Service upon the Government Pleader attached to the High Court will dispense with the requirements of service upon the respondent Officers/Authorities of the State Government unless the learned Government Pleader refuses to represent them in a particular case before the High Court upon receiving specific instruction.

Re: CAN 2847 of 2010

1. This application has been filed in connection with the appeal preferred from the judgment and order dated 22nd February, 2010 whereby and whereunder a learned Judge of this Court has held that service upon the Government Pleader attached to the High Court does not dispense with the requirements of service of copy of the writ petition as well as the notice upon the other respondents.

2. The learned Single Judge referred to and relied on a Division Bench judgment of this Court in the case of State of West Bengal & Ors. Vs. Arjun Kumar Izaddar & Ors., reported in 2005 (1) CLJ 102. In the aforesaid judgment, the Division Bench was pleased to hold as hereunder:

“……………It is true that our High Court Rules do directed service of a copy of the writ petition intended to be moved against the State to be served upon the Government Pleader attached to the High Court but such service does not dispense with service of the copy of the writ petition as well as the notice of moving the same upon the other respondents and an order passed only on service of copy of the writ petition upon the Government Pleader should therefore, be deemed to be an order made without notice to the respondents.”

3. This High Court has framed Rules relating to application under Article 226 of the Constitution of India. Rule 26 of the said Rules reads as under:

“26. Save and except as provided in these rules, all applications for a Rule Nisi shall be made in the first instance before the Court on such day or days and at such time or times as may be fixed by the Court.

An application under Article 226 shall not be moved and no prayer for interim order shall be entertained in a writ petition under Article 226 of the Constitution without serving copy of such petition alongwith all annexures upon the respondents to be bound by or affected by such interim order and without giving such party a reasonable opportunity to contest the same, without serving 48 hours’ prior notice along with a copy of the application under Article 226 of the Constitution, proposed to be moved, on the concerned respondent. Provided where the State Government is a party, service on the Legal Remembrancer/Government Pleader, as appropriate, will be sufficient; where the Central Government/Local Authority/Body/Corporation or any of its officers is a party service may also be made on the Standing Counsel for the Central Government/Local Authority or Body or Corporation notified to the Registrar in this behalf:

Provided that the Court may for reasons recorded allow the moving of the application and entertain the prayer for such interim order without such notice, in which case, a copy of the application alongwith all annexures in support thereof, shall forthwith be served by the petitioner, upon the respondents against whom the interim order has been obtained:

Provided that the provisions of Section 148A of the Code of Civil Procedure, 1908 shall mutatis mutandis apply to proceedings under Article 226. Such Caveats must be filed before an Officer nominated in this behalf by the Chief Justice:

Provided further that an affidavit of service shall be filed showing compliance with these rules before the matter is taken up for hearing. The Court hearing such an application may issue a Rule Nisi or summarily reject the application or issue notice or give direction/directions or make such order thereon as it thinks fit.

A Judge, for the reasons recorded, at the hearing or at any subsequent stage of the proceeding may make it returnable before a Division Bench or may while hearing the Rule, refer the same to the Division Bench for hearing.”

4. In the aforesaid rule, it has been mentioned that where the State Government is a party, service on the Legal Remembrancer/Government Pleader, as appropriate, will be sufficient. The relevant portion from the aforesaid Rule 26 is specifically quoted hereunder:

“……Provided where the State Government is a party, service on the Legal Remembran