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 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 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 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 could not defy the order of transfer on the ground of noncommunication 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 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 the writ petitioner for absence from duty – Thus, the orders of the High Court are wholly unjustified, unwarranted, arbitrary and 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 – 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 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
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 noncommunication when more than 100 Medical Officers were 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]
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 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 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 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 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 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 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 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] State of Punjab v. Khemi Ram AIR 1970 SC 214 : [1970]
2 SCR 657 – referred to.
2.1 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 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]
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 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 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 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 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 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]
Divisional Manager, Aravali Golf Club & Anr. v. Chander Hass & Anr. (2008) 1 SCC 683 : [2007] 12 SCR 1084 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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