In Letters Patent Appeal No.154 of 2025, in its order dated February 14, 2025, Patna High Court's division bench of Acting Chief Justice Ashutosh Kumar and Justice Partha Sarthy concluded:"We request the learned Single Judge to fix a date for appearance, sometimes later but only after being satisfied that the presence of the officer would be required and the averments made in the affidavit fled on his behalf would not be sufficient. We further request the learned Single Judge not to insist for the presence of the officer on 14.02.2025 as directed by order dated 13.02.2025." The order was authored by Justice Kumar.
The Single Judge bench order of Justice Purnendu Singh was passed in Hriday Narayan Bharti vs. The State of Bihar (2025). This case from Sitamarhi was filed on January 17, 2025. It was registered on February 10, 2025. Justice Singh's order records: "This case was heard in pre-recess and learned counsel appearing on behalf of the State was requested to request the Additional Chief Secretary, Education Department, Government of Bihar to be present in the Court. Learned counsel appearing on behalf of the State informs that due to miscommunication and in absence of any written order on record, refusal has been made by the Additional Chief Secretary."
Justice Singh observed:"I find that the same amounts to contempt of court. State counsel represents on behalf of the functionaries of the State and such deliberate inaction on behalf of the Additional Chief Secretary calls to draw the proceeding of contempt against him. In the background of the matter, this Court wants to illustrate from the relief in the several writ petitions, which are being filed from time to time in respect of the promotion of the Niyojit Teacher as per the Bihar Panchayat Primary Teacher (Employment and Service Conditions) Rules, 2006 which was subsequently repealed in the year 2012 by Bihar Panchayat Teachers Rules, 2012, governing the Niyojit teachers at the Panchayat level, block level and district level and those teachers belonging to different local bodies established as per the provision of Article 243 of the Constitution of India. The Additional Chief Secretary is directed to appear before this Court tomorrow (14.02.2025) at 02:15 p.m. without fail. Re-notify the present writ petition on 14.02.2025 at 02:15 p.m. As the order has been passed in the open Court, learned counsel appearing on behalf of the State is directed to communicate the present order to the Additional Chief Secretary without waiting for the order to be pronounced. Let a copy of this order be communicated to the learned Advocate General forthwith."
The Advocate General approached division bench of the Court and mentioned it in the morning of February 14, 2028 for posting L.P.A No. 154 of 2025 which was filed on February 14, 2025 in the Registry against the order of Justice Singh. The division bench heard it "under extremely urgent circumstances".
The division bench observed: "While hearing a writ petition captioned CWJC No. 2354 of 2025, which was posted before the learned Single Judge on the first day on 13.02.2025, an order was passed asking the counsel for the State to inform and request Additional Chief Secretary, Education Department, Government of Bihar to be present in the Court on the same day in the second half of the Court working hours. The Court was informed that because of some miscommunication and absence of any written order on record, such a direction could not be complied with. The learned Single Judge held it to be contumacious enough to declare it to be contempt of Court and apart from referring to the merits of the case, directed the Additional Chief Secretary to appear before the Court on 14.02.2025 at 2:15 PM without fail."
Justice Kumar led division bench noted that Justice Singh passed order on the first day of the hearing of the case.
It is apparent from the order dated 13.02.2025 that the matter was taken up in the first half of the Court proceedings and the officer concerned was asked to appear in the second half, which directions, for some reason or the other, could not be complied with.
The division bench observed: "We consider it to be completely unnecessary to hold non-appearance of the officer in the second half of the Court proceedings to be contemptuous in any manner whatsoever. Nonetheless, we are of the view that the learned Single Judge ought to have given some time to the office by fixing another date, which might not be in distant future but time sufficient enough for the offer to prepare himself on the facts of the case for his personal appearance before the Court. Even otherwise, we do not find any urgency in the matter or the necessity of the officer being summoned with such urgent dispatch."
The division bench drew on the Standard Operating Procedure (SOP) in terms of the judgment rendered by the Supreme Court in the State of Uttar Pradesh & Ors. Vs. Association of Retired Supreme Court and High Court Judges at Allahabad & Ors. 2024 (2) BLJ 106 enumerating the circumstances under which personal presence of the Officers of Government could be asked for. The SOP clearly identifies three different types of adjudication namely, (i) evidence based adjudication; (ii) summary proceedings and (iii) non-adversarial proceedings. While hearing non-adversarial proceedings,the SOP illustrates, a Court might require presence Government official to understand any complex policy or technical issue which the Law Officers of the Government would not be able to address. Similarly in evidence based adjudication involving evidence such as documents or oral statements wherein also a Government official would be required to be physically present for testimony or to present relevant documents and the governing statute with respect to the procedure would be the Code of Criminal Procedure, 1973. Other than in cases falling under these two categories, the issues could always be addressed through affidavit and other documents, thus obviating the necessity of any physical presence of the officers. The SOP does not preclude a Court from calling the office, where it is prima facie satisfied that specific information is not being provided or is being intentionally withheld or if the correct position is being suppressed or is being misrepresented.
The division bench observed:"A proscription, therefore, has been sounded that the Courts should not direct the presence of officials solely because the officials stance is different from the Court’s view. In such cases, if the matter could be resolved based on existing records, it should be decided on merits accordingly. Even with respect to calling for the personal presence of the officer, certain procedure has been delineated namely that the Court should allow, as a first option, the officer to appear before it through video conferencing. Whenever a personal presence of an official is directed, reason should be recorded as to why such presence is required. Due notice for any personal appearance giving sufficient time for such appearance must be served in advance to the official which would enable him to come prepared and render assistance to the Court for proper adjudication of the matter for which he is summoned. "
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