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.
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
