'This Heated Exchange Enriches Us': Bombay HC CJ After Navroz Seervai's Arguments In Maharashtra DGP Matter
There was an intense hearing session in the Bombay High Court yesterday in the case relating to the appointment of the Director-General of Police of Maharashtra, with Senior Advocate Navroz Seervai, appearing for the Acting DGP Sanjay Pandey, seeking the right to be heard in the matter.A bench led by Chief Justice Dipankar Dutta was hearing a PIL seeking directions to the State Government to...
There was an intense hearing session in the Bombay High Court yesterday in the case relating to the appointment of the Director-General of Police of Maharashtra, with Senior Advocate Navroz Seervai, appearing for the Acting DGP Sanjay Pandey, seeking the right to be heard in the matter.
A bench led by Chief Justice Dipankar Dutta was hearing a PIL seeking directions to the State Government to act on the three recommendations made by the Union Public Service Commission for DGP. Notably, the name of the Acting DGP was not recommended by the UPSC.
Seervai wanted his client to be impleaded as a party and sought a day's adjournment. However, the bench asked if Pandey, in his capacity as acting DGP, even had the right to be heard. The exchanges between Seervai and the Chief Justice got so heated up that after the hearing Advocate General Ashutosh Kumbhakoni made a lighter vein suggestion that the air-conditioning of the courtroom could be turned on.
In the case at hand, the Maharashtra Government wrote to the UPSC eight days after their meeting to point out that Pandey was left out from consideration due to improper rule application.
Below are excerpts from the courtroom exchange between Seervai and the Chief Justice.
Seervai : "The enunciation in Supreme Court's orders is that no order can be passed affecting or prejudicing a person without making them a party. And my request is whichever way an order is passed, the party most vitally affected will be Mr Sanjay Pandey. He has a lot to say and put on record…..no order should be passed without hearing him."
The CJ asked what right Pandey had to the post, to which Seervai answered that he was the senior-most officer and a man of great integrity.
"These are certain qualities for holding a very high position, but they do not give you a RIGHT to cling on to the post," the Chief said, adding that neither Pandey nor had the State formally challenged the UPSC's recommendations.
"We are giving you this opportunity to show us what right on the post you have. Unless you can show us a 'right,' we will not be able to consider your request (for a hearing)," the Chief said.
The court later added that it wouldn't pass an order without hearing Seervai even if they didn't make him a party before the end of the day.
"My lords will then allow me (to be heard on Thursday or Friday).. The heavens aren't going to fall.. he has been acting DGP since April 2021. The [UPSC recommendation] meeting is of November 1, we are in January now..," Seervai said.
However, the court felt the delay had worked in Pandey's favour.
"Is my lord seriously suggesting that an order can be passed admittedly affecting me without making me a party and allowing me to be heard?" Seervai sought time to cite SC judgements on his right to be heard.
Meanwhile, the court heard the Advocate General, petitioner's counsel Advocate Abhinav Chandrachud and Additional Solicitor General Anil Singh before coming back to Seervai.
The AG had begun by saying that "on a cooler note," since the temperatures in the city had dipped, and everyone was enjoying with their sweaters, the bench may consider not allowing the temperature to rise.
He submitted that the State was only seeking Pandey to be reasonably considered by the UPSC and be recommended for the post of DGP.
When it was finally Seervai's turn, he submitted that according to the Supreme Court judgements, the person does not have to show a 'right' before he is made a party, so long as he is likely to be prejudiced…
CJ- We are giving you the right of an audience here and now; otherwise, we will close the hearing.
Seervai -My right is to be made a party.. my right is a right to a hearing.
The CJ responded that he was being given a hearing right now.
Seervai - No, hearing after being made a party.
CJ- The principle of Audi alteram partem rests on being heard.
Seervai- My ability to be heard includes my right to place my factual case on record. That is being denied.
CJ- We are giving you the opportunity, please argue.
Seervai- But it is only a partial opportunity. Not the opportunity envisaged by the SC.
CJ – You are here as an intervenor. It is not necessary for an intervenor to always be brought on record.
Seervai - I am not an intervenor, I applied to be made party respondent. Let's be very clear. I will have to argue because I am being put at a great disadvantage, but that's fine.
Seervai then cited the 1984 judgement of Prabodh Verma And Others, Etc vs State Of Uttar Pradesh.
Referring to the judgement where certain teachers were not made a party, Seervai submitted that the first defect, according to the judgement, was of non-joinder of parties, "Exactly like in this case. The Chief Minister is impleaded as a party to the proceedings, but the affected person is not made a party."
CJ- Were the teachers appointed as per law?
Seervai- I am sorry, that is not relevant.
CJ- We will record that according to you, it is irrelevant whether the appointee has a right to the post or no right to post.
Seervai asserted that natural justice merely required a person to be heard, and it was a universal principle.
"There is no question of 'right,' or whether he is legally appointed or not. Being heard is a universal categorical principle and it is part of natural justice, which is part of the rule of law by which we are governed in this country. That it is unheard of that a decision is taken which vitally affects a party, and he is not made a respondent and not allowed to place his case on record before his fate is decided on merits," Seervai said.
CJ – We are hearing you for that purpose.
Seervai disagreed. He said that merely hearing him cite judgements was no substitute for allowing him to place his case on record. Even though the court may only be deciding a PIL, "the effect is that my career and position will be affected. And I have a right to be heard on that, on merits. And I am being denied and deprived of that right," he said.
The CJ asked his course of action if the State reverted him back to the position he held before being appointed as acting DGP, 'without following principles of natural justice.' 'Would you have the right to move the tribunal?'
"I would have to consider my position," Seervai responded.
The CJ remarked, "It is a question that a senior counsel of your stature is expected to answer here and now."
Seervai – Whether I am a senior or a junior, I don't believe in answering 'off the cuff.' It is an important question, it needs consideration. Probably I am not as quick as other senior counsels who appear before you.
CJ – Mr Seervai, you are experienced enough….
In response to the CJ's questions that he had not challenged the UPSC's decision not recommending his name, Seervai submitted that the State had already written to the UPSC.
"Where is the power of the state to seek a reconsideration [from the UPSC]?" the court asked.
"I don't represent the State. It is not for me to say what power the State has," came Seervai's reply.
Seervai pointed out that the State had brought to the attention of the UPSC a gross, glaring error, contrary to the central government's guidelines which clearly stated that if an officer's grade was between 6-8 he should be treated as 'very good.' It is their case that despite being eligible for empanelment with a score above 7, Pandey's grade was considered as "good," not "very good."
"If the UPSC is allowed to continue and persist in its error and the court refuses to look into it on the ground that the state has no power, then there is little I can do," Seervai said.
He expressed appreciation that the court had asked other counsels about the options available to the State when it felt a candidate was not considered.
"Why don't you assist us then?" the CJ asked, referring to Seervai's comments that he needed time to respond regarding the State's right to seek a reconsideration.
After Seervai cited the second SC judgement, which stated that the rules of natural justice to apply to those likely to be prejudiced, the CJ asked Seervai the points he intended to put before the court.
"I would show my record and demonstrate the gross, palpable patent error committed by the UPSC along with the Chief Secretary's letter that no one has denied the correctness of."
However, the CJ opined that in the absence of any legal challenge to the recommendations, the HC should not be expected to examine the UPSC's actions in the PIL.
Especially since the PIL only sought directions to the State to appoint one of the three people recommended by the UPSC. "Please don't enlarge the scope of the PIL. Don't bring in issues foreign for our consideration. Whether the UPSC has correctly considered your candidature is for the Central Administrative Tribunal to look-into. This is our request to you."
In response, Seervai urged the court to direct or request the UPSC to respond to the State's letter as they were "sitting tight."
CJ- When the State has forgotten to do what it is supposed to do [ie. to object before the UPSC came up with a recommendation, you say that the UPSC should respond.]
The CJ pointed out that if the State was aggrieved by guidelines in Prakash Singh's judgement, the State should have asked for a modification or clarification of the guidelines.
"Not writing a representation and killing time," the CJ noted.
Seervai- I can't answer for the State.
The CJ said the court's hands were tied due to authoritative pronouncements of the SC.
"What do you want to bring on record? Service records? We may also go to the extent of accepting that you may have been meted out an unfair deal. The UPSC was unfair in not considering you. You have put in 30 years of meritorious service. You have been graded above 7, but they have treated you as only "good." But are we in a position, sitting in a PIL jurisdiction, to go into these issues? OUR HANDS are tied by other judgements of the Supreme Court. Therefore, we cannot examine these points."
The court rhetorically asked if it could declare the UPSC's recommendations being unfair in this PIL.
The CJ questioned why no state government had challenged the guidelines in SC to which Seervai responded that during a recent hearing, Justice Sanjay Kishan Kaul said that most of the states ignore guidelines of Prakash Singh's judgement and there was nothing the SC could do.
When the CJ asked Seervai to show one judgement by which the State could ask the UPSC to review its decision, Seervai said, "It's probably not there because such a circumstance has never arisen."
"Or that all other governments have gracefully accepted," the CJ remarked.
The court finally allowed Seervai time till Thursday to place his written submissions on record in a short note.
Soon after, the Advocate General sought air-conditioning in the courtroom.
"….never misunderstand that we have warmed up. We want assistance from all senior counsels appearing before us," the CJ responded, stating that the court was bound to exercise writ jurisdiction carefully. However, to err is human.
"And this heated exchange, Mr Kumbhakoni, you will accept, it enriches us. When we provoke counsels, an answer may come which may not have been in his contemplation before. And that could have changed the complexion of the game. If we have hurt anyone by our observations inadvertently, we seek forgiveness", CJ Dutta said in the end.