Supreme Court of India
THE STATE OF UTTAR PRADESH & ORS.versusDR. MANOJ KUMAR SHARMA
- Citation
- 2021 INSC 327
- Decided
- 9 July 2021
- Disposal
- Appeal(s) allowed
- Bench
- SANJAY KISHAN KAUL
Holding
The petitioner is not entitled to back wages as he voluntarily abstained from duty and was gainfully employed elsewhere, rendering the High Court’s order granting back wages illegal.
Summary
The appellant, a medical officer, was transferred from Uttarakhand to Uttar Pradesh in 2002 but never reported to his posting at Badaun, instead filing a petition for a posting elsewhere and later starting a private practice. He subsequently claimed 50% back wages for the period 2003‑2016, which the State denied on the ground that he did not perform any government work. The High Court had directed payment of back wages, but the Supreme Court held that the petitioner voluntarily abstained from duty, was gainfully employed elsewhere, and could not rely on alleged non‑communication of the transfer order. Consequently, the Court set aside the High Court’s orders and refused the back‑wage claim, emphasizing that the petitioner could not dictate his posting and that the State was justified in not initiating disciplinary action earlier. The Court also reiterated that frequent summoning of public officers to court is undesirable.
Issues considered
- The petitioner’s entitlement to back wages for the period 2003‑2016 despite not joining the posted post.
- Whether the transfer/posting order was effectively communicated to the petitioner and whether non‑receipt excuses non‑joining.
- Whether the petitioner’s private practice constitutes gainful employment that bars back‑wage entitlement.
- The propriety of the High Court’s order granting 50% back wages.
- The appropriateness of summoning public officers to court in contempt proceedings.
Legislation cited
- Financial Hand Book Volume-2-Part 2-4s. 9(6)(b)(iii)
Subjects
service lawback wagestransfer orderposting ordercommunication of orderdisciplinary actionseparation of powerssummoning public officers
Judgment
48 [2021]
SUPREME COURT 8 S.C.R. 48
REPORTS [2021] 8 S.C.R.
A THE STATE OF UTTAR PRADESH & ORS.
v.
DR. MANOJ KUMAR SHARMA
(Civil Appeal No. 2320 of 2021)
B JULY 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 transferred
to State of Uttar Pradesh as per the option given by the Medical
C
officers – Though the petitioner posted at place B, but he did not
join there and gave letter to Director of Medical Health Services of
his joining in that office – Writ petition by petitioner seeking the
State to post him as a Medical Officer in any Hospital, allowed by
the Single Judge – Pursuant thereto, petitioner was issued fresh
D posting order – Thereafter, another petition by petitioner seeking
payment of back wages – However, the Principal Secretary declined
the grant of back wages since the petitioner did not perform any
government work from 2003 till 2016 – Said decision challenged
by filing another writ petition – Single Judge holding that the
petitioner was gainfully employed during this period but still granted
E
50% back wages – Division Bench upheld the same – On appeal,
held: Petitioner was to report at the place of posting and after
reporting at the place of posting, he should have asked for transfer,
if permissible – He could not have dictated the place of posting
without even joining the place where he was first posted – Also he
F could not defy the order of transfer on the ground of non-
communication when more than 100 Medical Officers were
transferred by the same common transfer order – Order of
Uttarakhand Government relieving the petitioner was in pursuance
of the order of the UP Government, thus, is a case of feigned
ignorance – Furthermore, under the guise of waiting for his posting
G
orders he started his own private practice in the said period – As
the petitioner was gainfully employed, 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 – In
view thereof, the State was negligent in not taking action against
H the writ petitioner for absence from duty – Thus, the orders of the
48
THE STATE OF UTTAR PRADESH & ORS. v. DR. MANOJ 49
KUMAR SHARMA
High Court are wholly unjustified, unwarranted, arbitrary and A
illegal and are set aside.
Judicial deprecation: Summoning of public officers – Practice
developed wherein certain High Courts calling public officers
frequently to court – Held: Summoning of officers frequently is not
appreciable at all – Same is condemned in the strongest words – B
Line of separation of powers between Judiciary and Executive is
sought to 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 – Public officers of the Executive are also performing
their duties as the third limbs of the governance – Public officers
should not be called to court unnecessarily – Dignity and majesty C
of the Court is not enhanced when an officer is called to court –
Summoning of the officer is against the public interest as many
important tasks entrusted to him gets delayed.
Allowing the appeal, the Court
D
HELD: 1.1 When the petitioner stood relieved from
Uttarakhand, the High Court could not have returned a finding
that the State did not show as to how the transfer and posting
order was conveyed to the petitioner. It was not open to the writ
petitioner to defy the order of transfer on the ground of non-
communication when more than 100 Medical Officers were E
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. [Paras 11 and 12][56-F-G;
57-E-G] F
1.2 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 G
petition for almost 13 years. 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
H
50 SUPREME COURT REPORTS [2021] 8 S.C.R.
A 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
B
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. [Para 14][58-C-F]
1.3 The writ petitioner was gainfully employed and it is
impossible to imagine that a Medical Officer would sit idle for 13
C 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
D 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
E the Court. The State government cancelled the proceedings to
initiate disciplinary proceedings. [Para 15][58-F-H; 59-A]
1.4 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
F 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, the orders of the High Court dated
05.03.2020 and 07.08.2019 are wholly unjustified, unwarranted,
arbitrary and illegal and are set aside. [Para 21][62-F-G]
G State of Punjab v. Khemi Ram AIR 1970 SC 214 : [1970]
2 SCR 657 – referred to.
H
THE STATE OF UTTAR PRADESH & ORS. v. DR. MANOJ 51
KUMAR SHARMA
2.1 In the first round, the Secretary, Medical Health was A
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.
[Para 16][59-B-C]
B
2.2 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 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. The public officers of the Executive are also C
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 D
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. [Para 17, 18][60-E-G]
2.4 Public officers should not be called to court
unnecessarily. The dignity and majesty of the Court is not E
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 F
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 G
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.
[Para 20][62-C-F]
H
52 SUPREME COURT REPORTS [2021] 8 S.C.R.
A Divisional Manager, Aravali Golf Club & Anr. v.
Chander Hass & Anr. (2008) 1 SCC 683 : [2007] 12
SCR 1084 – referred to.
Case Law Reference
[1970] 2 SCR 657 Referred to Para 11
B
[2007] 12 SCR 1084 Referred to Para 19
CIVIL APPELLATE JURISDICTION: Civil Appeal No.2320 of
2021.
From the Judgment and Order dated 05.03.2020 of the High Court
C of Judicature at Allahabad Lucknow Bench, Lucknow in Special Appeal
Defective No. 127 of 2020.
Ms. Garima Prashad, Sr. Adv/AAG, Vishnu Shankar Jain, Advs
for the Appellants.
Shailendra Bhardwaj, Ms. Aroma S Bhardwaj, Advs. for the
D
Respondent.
The Judgment of the Court was delivered by
HEMANT GUPTA, J.
1. The challenge in the present appeal is to an order passed by the
E 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
F 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
G 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. 99 of the said list of
H
THE STATE OF UTTAR PRADESH & ORS. v. DR. MANOJ 53
KUMAR SHARMA [HEMANT GUPTA, J.]
Medical Officers. The writ petitioner was to report at Badaun under the A
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 B
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 C
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 D
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 cadre. The learned E
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 F
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 G
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 H
54 SUPREME COURT REPORTS [2021] 8 S.C.R.
A 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
B
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
C 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 petitioner within the aforesaid period.
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 posting
order was issued to the writ petitioner on 09.12.2016, posting him under
Chief Medical Officer, Muzaffarnagar. Subsequently, another writ petition
E 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:
F “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
G
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
H
THE STATE OF UTTAR PRADESH & ORS. v. DR. MANOJ 55
KUMAR SHARMA [HEMANT GUPTA, J.]
was no justification to sit idle for about 13 years and not performing A
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 B
from 05.07.2003 till 09.12.2016 and it cannot be treated as compulsory
waiting period under the provisions of Fundamental 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 C
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 D
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 E
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 F
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 G
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.”
H
56 SUPREME COURT REPORTS [2021] 8 S.C.R.
A 10. The learned Single Judge also noticed the fact that the writ
petitioner 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 the
equities in between the parties and considering the fact that the
B 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.
C
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
D 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.
E 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
F 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
G conveyed 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:
H 1
AIR 1970 SC 214
THE STATE OF UTTAR PRADESH & ORS. v. DR. MANOJ 57
KUMAR SHARMA [HEMANT GUPTA, J.]
“16. …It will be seen that in all the decisions cited before us it A
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
B
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 C
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
D
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 E
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 Medical Officers were transferred by the same common transfer F
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 G
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.,
H
58 SUPREME COURT REPORTS [2021] 8 S.C.R.
A 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
B
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,
C “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
D 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
E 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.
F 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
G 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
H
THE STATE OF UTTAR PRADESH & ORS. v. DR. MANOJ 59
KUMAR SHARMA [HEMANT GUPTA, J.]
writ petition. The attempt of the State to initiate proceedings in the year A
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 B
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 C
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, D
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 E
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 F
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 G
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
2
State of U.P. & Ors. v. Jasvir Singh & Ors. – (2011) 4 SCC 288 H
60 SUPREME COURT REPORTS [2021] 8 S.C.R.
A 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 officials3. 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
B
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
C 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
D 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.”
E 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 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.
F 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
G 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
3
R.S. Singh v. U.P. Malaria Nirikshank Sangh & Ors. – (2011) 4 SCC 281
H 4
(2008) 1 SCC 683
THE STATE OF UTTAR PRADESH & ORS. v. DR. MANOJ 61
KUMAR SHARMA [HEMANT GUPTA, J.]
judges must know their limits. They must have modesty and humility, A
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:
B
“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. C
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 powers under the
Constitution and each organ of the State—the legislature, the
executive and the judiciary—must have respect for the other and D
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: E
“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. F
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, G
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
H
62 SUPREME COURT REPORTS [2021] 8 S.C.R.
A 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
B 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
C 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
D 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
E 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
F 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.
G The same are set aside and the appeal is allowed with no order as to
costs.
Nidhi Jain Appeal allowed.
H
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