The State of Uttar Pradesh v. Dr. Manoj Kumar Sharma

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. 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.                                                              │
└───────────────────────────────────────────────────────────────────────────────┘

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 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 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 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 power[2]. 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 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:

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 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.