How can doctor dictate change in posting without even joining it: SC slams Allahabad HC on change of posting order

Calling it wholly unjustified, unwarranted, arbitrary and illegal, a bench of justices S K Kaul and Hemant Gupta set aside the verdicts of a single and division benches of Allahabad High Court's Lucknow bench in a service matter on Friday.

As per a recent PTI report, the apex court took note of the case in which a doctor who got his cadre changed from Uttarakhand to Uttar Pradesh and was transferred to Badaun in 2002. However, he did not join for 13 years and was granted 50 per cent back wages for the period by the high court.

While deliberating the case, the court also raised concern over a practice developed in certain High Courts to call officers at the drop of a hat and to exert direct or indirect pressure.

While deprecating the practice of certain high courts to call officers "at the drop of the hat", the court was of the view that "respect to the court has to be commanded and not demanded" and it is not enhanced by summoning officers.

Justice Gupta, writing the judgement for the bench, said, "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."

Observing that by these orders the line of separation of powers between judiciary and executive is sought to be crossed, the apex court also referred to an earlier judgement on separation of powers in which it had noted that "judges must know their limits. They must have modesty and humility, and not behave like emperors."

The court said that the presence of public officers comes at the cost of other official engagements demanding their attention, it said, adding sometimes, the officers even have to travel long distances.

"Thus, we feel, it is time to reiterate that 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," it observed.

It further noted that the public officers of the executive are also performing their duties as the third limbs of the governance and 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," the court said.

While referring to an earlier judgement, the apex court said the legislature, the executive and the judiciary all have their own broad spheres of operation and 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.

It noted, "Therefore, summoning of the officer is against the public interest as many important tasks entrusted to him get delayed, creating extra burden on the officer or delaying the decisions awaiting his opinion."

Judicial proceedings also take time, as there is no mechanism of fixed time hearing in courts as of now and the courts have the power of a pen which is more effective than the presence of an officer, it said.

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, it said.

In the instant judgement, Justice Gupta further referred to an earlier order of the top court in the same matter and said a "disturbing feature" has come to its notice that the Secretary, Medical Health was called in-person in the High Court.

It noted,

"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."

It held,

"He could not have dictated the place of posting without even joining the place where he was first posted. Therefore, we find that the orders of the High Court dated 05.03.2020 and 07.08.2019 are wholly unjustified, unwarranted, arbitrary and illegal. The same are set aside and the appeal is allowed with no order as to costs,"

Also Read: SC to hear Ramdev's plea seeking stay on FIRs over Allopathy remarks on July 12