Tuesday, February 19, 2019
Judgment Delayed, Justice Denied in Patna High Court
Responding to senior advocate Indira Jaising’s reminder on 7 February 2019 about Supreme Court’s previous judgment saying that the judgment should be pronounced within three months after hearing is concluded and is reserved for orders; Justice A K Sikri pronounced the awaited verdict on 14 February, 2019 after the hearing was concluded on November 1, 2018.
Justice Sikri Bench complied with Supreme Court’s verdict in Anil Rai Vs State of Bihar. But Supreme Court’s order is not being complied in Patna High Court which has not pronounced its verdict in Dr. Rakesh Verma V State of Bihar (2017) even after 10 months of admittedly concluding the arguments. Single Judge Bench of Justice Ahsanuddin Amanullah passed an order on 2nd April, 2018 saying, “Learned counsel for the parties have been heard. Arguments concluded. The matters be listed under the heading ‘For Orders’ on 9th April, 2018”. The matter was listed “For Orders” on 9 April, and 4 September of 2018. It was listed “For Admission” on 20 April, 2018. The matter was listed “For Orders” on 23 April, 2018 but it was adjourned.
To make matters worse, on 4th September, 2018, the registry of the Patna High Court listed this very case “For Orders” before the single judge bench of Justice Mohit Kumar Shah, a different Bench. Fortunately, Justice Shah passed an order saying, “It appears from the records that the present batch of cases has been assigned by the Hon’ble The Chief Justice to a particular Bench. In such view of the matter, let the aforesaid cases be listed before the same Bench”. This order was passed after it was pointed out by the counsel for the parties that “the present batch of writ petitions was being heard by another Bench.” On earlier two occasions too, this case got listed before the single Judge Bench of Justice Dr. Anil Kumar Upadhyay, a different Bench. Justice Upadhyay too had passed an order on 15 November, 2017 saying, “Considering the fact that the matters were earlier listed and heard by another Bench at length on different dates, let these cases go out of my Board, to be listed before the same Bench after taking permission of Hon’ble the Chief Justice” after it was pointed out by the Counsel for the petitioners that “these matters were earlier heard by a Bench of this court on various dates at length.”
Now the matter is listed “For Orders” on 20 February 2019. Prior to this it was listed “For Orders” on 16 January, 23 January, 6 February and 13 February of this year.
The petitioners have filed the case against the Government of Bihar on the subject of the retirement age of 65 years for teaching employees of Universities. As per the petitioners retirement age stands extended to 65 years and they cannot be forced to retire on or after that date prior to attaining the age of 65 years. These writ petitions were filed in the Patna at High Court on 3rd October, 2017 challenging the order of the Bihar Government.
It is evident that this Bench of Patna High has not paid required attention towards the verdict in the case of Anil Rai Vs State of Bihar, wherein the Division Bench of Supreme Court comprising of Justices K T Thomas and R P Sethi observed “….as the pronouncement of judgement is a part of justice dispensation system, it has to be without delay.”
The Supreme Court enumerated remedial measure saying, “(i) The Chief Justices of the High Courts may issue appropriate directions to the Registry that in a case where the judgment is reserved and is pronounced later, a column be added in the judgment where, on the first page, after the cause-title date of reserving the judgment and date of pronouncing it be separately mentioned by the court officer concerned.” The inaction by Patna High Court after the judgment was reserved in Rakesh Verma v State of Bihar and some 14 other cases shows that Supreme Court’s instructions have not been complied with so far.
The Supreme Court enumerated remedial measure saying, “(ii) That Chief Justices of the High Courts, on their administrative side, should direct the Court Officers/ Readers of the various Benches in the High Courts to furnish every month the list of cases in the matters where the judgments reserved are not pronounced within the period of that month.” There is no clarity about compliance with this instruction by the Patna High Court.
The Supreme Court enumerated remedial measure saying, “(iii) On noticing that after conclusion of the arguments the judgment is not pronounced within a period of two months the concerned Chief Justice shall draw the attention of the Bench concerned to the pending matter. The Chief Justice may also see the desirability of circulating the statement of such cases in which the judgments have not been pronounced within a period of six weeks from the date of conclusion of the arguments amongst the Judges of the High Court for their information. Such communication be conveyed as confidential and in a sealed cover.” With regard to the pending matter before the Bench of Justice Ahsanuddin Amanullah in Patna High Court, it is not known as to whether “the concerned Chief Justice” drew “the attention of the Bench concerned to the pending matter” because such communication from the Chief Justice to the Bench of Justice Amanullah was required to “be conveyed as confidential and in a sealed cover.”
The Supreme Court enumerated remedial measure saying, “(iv) Where a judgment is not pronounced within three months from the date of reserving judgment any of the parties in the case is permitted to file an application in the High Court with prayer for early judgment. Such application, as and when filed, shall be listed before the Bench concerned within two days excluding the intervening holidays.” As per Supreme Court’s instructions, on several occasions the petitioner mentioned the matter with the prayer for early judgment but to no avail. Such application was supposed to “be listed before the Bench concerned within two days excluding the intervening holidays” despite this case has not been listed before the concerned Bench of Justice Amanullah within two days by the registry.
All the petitioners are senior citizens who have been denied salaries etc. This has compelled them to live a inhuman life. They are unable to fulfill their moral, financial liabilities to their families specially their old parents and dependent children regarding their medicines and other necessary expenses. The continued delay in the pronouncement of the order has made them miserable because of denial of their fundamental right to life and livelihood.
The delay in judgment has already denied justice to 8 out of 21 petitioners who have attained the age of 65 years besides them 6 more petitioners attained the age of 65 years in January, 2019. The petitioners include 21 university teachers like Dr. Asad Hasan, Dr. Raj Kumar Mazumdar, Dr. Ram Shrestha Roy, Dr. Ashutosh Kumar Sinha, Dr. Ram Prakash Chandra Verma, Dr. Prem Kant Jha, Dr. Ram Naresh Kunwar, Dr. Raj Kumar Madhukar, Dr. Shashi Bhushan Singh, Dr. Rakesh Verma and Dr. Usha Singh.
It is noteworthy that Justice Amanulah Bench of Patna High Court has passed an interim order in this very case dated October 18, 2017 saying, “Learned counsel for the U.G.C. has filed a counter affidavit which is the downloaded net copy of the original. He has assured the Court that on the reopening, the main copy shall be filed in the Court. In the meantime, let the copy produced be kept on record. In view of the fact that the petitioners have been issued notice as to why action be not taken against them for having continued beyond the age of 62, the Court deems it appropriate to direct that until further orders, no coercive action shall be taken against them.” It also observed “It is further indicated that as the matters are urgent and have been heard for quite sometime, it is only fair that they be heard with a view for their final disposal, without any further indulgence”. It is eminently clear that Justice Ahsanuddin Amanullah has given partial relief to the petitioners. But disregarding his order coercive actions are being taken against some of the petitioners. The concerned officials who have denied the fundamental rights of the petitioners continue to enjoy indulgence. Given the fact that High Court has taken the submission of UGC on record, it is germane to note that the UGC’s communication on enhancement in the age of superannuation from 62 to 65 years for teaching positions is unambiguous.
It is available at. https://www.ugc.ac.in/oldpdf/PSOrders/ageteachingstaff.pdf
After 10 months of non-compliance with Supreme Court’s judgment by the Patna High Court, can these 21 petitioners, the university teachers expect pronouncement of the long awaited verdict before the expiry of one year of the conclusion of the arguments on 2nd April, 2019? The counsels of the petitioners do not seem to have seem to have covered themselves with glory either. Amidst the burden of pending cases before the bench of Justice Amanulah, it is their duty to ensure compliance by making written submissions as per Supreme Court's instructions in Anil Rai case where it has been made amply clear that "Where a judgment is not pronounced within three months from the date of reserving judgment any of the parties in the case is permitted to file an application in the High Court with prayer for early judgment. Such application, as and when filed, shall be listed before the Bench concerned within two days excluding the intervening holidays.” There is nothing on record to show that the counsels of these 21 university teachers have done so.
Supreme Court in the case of Anil Rai Vs State of Bihar observed, “….once the entire process of participation in justice delivery system is over and only thing to be done is the pronouncement of judgement, no excuse can be found to further delay for adjudication of rights of parties, particularly when it affects any rights conferred by the Constitution under Part III.”
Is inertia of judicial institutions due to paucity of sufficient judge power excusable and compatible with the letter and spirit of Constitution? At present, The fact remains Patna High Court has 27 judges against the sanctioned strength of 53 as on February 17, 2019 unlike Supreme Court which has 28 judges against the sanctioned strength of 31 judges.
As of February 2018, there were some 1,45,110 cases pending in the Patna High Court in the absence of sufficient strength of judges. The number of pending cases have increased further despite the hard work of judges who are working even on Saturday to clear the backlog. The delay by Justice Amanulah Bench could be because of the enormity of pending cases or due to the passivity of concerned counsels in the case but public institutions like High Courts remain legitimate in the eyes of citizens, "we the people" only as long as they do not get structurally coerced to become complicit in creating a situation where Judgment Delayed is Justice Denied.
Dr Gopal Krishna
The author is a public policy and law researcher, Convener, Citizens Forum for Civil Liberties (CFCL) and editor of ToxicsWatch Journal, www.toxicswatch.org