THE STATE OF UTTAR PRADESH & ORS. versus DR. MANOJ KUMAR SHARMA on 9 July 2021

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SUPREME COURT REPORTS[2021] 8 S.C.R. 48

[2021] 8 S.C.R.

ATHE STATE OF UTTAR PRADESH & ORS.

v.

DR. MANOJ KUMAR SHARMA

(Civil Appeal No. 2320 of 2021)

BJULY 09, 2021

[SANJAY KISHAN KAUL AND HEMANT GUPTA, JJ.]

Service Law: Back wages – Payment of, to Medical officer –Justification of – On facts, petitioner-Medical officer transferredto State of Uttar Pradesh as per the option given by the MedicalCofficers – Though the petitioner posted at place B, but he did notjoin there and gave letter to Director of Medical Health Services ofhis joining in that office – Writ petition by petitioner seeking theState to post him as a Medical Officer in any Hospital, allowed bythe Single Judge – Pursuant thereto, petitioner was issued freshDposting order – Thereafter, another petition by petitioner seekingpayment of back wages – However, the Principal Secretary declinedthe grant of back wages since the petitioner did not perform anygovernment work from 2003 till 2016 – Said decision challengedby filing another writ petition – Single Judge holding that thepetitioner was gainfully employed during this period but still grantedE50% back wages – Division Bench upheld the same – On appeal,held: Petitioner was to report at the place of posting and afterreporting at the place of posting, he should have asked for transfer,if permissible – He could not have dictated the place of postingwithout even joining the place where he was first posted – Also heFcould not defy the order of transfer on the ground of non-communication when more than 100 Medical Officers weretransferred by the same common transfer order – Order ofUttarakhand Government relieving the petitioner was in pursuanceof the order of the UP Government, thus, is a case of feignedignorance – Furthermore, under the guise of waiting for his postingGorders he started his own private practice in the said period – Asthe petitioner was gainfully employed, the grant of 50% of backwages for the entire period would be giving benefit of one’s ownwrong who intentionally abstained from duty for 13 long years – Inview thereof, the State was negligent in not taking action againstHthe writ petitioner for absence from duty – Thus, the orders of the High Court are wholly unjustified, unwarranted, arbitrary andillegal and are set aside.

Judicial deprecation: Summoning of public officers – Practicedeveloped wherein certain High Courts calling public officersfrequently to court – Held: Summoning of officers frequently is notappreciable at all – Same is condemned in the strongest words –Line of separation of powers between Judiciary and Executive issought to be crossed by summoning the officers and in a waypressurizing them to pass an order as per the whims and fancies ofthe Court – Public officers of the Executive are also performingtheir duties as the third limbs of the governance – Public officersshould not be called to court unnecessarily – Dignity and majestyof the Court is not enhanced when an officer is called to court –Summoning of the officer is against the public interest as manyimportant tasks entrusted to him gets delayed.

Allowing the appeal, the Court

HELD: 1.1 When the petitioner stood relieved fromUttarakhand, the High Court could not have returned a findingthat the State did not show as to how the transfer and postingorder was conveyed to the petitioner. It was not open to the writpetitioner to defy the order of transfer on the ground of non-communication when more than 100 Medical Officers weretransferred by the same common transfer order. Firstly, he stoodrelieved by the State of Uttarakhand and secondly, he did notreport at the place of posting but submitted an application beforeDirector Medical Health Services. [Paras 11 and 12][56-F-G;57-E-G]

1.2 The writ petitioner was relieved by the Government ofUttarakhand in 2003, however, he filed writ petition in 2006,meaning thereby for three years, “he was awaiting postingorders”. Under the guise of awaiting posting orders, he startedprivate practice and intentionally delayed the decision on the writpetition for almost 13 years. Such conduct of the writ petitionersuggests that he was not keen to join as a Medical Officer afterhe was relieved by the Government of Uttarakhand. The writpetitioner cannot take a stand that he had not received the orderdated 06.03.2002. The order of Uttarakhand Government AB

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Arelieving him on 05.07.2003 is in pursuance of the order of theGovernment of Uttar Pradesh on 06.03.2002. It is a case of thefeigned ignorance. Even if there is a practice that the MedicalOfficer report at the office of Director Medical Health Servicesis not a ground on the basis of which illegality can be permittedto be perpetuated. The option of posting would be available onlyBif there are general transfers not in a case where the MedicalOfficers have been allocated to their parent state in view of theoption exercised. [Para 14][58-C-F]

1.3 The writ petitioner was gainfully employed and it isimpossible to imagine that a Medical Officer would sit idle for 13Clong years. Therefore, the grant of 50% of back wages for theentire period would be giving benefit of one’s own wrong whointentionally abstained from duty for 13 long years and now wantsto take benefit of back wages as well. Such stand of the writpetitioner is not only unjustified but wholly condemnable. TheDState was remiss in not taking action against the writ petitionerfor absence from duty. Once the writ petitioner did not join theplace of posting, the State should have taken steps to initiatedisciplinary proceedings. Still further, the State issued postingorder as per the directions in the first writ petition. The attemptof the State to initiate proceedings in the year 2018 invited ire ofEthe Court. The State government cancelled the proceedings toinitiate disciplinary proceedings. [Para 15][58-F-H; 59-A]

1.4 The writ petitioner was posted at Badaun. He was toreport at the place of posting and after reporting at the place ofposting, he should have asked for transfer, if permissible, accordingFto the requirement of the State. But he could not have dictatedthe place of posting without even joining the place where he wasfirst posted. Therefore, the orders of the High Court dated05.03.2020 and 07.08.2019 are wholly unjustified, unwarranted,arbitrary and illegal and are set aside. [Para 21][62-F-G]

GState of Punjab v. Khemi Ram AIR 1970 SC 214 : [1970]2 SCR 657 – referred to.

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2.1 In the first round, the Secretary, Medical Health wascalled in-person in the Court. Even in the present proceedings,after stay of the order of the Division Bench of the High Court on22.2.2021, an order was passed by the High Court on 2.3.2021 toseek personal presence of the officer on the next date of hearing.[Para 16][59-B-C]

2.2 A practice has developed in certain High Courts to callofficers at the drop of a hat and to exert direct or indirect pressure.The line of separation of powers between Judiciary and Executiveis sought to be crossed by summoning the officers and in a waypressurizing them to pass an order as per the whims and fanciesof the Court. The public officers of the Executive are alsoperforming their duties as the third limbs of the governance. Theactions or decisions by the officers are not to benefit them, butas a custodian of public funds and in the interest of administration,some decisions are bound to be taken. It is always open to theHigh Court to set aside the decision which does not meet thetest of judicial review but summoning of officers frequently is notappreciable at all. The same is liable to be condemned in thestrongest words. [Para 17, 18][60-E-G]

2.4 Public officers should not be called to courtunnecessarily. The dignity and majesty of the Court is notenhanced when an officer is called to court. Respect to the courthas to be commanded and not demanded and the same is notenhanced by calling public officers. The presence of public officercomes at the cost of other official engagement demanding theirattention. Sometimes, the officers even have to travel longdistance. Therefore, summoning of the officer is against the publicinterest as many important tasks entrusted to him gets delayed,creating extra burden on the officer or delaying the decisionsawaiting his opinion. The Court proceedings also take time, asthere is no mechanism of fixed time hearing in Courts as of now.The Courts have the power of pen which is more effective thanthe presence of an officer in Court. If any particular issue arisesfor consideration before the Court and the Advocate representingthe State is not able to answer, it is advised to write such doubt inthe order and give time to the State or its officers to respond.[Para 20][62-C-F]

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ADivisional Manager, Aravali Golf Club & Anr. v.Chander Hass & Anr. (2008) 1 SCC 683 : [2007] 12SCR 1084 – referred to.

Case Law Reference

[1970] 2 SCR 657B[2007] 12 SCR 1084

CIVIL APPELLATE JURISDICTION: Civil Appeal No.2320 of2021.

From the Judgment and Order dated 05.03.2020 of the High CourtCof Judicature at Allahabad Lucknow Bench, Lucknow in Special AppealDefective No. 127 of 2020.

Ms. Garima Prashad, Sr. Adv/AAG, Vishnu Shankar Jain, Advsfor the Appellants.

Shailendra Bhardwaj, Ms. Aroma S Bhardwaj, Advs. for theDRespondent.

The Judgment of the Court was delivered by HEMANT GUPTA, J.

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

2. The writ petitioner was posted in State of Uttaranchal (forshort ‘Government of Uttaranchal’ now Uttarakhand, hereinafterreferred to as Uttarakhand) as a Medical Officer before thereorganization of the State of Uttar Pradesh. The writ petitioner wasGtransferred to State of Uttar Pradesh as per the option given by MedicalOfficers of State of Uttar Pradesh including the writ petitioner. As manyas 208 Medical Officers and 5 Dental doctors of Class-2 Categorybelonging to the U.P. Provincial Medical and Health Services (MaleCadre) were posted in the State of Uttar Pradesh on 6.3.2002. Thename of the writ petitioner appears at Serial No. 99 of the said list ofH

Medical Officers. The writ petitioner was to report at Badaun under theChief Medical Officer.

3. The State of Uttarakhand relieved the Medical Officers inphases. The writ petitioner was amongst 22 Medical Officers in thesecond phase who were relieved by the State of Uttarakhand on 5.7.2003in terms of the posting order of the Uttar Pradesh Government dated06.03.2002. 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, DistrictHospital, Uttarkashi on 12.09.2003.

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

5. Subsequently, the writ petitioner filed a writ petition in the year2006 wherein he claimed a writ of mandamus commanding the State topost the writ petitioner as Medical Officer in any Hospital according tohis qualification and experience in the specialized cadre. The learnedSingle Judge allowed the writ petition inter alia on the ground that thecounter affidavit was silent as to in what manner the office memorandumor the posting order was served upon the writ petitioner. The argumentby the State counsel that the writ petitioner did not join at Badaun wassaid to be not supported by any letter of the writ petitioner. The learnedSingle Judge found that no decision has been taken in pursuance ofletter dated 19.09.2003 for posting of the writ petitioner. The Court thusconcluded that the posting order or the transfer order was nevercommunicated or served upon the writ petitioner at any point of time.Therefore, the judgments referred to by the State counsel were notapplicable in the facts and circumstances of the case. Further, theSecretary, Medical Health, Government of U.P. was summoned to theCourt who justified the non-posting of the writ petitioner. The Courtconcluded as under:

‘‘The aforesaid conduct of the State Government in dealing withits officers is not happy state of affair. The State Government AB

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SUPREME COURT REPORTS

Ashould have acted with responsibility and should have been quickenough to take a decision in the matter. The State Governmenthas been sitting tight over the matter since 2006 when the writpetition was filed. Action of the State Government, therefore inthese circumstances, cannot be justified and neither the StateGovernment can take benefit of the posting order issued on 6[th]BMarch, 2002. We are therefore of the view that a heavy cost isrequired to be imposed upon the State Government for approachingin such a callous manner.

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We accordingly impose a cost of Rs.50,000/- upon the StateGovernment. The State government will deposit the cost beforethis Court within fifteen days, which shall be transferred to theMediation Centre of this Court. Further, a writ in the nature ofmandamus is issued to the State Government to issue a postingorder in respect of the petitioner within the aforesaid period.

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Question of back wages is left open in the present writ petition.D

The Secretary, Medical Health need not appear again.”

6. In pursuance of the said order of the High Court, a fresh postingorder was issued to the writ petitioner on 09.12.2016, posting him underChief Medical Officer, Muzaffarnagar. Subsequently, another writ petitionEwas filed for direction for payment of back wages. The writ petitionwas disposed of with a direction to decide the question of back wageswithin a period of four weeks.

7. The Principal Secretary declined the grant of back wages on27.2.2009 inter alia on the following grounds:

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“It is pertaining to mention that Dr. Manoj Kumar Sharma SurgeonDistrict Hospital Uttarkashi after being relieved on 05.07.2003from the State of Uttaranchal submitted joining before DirectorGeneral Medical and Health Services U.P. Lucknow on18.09.2003, repeatedly made request for posting near his homeDistrict Saharanpur. If his request for place of posting was notaccepted it was not open to him to say that any hindrance wascreated in his joining and he remained in waiting for posting. Theperiod of Dr. Manoj Kumar Sharma from 05.07.2003 to 09.12.2016cannot be treated as compulsory waiting period as he had beengiven posting but he did not comply with posting order and there G

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was no justification to sit idle for about 13 years and not performingGovernment work in anticipation of decision to be taken on hisrepresentation and such attitude does not reflect his readiness towork.”

8. The back wages for the said period were thus declined for thereason that the writ petitioner has not performed any government workfrom 05.07.2003 till 09.12.2016 and it cannot be treated as compulsorywaiting period under the provisions of Fundamental Rules 9(6)(b)(iii) ofFinancial Hand Book Volume-2-Part 2-4 and he was thus granted extraordinary leave for the aforesaid period.

9. The writ petitioner challenged the said decision by way ofanother writ petition. The order of the learned Single Bench shows thatan office memorandum was issued on 08.02.2018 proposing to initiatedepartmental enquiry on the ground of non-joining. The contempt petitionwas filed and it appears that in view of the contempt petition, the officememorandum was cancelled on 29.05.2018. The learned Single Judgein the order dated 7.8.2019 held that the order in the writ petition dated26.09.2016 had attained finality, therefore, the benefit of back wagescould not have been declined. The Court held as under:

“That once the order dated 26.09.2016 attained finality and therewas no challenge to the same, thus, the issues and the findings inthe aforesaid writ petition could not be in the domain of therespondents to challenge indirectly by issuing the impugned officememorandum dated 27.02.2019. It is no more res-integra thatwhat cannot be done directly cannot be done indirectly either. Inthe present facts and circumstances, the issue regarding the factof the petitioner not being able to join between 05.07.2003 to09.12.2016 was the core issue in the earlier writ petition decidedon 26.09.2016. The Division Bench of this Court while decidingand allowing the aforesaid writ petition had categorically noticedthat the State was unable to establish the fact that the allegedjoining order dated 06.03.2002 was ever served or communicatedto the petitioner. This Court has already re-produced the relevantportion of the aforesaid judgment and thus, it is evident that thereason indicated in the office memorandum dated 27.02.2019 isthe same which stood decided in the earlier writ petition in favourof the petitioner.”

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A10. The learned Single Judge also noticed the fact that the writpetitioner was gainfully employed during this period but still granted 50%of back wages. The Court held as under:

“Notwithstanding the aforesaid, this Court has to balance theequities in between the parties and considering the fact that theBpetitioner did not deny the plea of the respondent that he wasgainfully employed even though the burden to prove the samewas on the employer coupled with the fact that the respondenthave only taken a bald plea in their counter affidavit and no positiveevidence or document was placed on record to substantiate itsplea.C

Hence, taking a holistic view, this Court is of the opinion that endsof justice would be served if the petitioner is granted 50% backwages for the period 05.07.2003 to 28.12.2016 treating thepetitioner to be in continuous service. As far as the otherconsequential benefits, admissible under law, are concerned theDrespondents in the impugned order also admit that the same are tobe given to the petitioner.”

It is the said order which was affirmed by the learned DivisionBench, which is subject matter of challenge in the present appeal.E11. The learned Single Bench in the first round held that the Statehas not produced as to how and when the posting order wascommunicated to him. The Court was aware of the fact that the writpetitioner has been relieved by the Government of Uttarakhand on12.09.2003 and a communication has been addressed by Shri K.M.Mehrotra, Joint Director on 12.09.2003 and that he had submitted aFjoining report on 18.09.2003. The said joining report was submitted notat the place of posting but before the Director Medical Health Services.We find that the High Court in this background, when the writ petitionerstood relieved from Uttarakhand, could not have returned a finding thatthe State has not shown as to how the transfer and posting order wasGconveyed to the writ petitioner. The High Court overlooked a judgmentof this Court reported as State of Punjab v. Khemi Ram[1] wherein aquestion arose that whether the order of suspension was to be actuallyreceived by the employee to be affected. This Court examined thequestion as to whether communicating the order means its actual receiptby the concerned government servant. The Court held as under:H1 AIR 1970 SC 214

THE STATE OF UTTAR PRADESH & ORS. v. DR. MANOJKUMAR SHARMA [HEMANT GUPTA, J.]

“16. …It will be seen that in all the decisions cited before us itwas the communication of the impugned order which was held tobe essential and not its actual receipt by the officer concernedand such communication was held to be necessary because tillthe order is issued and actually sent out to the person concernedthe authority making such order would be in a position to changeits mind and modify it if it thought fit. But once such an order issent out, it goes out of the control of such an authority, andtherefore, there would be no chance whatsoever of its changingits mind or modifying it. In our view, once an order is issued and itis sent out to the concerned government servant, it must be heldto have been communicated to him, no matter when he actuallyreceived it. We find it difficult to persuade ourselves to accept theview that it is only from the date of the actual receipt by him thatthe order becomes effective. If that be the true meaning ofcommunication, it would be possible for a government servant toeffectively thwart an order by avoiding receipt of it by one methodor the other till after the date of his retirement even though suchan order is passed and despatched to him before such date. Anofficer against whom action is sought to be taken, thus, may goaway from the address given by him for service of such orders ormay deliberately give a wrong address and thus prevent or delayits receipt and be able to defeat its service on him. Such a meaningof the word “communication” ought not to be given unless theprovision in question expressly so provides. ………”

12. Therefore, it was not open to the writ petitioner to defy theorder of transfer on the ground of non-communication when more than100 Medical Officers were transferred by the same common transferorder. Firstly, he stood relieved by the State of Uttarakhand and secondly,he did not report at the place of posting but submitted an applicationbefore Director Medical Health Services. In the first round, even afterdirecting to issue a posting order to the writ petitioner, the question ofback wages was left open. It is thereafter, in pursuance of another writpetition, the competent authority in the State passed an order decliningback wages but granted extra ordinary leave for the aforesaid period.

13. Learned counsel for the writ petitioner submitted that in thewrit petition he has sought to post him anywhere in the State of UttarPradesh and that in the order dated 26.09.2016 a finding is returned i.e., ABC

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Aposting order dated 06.03.2002 was not served upon the writ petitioner.It is also pointed out that the Government of Uttarakhand has relievedmedical officers in stages and all of them submitted joining report to theDirector Medical Health Services, U.P. and not at the place of postingmentioned in the order issued by the Uttar Pradesh Government. Areference is made to general practice in the Government of Uttar PradeshBas a Medical Officer is asked to submit three choices of place of postingand that this practice still continues.

14. We do not find any merit in the arguments raised. The writpetitioner was relieved by the Government of Uttarakhand in 2003,however, he filed writ petition in 2006, meaning thereby for three years,C“he was awaiting posting orders”. Under the guise of awaiting postingorders, he started private practice and intentionally delayed the decisionon the writ petition for almost 13 years. The writ petition was dismissedin default on 22.09.2008 and was restored on 11.12.2014. Such conductof the writ petitioner suggests that he was not keen to join as a MedicalDOfficer after he was relieved by the Government of Uttarakhand. Thewrit petitioner cannot take a stand that he had not received the orderdated 06.03.2002. The order of Uttarakhand Government relieving himon 05.07.2003 is in pursuance of the order of the Government of UttarPradesh on 06.03.2002. It is a case of the feigned ignorance. Even ifthere is a practice that the Medical Officer report at the office of DirectorEMedical Health Services is not a ground on the basis of which illegalitycan be permitted to be perpetuated. The option of posting would beavailable only if there are general transfers not in a case where theMedical Officers have been allocated to their parent state in view of theoption exercised.F

15. As noticed by the learned Single Bench in the third round, thewrit petitioner was gainfully employed and it is impossible to imaginethat a Medical Officer would sit idle for 13 long years. Therefore, thegrant of 50% of back wages for the entire period would be giving benefitof one’s own wrong who intentionally abstained from duty for 13 longGyears and now wants to take benefit of back wages as well. Such standof the writ petitioner is not only unjustified but wholly condemnable. TheState was remiss in not taking action against the writ petitioner for absencefrom duty. Once the writ petitioner did not join the place of posting, theState should have taken steps to initiate disciplinary proceedings. Stillfurther, the State issued posting order as per the directions in the firstH

writ petition. The attempt of the State to initiate proceedings in the year2018 invited ire of the Court. The State government cancelled theproceedings to initiate disciplinary proceedings.

16. Another disturbing feature which comes to our notice is thatin the first round, the Secretary, Medical Health was called in-person inthe Court. Even in the present proceedings, after stay of the order of theDivision Bench of the High Court on 22.2.2021, an order was passed bythe High Court on 2.3.2021 to seek personal presence of the officer onthe next date of hearing. In these circumstances, this Court in the presentproceedings passed the following order on 6.4.2021: - “On 22.02.2021, we had issued notice in the Special Leave Petitionand stayed the operation of the impugned order.

The present application has been filed for stay of the contemptproceedings on account of the order passed on 02.03.2021.

To say the least, we are quite shocked at the perusal of the orderdated 02.03.2021. Once the operation of the order has been stayed,the natural consequence would be that the contempt proceedingswould be kept in abeyance. It is not as if this aspect was notbrought to the notice of the learned Judge dealing with theContempt Petition No.139/2020 as an application had been filedfor exemption from personal appearance. However, the exemptionfrom personal appearance was granted only for the date of02.03.2021 and the matter was listed on 08.04.2021 once againdirecting both the officers to remain present in Court in pursuanceto an earlier order dated 05.02.2021.

Once the order of which contempt was alleged was stayed, therewould be no cause for calling the officers as there was no questionof any non-compliance of the order which had been stayed. ThisCourt has even on various occasions through judicialpronouncements deprecated the practice of unnecessarily callingofficers to Court. In that context, it has been observed that thetrust, faith and confidence of the common man in the judiciarycannot be frittered away by unnecessary and unwarranted showor exercise of power. Greater the power, greater should be theresponsibility in exercising such power[2]. The frequent, causal andlackadaisical summoning of high officials by the Court cannot be 2 State of U.P. & Ors. v. Jasvir Singh & Ors. – (2011) 4 SCC 288

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Aappreciated. We may add that this does not mean that in compellingsituations the same cannot be done but the object cannot be tohumiliate senior officials[3]. In the present case, we are concernedwith contempt proceedings. No doubt if the order is not compliedwith, presence can be directed unless exempted. However, if theoperation of the order is stayed, we fail to understand what purposeBwas being served by calling the officers for the next date as nospecific date had been fixed by the Court post the stay havingbeen granted. We do believe that this is unnecessary harassmentof the officers and there was no occasion to pass the order on02.03.2021. It has resulted in the petitioners being compelled toCmove 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 nopresence of any officer concerned is required. We also make itDclear that as and when, if the occasion so arises, for restarting thecontempt proceedings, the matter will be placed before a Benchof another Judge. A copy of this order be placed before the learnedJudge who passed this order as well as the Chief Justice. The IAstands disposed of.”

E17. A practice has developed in certain High Courts to call officersat the drop of a hat and to exert direct or indirect pressure. The line ofseparation of powers between Judiciary and Executive is sought to becrossed by summoning the officers and in a way pressurizing them topass an order as per the whims and fancies of the Court.

F18. The public officers of the Executive are also performing theirduties as the third limbs of the governance. The actions or decisions bythe officers are not to benefit them, but as a custodian of public fundsand in the interest of administration, some decisions are bound to betaken. It is always open to the High Court to set aside the decisionwhich does not meet the test of judicial review but summoning of officersGfrequently is not appreciable at all. The same is liable to be condemnedin the strongest words.

19. This Court in a judgment reported as Divisional Manager,Aravali Golf Club & Anr. v. Chander Hass & Anr.[4] observed that3 R.S. Singh v. U.P. Malaria Nirikshank Sangh & Ors. – (2011) 4 SCC 281H4 (2008) 1 SCC 683

judges must know their limits. They must have modesty and humility,and not behave like emperors. The legislature, the executive and thejudiciary all have their own broad spheres of operation. It is not properfor any of these three organs of the State to encroach upon the domainof another, otherwise the delicate balance in the Constitution will beupset, and there will be a reaction. This Court held as under:

“19. Under our Constitution, the legislature, the executive and thejudiciary all have their own broad spheres of operation. Ordinarilyit is not proper for any of these three organs of the State toencroach upon the domain of another, otherwise the delicatebalance in the Constitution will be upset, and there will be areaction.

20. Judges must know their limits and must not try to run theGovernment. They must have modesty and humility, and not behavelike emperors. There is broad separation of powers under theConstitution and each organ of the State—the legislature, theexecutive and the judiciary—must have respect for the other andmust not encroach into each other’s domains.

21. The theory of separation of powers first propounded by theFrench thinker Montesquieu (in his book The Spirit of Laws)broadly holds the field in India too. In Chapter XI of his book TheSpirit of Laws Montesquieu writes:

“When the legislative and executive powers are united in thesame person, or in the same body of Magistrates, there can beno liberty; because apprehensions may arise, lest the samemonarch or senate should enact tyrannical laws, to executethem in a tyrannical manner.

Again, there is no liberty, if the judicial power be notseparated from the legislative and executive. Were it joinedwith the legislative, the life and liberty of the subject wouldbe exposed to arbitrary control; for the judge would bethen 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 orthe same body, whether of the nobles or of the people, toexercise those three powers, that of enacting laws, that of A

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Aexecuting the public resolutions, and of trying the causes ofindividuals.”

(emphasis supplied)

We fully agree with the view expressed above. Montesquieu’swarning in the passage above quoted is particularly apt and timelyBfor the Indian judiciary today, since very often it is rightly criticisedfor “overreach” and encroachment into the domain of the othertwo organs.”

20. Thus, we feel, it is time to reiterate that public officers shouldnot be called to court unnecessarily. The dignity and majesty of the CourtCis not enhanced when an officer is called to court. Respect to the courthas to be commanded and not demanded and the same is not enhancedby calling public officers. The presence of public officer comes at thecost of other official engagement demanding their attention. Sometimes,the officers even have to travel long distance. Therefore, summoning ofDthe officer is against the public interest as many important tasks entrustedto him gets delayed, creating extra burden on the officer or delaying thedecisions awaiting his opinion. The Court proceedings also take time, asthere is no mechanism of fixed time hearing in Courts as of now. TheCourts have the power of pen which is more effective than the presenceof an officer in Court. If any particular issue arises for considerationEbefore the Court and the Advocate representing the State is not able toanswer, it is advised to write such doubt in the order and give time to theState or its officers to respond.

21. The writ petitioner was posted at Badaun. He was to reportat the place of posting and after reporting at the place of posting, heFshould have asked for transfer, if permissible, according to therequirement of the State. But he could not have dictated the place ofposting without even joining the place where he was first posted.Therefore, we find that the orders of the High Court dated 05.03.2020and 07.08.2019 are wholly unjustified, unwarranted, arbitrary and illegal.GThe same are set aside and the appeal is allowed with no order as tocosts.

Nidhi Jain

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