R.S. SINGH vs.U.P. MALARIA NIRIKSHAK SANGH & ORS.
Date: 09/03/2011
CORAM :
HON'BLE MR. JUSTICE MARKANDEY KATJU
HON'BLE MRS. JUSTICE GYAN SUDHA MISRA
O R D E R:-
Heard learned counsel for the parties.
This appeal has been filed against the impugned
interim orders dated 13th November, 2003 and 18th December,
2003 passed by the High Court of Judicature at Allahabad,
Bench at Lucknow.
We have perused the said orders.
A direction has been given in the said orders that
the Principal Secretary, Finance along with the Principal
Secretary, Medical & Health, U.P. Government shall appear
personally before the High Court on the next date for noncompliance of the judgment of the High Court dated
15.11.1989/13.12.1989.
This Court has been repeatedly observing that the
High Courts ordinarily should not summon the senior
officials of the government and that should only be done in
very rare and exceptional cases when there are compellingcircumstances to do so.
In State of Gujarat vs. Turabali Gulamhussain Hirani, AIR 2008 SC 86, this Court observed:
“6. A large number of cases have come up before
this Court where we find that learned Judges of
various High Courts have been summoning the Chief
Secretary, Secretaries to the government (Central
and State), Director Generals of Police,
Director, CBI or BSF or other senior officials of
the government.
7. There is no doubt that the High Court has
power to summon these officials, but in our
opinion that should be done in very rare and
exceptional cases when there are compelling
circumstances to do so. Such summoning orders
should not be passed lightly or as a routine or
at the drop of a hat.
8. Judges should have modesty and humility. They
should realize that summoning a senior official,
except in some very rare and exceptional
situation, and that too for compelling reasons,
is counter productive and may also involve heavy
expenses and valuable time of the official
concerned.
9. The judiciary must have respect for the
executive and the legislature. Judges should
realize that officials like the Chief Secretary,
Secretary to the government, Commissioners,
District Magistrates, senior police officials
etc. are extremely busy persons who are often
working from morning till night. No doubt, the
ministers lay down the policy, but the actual
implementation of the policy and day to day
running of the government has to be done by the
bureaucrats, and hence the bureaucrats are often
working round the clock. If they are summoned by
the Court they will, of course, appear before the
Court, but then a lot of public money and time
may be unnecessarily wasted. Sometimes High Court
Judges summon high officials in far off places
like Director, CBI or Home Secretary to the
Government of India not realizing that it entailsheavy expenditure like arranging of a BSF
aircraft, coupled with public money and valuable
time which would have been otherwise spent on
public welfare.
10. Hence, frequent, casual and lackadaisical
summoning of high officials by the Court cannot
be appreciated. We are constrained to make these
observations because we are coming across a large
number of cases where such orders summoning of
high officials are being passed by the High
Courts and often it is nothing but for the ego
satisfaction of the learned Judge.
11. We do not mean to say that in no
circumstances and on no occasion should an
official be summoned by the Court. In some
extreme and compelling situation that may be
done, but on such occasions also the senior
official must be given proper respect by the
Court and he should not be humiliated. Such
senior officials need not be made to stand all
the time when the hearing is going on, and they
can be offered a chair by the Court to sit. They
need to stand only when answering or making a
statement in the Court. The senior officials too
have their self-respect, and if the Court gives
them respect they in turn will respect the Court.
Respect begets respect.
12. It sometimes happens that a senior official
may not even know about the order of the High
Court. For example, if the High Court stays the
order of the Collector of suspension of a classIII or class IV employee in a government
department, and certified copy of that order is
left with the Clerk in the office of the
Collector, it often happens that the Collector is
not even aware of the order as he has gone on
tour and he may come to know about it only after
a few days. In the meantime a contempt of court
notice is issued against him by the Court
summoning him to be personally present in Court.
In our opinion, this should not be readily done,
because there is no reason why the Collector
would not obey the order of the High Court. In
such circumstances, the Court should only request
the government counsel to inform the concerned
Collector about the earlier order of the Courtwhich may not have been brought to the notice of
the Collector concerned, and the High Court can
again list the case after a week or two. Almost
invariably it will be found that as soon as the
Collector comes to know about the stay order of
the High Court, he orders compliance of it.
13. In the present case, we find no occasion or
reason for the learned Judge to summon the Chief
Secretary or the Law Secretary by the impugned
order. If the learned Judge was concerned about
the lack of enough Stenographers in the office of
the Public Prosecutor he could have called the
Advocate General or Govt. Advocate to his chamber
and have asked him to convey the Court’s
displeasure to the government, but where was the
need to summon the Chief Secretary or Law
Secretary ? Hence, we set aside the impugned
interim order dated 11.4.2007 and condone the
delay of 25 days in filing the appeal before the
High Court. The High Court may now proceed to
hear the Criminal Appeal in accordance with law.
The appeal is allowed.”
Following the above decision, this Court in State of
U.P. & Ors. vs. Jasvir Singh & Ors, JT 2011(1) SC 446,
observed :
“7. It is a matter of concern that there is
a growing trend among a few Judges of the High
Court to routinely and frequently require the
presence, in court, of senior officers of the
government and local and other authorities,
including officers of the level of Secretaries,
for perceived non-compliance with its suggestions
or to seek insignificant clarifications. The
power of the High Court under Article 226 is no
doubt very wide. It can issue to any person or
authority or government, directions, orders,
writs for enforcement of fundamental rights or
for any other purpose. The High Court has the
power to summon or require the personal presence
of any officer, to assist the court to render
justice or arrive at a proper decision. But there
are well settled norms and procedures forexercise of such power.
8. This court has repeatedly noticed that
the real power of courts is not in passing
decrees and orders, nor in punishing offenders
and contemnors, nor in summoning the presence of
senior officers, but in the trust, faith and
confidence of the common man in the judiciary.
Such trust and confidence should not be frittered
away by unnecessary and unwarranted show or
exercise of power. Greater the power, greater
should be the responsibility in exercising such
power. The normal procedure in writ petitions is
to hear the parties through their counsel who are
instructed in the matter, and decide them by
examining the
pleadings/affidavit/evidence/documents/material.
Where the court seeks any information about the
compliance with any of its directions, it is
furnished by affidavits or reports supported by
relevant documents. Requiring the presence of the
senior officers of the government in court should
be as a last resort, in rare and exceptional
cases, where such presence is absolutely
necessary, as for example, where it is necessary
to seek assistance in explaining complex policy
or technical issues, which the counsel is not
able to explain properly. The court may also
require personal attendance of the officers,
where it finds that any officer is deliberately
or with ulterior motives withholding any specific
information required by the court which he is
legally bound to provide or has misrepresented or
suppressed the correct position.
9. Where the State has a definite policy
or taken a specific stand and that has been
clearly explained by way of affidavit, the court
should not attempt to impose a contrary view by
way of suggestions or proposals for settlement. A
court can of course express its views and issue
directions through its reasoned orders, subject to
limitations in regard to interference in matters
of policy. But it should not, and in fact, it
cannot attempt to impose its views by asking an
unwilling party to settle on the terms suggested
by it. At all events the courts should avoiddirecting the senior officers to be present in
court to settle the grievances of individual
litigants for whom the court may have sympathy.
The court should realize that the state has its
own priorities, policies and compulsions which may
result in a particular stand. Merely because the
court does not like such a stand, it cannot summon
or call the senior officers time and again to
court or issue threatening show cause notices. The
senior officers of the government are in-charge of
the administration of the State, have their own
busy schedules. The court should desist from
calling them for all and sundry matters, as that
would amount to abuse of judicial power. Courts
should guard against such transgressions in the
exercise of power.”……..
(emphasis supplied).
We are pained to observe that despite our decision
in State of Gujarat vs. Turabali Gulamhussain Hirani
(supra) many High Courts are persisting in summoning
executive officials where it was not absolutely necessary
to summon them. It is possible that our judgment in the
aforesaid decision has not been brought to the notice of
the Hon’ble Judges in many of the High Courts and it may
also be that the subsequent decision of this Court in State
of U.P. vs. Jasvir Singh (supra) has not been brought to
their notice. Consequently we are coming across many
orders where High Court Judges are summoning executive
officials routinely, casually, and sometimes even at the
drop of a hat. This is most improper.
We are constrained to make these observations
because we are repeatedly coming across a large number of
cases where such orders summoning high officials are being
passed by the High Courts and often it is only for the ego
satisfaction of the learned Judge. Judges should not have
any ego problems. In particular, members of the higher
judiciary (High Court and Supreme Court) should have great
modesty and humility. This is because the higher one moves
in the hierarchy the greater become his powers. Hence,
unless one has modesty and humility, he may play havoc.
High Court Judges have tremendous powers, but the beauty
lies in not exercising those powers except where absolutely
necessary. Flaunting these powers unnecessarily only
brings the judiciary into disrepute. Some of the greatest
Judges have been the most modest, e.g., Justice Holmes,
Judge Learned Hand, Justice Brandeis, Justice Cardozo, Lord
Atkins, Lord Denning, Justice Venkatachaliah, etc.
At the same time, we make it clear that we have also
come across cases where orders of the Courts are
deliberately ignored by government officials which is not
proper. Democracy and the rule of law requires that the
orders of the Courts should be complied with by the
executive authorities promptly and with due diligence. If
the executive authorities are dissatisfied with a HighCourt order, they may appeal against that order to the
Supreme court but it is not proper to ignore such orders.
In our opinion, if the High Court finds that its
order has not been complied with, it shall first see
whether the order can be complied with without summoning
any official and for that purpose it can ask the Advocate
General, Additional Advocate General or Chief Standing
Counsel or some other counsel of the State to communicate
to the concerned official that there is some order of the
Court which has not been complied with.
Ordinarily, this
will suffice because we see no reason as to why the
executive authorities will not comply with the orders of
the court. It is only in some extreme case where the High
Court is convinced that deliberately the order of the court
has been ignored in a spirit of defiance that it may summon
the official to explain why the order of the court has not
been complied with.
The system functions on mutual respect between the
judiciary and the executive. While the judiciary must
respect the executive, at the same time, the executive must
also respect the judiciary. If we do not respect each
other, the system will collapse.
In the present case, we are of the opinion that the
High Court was not justified in summoning theaforementioned officials.
Following the decision in Turabali's case(supra) and
Jasvir Singh's case (supra), this appeal is allowed and
consequently the direction of the High Court summoning
Principal Secretary, Finance along with Principal
Secretary, Medical & health is set aside. The Contempt
Petition shall be decided on its own merits, in accordance
with law, expeditiously.
A copy of this order will be sent to the Registrar
Generals/Registrars of all the High Courts, who shall
circulate copies to the learned Judges of the High Courts.
The Chief Justices of the High Courts, in particular, shall
bring this judgment to the notice of all Hon'ble Judges of
the Court, with the request that they follow this decision,
in letter and spirit.
A copy of this order will also be sent to the
Cabinet Secretary, Union of India, New Delhi as well as to
all the Chief Secretaries of all States/Union Territories.
.J..........................
[MARKANDEY KATJU]NEW DELHI; ..........................J.
MARCH 09, 2011 [GYAN SUDHA MISRA]
