PRASHAANTH BALASUBRAMANIAM Vs. UNION OF INDIA

JUDGEMENT

(1.) This Pro bono Publico has been instituted by a young lawyer seeking to declare the Telecom Regulatory Authority of India (Amendment) Ordinance, 2014 (No.3 of 2014) dated 28.5.2014 passed by the 1st respondent substituting Section 5(8) of Telecom Regulatory Authority of India Act, 1997 pursuant to which Mr.Nirpendra Misra has been designated as the Principal Secretary to the Honourable Prime Minister.

(2.) Mr.Nithyaesh Natraj, learned counsel appearing for the petitioner submitted that the Ordinance dated 28.5.2014 has been passed bypassing the constitutional process and it is nothing but a fraud on the Constitution. An ordinance cannot be used as a political tool and in this case it has been passed in a hurried manner when it is neither necessary nor required. The learned counsel in support of his contention has made reliance upon the decisions rendered by the Supreme Court in D.C.Wadhwa Vs. State of Bihar, 1987 1 SCR 798) and A.K.Roy Vs Union of India, 1982 AIR(SC) 710). Besides these two decisions reliance was also placed on the decision rendered by the Division Bench of the Andhra Pradesh High Court in B. Kota Mallaiah and others Vs. Commissioner and Registrar, 1991 3 ALT 433).

(3.) A perusal of the affidavit filed in support of the writ petition would show that the grievance of the petitioner appears to be on the appointment of Mr.Nirpendra Misra as the Principal Secretary to the Honourable Prime Minister. It appears that Mr.Nirpendra Misra was the Former Chief of Telecom Regulatory Authority of India. In such a situation, we are of the view that the non-impleadment of Mr.Nirpendra Misra as a party to this writ petition, though filed for a writ of declaration, would be fatal. To put it differently, we are of the view that when it is a specific case of the petitioner that the Ordinance has been passed paving way for the appointment of Mr.Nirpendra Misra and in the event of it being declared as unconstitutional, resultantly the appointment would fall to the ground, in all fairness, he should have been made as a party - respondent. Having observed so, we do not wish to dismiss the writ petition on that ground alone.