Allahabad High Court
State Of U.P. Through Secy. Rural Devp. ... vs Shri Anant Ram Awasthi And Ors. on 10 February, 2017
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 3 Case :- SERVICE BENCH No. - 1138 of 2003 Petitioner :- State Of U.P. Through Secy. Rural Devp. Deptt. Sectt.Lko. Respondent :- Shri Anant Ram Awasthi And Ors. Counsel for Petitioner :- C.S.C. Counsel for Respondent :- C.S.C.,B.R. Singh Hon'ble Sudhir Agarwal,J.
Hon'ble Ravindra Nath Mishra-II,J.
1. Heard learned counsel for parties.
2. This is thoroughly misconceived and ill advised petition.
3. State Public Services Tribunal, Lucknow (hereinafter referred to as "Tribunal") has directed for payment of a short amount of Rs. 3,000/-, balance towards gratuity and commuted pension along with interest at the rate of 18 percent, vide impugned order dated 17.07.2002. Besides other, even consequences of this order are virtually negligible and still State of U.P. and its authorities, thought it expedient to challenge order of Tribunal in this Court and keeping this litigation alive for the last almost more than 18 years.
4. We are surprised, as to how authorities concerned including Legal Remembrancer could advise sanction for filing of this petition which is nothing but a sheer misuse of process of law and for this purpose the authority who sanctioned filing of this petition must be censored. Commenting upon such action of unfounded litigation initiated by State of U.P. against order of Tribunal a Division Bench of this Court in Service Bench No.506 of 2011 (State of U.P. Vs. Sri Suresh Kumar) decided on 22.09.2011 castigating such an approach on the part of State Government or its instrumentalities, observed :
"18. Having gone through the record and as discussed above we cannot refrain ourselves from placing on record our serious anguish and concern over the manner, the opinion has been given by Law Department of U.P. Government resulting in a frivolous, vexatious and total meritless writ petition filed by State and its officials.
19. The officials in Law Department are expected to show more vigilance, independence and better application of mind. They are not supposed to surrender to the wishes of department but simply continued litigation for the sake of it. There were two aspects in the matter. One was punishment and another was annual character roll which was adverse in the year 2002-03.
20. So far as the punishment part is concerned, it was already decided by Tribunal in Claim Petition No. 130 of 2009, decided on 04.09.2009 and, therefore, nothing has to be done. Now the only question was regarding adverse entry. The Tribunal has categorically held that the matter of adverse entry in the year 2002-03 has not been dealt with by Government in accordance with procedure prescribed in Rule 4 of 1995 Rules and the result thereof would be that entry cannot be treated to be adverse for the purpose of promotion, efficiency bar etc. as provided in Rule 5. On this aspect neither department found any ground to challenge the order of Tribunal nor the Law Department has made any observation. That being so, we do not find on record any justification whatsoever for taking the matter further. The petitioner and unfortunately the Law Department have dealt with this matter in most casual and reckless manner, as if continuing litigation is the legal right of petitioner.
21. We intend to place on record our deep dissatisfaction in the manner, the officials in Law Department are functioning. Error of judgment can be excused but surrender or non-application of mind cannot. The Judicial Officers are sent on deputation to the Law Department of Government with an objective that they constitute an independent cadre, hence without being influenced by executive, shall advise it impartially, objectively and fairly. If this does not happen, the very purpose in sending Judicial Officers on deputation with Government will frustrate. On the one hand from regular work these officers are taken out and sent on deputation to work like a Consultant but if their advise and opinion is not independent and impartial, it shall loose its gravity and frustrate the purpose. The officials in the Law Department, therefore, have to work with great caution, care and independence.
22. It is a matter of common knowledge that before the superior courts, like High Court and Supreme Court, State (Provincial or Central, as the case may be) is the biggest litigant. In fact in writ jurisdiction, almost in all the cases, State, in one or other manner, is a party.
23. This Court is presently reeling under huge pendency of more than 9.5 lacs cases (more than 7 lacs at Allahabad and more than 2.5 lacs at Lucknow). Innumerable seminars, conferences, meetings, discussions etc. are being held at every level to find out ways and means for expeditious disposal of matters so that access to justice should be quicker and prompt to the people. All out attempt is being made for quick justice since justice delayed is justice denied. We are trying our best so that litigating people should get decision/adjudication of their rights within a reasonable time. To achieve this goal, role of Executive cannot be ignored. On the contrary, being one of the biggest litigant, the Executive has all the more responsibility to behave in a reasonable manner which is consistent with law so that occasion to approach Courts for protection of rights by people may be minimised.
24. Under Article 226 of the Constitution, writ petitions are mostly filed when the Executive behave arbitrarily, oppressively and in defiance of statutes, Constitutional and otherwise. When a common man comes to Court against such action of Executive, it cannot be said that he is unnecessarily burdening the system of administration of justice. The situation, however would be much different when an independent adjudicatory forum has been constituted under an enactment of State or Central Lagislature, the adjudicatory forum consists of not only trained, legal expert and experienced Judicial Officer but also an Executive Officer so that both may consider the matter from the angle of legal principles as well as departmental provisions, practice etc. and then to consider the grievance of an employee of the Government. Once such a decision is taken by the statutory adjudicatory forum, unless a glaring legal error or otherwise travesty of justice has resulted from such a decision, atleast the State must be slow in continuing to engage its employee in further litigation by filing a writ petition in the High Court under Article 226 and thereafter to take up the matter further.
25. We are not suggesting that against the judgment of such statutory adjudicatory forum consisting Judicial and Executive experts should not be challenged at all but our endeavour is to stress upon a more serious scrutiny at the level of department itself as to whether there is such a glaring error in the judgment of statutory adjudicatory forum, i.e., Tribunal in the present case so as to take up the matter further or not. Most of the departments of Government have their own legal experts and consultants. At the Secretariat level a full fledged cadre of such Experts is available in Law Department. We are told that presently the office of Legal Remembrancer and Secretary, Law, includes more than two dozens of Judicial Officers at the level of Deputy Legal Remembrancer, Joint Legal Remembrancer and Additional Legal Remembrancer headed by a Legal Remembrancer. They are the officers belong to Judicial Service of State, whereof senior posts like Joint Legal Remembrancer, Additional Legal Remembrancer and Legal Remembrancer are manned by members of Higher Judicial Service. Heavy responsibility lie upon these officers also to analyse the judgments of Tribunals in the context of facts, statutory provisions and decisions of High Courts and Supreme Court on the subject and thereafter to find out whether there is any such glaring error which justify further litigation in High Court or not. The approach should not be one to grant approval automatically and mechanically. There must be and there has to be a serious application of mind at the level of authorities who are responsible to tender legal opinion to take up the matters further.
26. We may point out further at this stage that in case of any doubt about the clarity on the subject, the officers of Government including those from Law Department can also seek opinion from Law Officers of State who represent them in High Court including the learned Advocate General and Additional Advocate Generals. It would not be out of place to mention that number of State Law Officers empanelled by State in the High Court, i.e., at Lucknow and Allahabad consists of more than one thousand Advocates, designated as under:
Civil side
1. Chief Standing Counsel
2. Additional Chief Standing Counsel
3. Standing Counsel
4. Brief Holder Criminal side Government Advocate Additional Government Advocate-I Additional Government Advocate-II
27. The aforesaid team of Law Officers is headed by learned Advocate General and there are about more than half a dozen Additional Advocate Generals also to take care of the interest of Stage. Monthly revenue towards fees of this magnitude of State Law Officers, only in the High Court is more than five crores per month. We have experienced that not only this but almost in a routine manner, State is also engaging several private counsels as Special Counsel, paying them a huge amount spending several crores annually. With this assistance of legal brains still the Government, if not able to control frivolous and vexatious cases to be filed by it, it is a matter, not only of serious concern, but condemnation. There is something basically wrong which needs be analysed and rectified at the earliest. The State cannot forget that being custodian of public funds which belong to tax payers of people of this Stage, it cannot plundered with it in such reckless and negligent manner. Everybody must have to be accountable for spending even a single shell from the public funds. Anybody responsible for wastage must be required to explain and bear it. Public funds cannot be allowed to be thrown and misused in such a manner.
28. Time and again, the Apex Court and this Court have repeatedly said that State should refrain from filing frivolous petitions, wasting precious time of Court so that other substantial matters may be taken up and decided.
29. One of us (Hon'ble Devi Prasad, J.) recently in Writ Petition No. 474 (SB) of 2011 (State of U.P and another Vs. Brij Bhushan Sharma), decided on 17.03.2011, by a Division Bench presided by Hon'ble the Chief Justice, has deprecated such practice of State of filing frivolous writ petitions challenging the order of Tribunal as under:
"We deprecate such practice on the part of the State. . . ."
6. In another matter, i.e., Writ Petition No. 473 (SB) of 2011 (State of U.P through Principal Secretary Appointment Deparmtnet Vs. Vishnu Swarup Mishra and another), decided on 17.03.2011 while dismissing writ petition against Tribunal, the Court said:
"We direct the Chief Secretary of State to formulate a policy in the matter of filing such petitions which are causing unnecessary burden for disposal, on this Court."
7. Still State has not learnt its lesson and has not shown any inclination to mend its ways. This is really unfortunate.
8. We do not find any manifest error in the impugned judgment. Since this petition is nothing but a sheer misuse of process of law, in our view this writ petition deserves to be dismissed with exemplary cost.
9. Stressing upon the ways to discourage filing of vexatious and frivolous cases against all kinds of orders or at every stage of proceedings, irrespective of the fact whether petition like the present one would be permissible in law or not, Apex Court in the context of practice of filing SLPs against all kinds of orders of High Court or other authorities, came heavily in Mathai @ Joby vs. George and Anr, 2010 (4) SCC 358 and said that if all such sundry kinds of cases are allowed, Court will soon be flooded with a huge amount of backlog and it will not be able to deal with important questions relating to the Constitution or the law or where grave injustice has been done. Court has limited time at its disposal and Judges are struggling with unbearable burden with zeal to dispense justice to whom it is highly needed yet being obstructed by such frivolous and vexatious matters, a trend is developing to bring all kinds of trivial and flimsy matters to Court causing wastage of not only public money, but also precious time of the Court, which can be used for other substantial matters.
10. Court in Crl. M.P. No.25683 of 2013 in Special Leave Petition (Crl.) No. 2448 of 2014 (Phool Chandra & Anr. Vs. State of U.P.), decided on 10.3.2014, observed:
"..the time of the Court which is becoming acutely precious because of the piling arrears has to be wasted on hearing such matters. There is an urgent need to put a check on such frivolous litigation. Perhaps many such cases can be avoided if learned Counsel who are officers of the court and who are expected to assist the court tender proper advice to their clients. The Bar has to realise that the great burden upon the Bench of dispensing justice imposes a simultaneous duty upon them to share this burden and it is their duty to see that the burden should not needlessly be made unbearable. The Judges of this Nation are struggling bravely against the odds to tackle the problem of dispensing quick justice. But, without the cooperation of the gentlemen of the Bar, nothing can be done."
11. In Phool Chandra & Anr. (supra) referring to earlier decisions in Varinderpal Singh Vs. Hon'ble Justice M.R. Sharma and Ors., 1986 Supp SCC 719; Ramrameshwari Devi and Ors. Vs. Nirmala Devi and Ors., (2011) 8 SCC 249; and Gurgaon Gramin Bank Vs. Khazani and Anr., AIR 2012 SC 2881 Court has said:
"It is high time that the Courts should come down heavily upon such frivolous litigation and unless we ensure that the wrongdoers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigation. In order to curb such kind of litigation, the courts have to ensure that there is no incentive or motive which can be ensured by imposing exemplary costs upon the parties as well as on learned Counsel who act in an irresponsible manner."
12. We may also repeat hereat observation made by Court in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India, JT 2005 (6) SC 486 stating that award of costs must be treated generally as mandatory. It is the liberal attitude of the Courts in not awarding costs which has led to frivolous points or litigation before the Courts. Costs should invariably follow the event and reasons must be assigned for not awarding costs.
13. In view of aforesaid, this writ petition is dismissed with exemplary of Rs. 25,000/-.
14. We also give liberty to the State of U.P. to recover the aforesaid amount from the Officer concerned responsible for this frivolous litigation.
Order Date :- 10.2.2017 Pravin