ORDER
Binod Kumar Roy and D. R. Chaudhary, JJ.
1. Following prayers have been made in this writ petition by the petitioner Smt. Suman Sinha, widow of Late Girish Shanker Sinha, Advocate, whose registration number was 169 of 1981, and who had died of heart attack on 16th July, 2000, as per the Death Certificate as contained in Annexure-1 :
(i) to issue a writ, order or direction in the nature of mandamus directing Hon’ble the Chief Justice and the Registrar of this Court (arrayed as respondent Nos. 1 and 2 respectively) to consider the application (as contained in Annexure-4) filed for her appointment against any post in this Court in view of the proposal placed on 22.5.2000 before Hon’ble The Chief Justice by the President of High Court Bar Association of this Court at the time of his welcome address which he had also accepted.
(ii) to issue a writ, order or direction In the nature of mandamus directing the respondents to frame rules and law in the interest of the dependants of the deceased Advocates.
(iii) to issue a writ, order or direction in the nature of mandamus directing respondent No. 3, the U. P. Bar Council, to pay immediately a sum of Rs. 1,00,000 under Accidental Insurance Scheme and Rs. 50,000 for which the dependants of every Advocate are entitled.
2. Respondent No. 4 Is the High Court Bar Association. Allahabad, which has been sued through its President. Respondent No. 5 is the Union of India through Speaker. New Delhi. Respondent No. 6 is also the Union of India through its Central taw Minister, New Delhi.
3. In terms of order dated 2.6.2000, the petitioner has served respondent No. 3. It further appears that the petitioner of her own has also served respondent No. 4 by sending a copy of the writ petition under postal certificate on 22nd June, 2000 (the postal seal is not clearly legible).
4. The petitioner claims to be a destitute widow and having children aged about 7 yeas. 6 years and 3 years to add to her misery ; that there Is none to support them who have become homeless and income-less ; that she went to her parents first to have shelter and then to her sister who not being financially well provided shelter and food for some time : that Dying-in-Harness Rules providing employment by the Government to the dependants of Its employees, and not to those of the registered Advocates who play an important part in the society. Is arbitrary and violative of Article 14 of the Constitution of India inasmuch as they are violative of principles of natural justice amounting to an Inhuman conduct and hence this writ petition.
The Submissions :
5. Sri Anil Kumar Srivastava, learned counsel appearing in support of the prayers, contended that in the circumstances enumerated In the writ petition, the reliefs prayed for be granted. Under the Constitutional ethics and philosophy, the State being a Welfare State is required to act in favour of citizens and similarly situated persons : that it were the lawyers who during freedom struggle of the country had laid their lives, and are still playing a dominant role In the present social set up. Non-framing of the rules by the Government for giving employment to the destitute widows and dependants
of the deceased advocates, who are also called as ‘officers of the Court’, is not only contrary to the doctrine of welfare but also vlolative of Articles 14 and 21 of the Constitution of India ; and that in not giving appointment to the petitioner Hon’ble the Chief Justice has also not acted fairly.
6. Shri Sudhir Agrawal, the learned special counsel for the Court representing respondent Nos. 1 and 2. on the other hand contended as follows :–(a) It being not the case of the petitioner that any statutory function has not been discharged by respondent Nos. 1 and 2. the prayer for issuance of a high prerogative writ like mandamus is wholly misconceived and not tenable ; (b) He has Instructions to state that no promise was ever made by the previous Hon’ble the Chief Justice to the effect that an appointment will be given to any widow or dependant, children of an Advocate nor does the existing rules contemplate such an appointment : (c) Accordingly, this writ petition be dismissed.
7. No-one has appeared on behalf the respondent No. 4, nor does we see in the peculiar circumstances any justification for Issuance of a notice to the High Court Bar Association.
8. Despite service of notice on it, the respondent No. 3 the U. P. Bar Council has not appeared to contest the claim of the petitioner though on our query Shri Amrendra Nath Singh, Advocate, who is also a member of the U. P. Bar Council, tried to assist us by taking a stand that if It is a fact that petitioner has approached the U. P. Bar Council, then the latter is bound to pass appropriate orders as per the rules expeditiously.
Our Findings :
9. Learned counsel for the petitioner referred to several judgments of this Court wherein some observations have been made In relation to powers of the High Court which, in our view, do not apply to the facts and circumstances of the present case.
10. Learned counsel for the petitioner apparently failed to show
us that In not appointing the petitioner, Hon’ble the Chief Justice of this Court has violated any statutory Rules or Act. As rightly pointed out by Shri Sudhir Agrawal. the learned counsel appearing on behalf of respondent Nos. 1 and 2, the existing rules do not contemplate any provision for appointment of a destitute widow of a deceased Advocate of this Court. He went on to emphasize that even though the petitioner, from the submission made by her counsel, appears to be possessing a Graduate Degree, but she has not applied, despite advertisement made by this Court, for her appointment against any Class III post and consequently there was no question for affording any opportunity to her to appear in the ensuing examinations which are going to be conducted for the purposes of filling up Class III posts In terms of notice published earlier. Consequently, we see no force in Prayer No. 1 to issue the desired mandamus to respondent Nos. 1 and 2 and dismiss this writ petition as against respondent Nos. 1 and 2.
11. Now we come to the second prayer of the petitioner. The Courts have got inherent limitation in this regard. They cannot either legislate or command the appropriate Legislature to take a policy decision in regard to the cause ventilated by the petitioner not only on her behalf but also for those persons who may bec.ome widows of the Advocates in future. The Law In this regard Is clear. We feel ourselves handicapped In granting such a relief. The prayer for grant of relief No. 2 is thus rejected.
12. Now we come to the last prayer. Respondent No. 3, the U. P. Bar Council, is a statutory body. It is required to act as per the provisions of the Act and the Rules. There cannot be any dispute that Law has been framed for the benefits of destitute widows and children of Advocates who had died. Unfortunately, respondent No. 3 Is unrepresented. We do not want to embarrass Shrl Amrendra Nath Singh, who of his own has taken a very fair stand before us which we have already noted. Since keeping
pending this case against respondent No. 3 will not be in the interest of the petitioner herself, we dispose of prayer No. 3 with this direction to respondent No. 3 that It will consider the claim of the petitioner with utmost expedition and pass an interim order, as per the law within 2 weeks from the date of receipt of a copy of this order from any quarter and final orders within 2 months therefrom. In the ends of justice, we direct the office to serve a copy of our order forthwith on respondent No. 3 through a special messenger.
13. Before parting, we being the Apex Court of this State cannot remain a silent spectator. The record discloses that the petitioner is having Parents. On her case, she has no source of livelihood. There are ample provisions (See Mulla Hindu Law 17th Edition Vol. II, Pages 466-467) In the Statutes under which she can make a demand for maintenance from her parents through an appropriate court. Accordingly, we give liberty to the petitioner to file an appropriate application before an appropriate court for claiming maintenance from her parents and we hope and trust that if such an application is made, the same shall be taken up and appropriate orders will be passed immediately.
14. This writ petition is disposed of in terms aforementioned.
15. The Office is also directed to handover a copy of this order within 3 days to Shri Sudhir Agarwal, learned counsel for the Court for its intimation to Hon’ble The Chief Justice.