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The Supreme Court recently showed disproval to the careless practice of summoning public officers to the Court, “the line of separation of powers between Judiciary and Executive is sought to cross by summoning the officers and in a way, by pressurizing them to pass an order as per the whims and fancies of the Court.”

A Division Bench of Justice Sanjay Kishan Kaul and Justice Hemant Gupta noted that, “a practice has developed in certain High Courts to call officers at the drop of a hat and to exert direct or indirect pressure.” Thereby, directed that the public officers should not be called to court unnecessarily as the dignity and majesty of the Court is not enhanced when an officer is called to court.

“Respect to the court has to be commanded and not demanded and the same is not enhanced by calling public officers” – noted the Bench

The present appeal challenged an order passed by the Division Bench of the High Court of Allahabad, Lucknow Bench at Lucknow on 05.03.2020, affirming the order passed by the learned Single Bench on 07.08.2019 on a plea filed by Medical officer in the year 2006 wherein he claimed a writ of mandamus commanding the State to post him as Medical Officer in any Hospital according to his qualification and experience in the specialized cadre.

It must be noted that, he was allotted posting in Badaun (UP) but he never joined the hospital there. Instead he wrote a letter to Director Medical Health Services, Lucknow and requested to be posted at Muzaffarnagar, Ghaziabad or Bijnore District.

Thereafter, during the course of hearing the learned Single Judge (Allahabad High Court) allowed his writ petition and found that no decision had been taken in pursuance of letter for posting of the petitioner/respondent. The Court later concluded that the posting order or the transfer order was never communicated or served upon to the petitioner/respondent at any point of time.

In light of the orders passed by the High Court, the appellants( Sate of UP & ors) were directed to calculate and pay 50% of the back wages to the petitioner/respondent (Doctor Manoj Kumar) and to grant all the consequential benefits in accordance with law.

In the present appeal the Learned counsel for the petitioner/respondent had submitted that in the writ petition he had urged to post him anywhere in the State of Uttar Pradesh and that in the order dated 26.09.2016 a finding is returned i.e. posting order dated 06.03.2002 was not served upon the him.

The Supreme Court Bench found these arguments having no substance and observed that,

“He filed writ petition in 2006, meaning thereby for three years, “he was awaiting posting orders”. Under the guise of awaiting posting orders, he started private practice and intentionally delayed the decision on the writ petition for almost 13 years. “

It must be noted that in another plea before the High Court, when an action against the petitioner doctor was stayed, the authorities had initiated contempt action against him since he did not join duty, in that regard the Secretary, Medical Health was called in-person in the Court many times.

The top court did not approve of the same and termed it as “disturbing feature.”

Taking the above into account the Supreme Court made certain observations apropos of “Separation of powers” doctrine first propounded by the French thinker Montesquieu and emphasized that,

1. 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.
2. 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, the judge might behave with violence and oppression
3. The legislature, the executive and the judiciary all have their own broad spheres of operation.
4. 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.”
5. 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.
6. 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 executing the public resolutions, and of trying the causes of individuals.

The Bench relied upon the judgment reported as Divisional Manager, Aravali Golf Club & Anr. v. Chander Hass & Anr and observed that, “judges must know their limits. They must have modesty and humility, and not behave like emperors.It is always open to the High Court to set aside the decision which does not meet the test of judicial review but summoning of officers frequently is not appreciable at all. The same is liable to be condemned in the strongest words.”

“It is time to reiterate that public officers should not be called to court unnecessarily,” stated Bench

The Bench further noted,

“The Courts have the power of pen which is more effective than the presence of an officer in Court. If any particular issue arises for consideration before the Court and the Advocate representing the State is not able to answer, it is advised to write such doubt in the order and give time to the State or its officers to respond.”

The Bench found the orders of the High Court dated 05.03.2020 and 07.08.2019 wholly unjustified, unwarranted, arbitrary and illegal. The same was therefore rejected and the appeal was allowed with no order as to costs.

[Case Title - State of UP vs Manoj Kumar Sharma]