge in the present Special Appeal so far it records findings against the appellant. 5. Heard learned counsel for the appellant as well as learned Advocate General and the counsel for the private respondents. 6. Prior to dealing with the part of the order under challenge, it becomes essential to scrutinize the order dated 08.05.2018 itself. According to the findings, which have been recorded, it seems that the learned Single Judge had observed that while granting the interim order, it was directed that the respondents were to disclose the names and posts of the persons, who are responsible for making wrongful payment and what action has been taken by the department against them. As reflected from the order impugned dated 08.05.2018, that in furtherance of the order dated 22.02.2018, a counter affidavit could be filed only on 04.05.2018 alongwith the Delay Condonation Application. 7. As there were certain defects the Additional Chief Standing Counsel representing the state had sought permission to withdraw the Delay Condonation Application and also the counter affidavit, which was permitted to be withdrawn by the Court. 7. As there were certain defects the Additional Chief Standing Counsel representing the state had sought permission to withdraw the Delay Condonation Application and also the counter affidavit, which was permitted to be withdrawn by the Court. The Court while acceding to the request of Additional Chief Standing Counsel while granting the permission to withdraw the Delay Condonation Application as well as the counter affidavit had proceeded further to make the observation with regards to the functioning of the office of the Chief Standing Counsel headed by the appellant and as per the appellant the Single Judge had proceeded to record findings adverse to the functioning of the office of the Advocate General as well as of the Chief Standing Counsel. The learned Single Judge proceeded to make an observation that the manner, in which the office of the Advocate General is functioning, the State Law Officers deputed in courts are not protecting the interest of the State and despite of several observations made earlier there is no improvement as such. The Court also observed that such type of an observation had also been made by the court earlier but no heed has been paid by the State Counsel, nor state itself has taken any action for improving the system prevailing in the office of Chief Standing Counsel. 8. The finding, which has troubled the Chief Standing Counsel i.e. the appellant necessitating to file the present Special Appeal, is to the following effect:- “This Court on several occasions noticed that working of the State Law Officer is not proper and many times this Court suggested learned Advocate General and learned Chief Standing Counsel of the State to improve in the working of the State Law Officers, but there is no improvement in the working of the State Law Officers. It appears to this Court that State Law Officers are not safeguarding the interest of the State properly. Observations were made in several cases by this Court as well as the by the Division Bench but there is no improvement in the working of the State Counsel. This Court has made repeated request to Mr. Paresh Tripathi, learned Chief Standing Counsel to improve the working of State Law Officers and allot them case finally, so the Law Officers may responsible for the case respectively allotted to them. This Court has made repeated request to Mr. Paresh Tripathi, learned Chief Standing Counsel to improve the working of State Law Officers and allot them case finally, so the Law Officers may responsible for the case respectively allotted to them. But, instead of sincerely implementing the suggestion of this Court, he has decided not to appear before this Court. He only used to appear before me along with the Advocate General when I sit in Division Bench. Act of Mr. Paresh Tripathi, C.S.C. is not only derogatory but against the interest of the State Government. Let a copy of this order be sent to the Principal Secretary (Law)-cum-L.R. Government of Uttarakhand for taking necessary action against those officers who are filing the counter affidavits by shutting their eyes and are not discharging their duties properly." 9. The Court has observed that the Chief Standing Counsel in persona had failed to improve the functioning of the office of the Chief Standing Counsel, as well as, the functioning of the State Law Officers, so that they may be personally made responsible for the derelictions in performance of their duties. The Court has proceeded to observe that instead of improving the functioning of the office of Chief Standing Counsel as directed the Chief Standing Counsel had rather stopped appearing before the Court and whenever he has appeared he has only appeared alongwith the Advocate General and that to when the learned Single Judge was sitting in a Bench. The Court has proceeded to hold that this act of the Chief Standing Counsel Mr. Paresh Tripathi of not appearing before him, or appearing alongwith the Advocate General, when the Court sits in Division Bench, holding it to be derogatory and consequently he has inferred that it is against the interest of the State and directed the matter to be sent to the Principal Secretary Law cum LR for necessary action, against those Officers, who are filing counter affidavit without a sense of responsibility. 10. 10. The observation, which has been made by the learned Single Judge in the impugned order under challenge to the effect that the Standing Counsel has failed to regulate the functioning of the office of the Chief Standing Counsel, it may not be a correct inference, which has been rightly drawn by the Court for the reason being that how a counsel manages his office should not be a concern of Court, and no judicial notice of the said fact could be taken for the purpose of passing the impugned order under challenge in the Special Appeal. It should not be a concern of the Court as to how the office of the Chief Standing Counsel allocates the case, how he regulates the functioning of the State Law Officers, and as to how the responsibilities could be fixed on them in their functioning. Even let us presume that these discrepancies are there, obviously it should be the concern of the client i.e. State herein, who has engaged the counsel to safeguard their interest. Based on the aforesaid discrepancies as observed by the learned Single Judge at least the Court could not have directed the litigant State for taking an action against the State Law Officers or the Officers concerned. 11. The appellant has questioned the findings of the impugned order on the ground that the findings, which have been recorded, is a consequence of a personal annoyance of the learned Single Judge against the Chief Standing Counsel in person. He further argues that he is taking utmost care in representing the interest of the State before the courts to the best of his capability and there had been no complaint or any allegations of any nature, against him and thus the observations made by the learned Single Judge apart from being serious in nature it also tarnishes the functioning of the Chief Standing Counsel himself, it also blemishes his professional career. He had submitted that looking to the manner, in which the learned Single Judge had consistently making adverse personal observations against him in number of proceedings, is apparently as a consequence of the vengeance of some personal vendetta and that to without there being any material before him nor there being any one's case argued before the learned Single Judge questioning the functioning of Mr. Paresh Tripathi, the Chief Standing Counsel. Paresh Tripathi, the Chief Standing Counsel. Hence, the findings recorded it would have an adverse effect on the dignity of the office of the Chief Standing Counsel and the Chief Standing Counsel himself. The argument of the learned counsel for the appellant is further that as far as the Court of the learned Single Judge is concerned there had been various State Officers including the Officers up to the level of Deputy Advocate General, Additional Chief Standing Counsel, who had been deputed in the said court for taking care and interest of the State. His argument is that its not the case that State remains unrepresented and its practically not possible for the Chief Standing Counsel the appellant to be omnipotent in all the Courts and remain present in all cases before the said court. 12. It has been argued by Mr. C.K.Sharma, learned counsel for the appellant that each State Law Officer had been diligent in performing its duties before the court concerned. 13. In answer to the observations pertaining to the preparation of the counter affidavit and the mistakes, which have crept therein, we are of the view that the responsibility of preparation of the counter affidavit is not personally discharged by the Chief Standing Counsel in each and every case, its rather the Law Officers entrusted with the work, who drafts the counter affidavit based on the instructions of the authorities and particulars supplied by them. If their crept in any minor error due to human prudence, which is quite obvious in such type of functioning it cannot be construed as to be a personal dereliction or negligence on part of the Chief Standing Counsel. Even otherwise also these minor discrepancies are part and parcel of professional career and the nature of error complained of which has been observed was not such a grievous error, which could be harness upon the Chief Standing Counsel individually. The another aspect of the matter regarding the finding which has been recorded by the learned Single Judge, that Chief Standing Counsel is not appearing before his Court, it is argued that this may not be the correct finding because being a superior State Law Officer he has to represent the state's cause, before the Chief Justice's Court or before other Courts of Senior Judges and it will not be practically feasible for him to appear before every court simultaneously. We are of the view that at least court cannot force a counsel to mandatorily appear before it, when the party who is to be represented has been presented by other State Law Officer. 14. Even otherwise also, if the swearing clause of any affidavit, which has been filed before the Court is considered, it could be seen with the contents of the affidavit are sworn by the deponent, who verifies the paragraphs as given in the said affidavit. As far as the counsel's role is concerned, if we scrutinize two clauses, the counsel only identifies the person swearing the affidavit on the basis of the document and the papers produced before him. Hence, at least, the counsel is not instrumental at all in the verification of the contents of the paragraphs mentioned in the affidavit which are sworn by the deponent. Hence, also atleast, the counsel cannot be held responsible, if paragraphs of the affidavits are not sworn and if they are sworn inappropriately. Even according to the Oaths Act, 1969, too the said Act does not hold the counsel to be responsible for the contents of the affidavit, its always the deponent who is responsible. 15. This Court is also of the view that its not the Court business to ensure appearance of a particular Advocate and that too particularly under the circumstances whenan Advocate represents the State and the representation is there by any subordinate Law Officer. Its not the case that the State interest remain unrepresented. Hence merely because the Chief Standing Counsel had not appeared for couple of occasions the inference drawn by the learned Single Judge would be uncalled for, and would also be contrary to the expected pragmatic approach of the Court, to make uncalled for observations. 16. Another view, which has been expressed by the learned Single Judge with which we don't agree is with regard that the Chief Standing Counsel Mr. Paresh Tripathi normally appears before him along with Advocate General, whenever he sits in a Division Bench, is yet again as uncalled for observation which will not amount to be a professional dereliction and also it should not have been the concern of Court if the Chief Standing Counsel appears before a Division Bench alongwith the Advocate General and does not appear before him when he sits single. It cannot be construed as to be a misconduct which could at least call for a court to make a reference to Principal Secretary Law for taking an action. At least under the circumstances, and the findings recorded in the manner in which the case has proceeded with no doubt that under the circumstances, the court should not have overstepped its patience by directing a litigant engaging a counsel to either chose or remove his counsel. It could further be observed that whatsoever finding, which has been observed by the learned Single Judge against the functioning of the Chief Standing Counsel in persona, apart from the fact that it would tarnish his professional career, and if it does so, it would be having a civil consequence and it could have been only passed after providing him an opportunity of hearing and soliciting his clarification prior to making any observation and referring the matter to the LR for taking an appropriate action. 17. In view of the reasoning recorded hereinabove, the impugned judgment dated 08.05.2018 is set aside and quashed. The Special Appeal stands allowed to the extent it challenges the order dated 08.05.2018 recording findings against the appellant. 18. There would be no order as to costs.