Civil Procedure Code (CPC)

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Through the judgment of the case - The State of Uttar Pradesh & Others v. Dr Manoj Kumar Sharma, delivered on July 9, 2021, Justice Sanjay Kishan Kaul and Justice Hemant Gupta, at the Supreme Court have expressed the Court’s unhappiness once again about certain High Courts developing a practice “to call officers at the drop of a hat and to exert direct or indirect pressure”. The line of separation of powers between Judiciary and Executive is sought to be crossed by summoning the officers and in a way pressurizing them to pass an order as per the whims and fancies of the Court.

The public officers of the Executive are also performing their duties as the third limb of the governance. The actions or decisions by the officers are not to benefit them, but as a custodian of public funds and in the interest of administration, some decisions are bound to be taken. It is always open to the HC to set aside the decision which does not meet the test of judicial review but summoning of officers frequently is not appreciable at all. The same is liable to be condemned in the strongest words.

The SC has observed in its judgment of the case – Divisional Manager, Aravali Golf Club and Another v. Chander Hass & Another – (2008) 1 SCC 683, that the judges must know their limits. They must have modesty and humility, and not behave like emperors. The legislature, the executive and the judiciary, all have their own broad spheres of operation. It is not proper for any of these three organs of the State to encroach upon the domain of another, otherwise the delicate balance in the Constitution will be upset, and there will be a reaction.

In the same judgment, the SC has further observed that the Judges must know their limits and must not try to run the Government. They must have modesty and humility, and not behave like emperors.

According to the SC, it is time to reiterate that public officers should not be called to court unnecessarily. The dignity and majesty of the Court is not enhanced when an officer is called to court. Respect to the Court has to be commanded and not demanded and the same is not enhanced by calling public officers. The presence of public officer comes at the cost of other official engagement demanding their attention. Sometimes, the officers even have to travel long distance. Therefore, summoning of the officer is against the public interest, as many important tasks entrusted to him gets delayed, creating extra burden on the officer or delaying the decisions awaiting his opinion. 

The court proceedings also take time, as there is no mechanism of fixed time hearing in Courts as of now . The Courts have the power of pen which is more effective then the presence of an officer in Court. If any particular issue arises for consideration before the Court and the Advocate representing the State is not able to answer, it is advised to write such doubt in the order and give time to the State or its officers to respond.

The challenge in this appeal was to an order passed by the Lucknow Bench of the Allahabad High Court on March 5, 2020 affirming the order passed by a Single Judge Bench on August 7, 2019.directing the appellants to calculate and pay half of the back wages to the respondent (the writ petitioner in the HC) and to grant all the consequential benefits to him, in accordance with law.

The petitioner was posted in Uttarakhand Government as a Medical Officer before the reorganization of the State of Uttar Pradesh. He was transferred to Uttar Pradesh as per the option given by Medical Officers of Uttar Pradesh including the writ petitioner. As many as 208 Medical Officers and 5 Dental Doctors of Cass-II category belonging to the U.P. Provincial Medical and Health Services (Male Cadre) were posted in Uttar Pradesh on March 6, 2002. The name of the petitioner was at No. 6 of the said list of Medical Officers. He was to report at Badaun under the Chief Medical Officer.

In the year 2006, the petitioner had filed first writ petition seeking direction from the HC to the State to post him as Medical Officer in any Hospital according to his qualification and experience in the specialized cadre. The Single Judge allowed the petition on the ground that the counter affidavit was silent as to in what manner the posting order was served upon him. His finding was that no decision was taken in pursuance of letter of September 19, 2003 for posting him. In view of this, the HC had concluded that the posting order or transfer order was never served upon the petitioner at any point of time. Therefore, in the facts and circumstances of the case, the judgments cited by the Govt. counsel were not of any help to the cause of the State. Further, the HC observed that a heavy cost is required to be imposed upon the State Govt. for approaching the Court in such a callous manner.

The HC imposed cost of Rs 50,000/- upon the State Govt. payable within 15 days with direction to issue a posting order also in respect of the petitioner within the same period. Through an order in  another petition The question of back wages was ordered to be decided within four weeks. Posting order was issued on December 9, 2016 to the petitioner to join as Medical Officer at Muzaffarnagar. 

On February 27, 2009, the Principal Secretary declined to grant back wages, on the ground that though he was given posting order, he did not comply with that, for 13 years from July 5, 2003  to December 9, 2016.He was granted extra ordinary leave for the same period. He challenged this order by filing another petition. The Single Judge did notice that he was gainfully employed during this period, but still granted 50 pc back wages to the petitioner. This order also affirmed by the division bench was subject matter of challenge of this appeal before the Supreme Court.

The Supreme Court, while commenting upon the conduct of the petitioner-employee (Respondent before the SC) has stated that he was posted at Badaun. He was to report at the place of posting. He should have asked for transfer, if permissible, according to the requirement of the State. But he could not have dictated the place of posting without even joining at the place, where he was first posted. Therefore, the SC has held that the impugned orders of the HC passed on March 5, 2020 and August 7, 2019 were wholly unjustified, unwarranted, arbitrary and illegal. The SC has set aside the same and allowed the appeal filed by the State of Uttar Pradesh.


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