ORDER
1. This batch of writ petitions is the third attempt by the Members of the legal profession to enter Non-OYT Special Category specified under the Telephone Amendment Rules, 1980 (hereinafter referred to as ‘the rules’)- For efficient functioning of the scheme to provide facility of telephone speedily, the applicants are classified by the respondents in two categories: (1) OYT (own your telephone) category; and (2) Non-OYT category. Non-OYT category is sub-divided into two categories; (a) Non-OYT Special Category and (b) NonOYT General Category. The allotment of telephones among these categories, is as follows:
(i) OYT……..40%
(ii) Non-OYT Spl…….20%
(iii) Non-OYT Gen…..20%
2. In this batch of writ petitions we are concerned with Non-OYT Special Category. Rule 2.4 of the Rules which are non-statutory, enumerates various persons which are included in this category. This rule has been amended from time to time adding further categories by executive instructions.
3. The Members of the legal profession made their first attempt for entering into the Non-OYT Special Category by filing W.P.No. 1326 of 1986 and batch. During the pendency of that batch of writ petitions, some of them secured telephone connections by virtue of the interim directions of this Court. On June 2,1987 a Division Bench of this Court disposed of those writ petitions by issuing directions to the respondents to include the names of the petitioners therein in Non-OYT Special Category for giving telephone connections; in view of the fact that that batch was not contested on merits, the Division Bench made it clear that its judgment might not be taken as a precedent in future cases. The second attempt was when they filed writ petitions 5552 of 1989 and batch P.R. Prasad and Ors., Advocates and Advocates Associations v. Union of India, (for short Pmsad’s case). The respondents contested those writ petitions taking the plea that it is not only the importance of the profession in general that counts, but the profession must be directly linked with life of public and national interest. On December 28,1990 a Division Bench of this Court disposed of that batch of writ petitions holding that it was necessary that the cases of the Advocates for inclusion in the Non-OYT Special Category should be considered by the authorities concerned and a decision be taken with due promptitude, in any case not beyond the period of three months from that day in the changed context of circumstances where there had been a phenominal expansion of the capacity of the Telephone Exchanges and in view of the fact that the profession of the Advocates also had come to play increasingly a more active part in the life of the public and the nation as such.
4. Pursuant to the directions given in the above said judgment, the second respondent passed orders, declining to include the Advocates in Non-OYT Special Category, in Proceedings No. 13-22 /89-PMA dated June 21, 1991. Challenging the legality of the said order of the second respondent, these writ petitions have been filed.
5. Sri A. Venkataramanaiah, learned Senior Counsel, who advanced the arguments on behalf of the petitioners in these writ petitions, mainly contended that the respondents have wholly misconstrued the judgment of the Division Bench in Prasad’s case,. and acted arbitrarily in rejecting the request of the Advocates for inclusion in the Non-OYT Special Category. The learned Counsel appearing for the petitioners in these writ petitions adopted the arguments of Mr. Venkataramanaiah. Sri Innayya Reddy, the learned Central Government Standing Counsel, on the other hand, supported the impugned order on the ground that the judgment in Prasad’s case, directed consideration of the case of the Advocates for inclusion in Non-OYT Special Category and accordingly the whole issue was considered de novo but the respondents have not found it feasible to include the advocates in the category in question. The learned Standing Counsel made attempt to point out that nowhere in the judgment there is a positive direction to include the advocates in the Non-OYT Special Category and has submitted that once the case of the advocates has been considered as directed by the High Court, They cannot maintain their claim for inclusion of legal profession in the said category.
6. It has been noticed above that all matters relating to providing telephone connections by the respondents, are governed by the Rules which are executive instructions. In Non-OYT Special Category, the following have been included for providing telephone connection on priority basis.
(a)(i) Doctors holding recognised Degree or Diploma in any approved system of medicine or surgery, qualified Nurses and registered Midwives, Dentists, Psychiatrists, Ayurvedic and Homoeopathic Doctors, Naturopaths and Physiotherapists if they hold a Degree or diploma in the respective field in National or State level. All should be registered in the State or Central Councils.
(ii) Occupational Therapists registered with a National or State level body or holding a Degree or Diploma certificate awarded at the National or State level.
(b) Newspapers, Journals and Magazines, registered with the Registrar of Newspapers, Registrered News Agencies, Accredited press correspondents and Press Photographers.
(c) Public Institutions (run by public funds and for the benefits of public), Government Colleges and\Schools, Recognised Universities, Political Parties recognised by Election Commission.
Registered Trade Unions (Recognised by Management of Members more than 2,000 – one at the Registered Office and another at the residence at any office bearer.
(d) Small Scale Industries-only permanent connection for permanent SSI. Factory should be within the territorial jurisdiction of the telephone system where telephone is required.
(e) Eminent persons of National or International recognition.
(f) Legal Aid Committees.
(g) Social Organisations and Missions, Orphanages, Leper House, Public Hospitals.
(h) Institute for Blind and Physically handicapped.
(i) Registered Co-operative Societies (other than those for sale of commodities) and Registered House Building Societies.
(j) Family Planning Association of India and Branch Offices,
(k) Sports and Cultural Organisations.
7. It is admitted by the learned Standing Counsel before us that there is no criteria prescribed for inclusion of various professions under this category; each category has been included on its own facts. Insofar as the inclusion of the Members of the legal profession (practising Advocates) in Non-OYT Special Category is concerned, the plea put forth by the respondents in Prasad’s case (1 supra) and batch, was that the legal profession was not directly linked with life of public or national interest. That plea was answered by the Bench at more places than one in the course of the judgment. The Bench reference to the judgments in P.M. Mohammad Ali v. Union of India, Shankar Birmiwal v. Union of India, (F.B.) and Sakhawant Ali v. State of Orissa, and laid down that it was abundantly clear that the profession of advocates enjoys the primary place in the maintenance and upholding of rule of law in the democratic society. The advocates have to constantly keep in touch with their clients and that the importance of the profession was well established and was directly linked up with life of public or national interest. It also referred to the observation of the Kerala High Court that the advocates do play a very important part in the maintenance of democratic form of government and upholding the principles of rule of law which deserves to be considered by the authorities. The Bench noted that the facility of telephone to the members of the legal profession is a necessity in the modern days of advanced telecommunications. During the last ten years stupendous strides have been taken in the scientific field in the matters of transmission of information and broadcast all over the world. A gadget, which was supposed to be a luxury about ten or fifteen years back has now become a necessity without which it has become difficult to keep in touch with people who have something to do with the work of an individual or a class of persons, as the case may be. It observed that it was already pointed out that several amendments have been made to the category of persons who were to be included in the Non-OYT Special Category from time to time and that it was evident that the authorities on whom the discretion is vested to include or delete certain persons in the Non-OYT Special Category, should exercise their discretion in a fair and equitable manner. Thus the plea of the respondents was answered in the following words:
“The question of inclusion of the advocates in the Non-OYT Special Category deserves to be considered keeping in view the unquestionable importance of the profession of advocates which is linked up with the life of the public and national interest.”
The Bench observed that the facility of a telephone to the members of the legal profession was a necessity in the modern days of advanced telecommunications and that the question of inclusion of the advocates in the Non-OYT Special Category deserves to be considered keeping in view the unquestionable importance of the profession of the advocates which is linked up with life of public and national interest. The Bench concluded:
“Therefore, in the changed context of circumstances where there has been a phenomenal expansion of the capacity of the Telephone Exchanges and in view of the fact that the profession of Advocates also has come to play increasingly a more active part in the life of the public and the nation as such, it is necessary that the cases of the advocates for inclusion in the NonOYT Special Category shall be considered by the authorities concerned and a decision may be taken with due promptitude in any case not beyond the period of three months from today. It would be pertinent to observe here that if the respondent-authorities deem it fit and proper, they may discuss the modalities with regard to the minimum standing at the Bar etc. required for inclusion of the names of the Advocates in the list of Non-OYT Special Category with the representatives of the High Court Bar Association or other Advocates’ Associations, as the case may be, to evolve an acceptable formula in this regard.”
What is the scope of the consideration by the respondents ? After that judgment, was it open to them to arrive at an independent finding on the question whether the profession of advocate is directly linked with the life of public or national interest ? Was it open to them to reject the case of the advocates for inclusion in the Non-OYT Special Category on a ground not pleaded in that batch of writ petitions ? To our mind the judgment concluded the issue on the plea taken by the respondents. The consideration that was directed to be done by the respondents was not in justification of the plea taken in the counter-affidavit and contrary to conclusions recorded by the Division Bench. It would be erroneous to assume that while directing the respondents to consider the case for inclusion of legal profession in Non-OYT special Category, the Division Bench gave liberty to demolish and set at naught what the Bench had already held. The consideration ought to have been on the basis of findings recorded and observations made. In the light of the observations of the Division Bench the only question that was left open for consideration was what should be requirements/conditions for purposes of inclusion of the profession of advocates in the Non-OYT Special Category and for that purpose the respondents were given liberty to discuss the modalities with regard to the minimum standing at the Bar etc., required with the representatives of the High Court Bar Association or other Advocates Association to evolve an acceptable formula in this regard.
8. On the question of proper exercise of discretion by the authority, the learned Judges considered the judgments in Sharp v. Wakefield, 1891 AC 173 West-Minister Corporation v. London & North Western Railway Company, 1906 AC 426 Breen v. Amalgamated Engineering Union, 1971(2) Q.B.175 and Patfield v. Minister of Agriculture, Fisheries and Food, 1968 AC .997 and observed that the object of quoting the above authorities was to derive the principle by applying the inductive method of analysis of law that wide discretions culminating in the form of administrative instructions by authorities clothed with the powers of laying down rules and guidelines, are to be exercised not merely carefully and cautiously but fairly and equitably as well. The Bench added that the discretion vested in the authorities has to be exercised in accordance with the principle of justice and fair play and must not depend upon the whims and fancies of the authorities in whom such discretion is vested. However, the respondents having considered the issue declined to include the advocates in the Non-OYT Special Category on two grounds. It will be useful to refer to paragraphs 5 and 6 of the impugned order here.
“The question regarding inclusion of advocates also in Non-OYT Special Category has been examined again in detail but it has not been found justified to include them in Non-OYT Special Category since no element of emergency requiring contacts even at odd hours is included in their profession. Also there are other similarly placed professionals like Engineers, Chartered Accountants, Architects, Consultants, etc. who also may demand inclusion of Non-OYT Special Category if Advocates are included there. Inclusion of all these professionals will make the Non-OYT Special Category quite unwieldy and will defeat the very purpose of having a special category.
In view of the above, it is felt desirable not to add any further groups of professionals in the Non-OYT Special Category and accordingly the request of Advocates for inclusion in Non-OYT Special Category cannot be agreed to”.
9. From a perusal of paragraph 5 it is evident that the request of the Advocates was rejected on two grounds; (1) No element of emergency requiring contancts even at odd hours, is included in the profession of Advocates; (2) that other similarly placed professionals like Engineers, Chartered Accountants, Architects, Consultants, etc. also may demand inclusion in Non-OYT Special Category if the Advocates are included, and inclusion of all these professional would defeat the very purpose of having a special category.
10. These grounds are sought to be supported in the counter-affidavit by the respondent.
11. In our view, having regard to the judgment of the Division Bench in Prasad’s case (1 supra), neither of these grounds is available to the respondents to reject the claim of the Advocates for inclusion in the Non-OYT Special Category. The deliberations done before this Court earlier over the issue for inclusion of the members of the legal profession in the Non-OYT Special Category and the decision rendered thereon sets the controversy for inclusion at rest. That is the only construction which we could conceive of the pronouncement of the earlier Bench of this Court. In our view there could not be any other construction. The earlier Bench categorically decided:
“It is necessary that the cases of the Advocates for inclusion (underlining by us to supply emphasis) in the Non-OYT Special Category shall be considered by the authorities concerned and a decision may be taken with due promptitude in any case not beyond the period of three months from today”.
We could not have any ambiguity in our mind that the decicion was for inclusion and the consideration should be for inclusion. If the earlier Bench had formed an opinion that the question of inclusion has got to be left open for consideration by the authorities, the verbalism of the pronouncement would certainly be on different lines. That is not so. The earlier Bench further directed the authorities to discuss the modalities with regard to the minimum standing at the Bar, etc., required for inclusion of the names of the advocates in the list of Non-OYT Special Category with the representatives of the High Court Bar Association or other Advocates’ Associations, as the case may be, to evolve an acceptable formula in this regard. The earlier Benchhaving spoken in the above terms, we are not able to appreciate as to how the respondents conceived the idea of keeping alive the issue concerning the inclusion of the members of the legal profession in the Non-OYT Special Category and proceeded to decide the question in the negative form. The decision having been already rendered by the earlier Bench and the direction having been given for inclusion and to chalk out the modalities, the respondents ought to have proceeded only on those lines and ought not to have chosen and entered field of further consideration over the issue and given reasons for rejection of the request of the members of the legal profession. Certainly this Court will not encourage an attitude as exhibited by the respondents on the above lines in the impugned order.
12. It is absolutely unnecessary for us to go anywhere near the present reasons expressed for rejection of the request of the members of the legal profession, since the respondents have over-stepped their limits and have acted in derogation of the decision rendered and the direction given by the earlier Bench in the pronouncement referred to above. It will be legitimate for us to recapitulate them as we have done above for the purpose of demonstrating the misconception entertained by the respondents and the result that has ensued which proves anathema to the verdicts rendered by the Court. Yet even when we analyse the two grounds given for rejection of the request of the members of the legal profession for inclusion in the Non-OYT Special Category, we find they lack not only substance but also smack of arbitrariness. Let us first take the second ground given for rejection. That there may be a demand by other professionals for inclusion in Non-OYT Special Category if the claims of the members of the legal profession for inclusion therein are accepted, is a theory which can never find acceptance at the hands of this Court. If other professionals could have a legitimate cause for inclusion, this Court cannot foreclose their cause. Vice-versa, if the members of the legal profession have got a legitimate cause for such inclusion, it cannot be foreclosed on the ground that the claims of other professionals will crop-up. Each case will have to be assessed on its own morits. This reasoning conceived of and expressed by the respondents can never appeal to this Court to reject a claim which is otherwise legitimate and proper to be countenanced.
13. Now reverting to the first reason given by the respondents, namely, that no element of emergency requiring contacts even at odd hours is involved in the profession of advocates, it may be observed that this ground was not put forth by the respondents in the earlier round of litigations. Therefore, as observed above, it was not open to them to reject the request on this ground. It may be pointed out that though the point did not directly arise therein, yet this aspect was also touched by the Division Bench in Prasad’s case (1 supra). The Bench observed that the advocates had to constantly keep in touch with their clients and other parties who are involved in the litigation and that in some cases the advocates had to be in touch with the officers of the Court with regard to the posting of the cases, adjourning and filing of the new cases in the Courts, etc. It is a well known fact of which we think we can take judicial notice that in the modern type of litigations the Advocates who normally run offices after Court hours, in the night, require the presence of their client urgently to file affidavits or take instructions in the matters. Further, clients who reside in different parts of State or even the country have to contact their advocate urgently on odd hours for appointment or giving instructions for drafting of pleadings or affidavits or for arguments in cases. The urgency is not only from the point of view of the advocates but also from the point of view of members of public who are involved in the litigation. Also when the clients come from districts or far off places in the cities or from different parts of the State, they would like to contact their advocate urgently on phone for appointment so that they can see the advocates and immediately go back to their places for attending to their works. Clients who are engaged in different walks of life would not find sufficient time to approach their advocates from time to time personally or enter into correspondence and wait for weeks together for reply. Therefore, the element of urgency in the public getting in touch with the Advocates or the Advocate getting in touch with the clients is also satisfied in the case of the legal profession. For all these reasons, we are of the view that the rejection of the cases on these grounds is wholly arbitrary and unsustainable.
14. The next question that arises for our consideration is what relief can be granted to the petitioners in these writ petitions.
15. The learned Counsel for the petitioners pleaded for issuing a direction to the respondents to include advocates in the Non-OYT Special Category as direction to consider the case given in Prasad’s case (1 supra) was erroneously construed and after considering on new grounds, the case was rejected. The stand taken by Mr. Innayya Reddy is that no positive direction can be given by this Court to include advocates in Non-OYT Special Category as it amounts to rewriting or amending the rule which cannot be done by this Court.
16. It has already been pointed out that in the first round of litigation, the relief granted by the Court was confined only to the petitioner therein. In the second round of litigation this Court on elaborate consideration and giving various reasons answered the plea of the respondents that the profession of advocate is directly linked with the life of public or national interest. However by the impugned order, as noticed above, the claim of advocates was rejected on new grounds by shifting the stand taken in the cases in which direction was issued. If in these cases also a direction to consider the claim of the petitioners, is given, the apprehension of the advocates that the respondents would find a fresh ground for rejection, cannot be said to be without a valid basis. Having regard to the peculiar facts and circumstances of the case and in view of the judgments of this Court in Prasad’s case (1 supra) which is binding on us and the facts that the Rules are non-statutory and no fixed norms or guidelines have been laid down for inclusion in the Non-OYT Special category, we have no hesitation in coming to tine conclusion that the circumstances justify issuing of a writ of Mandamus giving direction to the respondents to include advocates in the Non-OYT Special Category. We, therefore, direct that writ of Mandamus shall accordingly be issued to the respondents to include the Advocates in the Non-OYT Special Category subject to conditions mentioned hereunder and provide telephone connections to them on the basis of seniority in that category in accordance with rules applicable thereto.
17. Now coming to the modalities for the purposes of inclusion in the category; the learned senior Counsel placed before us the resolution of Bar Council passed in 1985 and the resolution of A.P. High Court Bar Association in March, 1994. They read as follows:
Resolution of Bar Council of the State of Andhra Pradesh held on 10-2-1985.
“The Bar Council of Andhra Pradesh resolves to request the Telephone Authorities to give preferences to the Members of the Bar Council and advocates also on par with the Doctors, while giving the new telephone connections.”
Resolution of the A.P. High Court Advocates’ Association held on 28-3-1994.
“Resolved that Advocates who are having three years standing should be placed on par with the Doctors while giving new telephone connections by including their names in Non-OYT Special Category”.
18. The learned Standing Counsel submits that as the respondents are opposing inclusion of advocates the Non-OYT Special Category, the respondents have no suggestions to offer on this aspect. The decision of the earlier Bench has not been understood properly but on the other hand has been totally misunderstood by the authorities and the direction given by the earlier Bench has been left unimplemented by the authorities. With regard to the modalities to be chalked out for inclusion, the respondents have no inclination to come anywhere near them. On the other hand, the anxiety of the members of the legal profession is to have the modalities settled once and for all before this Court and that is why they have ventured to pass a resolution as per extracts noted above. Having given the mandamus for inclusion of the members of the legal profession in the Non-OYT Special Category, we will be failing in our duty if we do not settle the modalities for the purposes of such inclusion. We are bound to settle the controversy as a whole and in a comprehensive manner and being conscious of this obligation of ours, we are proceeding to settle the conditions.
19. Having given our anxious consideration to these aspects, in our view, it would be just and reasonable to prescribe the following conditions. The advocate should have a minimum of five years standing at the Bar or must be an income tax assessee for the past two years as on the date of application provided
(i) he does not have the facility of phone either at his office or residence on the date of the application for telephone connection;
(ii) the close relations of the petitioner, namely, husband/wife, son, unmarried daughter residing in the same house, are not already having telephone connection in his/her name in the same house;
(iii) if the advocate is having more offices than one and the facility of phone is already existing in any one of the offices or residence, he will not be eligible to be included in this category.
20. One more aspect remains to be dealt with and that is cases in which telephone connections are provided or directed to be provided under the interim orders of this Court in these writ petitions. On registration of the application of the writ petitioners in Non-OYT special Category, subject to conditions aforementioned, if the petitioner was entitled to telephone connection on the date of providing connection pursuant to the interim order of this Court or on the date of this judgment, on the basis of seniority in that category, the respondents shall not disturb the telephone connection already provided; but if the petitioner does not become eligible to get telephone connection on either of the said dates, the telephone connection may be disconnected but his case should be considered in his own turn in the Non-OYT special Category according to rules. But if the interim order has not been complied with, the petitioners will be entitled to have telephone connection in terms of this judgment but not by virtue of the interim orders. In such cases the interim orders shall stand vacated.
21. In the result, the writ petitions are allowed as indicated above. We make no order as to costs. Standing Counsel’s fee is fixed at Rs. 250-00 in each case.