Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(SC) 313

SUPREME COURT OF INDIA
SANJAY KISHAN KAUL, HEMANT GUPTA, JJ.
The State of Uttar Pradesh and Others – Appellants
Versus
Dr. Manoj Kumar Sharma – Respondent
Civil Appeal No. 2320 of 2021, SLP (Civil) No. 7487 of 2020
Decided On : 09-07-2021

Advocates appeared:
For the Appellant(s) :Garima Prashad, Vishnu Shankar Jain, Advocate
For the Respondent(s):Shailendra Bhardwaj, Advocates

IMPORTANT POINTS
(1) Grant of 50% of back wages for entire period would be giving benefit of one’s own wrong who intentionally abstained from duty for 13 long years and now wants to take benefit of back wages as well.
(2) Public officers should not be called to court unnecessarily. Dignity and majesty of Court is not enhanced when an officer is called to court. Respect to court has to be commanded and not demanded and same is not enhanced by calling public officers.

Headnote:
(A) Service Law – Back Wages – Grant of – It was not open to writ petitioner to defy order of transfer on the ground of non-communication when more than 100 Medical Officers were transferred by same common transfer order – Firstly, he stood relieved by State of Uttarakhand and secondly, he did not report at place of posting but submitted application before Director Medical Health Services – In first round, even after directing to issue a posting order to writ petitioner, question of back wages was left open – It is thereafter, in pursuance of another writ petition, competent authority in the State passed an order declining back wages but granted extraordinary leave for period in question – Conduct of writ petitioner suggests that he was not keen to join as a Medical Officer after he was relieved by Government of Uttarakhand – Writ petitioner cannot take a stand that he had not received posting order – It is a case of feigned ignorance – Even if there is a practice that Medical Officer report at office of Director Medical Health Services is not a ground on the basis of which illegality can be permitted to be perpetuated – Option of posting would be available only if there are general transfers not in a case where the Medical Officers have been allocated to their parent state in view of option exercised – Writ petitioner was gainfully employed and it is impossible to imagine that a Medical Officer would sit idle for 13 long years – Grant of 50% of back wages for entire period would be giving benefit of one’s own wrong who intentionally abstained from duty for 13 long years and now wants to take benefit of back wages as well – Orders of High Court are wholly unjustified, unwarranted, arbitrary and illegal – Impugned orders set aside. (Paras 12, 14, 15 and 21)
(B) Constituting of India – Articles 50 and 166 – Rules of Executive Business – A practice has developed in certain High Courts to call officers at drop of a hat and to exert direct or indirect pressure – Line of separation of powers between Judiciary and Executive is sought to be crossed by summoning officers and in a way pressurizing them to pass an order as per whims and fancies of Court – Public officers of Executive are also performing their duties as third limbs of governance – Actions or decisions by officers are not to benefit them, but as a custodian of public funds and in interest of administration, some decisions are bound to be taken – It is always open to High Court to set aside decision which does not meet test of judicial review but summoning of officers frequently is not appreciable at all – Public officers should not be called to court unnecessarily – Dignity and majesty of Court is not enhanced when an officer is called to court – Respect to court has to be commanded and not demanded and same is not enhanced by calling public officers – Presence of public officer comes at cost of other official engagement demanding their attention – Sometimes, officers even have to travel long distance – Summoning of officer is against public interest as many important tasks entrusted to him gets delayed, creating extra burden on officer or delaying decisions awaiting his opinion – Court proceedings also take time, as there is no mechanism of fixed time hearing in Courts as of now – Courts have power of pen which is more effective than presence of an officer in Court – If any particular issue arises for consideration before Court and Advocate representing State is not able to answer, it is advised to write such doubt in the order and give time to State or its officers to respond. (Paras 17, 18 and 20)
Facts of the case:
Challenge in the present appeal is to an order passed by Division Bench of the High Court of Allahabad, Lucknow Bench at Lucknow on 05.03.2020, affirming the order passed by tSingle Bench on 07.08.2019. Vide the aforesaid orders, appellants were directed to calculate and pay 50% of the back wages to the respondent (Writ Petitioner) and to grant all the consequential benefits in accordance with law.
Findings of Court:
A practice has developed in certain High Courts to call officers at 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.
Result : Appeal allowed.

JUDGMENT :

HEMANT GUPTA, J.

1. The challenge in the present appeal is to an order passed by the Division Bench of the High Court of Allahabad, Lucknow Bench at Lucknow on 05.03.2020, affirming the order passed by the learned Single Bench on 07.08.2019. Vide the aforesaid orders, the appellants were directed to calculate and pay 50% of the back wages to the respondent, hereinafter referred to as writ petitioner, and to grant all the consequential benefits in accordance with law.

2. The writ petitioner was posted in State of Uttaranchal (for short ‘Government of Uttaranchal’ now Uttarakhand, hereinafter referred to as Uttarakhand) as a Medical Officer before the reorganization of the State of Uttar Pradesh. The writ petitioner was transferred to State of Uttar Pradesh as per the option given by Medical Officers of State of Uttar Pradesh including the writ petitioner. As many as 208 Medical Officers and 5 Dental doctors of Class-2 Category belonging to the U.P. Provincial Medical and Health Services (Male Cadre) were posted in the State of Uttar Pradesh on 6.3.2002. The name of the writ petitioner appears at Serial No. 99 of the said list of Medical Officers. The writ petitioner was to report at Badaun under the Chief Medical Officer.

3. The State of Uttarakhand relieved the Medical Officers in phases. The writ petitioner was amongst 22 Medical Officers in the second phase who were relieved by the State of Uttarakhand on 5.7.2003 in terms of the posting order of the Uttar Pradesh Government dated 06.03.2002. The name of the writ petitioner appears at Serial No. 13, then posted as Surgeon at District Hospital, Uttarkashi, Uttarakhand. The writ petitioner was relieved by Chief Medical Superintendent, District Hospital, Uttarkashi on 12.09.2003.

4. It is thereafter that the writ petitioner instead of reporting at place of posting i.e. Badaun, submitted a letter to Director Medical Health Services, Lucknow on 19.09.2003 submitting his joining report. On the same date, by another letter, a request was made to get a posting in Muzaffarnagar, Ghaziabad or Bijnore District. Even though the writ petitioner was posted at Badaun, he did not join there and was well satisfied by giving a letter to Director Medical Health Services of his joining in that office.

5. Subsequently, the writ petitioner filed a writ petition in the year 2006 wherein he claimed a writ of mandamus commanding the State to post the writ petitioner as Medical Officer in any Hospital according to his qualification and experience in the specialized cadre. The learned Single Judge allowed the writ petition inter-alia on the ground that the counter affidavit was silent as to in what manner the office memorandum or the posting order was served upon the writ petitioner. The argument by the State counsel that the writ petitioner did not join at Badaun was said to be not supported by any letter of the writ petitioner. The learned Single Judge found that no decision has been taken in pursuance of letter dated 19.09.2003 for posting of the writ petitioner. The Court thus concluded that the posting order or the transfer order was never communicated or served upon the writ petitioner at any point of time. Therefore, the judgments referred to by the State counsel were not applicable in the facts and circumstances of the case. Further, the Secretary, Medical Health, Government of U.P. was summoned to the Court who justified the non-posting of the writ petitioner. The Court concluded as under:

“The aforesaid conduct of the State Government in dealing with its officers is not happy state of affair. The State Government should have acted with responsibility and should have been quick enough to take a decision in the matter. The State Government has been sitting tight over the matter since 2006 when the writ petition was filed. Action of the State Government, therefore in these circumstances, cannot be justified and neither the State Government can take benefit of the posting order issued on 6t