Arbitrary exercise of power by a public authority and the duty to seek approval as per the decision of the Apex Court.

Navaniti Prasad Singh, J.

The petitioner is a practicing Advocate practicing in the High Court. He had been in the panel of Advocates representing Ara Municipal Corporation.

2. It appears that in the meeting of the General Body of the Corporation on 31.10.2012, a decision was taken to scrap the appointment of empanelled lawyers both for Civil Courts and the High Court. Mayor/Chief Counsel or was authorised to take decision with regard to formation of new panel and/or selection of new Advocates to represent the Corporation both at Civil Courts and at High Court. Pursuant thereto, an advertisement was issued on 08.11.2012 and petitioner applied for being empanelled for representing the Corporation before this Court. Several others also made application. On 05.03.2013, they were invited for interview and then petitioner and some others were, accordingly, empanelled as panel lawyers. Petitioner’s grievance is that no sooner the new Town Commissioner joined on 10.09.2013, the impugned Annexure 3 was issued by which, on the ground that the panel so made pursuant to advertisement dated 08.11.2012 had not yet been approved by the Empowered Standing Committee or the Corporation, as such, the panel was being cancelled. In effect, new panel now had to be made. This was followed by impugned Annexure 5 dated 14.09.2013 appointing respondent No 5 to represent the Corporation in the meantime before this Court.

3. Learned counsel for the petitioner points out that this is a total arbitrary exercise of power. If we even accept, for the sake of argument, that the matter had not been placed for consideration of the Empowered Standing Committee of the Corporation then it was the duty of the Municipal Commissioner to place it for its approval but having failed to place it for approval, he cannot cancel it. What he virtually is doing is because he failed to place it for approval and thus defaulted, for his default he is penalizing the petitioner. It is further pointed that if we look to Annexure 4, the Resolution of the Empowered Standing Committee dated 26.08.2013 (Annexure 4). It clearly shows that the Empowered Standing Committee had considered the panel and recommended addition of names therein without disapproving the panel. Thus, it is submitted that on both counts, the action of the Municipal Commissioner in cancelling the panel and appointing someone else to work is wholly arbitrary.

4. Having heard the learned counsel for the petitioner, learned counsel for the Municipal Corporation and respondent No 5 himself, in my view, one has to first take note of the decision of the Apex Court in the case of Kumari Shrilekha Vidyarthi & Others v. State of U.P. & Others since reported in (1991) 1 SCC 212. There the Apex Court clearly held that in the spoil system that operates in respect of such discretionary appointments, Article 14 cannot be lost sight of. Thus, one has to see whether the action of the Municipal Commissioner is valid or not Whether it is arbitrary or not?

5. From the facts noted above, it would be apparent that the only ground on which the panel has been cancelled is that panel was not approved by the Empowered Standing Committee. The fact is that there has been no disapproval in any manner. Who had to seek the approval' It was the duty of the Municipal Commissioner to have placed the matter for approval. He failed. He committed a default but he is making others suffered for his default. That cannot be permitted. I can only refer to what Chief Justice Chagla said almost sixty years back in the case of All India Groundnut Syndicate Limited v. Commissioner of Income Tax, Bombay City, AIR 1954 Bom 232 :

“But the most surprising contention is put forward by the Department that because their own officer failed to discharge his statutory duty, the assessee is deprived of his right which the law has given to him under sub-section (2) of S 24. In other words, the Department wants to benefit from and wants to take advantage of its own defau