Javed Usmani The Chief Secy., ... vs Sarvesh Kumar Upadhyay And 4 ...
2013 Latest Caselaw 7368 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Chief Justice's Court
 

 
Case :- SPECIAL APPEAL No. - 1914 of 2013
 

 
Appellant :- Javed Usmani The Chief Secy., Govt.Of U.P. And 4 Others
 
Respondent :- Sarvesh Kumar Upadhyay And 4 Others
 
Counsel for Appellant :- Ramesh Upadhyay
 
Counsel for Respondent :- Satya Priya Upadhyay
 

 
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
 
Hon'ble Sanjay Misra,J.

This Special Appeal has been filed by the Chief Secretary to the Government of U.P., the Principal Secretary (Law)/Legal Remembrancer, Government of U.P., the Principal Secretary, (Home) State of U.P., the Director General of Police (P.A.C.) and the Battalion Commandant of P.A.C. against an order of the learned Single Judge dated 27.11.2013 directing the personal presence of the Chief Secretary and the Principal Secretary (Law)/L.R. in the court.

The Writ proceedings before the learned Single Judge have been instituted by the first respondent to question a selection list issued on 21.10.2013 by the Battalion Commandant of P.A.C. at Azamgarh for filling up vacancies in respect of the Group-D post of Cooks in P.A.C. On 12.10.2013, the learned Single Judge allowed the request of the learned Standing Counsel of an adjournment of two weeks to obtain instructions and to file a reply and directed that the proceedings shall be listed on 27.11.2013. When the proceedings came up on 27.11.2013 the learned Standing Counsel made a general grievance that though the counsel for the State do try their level best to comply with the orders of the Court, this is not possible either on account of the absence of adequate facilities or because of the negligence of the officers, who have to furnish instructions to counsel. The learned Single Judge noted that though a large number of Standing Counsel and Brief Holders have been assigned duty to the Court, most of them do not attend the Court and "simply get their bills prepared in collusion with the office". The Court was of the view that though the State is the largest litigant, it does not take effective steps for presentation of cases within time and the Law Officers of the State are handicapped because of a lack of timely instructions and due to the absence of appropriate facilities in their offices. In this background, the learned Single Judge observed that these problems cannot be solved without the cooperation of the department concerned. Consequently, the Legal Remembrancer/Principal Secretary (Law) as well as the Chief Secretary to the State Government were directed to appear before the Court on 12.12.2013 to explain as to why "they have created such kind of situation which is causing a lot of inconvenience in smooth functioning of the Court". The Court also observed that this kind of an attitude is causing interference in the administration of justice and is apparently contemptuous for which the officers are liable to be proceeded against. Besides summoning the Chief Secretary and Principal Secretary (Law), an interim order was passed not to make any appointment in pursuance of the selection.

The grievance of the appellants is that neither the Chief Secretary nor the Principal Secretary (Law), are parties to the proceedings before the learned Single Judge, neither of them have committed any breach of the orders of the Court nor have they been negligent in complying with a judicial direction. Moreover, it was urged that, in the present case, a letter was addressed by the Commandant on 24.11.2013 to the Chief Standing Counsel stating that the instructions, which have been furnished, had been forwarded for approval to the State Government since the Principal Secretary (Home) had also been impleaded as representing the State. Hence a request was made to apply before the Court for a further adjournment of four weeks to file a reply. In these circumstances, it was urged that there was no occasion to summon the Chief Secretary or the Principal Secretary (Law).

Now, in the present case, it is not in dispute that neither the Chief Secretary of the State Government nor the Principal Secretary (Law), are parties to the proceedings before the learned Single Judge. Neither of these two officers are directly concerned with the subject matter of the writ proceedings. Undoubtedly, the learned Single Judge had, on 12.11.2013, called for a reply by 27.11.2013 but again neither the Chief Secretary nor the Principal Secretary (Law) are responsible for the non-filing of the affidavit in reply. Summoning of the officers of the State should be resorted to by the High Court with great care and in extremely rare cases where the Court finds that despite sufficient opportunities being afforded, there has been a breach of the directions of the Court or a failure to cooperate in the time schedule which has been fixed by the Court for compliance of its procedural directions. Ordinarily it would be appropriate to direct that a final extension of time is being granted failing which the personal presence of the officer directly concerned may have to be ordered. This places the department and the officer on sufficient notice.

In the present case, we find merit in the submission that the order summoning the Chief Secretary and the Principal Secretary (Law) is without any justification since neither of the two officers can be regarded as responsible for the failure of the State to file an affidavit between 12.11.2013 to 27.11.2013 which was the period allowed by the learned Single Judge. Summoning officers of the State repeatedly to the Court detracts from the proper functioning of the departments of the State. The purpose of issuing orders or summons of this nature should never be to humiliate senior officers of the State which with respect is a feeling which is liable to be caused if officers are summoned without reasonable justification.

The Supreme Court has in the case of 'State of Gujarat Vs. Turabali Gulamhussain Hirani & another', 2007(14) SCC 94 observed as follows:-

7. There is no doubt that the High Court has power to summon these officials, but in our opinion that should be done in very rare and exceptional cases when there are compelling circumstances to do so. Such summoning orders should not be passed lightly or as a routine or at the drop of a hat.

9. The judiciary must have respect for the executive and the legislature. Judges should realize that officials like the Chief Secretary, Secretary to the government, Commissioners, District Magistrates, senior police officials etc. are extremely busy persons who are often working from morning till night. No doubt, the ministers lay down the policy, but the actual implementation of the policy and day to day running of the government has to be done by the bureaucrats, and hence the bureaucrats are often working round the clock. If they are summoned by the Court they will, of course, appear before the Court, but then a lot of public money and time may be unnecessarily wasted. Sometimes High Court Judges summon high officials in far off places like Director, CBI or Home Secretary to the Government of India not realizing that it entails heavy expenditure like arranging of a BSF aircraft, coupled with public money and valuable time which would have been otherwise spent on public welfare.

The same principle was reiterated in R.S. Singh Vs. Uttar Pradesh Malaria Nirikshak Sangh and others, 2011(4) SCC 281.

In the circumstances, we are inclined to set aside and we accordingly set aside the direction of the learned single judge contained in para 4 of the impugned order dated 27.11.2013 calling for the personal presence of the Legal Remembrancer, Principal Secretary (Law) and the Chief Secretary for appearance before the Court on 12.12.2013.

Having said this, it is also necessary to appreciate the anguish which is contained in the order of the learned Single Judge dated 27.11.2013 which reflects the state of affairs in regard to the manner in which litigation involving the State is conducted before the High Court. The State is undoubtedly the largest litigant. The arrears before the Court reflect a situation where the State has not taken serious and pro-active measures to control and streamline litigation involving the government in the High Court. In order to achieve the goals stated in the National Litigation Policy, it is necessary for the State Government to have a careful and serious look into the question relating to the conduct of litigation on behalf of the State in the High Court and other Courts.

We are conscious of the fact that such problems cannot be solved overnight and would require a careful and well-structured solution. The filing of appeals by the State, the conduct of proceedings in Court, making available proper instructions to panel counsel of the Government and the filing of affidavits on time, are some of the matters which must engage serious attention on the part of the State Government. A system will have to be evolved by which directions of the Court in regard to the conduct of the proceedings and for filing affidavits are communicated at the earliest so that instructions are made available to Standing Counsel for filing affidavits. Otherwise the matters remain pending for an inordinately long period of time and interim orders which may ultimately affect the interest of the state have to be passed only because of the absence of adequate instructions to the learned Standing Counsel appearing on behalf of the State. The facilities and infrastructure available for counsel for the State need to be upgraded.

We have no doubt that these issues will engage the attention of the State at the highest level and accordingly we would request the Chief Secretary of the State with the assistance of the Principal Secretary (Law) and other Senior Officers of the State Government to have a comprehensive analysis made, that would facilitate the conduct of litigation by the State in an efficient and time bound manner. Courts have been liberal in condoning the delay on the part of the State in filing appeals being conscious of the fact that bureaucratic delays are often involved in the process of decision making. However, we must emphasise that there should be no laxity in compliance of the directions of the Court. Once a direction is issued by the Court setting a time schedule for filing an affidavit, this direction must be complied with. Repeated adjournments, besides dislocating the functioning of the Court, cause serious inconvenience to the ordinary citizens who approach the Court with a sense of faith that their grievances would be resolved and they have to repeatedly leave Court in the hope that they would receive judgment on another date. This state of affairs would have to be changed in future if judicial institutions have to be modernized. We have to emphasize that a beginning should be made here and now. The time has come where judicial institutions as well as the authorities of the State must make a concerted attempt to alter this state of affairs without an adversarial approach. We have emphasized this aspect to bring to the notice of the state the importance of finding a solution on priority with a view to maintain the credibility of the justice delivery system.

Hence with these observations, we allow the appeal and set aside the impugned directions of the learned Single Judge dated 27.11.2013 summoning the Chief Secretary and Principal Secretary (Law). We clarify that we have not interfered with the rest of the interim order of the learned Single Judge and the writ petition may be proceeded with for hearing before the learned Single Judge. On the request of the learned counsel appearing on behalf of the appellants, we extend time for filing the affidavit in reply until 17.01.2014 and direct that the petition shall now be placed on board thereafter.

However, in order to enable the state to apprise this court of the action which has been taken by the State Government in respect of the issues raised in the course of this order and to facilitate, a resolution on the part of the State to the vexed problems which have been noted, we place this appeal for directions on 24.02.2014 so that the Court can be apprised of the steps which have been taken by the State Government. Insofar as the aspersions which have been cast on the learned standing counsel in paragraph 2 of the judgment of the order are concerned, we need to clarify that they were unnecessary for the case in the proceedings before the learned Single Judge. The Appeal is disposed of.

Order Date :- 10.12.2013

pks

(Dr. D.Y. Chandrachud, C.J.)

(Sanjay Misra, J.)