Wednesday, March 8, 2023

Justice Anil Kumar Upadhyay is no more, but his judicial legacy remains alive

Justice (Dr.) Anil Kumar Upadhyay was to demit his office as judge of Patna High Court in December 2024 but he demitted his human form on March 1, 2023, at a hospital in Chennai. He was serving as judge since May 2017. Prior to that he worked as a law teacher and a lawyer. 

His judgment in Neeraj Kumar v. State of Bihar provides an insight into his judicial mind. In this case the petitioners challenged the Departmental Notification issued vide Memo No. 514 dated 15/06/2020, whereby it was clarified that the cut-off date for acquiring of academic and training Patna High Court CWJC No.6664 of 2020 dt.15-12-2020 70/78 eligibility, for the purpose of appointment on the post of teacher had been 23/11/2019 and as such candidates who have subsequently passed the e Central Teacher Eligibility Test (CTET) examination in the month of December 2019 would not be eligible for appointment in light of Departmental Notification issued vide Memo No.482 dated 08/06/2020 as same has been exclusively issued for candidates, who have passed 18 months in-service course of D.El.Ed. conducted by National Institute of Open Schooling (NIOS) for which order has been passed in the case of CWJC No.19842/2019 (Sanjay Kumar Yadav v. State of Bihar) by the High Court. 

Drawing on Supreme Court's decision in State of Uttar Pradesh v. Aravind Kumar Srivastava (2015), Justice Upadhyay observed that "it has been settled by various judicial pronouncements that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by the Hon’ble Supreme Court from time-to-time postulates that all similarly situated persons should be treated similarly. Merely because they did not approach the court earlier, they are not to be treated differently." He provided the reference for it saying, "Reference be made to (2015) 1 SCC 347, para 22." A joint reading of both the decisions reveal that the subsequent para of 2015 decision has also been relied upon by him. 

Notably, on February 7, 2022, in R. Muthukumar v. Chairman and Managing Director, Tamil Nadu Generation and Distribution Corporation Ltd., Justice S. Ravindra Bhat too reiterated the decision in State of Uttar Pradesh v. Aravind Kumar Srivastava "where it was held that a public employer is bound to extend non-discriminatory treatment to all candidates, regardless of whether they approach the court or not, and offer employment to similarly situated candidates and employees." 

In his decision Justice Upadhyay wrote, "a judgment in rem is generally said to be a judgment declaratory of the status of some subject matter, whether this be a person, or a thing. Where the intervention of the court is sought for the adjudication of a right or title to property, not merely as between the parties but against all persons generally, the action is in rem. It is a judgment of a court determining the status of a person or thing." He drew on Supreme Court's decision in the case of Deccan Paper Mills Co. Ltd. v. Regency Mahavir Properties (2020). 

He observed, "viewed from the said angle it is apparent that the decision of the court in CWJC No. 19842 of 2019 was a decision determining the status of the class of persons i.e. D.EL.ED candidates from NIOS who were held to be eligible and hence being a decision in rem and therefore will cover not only the writ petitioner therein but all other similarly situated." He recorded that "the petitioners have already explained that even the B.Ed. degree holders are similarly situated to that of the D.EL.ED. candidates as they are treated equally for appointment to the post of teachers in terms of the advertisements without any distinction. Thus, once the qualification of D.EL.ED. candidate is considered on basis of the eligibility date on the last date of submission of the form in terms of notification dated 08.06.2020, the other candidates as well possessing the required qualification as on last date of submission of the application form also requires to be given similar opportunity, failing which it will be discriminatory and violative of Article 14 and 16 of the Constitution of India."

He engaged with the submissions of P.K. Shahi and Mrigank Mauli for the Respondents, Y.V. Giri and Ashish Giri for the petitioners. He appreciated the arguments of Shahi and Mauli. But he found the submissions Giris based on Sanjay Kumar Yadav v. The State of Bihar to be misconceived because "It is well settled that a judgment is an authority of what it decides and not what follow logically." He observed that "Sanjay Kumar Yadav case and not an independent decision for universal extension of time for submission of application."

For these reasons, he dismissed all the 345 writ applications against State of Bihar through Principal Secretary, Education Department, Deputy Secretary, Education Department, Director, Primary Education and Director, Secondary Education, Government of Bihar.

Justice Upadhyay was born on December 4, 1962. His father Vidya Dhar Upadhyay worked as Section Officer, Patna High Court and retired on August 31, 1982. He did LLB, LLM, Ph.D. from Patna University. He worked as part time lecturer faculty of law in Commerce College, Magadh University from August 22, 1988 to 2010. He worked as part time lecturer in Patna Law College from 1989 to 1996 and 2004 to 2006 and also worked as Visiting Faculty in Chanakya National Law University from 2007 to May 2017. He worked as Standing Counsel, Patna High Court, Patna from December from 2010 to May 2017. He was a Counsel for Rajendra Agriculture University, Pusa, Samastipur from 2010 to 2016, Bihar Agriculture University, Sabbour, Bhagalpur from 2010 to April 2017, Dr. Rajendra Prasad Central Agriculture University, Pusa from January 2017 to May 2017 and worked as Panel counsel for Dental Council of India from 2015 to May 2017.

After an 11-Judge Bench of the Patna High Court suspended the operation of an order passed by Justice Rakesh Kumar highlighting corruption in the judicial system, a full Bench quashed the same. Justice Kumar had ordered a CBI probe and an enquiry by the Patna district judge into how a former IAS officer whom he had denied anticipatory bail in a corruption case was granted regular bail by a trial court.

A full bench of the Patna High Court, headed by Chief Justice A.P. Sahi, set aside Justice Kumar's order, terming it as an instance of judicial and administrative overreach and a complete nullity.  The bench declared the order "to be coram non judice". However, the High court's full bench, comprising justices Anjana Mishra and Anil Kumar Upadhyay, restored judicial work to Justice Kumar that he had been stripped of the day he passed his order questioning the grant of regular bail to the former IAS officer by the trial court a day after Justice Kumar and Chief Justice AP Shahi reportedly met Chief Justice of India Ranjan Gogoi. Justice Kumar had passed an order on August 28, 2019 order, taking suo motu cognisance of the bail granted by a lower court to the retired IAS officer in a corruption case. He took up and disposed of an anticipatory bail plea filed by former IAS officer KP Ramaiah in connection with the multi-crore Bihar Mahadalit Vikas Mission Fund Scam. By an earlier order dated March 23, 2018, Ramaiah’s plea was already dismissed by the High Court.  During the proceeding, Justice Kumar took on record a news report published in Dainik Jagran, a Hindi newspaper whereby, on the date that Ramaiah surrendered before the trial court, the regular Special Judge (Vigilance) went on leave. Thereafter, Ramaiah surrendered and was granted bail by the judge on the same date.  Taking note of the turn of the events, Justice Kumar had opined that the way Ramaiah was granted bail required a deeper probe. Justice Kumar ordered an inquiry to be conducted by the District Judge, Patna to check and verify the news report. He also ordered an inquiry as to whether on the date of granting bail, the regular vigilance court was on leave due to a genuine cause or went on leave in a calculated way.  Additionally, the District Judge was also asked to examine the record of cases disposed of by the in-charge judge in the last six months.

Setting aside Justice Kumar's order the high court's full bench headed by Chief Justice Sahi said, "A wrong order requires setting aside if it has travelled beyond the objective boundaries and has far-reaching consequences in setting a trend which no law recognizes.  The passing of such an order has the inherent danger of creating uncertainty and a feeling that all things can be set right on exercise of authority by a judge even though he may not have legal power to do so. Justice Upadhyay was part of this "historic" Bench. 

Subsequently. Supreme Court Collegium recommended transfer of Patna High Court Chief Justice Sahi to the Madras High Court, and it recommended the transfer of Justice Kumar to the Andhra Pradesh High Court. Justice Upadhyay's view on these transfers would have been insightful.  


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