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Supreme Court of India
The State Of Uttar Pradesh vs Manoj Kumar Sharma on 9 July, 2021Author: Hemant Gupta
Bench: Sanjay Kishan Kaul, Hemant Gupta
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2320 OF 2021
(ARISING OUT OF SLP (CIVIL) NO. 7487 OF 2020)
THE STATE OF UTTAR PRADESH & ORS. …..APPELLANT(S)
VERSUS
DR. MANOJ KUMAR SHARMA …..RESPONDENT(S)
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
Signature Not Verified
of State of Uttar Pradesh including the writ petitioner. As many as
Digitally signed by
Charanjeet kaur
Date: 2021.07.09
16:37:57 IST
Reason:
208 Medical Officers and 5 Dental doctors of Class -2 Category
belonging to the U.P. Provincial Medical and Health Services (Male
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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
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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
6th March, 2002. We are therefore of the view that a heavy
cost is required to be imposed upon the State Government
for approaching in such a callous manner.
We accordingly impose a cost of Rs.50,000/- upon the State
Government. The State government will deposit the cost
before this Court within fifteen days, which shall be
transferred to the Mediation Centre of this Court. Further, a
writ in the nature of mandamus is issued to the State
Government to issue a posting order in respect of the
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petitioner within the aforesaid period.
Question of back wages is left open in the present writ
petition.
The Secretary, Medical Health need not appear again.”
6. In pursuance of the said order of the High Court, a fresh posting
order was issued to the writ petitioner on 09.12.2016, posting him
under Chief Medical Officer, Muzaffarnagar. Subsequently, another
writ petition was filed for direction for payment of back wages. The
writ petition was disposed of with a direction to decide the
question of back wages within a period of four weeks.
7. The Principal Secretary declined the grant of back wages on
27.2.2009 inter alia on the following grounds:
“It is pertaining to mention that Dr. Manoj Kumar Sharma
Surgeon District Hospital Uttarkashi after being relieved on
05.07.2003 from the State of Uttaranchal submitted joining
before Director General Medical and Health Services U.P.
Lucknow on 18.09.2003, repeatedly made request for
posting near his home District Saharanpur. If his request for
place of posting was not accepted it was not open to him to
say that any hindrance was created in his joining and he
remained in waiting for posting. The period of Dr. Manoj
Kumar Sharma from 05.07.2003 to 09.12.2016 cannot be
treated as compulsory waiting period as he had been given
posting but he did not comply with posting order and there
was no justification to sit idle for about 13 years and not
performing Government work in anticipation of decision to
be taken on his representation and such attitude does not
reflect his readiness to work.”
8. The back wages for the said period were thus declined for the
reason that the writ petitioner has not performed any government
work from 05.07.2003 till 09.12.2016 and it cannot be treated as
compulsory waiting period under the provisions of Fundamental
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Rules 9(6)(b)(iii) of Financial Hand Book Volume-2-Part 2-4 and he
was thus granted extra ordinary leave for the aforesaid period.
9. The writ petitioner challenged the said decision by way of another
writ petition. The order of the learned Single Bench shows that an
office memorandum was issued on 08.02.2018 proposing to initiate
departmental enquiry on the ground of non-joining. The contempt
petition was filed and it appears that in view of the contempt
petition, the office memorandum was cancelled on 29.05.2018.
The learned Single Judge in the order dated 7.8.2019 held that the
order in the writ petition dated 26.09.2016 had attained finality,
therefore, the benefit of back wages could not have been declined.
The Court held as under:
“That once the order dated 26.09.2016 attained finality and
there was no challenge to the same, thus, the issues and the
findings in the aforesaid writ petition could not be in the
domain of the respondents to challenge indirectly by issuing
the impugned office memorandum dated 27.02.2019. It is
no more res-integra that what cannot be done directly
cannot be done indirectly either. In the present facts and
circumstances, the issue regarding the fact of the petitioner
not being able to join between 05.07.2003 to 09.12.2016
was the core issue in the earlier writ petition decided on
26.09.2016. The Division Bench of this Court while deciding
and allowing the aforesaid writ petition had categorically
noticed that the State was unable to establish the fact that
the alleged joining order dated 06.03.2002 was ever served
or communicated to the petitioner. This Court has already
re-produced the relevant portion of the aforesaid judgment
and thus, it is evident that the reason indicated in the office
memorandum dated 27.02.2019 is the same which stood
decided in the earlier writ petition in favour of the
petitioner.”
10. The learned Single Judge also noticed the fact that the writ
petitioner was gainfully employed during this period but still
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granted 50% of back wages. The Court held as under:
“Notwithstanding the aforesaid, this Court has to balance
the equities in between the parties and considering the fact
that the petitioner did not deny the plea of the respondent
that he was gainfully employed even though the burden to
prove the same was on the employer coupled with the fact
that the respondent have only taken a bald plea in their
counter affidavit and no positive evidence or document was
placed on record to substantiate its plea.
Hence, taking a holistic view, this Court is of the opinion that
ends of justice would be served if the petitioner is granted
50% back wages for the period 05.07.2003 to 28.12.2016
treating the petitioner to be in continuous service. As far as
the other consequential benefits, admissible under law, are
concerned the respondents in the impugned order also
admit that the same are to be given to the petitioner.”
It is the said order which was affirmed by the learned Division
Bench, which is subject matter of challenge in the present appeal.
11. The learned Single Bench in the first round held that the State has
not produced as to how and when the posting order was
communicated to him. The Court was aware of the fact that the
writ petitioner has been relieved by the Government of
Uttarakhand on 12.09.2003 and a communication has been
addressed by Shri K.M. Mehrotra, Joint Director on 12.09.2003 and
that he had submitted a joining report on 18.09.2003. The said
joining report was submitted not at the place of posting but before
the Director Medical Health Services. We find that the High Court in
this background, when the writ petitioner stood relieved from
Uttarakhand, could not have returned a finding that the State has
not shown as to how the transfer and posting order was conveyed
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to the writ petitioner. The High Court overlooked a judgment of this
Court reported as State of Punjab v. Khemi Ram1 wherein a
question arose that whether the order of suspension was to be
actually received by the employee to be affected. This Court
examined the question as to whether communicating the order
means its actual receipt by the concerned government servant.
The Court held as under:
“16. …It will be seen that in all the decisions cited before us
it was the communication of the impugned order which was
held to be essential and not its actual receipt by the officer
concerned and such communication was held to be
necessary because till the order is issued and actually sent
out to the person concerned the authority making such
order would be in a position to change its mind and modify it
if it thought fit. But once such an order is sent out, it goes
out of the control of such an authority, and therefore, there
would be no chance whatsoever of its changing its mind or
modifying it. In our view, once an order is issued and it is
sent out to the concerned government servant, it must be
held to have been communicated to him, no matter when he
actually received it. We find it difficult to persuade ourselves
to accept the view that it is only from the date of the actual
receipt by him that the order becomes effective. If that be
the true meaning of communication, it would be possible for
a government servant to effectively thwart an order by
avoiding receipt of it by one method or the other till after
the date of his retirement even though such an order is
passed and despatched to him before such date. An officer
against whom action is sought to be taken, thus, may go
away from the address given by him for service of such
orders or may deliberately give a wrong address and thus
prevent or delay its receipt and be able to defeat its service
on him. Such a meaning of the word “communication” ought
not to be given unless the provision in question expressly so
provides. ………”
12. Therefore, it was not open to the writ petitioner to defy the order of
transfer on the ground of non-communication when more than 100
1 AIR 1970 SC 214
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Medical Officers were transferred by the same common transfer
order. Firstly, he stood relieved by the State of Uttarakhand and
secondly, he did not report at the place of posting but submitted an
application before Director Medical Health Services. In the first
round, even after directing to issue a posting order to the writ
petitioner, the question of back wages was left open. It is
thereafter, in pursuance of another writ petition, the competent
authority in the State passed an order declining back wages but
granted extra ordinary leave for the aforesaid period.
13. Learned counsel for the writ petitioner submitted that in the writ
petition he has sought to post him anywhere in the State of Uttar
Pradesh and that in the order dated 26.09.2016 a finding is
returned i.e., posting order dated 06.03.2002 was not served upon
the writ petitioner. It is also pointed out that the Government of
Uttarakhand has relieved medical officers in stages and all of them
submitted joining report to the Director Medical Health Services,
U.P. and not at the place of posting mentioned in the order issued
by the Uttar Pradesh Government. A reference is made to general
practice in the Government of Uttar Pradesh as a Medical Officer is
asked to submit three choices of place of posting and that this
practice still continues.
14. We do not find any merit in the arguments raised. The writ
petitioner was relieved by the Government of Uttarakhand in 2003,
however, he filed writ petition in 2006, meaning thereby for three
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years, “he was awaiting posting orders”. Under the guise of
awaiting posting orders, he started private practice and
intentionally delayed the decision on the writ petition for almost 13
years. The writ petition was dismissed in default on 22.09.2008 and
was restored on 11.12.2014. Such conduct of the writ petitioner
suggests that he was not keen to join as a Medical Officer after he
was relieved by the Government of Uttarakhand. The writ petitioner
cannot take a stand that he had not received the order dated
06.03.2002. The order of Uttarakhand Government relieving him on
05.07.2003 is in pursuance of the order of the Government of Uttar
Pradesh on 06.03.2002. It is a case of the feigned ignorance. Even
if there is a practice that the Medical Officer report at the office of
Director Medical Health Services is not a ground on the basis of
which illegality can be permitted to be perpetuated. The 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 the option exercised.
15. As noticed by the learned Single Bench in the third round, the writ
petitioner was gainfully employed and it is impossible to imagine
that a Medical Officer would sit idle for 13 long years. Therefore,
the grant of 50% of back wages for the 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. Such stand of the writ petitioner is not only unjustified but
wholly condemnable. The State was remiss in not taking action
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against the writ petitioner for absence from duty. Once the writ
petitioner did not join the place of posting, the State should have
taken steps to initiate disciplinary proceedings. Still further, the
State issued posting order as per the directions in the first writ
petition. The attempt of the State to initiate proceedings in the
year 2018 invited ire of the Court. The State government cancelled
the proceedings to initiate disciplinary proceedings.
16. Another disturbing feature which comes to our notice is that in the
first round, the Secretary, Medical Health was called in-person in
the Court. Even in the present proceedings, after stay of the order
of the Division Bench of the High Court on 22.2.2021, an order was
passed by the High Court on 2.3.2021 to seek personal presence of
the officer on the next date of hearing. In these circumstances, this
Court in the present proceedings passed the following order on
6.4.2021: –
“On 22.02.2021, we had issued notice in the Special Leave
Petition and stayed the operation of the impugned order.
The present application has been filed for stay of the
contempt proceedings on account of the order passed on
02.03.2021.
To say the least, we are quite shocked at the perusal of the
order dated 02.03.2021. Once the operation of the order has
been stayed, the natural consequence would be that the
contempt proceedings would be kept in abeyance. It is not
as if this aspect was not brought to the notice of the learned
Judge dealing with the Contempt Petition No.139/2020 as an
application had been filed for exemption from personal
appearance. However, the exemption from personal
appearance was granted only for the date of 02.03.2021 and
the matter was listed on 08.04.2021 once again directing
both the officers to remain present in Court in pursuance to
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an earlier order dated 05.02.2021.
Once the order of which contempt was alleged was stayed,
there would be no cause for calling the officers as there was
no question of any non-compliance of the order which had
been stayed. This Court has even on various occasions
through judicial pronouncements deprecated the practice of
unnecessarily calling officers to Court. In that context, it has
been observed that the trust, faith and confidence of the
common man in the judiciary cannot be frittered away by
unnecessary and unwarranted show or exercise of power.
Greater the power, greater should be the responsibility in
exercising such power2. The frequent, causal and
lackadaisical summoning of high officials by the Court
cannot be appreciated. We may add that this does not mean
that in compelling situations the same cannot be done but
the object cannot be to humiliate senior officials 3. In the
present case, we are concerned with contempt proceedings.
No doubt if the order is not complied with, presence can be
directed unless exempted. However, if the operation of the
order is stayed, we fail to understand what purpose was
being served by calling the officers for the next date as no
specific date had been fixed by the Court post the stay
having been granted. We do believe that this is unnecessary
harassment of the officers and there was no occasion to
pass the order on 02.03.2021. It has resulted in the
petitioners being compelled to move the present
application.
We stay the contempt proceedings in Contempt Petition
No.139/2020 pending before the High Court of Judicature at
Allahabad, Lucknow Bench, Lucknow and further make it
clear the no presence of any officer concerned is required.
We also make it clear that as and when, if the occasion so
arises, for restarting the contempt proceedings, the matter
will be placed before a Bench of another Judge. A copy of
this order be placed before the learned Judge who passed
this order as well as the Chief Justice. The IA stands
disposed of.”
17. A practice has developed in certain High Courts 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
2 State of U.P. & Ors. v. Jasvir Singh & Ors. – (2011) 4 SCC 288
3 R.S. Singh v. U.P. Malaria Nirikshank Sangh & Ors. – (2011) 4 SCC 281
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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.
18. The public officers of the Executive are also performing their duties
as the third limbs 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 High Court 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.
19. This Court in a judgment reported as Divisional Manager,
Aravali Golf Club & Anr. v. Chander Hass & Anr.4 observed that
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. This Court held as under:
“19. Under our Constitution, the legislature, the executive
and the judiciary all have their own broad spheres of
operation. Ordinarily 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.
20. Judges must know their limits and must not try to run
the Government. They must have modesty and humility, and
not behave like emperors. There is broad separation of
4 (2008) 1 SCC 683
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powers under the Constitution and each organ of the State—
the legislature, the executive and the judiciary—must have
respect for the other and must not encroach into each
other’s domains.
21. The theory of separation of powers first propounded by
the French thinker Montesquieu (in his book The Spirit of
Laws) broadly holds the field in India too. In Chapter XI of his
book The Spirit of Laws Montesquieu writes:
“When the legislative and executive powers are united
in the same person, or in the same body of Magistrates,
there can be no liberty; because apprehensions may
arise, lest the same monarch or senate should enact
tyrannical laws, to execute them in a tyrannical
manner.
Again, there is no liberty, if the judicial power be not
separated from the legislative and executive. Were it
joined with the legislative, the life and liberty of the
subject would be exposed to arbitrary control; for the
judge would be then the legislator. Were it joined to the
executive power, the judge might behave with violence
and oppression.
There would be an end of everything, were the same
man or the same body, whether of the nobles or of the
people, to exercise those three powers, that of enacting
laws, that of executing the public resolutions, and of
trying the causes of individuals.”
(emphasis supplied)
We fully agree with the view expressed above.
Montesquieu’s warning in the passage above quoted is
particularly apt and timely for the Indian judiciary today,
since very often it is rightly criticised for “overreach” and
encroachment into the domain of the other two organs.”
20. Thus, we feel, 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
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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 than 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.
21. The writ petitioner was posted at Badaun. He was to report at the
place of posting and after reporting 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 the place where he was first posted.
Therefore, we find that the orders of the High Court dated
05.03.2020 and 07.08.2019 are wholly unjustified, unwarranted,
arbitrary and illegal. The same are set aside and the appeal is
allowed with no order as to costs.
………………………………………J.
(SANJAY KISHAN KAUL)
………………………………………J.
(HEMANT GUPTA)
NEW DELHI;
JULY 9, 2021.
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