R.S.Singh Vs U.P. Malaria
Nirikshak Sangh & Others
O R D E R
learned counsel for the parties.
appeal has been filed against the impugned interim orders dated 13th November, 2003
and 18th December, 2003 passed by the High Court of Judicature at Allahabad,
Bench at Lucknow. We have perused the said orders.
direction has been given in the said orders that the Principal Secretary, Finance
along with the Principal Secretary, Medical & Health, U.P. Government shall
appear personally before the High Court on the next date for non-compliance of the
judgment of the High Court dated 15.11.1989/13.12.1989.
Court has been repeatedly observing that the High Courts ordinarily should not summon
the senior officials of the government and that should only be done in very rare
and exceptional cases when there are compelling circumstances to do so.
State of Gujarat vs. Turabali Gulamhussain CIVIL APPEAL NO. 5600 OF 2006 Hirani,
AIR 2008 SC 86, this Court observed: "
large number of cases have come up before this Court where we find that learned
Judges of various High Courts have been summoning the Chief Secretary,
Secretaries to the government (Central and State), Director Generals of Police,
Director, CBI or BSF or other senior officials of the government.
is no doubt that the High Court has power to summon these officials, but in our
opinion that should be done in very rare and exceptional cases when there are compelling
circumstances to do so. Such summoning orders should not be passed lightly or as
a routine or at the drop of a hat.
should have modesty and humility. They should realize that summoning a senior official,
except in some very rare and exceptional situation, and that too for compelling
reasons, is counter productive and may also involve heavy expenses and valuable
time of the official concerned.
judiciary must have respect for the executive and the legislature. Judges should
realize that officials like the Chief Secretary, Secretary to the government, Commissioners,
District Magistrates, senior police officials etc. are extremely busy persons who
are often working from morning till night. No doubt, the ministers lay down the
policy, but the actual implementation of the policy and day to day running of the
government has to be done by the bureaucrats, and hence the bureaucrats are often
working round the clock. If they are summoned by the Court they will, of
course, appear before the Court, but then a lot of public money and time may be
unnecessarily wasted. Sometimes High Court Judges summon high officials in far off
places like Director, CBI or Home Secretary to the Government of India not
realizing that it entails heavy expenditure like arranging of a BSF aircraft, coupled
with public money and valuable time which would have been otherwise spent on public
frequent, casual and lackadaisical summoning of high officials by the Court cannot
be appreciated. We are constrained to make these CIVIL APPEAL NO. 5600 OF 2006 observations
because we are coming across a large number of cases where such orders summoning
of high officials are being passed by the High Courts and often it is nothing but
for the ego satisfaction of the learned Judge.
do not mean to say that in no circumstances and on no occasion should an official
be summoned by the Court. In some extreme and compelling situation that may be done,
but on such occasions also the senior official must be given proper respect by the
Court and he should not be humiliated. Such senior officials need not be made to
stand all the time when the hearing is going on, and they can be offered a
chair by the Court to sit. They need to stand only when answering or making a statement
in the Court. The senior officials too have their self-respect, and if the Court
gives them respect they in turn will respect the Court. Respect begets respect.
sometimes happens that a senior official may not even know about the order of the
High Court. For example, if the High Court stays the order of the Collector of
suspension of a class- III or class IV employee in a government department, and
certified copy of that order is left with the Clerk in the office of the Collector,
it often happens that the Collector is not even aware of the order as he has gone
on tour and he may come to know about it only after a few days. In the meantime
a contempt of court notice is issued against him by the Court summoning him to
be personally present in Court. In our opinion, this should not be readily
done, because there is no reason why the Collector would not obey the order of the
High Court. In such circumstances, the Court should only request the government
counsel to inform the concerned Collector about the earlier order of the Court which
may not have been brought to the notice of the Collector concerned, and the High
Court can again list the case after a week or two. Almost invariably it will be
found that as soon as the Collector comes to know about the stay order of the
High Court, he orders compliance of it.
the present case, we find no occasion or reason for the learned Judge to summon
the Chief Secretary or the Law Secretary by the impugned order. If the learned Judge
was concerned about the lack of enough Stenographers in the office of CIVIL
APPEAL NO. 5600 OF 2006 the Public Prosecutor he could have called the Advocate
General or Govt. Advocate to his chamber and have asked him to convey the Court's
displeasure to the government, but where was the need to summon the Chief Secretary
or Law Secretary ? Hence, we set aside the impugned interim order dated 11.4.2007
and condone the delay of 25 days in filing the appeal before the High Court. The
High Court may now proceed to hear the Criminal Appeal in accordance with law. The
appeal is allowed." Following the above decision, this Court in State of
U.P. & Ors. vs. Jasvir Singh & Ors, JT 2011(1) SC 446, observed : "
is a matter of concern that there is a growing trend among a few Judges of the High
Court to routinely and frequently require the presence, in court, of senior officers
of the government and local and other authorities, including officers of the level
of Secretaries, for perceived non-compliance with its suggestions or to seek insignificant
clarifications. The power of the High Court under Article 226 is no doubt very wide.
It can issue to any person or authority or government, directions, orders, writs
for enforcement of fundamental rights or for any other purpose. The High Court has
the power to summon or require the personal presence of any officer, to assist the
court to render justice or arrive at a proper decision. But there are well settled
norms and procedures for exercise of such power.
court has repeatedly noticed that the real power of courts is not in passing decrees
and orders, nor in punishing offenders and contemnors, nor in summoning the
presence of senior officers, but in the trust, faith and confidence of the common
man in the judiciary. Such trust and confidence should not be frittered away by
unnecessary and unwarranted show or exercise of power. Greater the power, greater
should be the responsibility in exercising such power. The normal procedure in
writ petitions is to hear the parties through their counsel who are instructed
in the matter, and decide them by CIVIL APPEAL NO. 5600 OF 2006 examining the pleadings/affidavit/evidence/documents/material.
the court seeks any information about the compliance with any of its directions,
it is furnished by affidavits or reports supported by relevant documents.
Requiring the presence of the senior officers of the government in court should
be as a last resort, in rare and exceptional cases, where such presence is absolutely
necessary, as for example, where it is necessary to seek assistance in explaining
complex policy or technical issues, which the counsel is not able to explain properly.
The court may also require personal attendance of the officers, where it finds that
any officer is deliberately or with ulterior motives withholding any specific information
required by the court which he is legally bound to provide or has
misrepresented or suppressed the correct position.
the State has a definite policy or taken a specific stand and that has been clearly
explained by way of affidavit, the court should not attempt to impose a contrary
view by way of suggestions or proposals for settlement. A court can of course express
its views and issue directions through its reasoned orders, subject to limitations
in regard to interference in matters of policy. But it should not, and in fact,
it cannot attempt to impose its views by asking an unwilling party to settle on
the terms suggested by it. At all events the courts should avoid directing the senior
officers to be present in court to settle the grievances of individual litigants
for whom the court may have sympathy.
court should realize that the state has its own priorities, policies and
compulsions which may result in a particular stand. Merely because the court
does not like such a stand, it cannot summon or call the senior officers time and
again to court or issue threatening show cause notices. The senior officers of
the government are in-charge of the administration of the State, have their own
busy schedules. The court should desist from calling them for all and sundry
matters, as that would amount to abuse of judicial power. Courts should guard against
such transgressions in the exercise of power."........ (emphasis
supplied)CIVIL APPEAL NO. 5600 OF 2006
are pained to observe that despite our decision in State of Gujarat vs. Turabali
Gulamhussain Hirani (supra) many High Courts are persisting in summoning
executive officials where it was not absolutely necessary to summon them. It is
possible that our judgment in the aforesaid decision has not been brought to the
notice of the Hon'ble Judges in many of the High Courts and it may also be that
the subsequent decision of this Court in State of U.P. vs. Jasvir Singh (supra)
has not been brought to their notice. Consequently we are coming across many
orders where High Court Judges are summoning executive officials routinely, casually,
and sometimes even at the drop of a hat.
is most improper. We are constrained to make these observations because we are repeatedly
coming across a large number of cases where such orders summoning high
officials are being passed by the High Courts and often it is only for the ego
satisfaction of the learned Judge. Judges should not have any ego problems. In particular,
members of the higher judiciary (High Court and Supreme Court) should have
great modesty and humility. This is because the higher one moves in the hierarchy
the greater become his powers. Hence, unless one has modesty and humility, he may
play havoc. High Court Judges have tremendous powers, but the beauty lies in
not exercising those powers except where absolutely CIVIL APPEAL NO. 5600 OF
these powers unnecessarily only brings the judiciary into disrepute. Some of the
greatest Judges have been the most modest, e.g., Justice Holmes, Judge Learned Hand,
Justice Brandeis, Justice Cardozo, Lord Atkins, Lord Denning, Justice
Venkatachaliah, etc. At the same time, we make it clear that we have also come across
cases where orders of the Courts are deliberately ignored by government officials
which is not proper. Democracy and the rule of law requires that the orders of the
Courts should be complied with by the executive authorities promptly and with
the executive authorities are dissatisfied with a High Court order, they may appeal
against that order to the Supreme court but it is not proper to ignore such
orders. In our opinion, if the High Court finds that its order has not been complied
with, it shall first see whether the order can be complied with without summoning
any official and for that purpose it can ask the Advocate General, Additional Advocate
General or Chief Standing Counsel or some other counsel of the State to communicate
to the concerned official that there is some order of the Court which has not been
this will suffice because we see no reason as to why the executive authorities will
not comply with the orders of the court. It is only in some extreme case where
the High Court is convinced that deliberately the order of the court CIVIL
APPEAL NO. 5600 OF 2006 -8-has been ignored in a spirit of defiance that it may
summon the official to explain why the order of the court has not been complied
with. The system functions on mutual respect between the judiciary and the executive.
While the judiciary must respect the executive, at the same time, the executive
must also respect the judiciary. If we do not respect each other, the system
the present case, we are of the opinion that the High Court was not justified in
summoning the aforementioned officials. Following the decision in Turabali's
case(supra) and Jasvir Singh's case (supra), this appeal is allowed and
consequently the direction of the High Court summoning Principal Secretary, Finance
along with Principal Secretary, Medical & health is set aside. The Contempt
Petition shall be decided on its own merits, in accordance with law,
expeditiously. A copy of this order will be sent to the Registrar
Generals/Registrars of all the High Courts, who shall circulate copies to the
learned Judges of the High Courts. The Chief Justices of the High Courts, in
particular, shall bring this judgment to the notice of all Hon'ble Judges of
the Court, with the request that they follow this decision, in letter and
spirit. A copy of this order will also be sent to the CIVIL APPEAL NO. 5600 OF
2006 -9-Cabinet Secretary, Union of India, New Delhi as well as to all the
Chief Secretaries of all States/Union Territories.
[GYAN SUDHA MISRA]