Listen to this articleState of UP and others V Dr. Manoj Kumar Sharma
Civil Appeal No.2320 OF 2021 arising out of SLP (Civil) No.7487 Decided on July 09, 2021
BENCH- Sanjay Kishan Kaul and Hemant Gupta, JJ.
FACTS– In the present appeal, the appellant challenged the orders of Allahabad High Court wherein the appellants were directed to calculate and pay 50% of the back wages to the respondent and to grant all the consequential benefits.
Petitioner who was posted at the State of Uttarakhand was posted as a Medical Officer and transferred to State of Uttar Pradesh as per the option given by the Medical officers. Though the petitioner was posted at Badaun, he did not join there and was well satisfied by giving a letter to Director of Medical Health Services.
Subsequently, in the year 2006, the petitioner claimed a writ of mandamus commanding the State to post the writ petitioner as a Medical Officer in any Hospital according to his qualification and experience in the specialized cadre. Single Judge allowed the same and concluded that the posting order or transfer order was never communicated or served upon the petitioner at any point of time.
In pursuance of the High Court order, a fresh posting order was issued and subsequently, another petition seeking direction for payment of back wages was filed.
Principal Secretary declined the grant of back wages for the reason that petitioner did not perform any government work for the period from 5-07-2003 till 9-12-2016 and the same cannot be treated as a compulsory waiting period under the provisions of Fundamental Rules 9(6)(b)(iii) of Financial Hand Book Volume-2 Part 2-4 and hence he was granted extra ordinary leave for the said period. Initially, it was decided by the Single Judge Bench that State could not produce as to how and when the posting order was communicated to him.
Court was aware of the fact that the petitioner was relieved by the Uttarakhand Government and a communication was addressed by the Joint Director with regard to the joining report of the petitioner. In Court’s opinion, when the petitioner stood relieved from Uttarakhand, 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.
Uttarakhand Government’s Order relieved the petitioner on 5-7-2003 in pursuance of the order of the Government of Uttar Pradesh. Bench in view of the said position stated that it was a case of feigned ignorance.
Petitioner was gainfully employed, as noted by the Single Bench. It was impossible for the Court to imagine that a Medical Officer would sit idle for 13 long years, hence the grant of 50% back wages would be giving benefit of one’s own wrong who intentionally abstained from duty for 13 long years and now wanting to take benefit of back wages as well. Petitioner’s stand was not only unjustified but wholly condemnable. Bench remarked that, State should have taken steps to initiate disciplinary proceedings. State was remiss in not taking action against the petitioner for absence from duty.
Another disturbing feature noted by the Court was that the Secretary, Medical Health was called in-person in the Court. The Supreme Court emphasized that “certain High Courts have developed a practice to call officers at the drop of a hat and to exert direct or indirect pressure.”
ISSUE– Whether communicating the order means its actual receipt by the concerned government servant or not?
HELD– In view of the above discussion, while allowing the appeal, Supreme Court decided that the High Court orders were wholly unjustified, unwarranted, arbitrary and illegal.
Court stated that 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 Supreme Court’s 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. The Supreme Court finds 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.
Court expressed that the petitioner’s conduct suggested that he was not keen on joining as a Medical Officer after he was relieved by the Uttarakhand Government. Bench reiterated that public officers should not be called to Court unnecessarily. 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.
Cases referred– State of Punjab v. Khemi Ram, AIR 1970 SC 214; Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683
Views of Supreme Court
Separation of powers between Judiciary and Executive
Bench expressed that, the line of separation of powers between Judiciary and Executive is sought to be crossed by summoning the officers in a way of pressurizing them to pass an order as per the whims and fancies of the Court.
It is always open to the High Court to set aside the decision of the Executive 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.
In Supreme Court’s decision of Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, 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.”
Power of Pen
Courts have the power of pen which is more effective than the presence of an officer in Court. Elaborating more on this aspect, Court suggested that if any particular issue arises for consideration before the Court and the Advocate representing the State is not able to answer the same, it is advised to write such doubt in the order and give time to the State or its officers to respond.
Therefore, in the present matter, the petitioner was posted at Badaun and was he was to report to the same place. He should have asked for a transfer after reporting, if permissible by the State and he should not have dictated the place of posting without even joining the place where he was first posted.