H M SETHI WG CDR RETD Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner claims that having served in the Defence of the country actively for a period of 28 years he retired prematurely from the Indian Air Force as Wg.Commander and ever since has been engaged in espousing the public cause in general and national cause in particular and is the president of "Public Redressal Forum", a society registered under the Societies Registration Act, 1860. By profession he is enrolled as an Advocate and claims that being an ex-defence officer is seriously concerned in the events leading to the abrupt dismissal of Ex Navy Chief Admiral Vishnu Bhagwat. It is alleged that unpleasant and unhealthy developments leading to and connected with the dismissal of Ex Naval Chief are likely to adversely affect the morale and discipline of the serving soldiers in the Army, Navy and Airforce. Accordingly, a prayer has been made for issuance of or writ, order of direction commanding the respondent to divulge the reasons, grounds and charges, which led to the dismissal of Ex Naval Chief and to issue appropriate orders for convening a High Level Probe under the supervision of this Court to unfold the mystery behind the dismissal and to reinstate the Ex Naval Chief with due honour.

(2.) This petition was filed on 8.1.1999 and came up for admission on 12.1.1999. Without issuing notice to the respondent, a direction was made calling upon the respondent to produce relevant record on the next date of hearing. Mr.Vaidyanathan, learned Additional Solicitor General, who had put in appearance stated that without prejudice to the rights and contention of the Government at the first instance, the record may be perused and thereafter, if the Court considers necessary, an order can be passed directing the Government to file an affidavit. On the adjourned date, Mr.Soli J.Sorabjee, teamed Attorney General informed the Court that in a similar matter a decision had been rendered by the High Court of Bombay and copy was likely to be made available shortly. Case was adjourned. Copy of the judgment delivered by the Bombay High Court in PremNathHoonVs. Union of India and others, writ petition N.76/99, decided on 8.1.1999 was placed on record along with written submissions made on behalf of the respondent raising a preliminary objection therein that the writ petition is not maintainable and is liable to be dismissed in view of the settled legal position that when the person aggrieved consciously and diligently chooses not to question the decision or action affecting him, it is not permissible for a third party to file a writ petition challenging that decision or action. We heard the petitioner and learned Attorney General appearing for the respondent on the question of maintainability of the writ petition. Locus standi of the petitioner either as an Ex Defence Personnel or as an Advocate to file the petition is not under challenge. The challenge is to the maintainability of the petition for the reliefs prayed for when the Ex Naval Chief till date has diligently chosen not to question the decision and action of the respondents affecting him. It was contended by learned Attorney General that Ex Naval Chief had publicly declared that he does not wish to challenge the decision affecting him in a Court of Law. It is not the case of the petitioner that Ex Naval Chief Bhagwat is under any disability or is unable to approach the Court and seek the reliefs available to him in law. Can in this situation the petitioner be permitted to maintain this petition and pray for a relief, which the Ex Naval Chief, being affected party has chosen not to claim, is the question arising for our consideration.

(3.) In S.P. Gupta and others Vs. President of India and others, AIR 1982 S.C. 149, the Constitution Bench examining the question of locus standi and taking abroad and liberal view by majority held that any public spirited advocate acting bona fide and not for private gain or personal profit or political motivation or any other oblique consideration, may file a writ petition in the High Court challenging an unconstitutional or illegal action of the Government or any other constitutional authority prejudicially affecting the administration of justice and in such writ petition he may claim relief not for himself personally but for those who are the direct victims of such unconstitutional or illegal action, because granting such relief to them would repair the injury caused to administration of justice. The majority judgment says that this of course will be subject to the condition that the person for whom the relief is sought must be ready to accept it; they must appear and make it known that they are claiming such relief, which cannot be thrust upon them unless they wish. The Court was examining the locus standi of Shri V.M.Trakunde, a Senior Advocate to file writ pettions challenging the constitutional validity of cirular issued by the Law Minister affecting three additional Judges of this Court. Shri S.N.Kumar, one of the affected Judge had appeared in the petition and filed an affidavit supporting the writ petition but Shri O.N.Vohra did not join as a party. As Shri O.N.Vora did not come forward to seek any relief from the Court in regard to his continuance as an Additional Judge, the Court declined to hear the petitioner observing that it is difficult to see how the Court can be called upon to examine his case for the purpose of determining that whether he was wrongly discontinued as an Additional Judge. In para 24 of the judgment, itwas observed: