Jammu & Kashmir High Court
Reserved On: 01-02-2023 vs State Of J&K And Others on 8 February, 2023
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
SWP No. 2037/2017
Reserved on: 01-02-2023
Pronounced on:08.02.2023.
Joginder Singh and others
....... Petitioner(s)
Through: Petitioner No.1 present in person.
Versus
State of J&K and others
......Respondent(s)
Through: Ms. Monika Kohli, Sr. AAG.
Mr. K. D. S. Kotwal, Dy. AG.
Mr. Vishal Sharma, DSGI.
Mr. Aditya Gupta, Advocate.
CORAM: HON'BLE MR JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR JUSTICE PUNEET GUPTA, JUDGE
ORDER
1. This case has a chequered history. In the petition, which was initially
filed before this Court by one Joginder Singh and others, the writ petitioners
had essentially prayed for the following reliefs:-
"Keeping in view of the above facts it is, prayed that that
respondents be directed to accord approval to the resolution
adopted on 13-15 September, 2002 in the Chief Justices
conference thereby enhancing the salary and perks of the high
Court staff so that they cannot be downgraded at any cost when
the ministerial staff of subordinate judiciary gets hike in the
salary as it has been done in state of Punjab and Haryana
wherein in the hike of such a salary of lower Court staff on the
implementation of Shetty commission, the salary of High
Court staff was increased by 20% and the same direction be
accorded in our favour. Apart from it respondents be directed to
grant retrospective effect of SRO 386 dated 01-12-2008 from
the date of its implementation i.e. 01.12.2008 instead of date of
issuance of or4der dated 28-04-2017 also grant of ACP in view
of resolution of the full court dated 26.11.2014 be also granted
to the officers and staff of the high Court and six posts of
Additional registrars be also sanctioned in view of the
judgments of the Hon'ble Supreme Court passed in AR Zakki's
case by issuing writ of mandamus to command them to
consider the above said prayers."
SWP No. 2037/2017
2. However, with the passage of time and through various applications
filed by the petitioners and the interveners, the scope of the petition seems to
have been expanded. We, in this petition, are presently grappling with the
issue of deficient infrastructure and staff for meeting the needs of the
increased judges' strength i.e. from 14 to 17. It was in the year 2014, the
Registry of this Court vide letter No.18010/GS dated 29.01.2014 followed
by communication No.19949/GS dated 26.11.2015 projected the increase in
the staff strength to the extent of 334 posts in different categories. The
matter has remained pending with the Government for more than eight years
without any fruitful results. There have been several meetings between the
representatives of the High Court and the Government but in view of the
adamant stand taken by the Government, no substantial progress in the
matter has been made and the proposal for creation of 334 posts in different
categories to meet the requirements of present judges' strength has not been
conceded by the Government. The Government has neither accepted and nor
declined the proposal. At one point of time, the Secretary to Government,
Department of Law Justice and Parliamentary Affairs made a statement
before this Court that the matter with regard to creation of 334 posts
recommended by the High Court was sent to the Finance Department for
concurrence but later on the aforesaid statement was withdrawn by filing an
application. Be that as it may, the issue remains where it was in the year
2014-15.
3. With a view to meet the urgent need of personal staff on the elevation
of new judges beyond the strength of 14, the communication was addressed
by the High Court to the respondents to immediately and forthwith create 24
posts of different categories to provide the requisite personal staff to the
SWP No. 2037/2017
newly elevated judges. It seems that after great deal of persuasion, the
Government was persuaded to create 24 posts in different categories,
however, the order so passed is with a rider and has not been given effect t
to.
4. We fail to understand as to how the creation of posts by the
administration of Union Territory of Jammu and Kashmir needs approval
from any authority other than the UT of J&K. Respondents have not cited
any statute or provision in the financial code to substantiate the aforesaid
stand. We, therefore, hold and provide that notwithstanding the condition
made in the order of creation in respect of its approval by the Government of
India, the order creating 24 posts shall be deemed to be final and no further
action on the same is required to be taken. Necessary follow up action in this
regard shall be taken.
5. Regarding the creation of 334 posts recommended by the High Court,
we are of the considered view that the Government has no discretion in the
matter. It is astonishing to note that Government has been sitting over the
proposal of the High Court for the last more than seven years with impunity.
It is high time that the department of Law Justice and Parliamentary Affairs
invigorates its efforts and gets the financial concurrence from the Finance
Department. We make it clear that for creation of posts for the judiciary, no
concurrence or approval either from the Department of law and Justice,
Government of India, or the Ministry of Home Affairs, Government of
India, is required. The financial implication of creation of such posts is
required to be met from out of the consolidated fund of the UT of J&K.
From the entire reading of J&K Reorganisation Act of 2019, it is abundantly
SWP No. 2037/2017
clear that no consolidated fund of UT of Ladakh has been constituted
separately. It is, thus, clear and emphatic that all expenses of the High Court
and its staff are required to be borne from the consolidated fund of the UT of
J&K. It is, however, for the administration of UT of J&K to put up a demand
for proportionate contribution to the UT of Ladakh, if permissible under law.
6. We have gone through the stand taken by the respondents and the
status reports filed from time to time and the least we can say is that there is
nothing substantial stated except making an attempt to hoodwink the Court
and somehow deny the legitimate requirement of the High Court. We could
not find any justification in any of the reply affidavits and status reports filed
by the respondents, which would spell out reasons for not according
concurrence to the creation of 334 posts recommended by the High Court.
We need not reiterate that the recommendation made by the High Court/
Hon'ble Chief Justice with respect to creation of posts are binding on the
Government and there is no discretion in the matter. We could have
appreciated had the respondents pointed out any procedural illegality or
infirmity in the proposal.
7. Having said that, we direct the Chief Secretary of UT of J&K to
convene a meeting of the following officers to take a final call in the matter:-
1. Secretary to Government of UT of J&K,
Department of Law Justice and Parliamentary Affairs,
2. Secretary to Government of UT of J&K,
Department of Finance; and
3. Secretary to Government of UT of J&K,
General Administration Department.
8. The Chief Secretary may invite and associate the Registrar General of
High Court of J&K and Ladakh also in the matter. The meeting shall be held
SWP No. 2037/2017
within a period of four weeks from today, on a date to be fixed by the Chief
Secretary.
9. We hope and trust that in the aforesaid meeting a final decision with
regard to creation of 334 posts, recommended by the High Court is taken
and conveyed to the High Court within next four weeks. The UT of J&K
will be free to project the additional demand before the Government of
India, if it is of the opinion that the present resources with the Government
in the consolidated fund of UT of J&K are not sufficient to meet the
requirement.
10. We make it clear that in case the aforesaid directions are not complied
with and the aforesaid 334 posts recommended by the High Court are not
created, the Chief Secretary of UT of J&K, Secretary to Govt. of UT of
J&K, Department of Law, Justice & PA, Secretary to Govt. of UT of J&K,
Finance Department and Secretary to Govt., UT of J&K, General
Administration Department shall appear in person on the next date to explain
their inaction in the matter.
11. List on 10-04-2023.
12. It is directed that the order passed today shall not be published in any
print or electronic media.
(Puneet Gupta) ( Sanjeev Kumar)
Judge Judge
JAMMU
08.02.2023
Anil Raina, Addl. Reg/Secy
