Dr. Muthurangan vs Dr. Ananthanarayanan

Somasundaram, J.—This revision is filed by the plaintiff against the order passed by the District Munsif of Madurai in I. A. No. 738 of 1952 in O. S. No. 51 of 1952 on his file. The application was by the plaintiff to send for from the office of the Union Public Service Commission New Delhi, the full list of 11 candidates said to have been selected by the Public Service Commission in March 1948 for appointment as District Medical Officers in the State Railways. The Chairman of the Union Public Service Commission claimed privilege by the affidavit herein filed. He has stated that after the Commission sends the names of a number of candidates selected by them for the number of posts which are vacant, they keep what is called a reserve list so that in case any particular candidate recommended is found unfit or is unable to join the appointment, one from this list may be sent to the Government and that such a procedure is adopted only when the Government wants any further name to be sent after the Commission send the names originally called for, that these names are kept confidential, that the practice of keeping the reserve list of candidates secret is necessary for the proper functioning of the public service and that it will be detrimental to the public interest to produce the document consisting of these names before the Court when it is withheld from the Ministry concerned. He states also that this document relates to affairs of the State and therefore he is entitled to the privilege.

The learned District Munsif went into the whole question and held that as the list required to be produced concerned not only the plaintiff but also the other candidates and therefore belonged to a class of candidates mentioned to have been selected by the Union Public Service Commission in March 1948 and since the document belonged to a class about which secrecy was enjoined under the Government rules for the proper functioning of the public service and since it was also an unpublished document, the production of the document would be against the public interest as claimed by the Chairman of the Union Public Service Commission and refused to issue a subpoena for the production of the document. It is against this the above revision has been filed.

It is contended by Mr. Ramanujam appearing for the petitioner that whatever may be the privilege claimed by the Chairman of the Public Service Commission it is his duty to produce the document before the Court and it is for the Court after looking into document to decide whether the privilege claimed by the Chairman could be sustained or not. He relies on the Privy Council decision in Robinson v. State of South'' Australia (1). In that case, their Lordships of the Judicial Committee after referring to the South Australian Rules of Court, O. 31, R. 14,Sub-R. 2, which Order was to the effect that "Where on an application for an order for inspection privilege is claimed for any document it shall be lawful for the Court or a Judge to inspect the document for the purpose of deciding as to the validity of the claim"

observed:

Their Lordships see no reason why the particular privilege now in question should be excluded from the connotation of the word as there used, They see no reason why in South Australia any more than in England the word should be construed in a narrow sense."

Subject to the above decision the House of Lords in Duncan v Cammell Laird and Co. 1942 A. C.624. referred to the above case and Viscount Simon, L.C. observed at page 641 as follows:

In Robinson v. State of South Australia AIR 1931 P. C. 264 at 261=34 L. W. 675. the Judicial Committee reserved the decision of the Supreme Court of South Australia, which had refused to order the inspection of documents which the Minister in charge of the department objected to produce on grounds of public policy, and remitted the case to the Supreme Court with the direction that it was one proper for the exercise of the Court''s power of inspecting documents to determine whether their production would be prejudicial to the public welfare. I cannot agree with this view. In my opinion, the Privy Council was mistaken in regarding such a rule as having any application to the subject matter. The with holding of. documents on the ground that their publication would be contrary to the public interest is not properly to be regarded as a branch of the law of privilege connected with discovery privilege in relation to discovery is for the protection of the litigant and could be waived by him but the rule that the interest of the State must not be put in jeopardy by producing documents which would injure it is a principle to be observed in administering justice, quite unconnected with the interests or claims of the particular parties in litigation, and, indeed is a rule on which the Judge should if necessary insist even though no objection is taken at all."

Their Lordships held that when objection has been duly taken the Judge should treat it as conclusive.

In fact, this principle is enunciated in S. 162 of the Indian Evidence Act, according to which the Court if it sees fit, may inspect the document, unless it refers to matters of State. This clearly shows that if the document refers to matters of State, the Court may not even inspect the document that is it may not even compel the production of the document.

In Venkatachala Chettiar v. Sam pathu Chettiar (3) a Bench of this Court held that once it appears that a communication to a person was made in official confidence, it is left to him and not to the Courts to decide whether public interest would suffer by the disclosure and the Courts have no power to compel production if he considers such production prejudicial to public interests. This has been followed in Nagaraja Pillai v. The Secretary of State 89 Mad. 304. where it was observed at page 310:

The Indian law as to Government privilege is contained in Ss, 123, 124 and 162 of the Indian Evidence Act. It is clear that the dominant intention in the section is to prevent disclosures to the detriment of the public interests and it is settled in this Presidency by Venkatachala Chettiar v. Sampathu Chettiar 32 Mad. 62 at 66. that the decision as to such detriment is to be with the officer, to whom the communication is made."

It is therefore clear from the decision of the House of Lords as well as from the above decisions of our Court that the decision is to be taken by the Officer and once he has taken it and claimed privilege it is conclusive and that it has got to be examined only to see whether it refers to matters of State. This principle has also been followed in R.M.D. Chamarbaghwalla Vs. Y.R. Parpia, . and Lady Dinbai Dinshaw Petit and Others Vs. The Dominion of India and Another, The document in this case undoubtedly refers to affairs of State and under S. 162 of the Indian Evidence Act the Court may not even inspects the document. In the circumstances the proper order has been passed by the lower Court and the petition is therefore dismissed with costs.