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फोरम शाॅपिंग (बेंच हंटिग) न्याय में अवरोध


lekt ds lcls izfrf"Br is'ks odkyr esa Bsdsnkjh ¼vkMZj dh xkajVh½ ds c< rs pyu ls] ftlds fy, odhy ls T;knk DykbaV ftEesnkj gS ¼D;ksafd og vius dsl dh esfjV ls igys odhy ls loky iwNrk gS vkidh lsfVax gS fd ugha½ us ,d u;h ck/kk U;k; ds jkLrs esa [kM h djuh 'kq# dj nh gS mls Qksje 'kkWfiax@csap gafVx] csap izsQjsal dh laKk nh x;hA ;g Ýst vHkh cgqr pyu esa rks ugha vk;k gS ysfdu mPpre U;k;ky; ds dqN fu.kZ;ksa ls bldk izknqHkkZo gqvk gS rFkk vc ehfM;k dh gsMykbal Hkh cuus yxk gSA

euekfQd csap esa vius dsl dh lquokbZ djokus ;k fdlh csap esa lquokbZ ls cpus ds fy, tks izfØ;k viuk;h tkrh gS ml gh Qksje 'kkWfiax@csap gsfVx@csap izsQjsal dgk tkrk gSA vHkh gky esa nks ekeyksa esa] mPPre U;k;ky; esa lgkjk ds dsl esa rFkk bykgkckn mPp U;k;ky; esa v#.k dqekj feJk ds ;w-ih-,l-vkbZ-Mh-lh- esa fu;qfDr ds ekeys es nk;j ;kfpdk dks nwljh csap esa LFkkukrfjr djus dk ekeyk lqf[k;ksZa es vk;k gSA

lqczrjk; dsl dh lquokbZ dj jgh  jsxqyj csap ls tc eupkgk vkMZj feyus esa ck/kk fn[kkbZ nh rks muds ns'k ds tkus ekus odhy us fgjklr dks xSj dkuwuh crkrs gq, lquokbZ tYnh djus gsrq ekuuh; eq[; U;k;k/kh'k ih- lrf'koe ls xqgkj yxk;h fdUrq eq[; U;k;k/kh'k us ;kfpdk ij Lo;a lquokbZ djus ds ctk; mls mlh csap ¼U;k;ewfrZ ds-,l- jk/kkd`".ku o U;k;ewfrZ ts-,l- [ksgj½ dh ihB ds le{k gh lquokbZ ds fy, Hkst fn;k ftlus lgkjk ds rhuks funs'kdksa dks tsy Hkstk gS rc lgkjk ds odhy lkgcku us ekeys dh lquokbZ gsrq o`gn ihB dks Hkstus dk vkxzg djrs gq, dgk fd mlh ihB ds lquokbZ djus ls gks ldrk gS ekuuh; U;k;kewfrZ;ksa dks vPNk u yxs] D;ksa fd mUgha ds vkns'k ds fo#) cgl gksxh tks ihB dks cqjk yx ldrk gSA lgkjk ds LekVZ odhyksa dh nyhysa lquus ds ckn ihB us ;kpuk Bqdjkrs gq, vxys fnu lquokbZ r; djrs gq, dgk fd os igys ns[ksaxs fd mUgsa lquokbZ djus esa cqjk yxrk gS ;k ughaA vxys fnu fgjklr dks xSj dkuwuh crkus okyh ;kfpdk ij lquokbZ 'kq# djrs gq, ¼U;k;ewfrZ jk/kk d`".ku ,oa U;k;ewfrZ ts-,l- [ksgj½ lgkjk ds tkus ekus LekVZ ,MoksdsV ls dgk fd mUgksaus ;kfpdk ns[k yh gS mUgsa bl ij lquokbZ djus esa cqjk ugha yxsxk vki yksx ;kfpdk ij cgl dj ldrs gSa vkSj bl rjg mudk viuk eqdnek nwljh csap esa LFkkukUrfjr djkus dk iz;kl foQy gks x;k ysfdu blesa dksVZ dk cgqewY; le; u"V gqvkA

bykgkckn mPp U;k;ky; dh bykgkckn ihB esa vfuy dqekj oekZ cuke mÙkj izns'k jkT; vkS|ksfxd fodkl fuxe fyfeVsM ,oa vU; dh ;kfpdk] ftlesa v#.k dqekj feJk dh fu;qfDr dks pqukSrh nh x;h gS rFkk lquokbZ ekuuh; U;k;ewfrZ v#.k VaMu ,oa U;k;ewfrZ vjfoUn dqekj feJ ¼izFke½ dh ihB dj jgh gS ls dsl nwljh ihB esa lquokbZ gsrq LFkkukUrfjr djus dk izkFkZuk i= ekuuh; eq[; U;k;k/kh'k ds le{k iz'kklfud vkns'k gsrq ofj"B vf/koDrk 'kkafrHkw"k.k }kjk Lo;a gLrk{kfjr djds izLrqr fd;k x;kA

ekuuh; eq[; U;k;k/kh'k MkW- Mh-okbZ pUnzpwM us ;kfpdk ds i{kksa ds vf/koDrkvksa dks lquokbZ dk volj nsrs gq, egRoiw.kZ vkns'k ikfjr fd;kA eq[; U;k;k/kh'k us vius vkns'k esa fy[kk& On 29 January 2014, the Division Bench noted that the High School mark sheet together with a copy of the High School examination certificate was produced. Learned Standing Counsel was directed to produce the original cross list of the High School examination of 1976 with reference to the roll number, while the counsel for Awadh University was directed to ensure the production of the cross list of the B. Tech examination for 1983. The hearing was posted to 5 February 2014.

3. The proceedings came up before the Division Bench on 5 February 2014 when the Court noted certain discrepancies between the cross list of the High School examination and the mark sheet. The petitioner was permitted to serve the third respondent by 7 February 2014 and the hearing was directed to stand over to 10 February 2014. On 13 February 2014, appearance was entered on behalf of the third respondent by Mr. Shishir Prakash, Advocate who was to appear with Mr. R.B. Singhal, Senior Advocate. On 12 February 2014, an application for transfer of the proceedings filed on behalf of the third respondent on the administrative side was placed before me. The following order of rejection was passed on 12 February 2014:

“The application is thoroughly improper and lacking in substance. Such uncalled for aspersions against the Bench must be deprecated.

(Chief Justice)

........ The third respondent filed a short counter affidavit upon being served and specifically requested the Division Bench to summon certain additional records. The relevant part of the short counter affidavit of the third respondent reads as follows:

“That in the facts and circumstances of the case in the interest of justice Hon'ble Court may be pleased to direct High School and Intermediate Boardto produce order directing for enquiry relating to examinee bearing roll number 511719 of High School examination 1976, copy of the letter-patrank : go-3-rkc/932 dated 30.07.1976, enquiry report submitted by the enquiry committee and order of the correction dated 25.8.1976 by letter go (2)1128 before this Hon'ble Court and the District Inspector of Schools, Kanpur Nagar may also be directed to seize relevant record such as class 9th examination result of 1975 of Sri Gandhi Vidya Peeth Inter College, Ghatampur, Kanpur, the relevant scholar register, transfer certificate form book and the register maintained for relevant information relating to the students from Sri Gandhi Vidya Peeth Inter College, Ghatampur, Kanpur and produce the same in sealed cover before this Hon'ble Court.”

....... The application filed by the third respondent was allowed in part by the Division Bench by an order dated 3 March 2014 with the following observations:

“Two applications have been filed on behalf of Arun Kumar Mishra. One along with short counter affidavit and the other seeking impleadment. So far as the application filed along with short counter affidavit is concerned, we at this stage deem it appropriate to direct the Board of High School and Intermediate through its Secretary to ensure production of letter Patrank: go- 030rkc/932 dated 30.07.1976, enquiry report submitted by the enquiry committee and the order of correction dated 25.08.1976 by letter go-030 (3) 1128 qua the candidate with Roll No.511719 of High School Examination 1976.

So far as the impleadment application is concerned, we at this stage do not find it necessary to implead either Kamla Nehru Institute of Technology, Sultanpur or Gandhi Vidhyapeeth Inter College. However since Kamla Nehru Institute of Technology, Sultanpur as on date is an autonomous college of the U.P. Technical University, Lucknow and was earlier an autonomous college to Dr. Ram Manohar Lohia Awadh University, Faizabad, we direct the  Vice Chancellors of both Universities to ensure that all original records pertaining to admission of Arun Kumar Mishra in B. Tech. degree course at Kamla Nehru Institute of Technology, Sultanpur, tabulation sheet of each year of examination along with other certificates which may have been issued by the college are produced before this Court on 10.03.2014 in original.”

6. Against the order of the Division Bench dated 3 March 2014, a Special Leave Petition was filed before the Supreme Court. While disposing of the Special Leave Petition, the Supreme Court, in its order dated 10 March 2014, specifically held that the summoning of the additional record which was considered relevant was wholly innocuous and as harmless as was the summoning of the record of the two Universities. The Supreme Court observed as follows:

“The High Court has no doubt noticed the application filed by the petitioner but given no reasons why the record sought to be summoned thereby, is not relevant to the question that falls for determination before it. Be that as it may summoning of some additional record considered relevant is wholly innocuous and as harmless as summoning of the record from the two Universities. We therefore see no reason why the entire record, referred to in the prayer made in the application, mentioned above, should not also be summoned from those in custody thereof, for perusal by the High Court. We accordingly direct summoning of the said record also, no matter without issuing any notice to the respondents in this petition, for we are of the opinion that any such notice will result in the unnecessary delay and procrastination.”

The Supreme Court also observed that the High Court was justified in curbing dilatory tactics that may be adopted by any party to the proceedings and in preventing unnecessary delay:

“We make it clear that even the High Court shall be free and indeed justified in preventing any unnecessary delay or dilatory tactics by curbing any such attempt suitably, should it be of the view that any one of the parties is trying to delay the proceedings unnecessarily.”

blds i'pkr 10 ekpZ 2014 dks rhljs izfroknh ¼v#.k dqekj feJk½ us ofj"B vf/koDrk ds ek/;e ls lquokbZ dj jgh ihB ds fizlkbfMax tt ls vius vkidks lquokbZ ls fjD;wt djus dh ;kpuk dh ftldks csap us lquokbZ gsrq 20 ekpZ 2014 dh frfFk fu;r dhA Kkr gks fd 10 ekpZ 2014 dks ihB us r`rh; izfroknh ds vf/koDrk dh mifLFkfr esa ;wfuoflZVh }kjk miyC/k djk;s x;s Vscqys'ku jftLVj dk ijh{k.k dj fy;k FkkA

blds ckn 13 ekpZ 2014 dks ,d ckj iqu% fMohtu casp }kjk 10 ekpZ 2014 dks ikl fd;s x;s vkns'k dks mPpre U;k;ky; esa pqukSrh nh ftlesa mlus 14 ekpZ 2014 dks fjdkMZ eaxk;k FkkA

eq[; U;k;k/kh'k us vius vkns'k esa fy[kk& when the Special Leave Petition against the order of the Division Bench dated 13 March 2014 came up, the Supreme Court held that there was no reason to interfere and the Special Leave Petition was accordingly dismissed. The Supreme Court declined to accede to the request of the third respondent and issue a direction for the transfer of the matter from the Bench which was currently hearing the proceedings before this Court. However, the third respondent was permitted to move an application on the administrative side before the Chief Justice of this Court for appropriate orders on the subject. The Supreme Court observed thus:

“...The petitioner may if so advised move the Hon''ble Chief Justice of the High Court of Judicature at Allahabad on the administrative side for appropriate orders on the subject in which event the Hon'ble Chief Justice shall be free to examine whether there is any real apprehension of miscarriage of justice or the grievance is only an attempt at forum shopping.”

........ 9. Learned Senior Counsel appearing on behalf of the third respondent submits that he has a reasonable apprehension on the basis of the orders which have been passed and hence proceedings should be transferred from the Division Bench which is currently hearing the case to any other Bench of this Court. Learned Senior Counsel submitted that the counsel  appearing on behalf of the petitioner may make it clear as to whether he is opposing the application for transfer and if he is opposing the application, that in itself is a circumstance online casino which would cast doubt on the fairness of the proceedings before the Division Bench. Learned Senior Counsel further submitted that the orders which have been passed by the Division Bench create a reasonable apprehension in regard to the fairness of the proceedings since the Judges have taken upon themselves the role of an investigating agency, calling for the records pertaining to the third respondent from the Board of High School and Intermediate Education, the University and the service records. Learned Senior Counsel submitted that there was no reason or justification for the Division Bench to (i) entertain a writ petition seeking a writ of quo warranto against the appointment of the third respondent in the UPSIDC which has been made in 1986; (ii) make a reference to the cross list of the Board of High School and Intermediate Education 2013/ 2421/DAC/CTL - Tabella A) - Ripartizione dei prezzi di vendita al pubblico delle sigarette a decorrere dal 1° marzo 201325-02-2013 - giochi di casino a distanza - giochi di casino d'abilità, carte, sorte a quota fissa Conto giudiziale delle riscossioni e dei versamenti da rendere dai Concessionari pubblici - ulteriori chiarimenti25-02-2013 - Lotterie Istantanee Decreto dirigenziale Prot. in the order dated 29 January 2014; (iii) overlook in the order dated 5 February 2014 that the overwriting in the name of the third respondent is on the letter “jk” and not “uk”; (iv) directing that the application for recusal would be considered on 13 March 2014 when the writ petition was to come up for hearing; (v) directing the personal presence of the Vice casino online Chancellor in the event the records were not produced before the Court. 10. In assessing whether a case for transfer of the proceedings has been made out, it would, at the outset, be appropriate to advert to the locus classicus on the subject which is a judgment of Hon'ble Mr. Justice M. Hidayatullah (as the learned Chief Justice then was) in Gurcharan Das Chadha Vs. State of Rajasthan1:

“The law with regard to transfer of cases is wellsettled. A case is transferred if there is a reasonable apprehension on the part of a party to a case that justice will not be done. A petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will not be done in a given case does not suffice. The Court has further to see whether the apprehension is reasonable or not. To judge the reasonableness of the apprehension the state of the mind of the person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must not only be entertained but must appear to the Court to be a reasonable apprehension.”

...... This, in my view, is of the utmost importance and is of the essence. Whether a case should be transferred from a Bench which is hearing it is not a matter of the subjective assessment of a litigant. If it were to be so, it would be all too easy for a litigant to escape from justice by merely casting an aspersion on a Judge hearing the case. The test can never be : 'why should the case not be transferred when there are so many other judges of the Court to whom the case can be assigned'. Justice undoubtedly has to be done and must be seen to be done. But equally, a litigant cannot have the choice of the judge who should hear a case, or avoid a court which is conducting a searching analysis. Judges who hear cases may follow various paths in the conduct of the proceedings but all of them ultimately are designed to ensure that the truth emerges before the Court. A litigant cannot be heard to say that a Judge who is pursuing a line of enquiry to unravel the truth should recuse herself. The pursuit of justice cannot be made a ground for avoiding a Court. If this were to be permitted, justice and the institutional credibility of Courts of justice would be in grave peril.

12. These sentiments have been placed, in no uncertain terms, in the judgment of the Supreme Court in Jawant Singh Vs. Virender Singh2 thus:

“It is most unbefitting for an advocate to make imputations against the Judge only because he does not get the expected result, which according to him is the fair and reasonable result available to him. Judges cannot be intimidated to seek favourable orders....”

In a subsequent decision in Chetak Construction Ltd. Vs. Om Prakash & Ors.3, the Supreme Court while adverting to these observations held thus:

“Indeed, no lawyer or litigant can be permitted to browbeat the court or malign the presiding officer with a view to get a favourable order. Judges shall not be able to perform their duties freely and fairly if such activities were permitted and in the result administration of justice would become a casualty and rule of law would receive a setback. The Judges are obliged to decide cases impartially and without any fear or favour. Lawyers and litigants cannot be allowed to “terrorize” or “intimidate” Judges with a view to “secure” orders which they want. This is basic and fundamental and no civilised system of administration of justice can permit it. We certainly, cannot approve of any attempt on the part of any litigant to go “forum-shopping”. A litigant cannot be permitted “choice” of the “forum” and every attempt at “forumshopping” must be crushed with a heavy hand.”

In R.K. Anand Vs. Registrar, Delhi High Court4, the Supreme Court made certain observations which, though in the context of a recusal, are of significance:

“In the order the Judge concerned further observed:

“The path of recusal is very often a convenient and a soft option. This is especially so since a Judge really has no vested interest in doing a particular matter. However, the oath of office taken under Article 219 of the Constitution of India enjoins the Judge to duly and faithfully and to the best of his knowledge and judgment, perform the duties of office without fear or favour, affection or ill will while upholding the Constitution and the laws. In a case, where unfounded and motivated allegations of bias are sought to be made with a view of forum hunting / Bench preference or brow-beating the court, then, succumbing to such a pressure would tantamount to not fulfilling the oath of office.

The above passage, in our view, correctly sums up what should be the court's response in the face of a request for recusal made with the intent to intimidate the court or to get better of an “inconvenient” Judge or to obfuscate the issues or to cause obstruction and delay the proceedings or in any other way frustrate or obstruct the course of justice.

We are constrained to pause here for a moment and to express grave concern over the fact that lately such tendencies and practices are on the increase. We have come across instances where one would simply throw a stone on a Judge (who is quite defenceless in such matters!) and later on cite the gratuitous attack as a ground to ask the Judge to recuse himself from hearing a case in which he would be appearing. Such conduct is bound to cause deep hurt to the Judge concerned but what is of far greater importance is that it defies the very fundamentals of administration of justice. A motivated application for recusal, therefore, needs to be dealt withsternly and should be viewed ordinarily as interference in the due course of justice leading to penal consequences.”

blds igys Hkh rhljs izfri{kh esa VªkalQj ,Iyhds'ku Qkby dh Fkh ftls eq[; U;k;k/kh'k us [kkfjt dj fn;k FkkA eq[; U;k;k/kh'k us vkxs fy[kk&

.... The orders passed by the Division Bench would indicate that proceedings have been conducted in a transparent manner. Significantly, it was the Third Respondent who in his counter affidavit sought that certain records including of the Board of High School & Intermediate Education should be summoned. This was allowed in part on 3 March 2014. The Supreme Court allowed the summoning of the entire record on 10 March 2014. The Third Respondent cannot have a reasonable apprehension on the summoning and examination of records by the Division Bench. Moreover, the Supreme Court in the order dated 10 March 2014 has also emphasised that the High Court would be justified in preventing unnecessary delay or dilatory tactics by curbing any such attempt suitably. Much of the effort of Learned Senior Counsel is on the correctness of the orders. This is not an appeal. The ambit of the application is whether there is a reasonable apprehension on the basis of which a transfer is sought. There is none. In my view, Judges of the Court are entitled to follow a line of enquiry dispassionately and objectively with a view to reaching the truth of a matter. That may not suit a litigant but that is no ground for transferring the proceedings. The third respondent is making an effort to avoid a Court which is hearing the case. Interim orders of the Court may pose uncomfortable questions to litigants but that is no ground for the Chief Justice to exercise the administrative power to transfer the proceedings. The apprehension which has been expressed in the present case is clearly not reasonable, as explained in the law laid down by the Supreme Court.

14. For these reasons, there is no merit in the application moved on the administrative side for transfer of the above petition to another Bench. The application shall, accordingly, stand rejected.

,slk ugha gS fd ;g izfØ;k vHkh 'kq# gqbZ gS igys Hkh dbZ ,sls rjhds viuk, x;s tSls fd ,sls odhy dk odkyr ukek Qkby djk fn;k tks ml csap ds vkxs 'Not Before' gSA blds igys Hkh dkaxzsl ds  usrk d`ik 'kadj flag ds ekeys esa lquokbZ ds le; mPpre U;k;ky; ds U;k;ewfrZ Mh-ds- tSu o U;k;ewfrZ ,-vkj- nos dh ihB us Qksje 'kkfiax ij vizlUurk O;Dr dj pqdh gSaA ihB us muds vf/koDrk ls Li"V dgk Fkk ^^csap gsfVx dh dksf'k'kksa dks jksdus dh ofj"B odhy dh crkSj dksVZ vf/kdkjh ds :i esa Hkh ftEesnkjh gS**A
bu izdk.kksa dk fo'ys"k.k djus ij ,d ofj"B vf/koDrk }kjk vkMZj ikus ds fy, dgh ,d ckr ;kn vkrh gS ^^igys QSDV gSej djks dke u cus rks ykW gSej djks mlls Hkh u gks rks Mk;l gSej djks vkSj rc Hkh lQyrk u feys rks ihBlhu dks Iyht djks vkSj ;fn ;g Hkh foQy gks rks mls ,D;wt djds viuk dsl mlds ikl ls gVok yks**

oSls ;g Hkh loZfofnr gS fd vf/kdka'k oknh mPp U;k;ky;ksa ,oa mPpre U;k;ky; esa csap ds fglkc ls odhy fu;qDr djus dk iz;kl djrs gSa bldk izek.k gS fd dqN odhyksa dh Qkbfyax dqN [kkl csapt esa gh gksrh gSA U;k; ikfydk dk lEeku o xfjek cpkus ds fy, vko';d gS fd Qksje 'kkfiax@csap gkfVax@ csap izsQjsUl dks jkdus ds fy, dkjxj dne mBk;k tk;sA

Last Updated on Monday, 01 June 2015 14:03

मुख्य न्यायाधीश इलाहाबाद उच्च न्यायालय


iwr ds ikao ikyus esa fn[k tkrs gSa ;s eqgkojk bykgkckn mPp U;k;ky; ds eq[; U;k;k/kh'k MkW- tfLVl /kuUt; ;'koUr pUnzpwM ij fcYdqy fQV cSBrk gSA ns'k ds lcls cM s fdUrq leL;kxzLr izns'k ds lcls cM s mPp U;k;ky; dk eq[; U;k;k/kh'k cuus ds ckn mUgksaus ftl izdkj ds O;ogkj] dk;Z'kSyh dk ifjp; fn;k gS og muds mnkj ân;] lqfu;ksftr fopkj] ekufld n`< rk vkSj U;k; dh vo/kkj.kk dks iwjk djus ds fy, ladfYir gksus dk ifjpk;d gSA
ifjikVh ds vuqlkj muds ;gka vkus ds ckn Lokxr dk tks flyflyk 'kq# gqvk mlds lEcks/kuksa esa tks fouezrk >ydh mlus mudks bl vYi vof/k esa ¼fufgr LokfFkZ;ksa dks NksM dj½ lHkh oxksZa] ;Fkk vf/koDrk] U;k;ewfrZ] U;kf;d vf/kdkjh] fof/kf'k{kdksa] fof/k ds fo|kfFkZ;ksa esa leku:i ls yksdfiz; cuk;kA v/khuLFk U;k;ky; ds U;kf;d vf/kdkfj;ksa ds }kjk vk;ksftr lekjksg esa ;g dguk fd viuh leL;k vki lh/ks gesa crk,a ysfdu Integrity ij ge dksbZ le>kSrk ugha djsaxs ,d lq[kn psrkouh gS rFkk vf/koDrkvksa] ckj ,lksfl;s'kuksa }kjk vk;ksftr lekjksgksa esa twfu;j ,MokdsV~l dks lquokbZ ds nkSjku vf/kd le; nsus dk ckr dguk u;h ih< h dks izksRlkgu gS&

"I must tell from bottom of my heart that the greatest satisfaction which I have had as a Judge were those simple cases where a pension has been denied, where a widow has not been provided for rehabilitation in a slum demolition scheme, where a seniority of the teacher in a primary school has not been fixed. Those are ultimately the cases which give greatest satisfaction to a Judge, because in the balance sheet of life, and at some time we all have to confront the balance sheet of life, online casino I think that is what counts in the end in respect of what we have done. ..

..But in the effort to run through the docket, you must not do injustice to the little case which is before you on that particular occasion. ...

....But we also know that while there can be no guarantee of result lawyers are accountable to their clients. And one of the greatest sources of accountability to the client is that he be told that the case will be heard on the appointed day; that you will not have to go home disappointed; that you will not have to catch the public transport again and again for a case not to be heard. I feel that it is important for us to bring a sense of professionalism into our institution so that we value not only our time as Judges, we value not only time of lawyers, but we also value the time of our litigants, the Farmers, who come knocking the doors of our Courts. We have to be deeply conscious of the fact that the day lost to them in the transport to the Court is a day valuably lost in the pursuit of their humble avocation. ..

---I believe Michelle Moston, deputy head of the fraud and integrity team at the driving record Standards Agency (DSA), said: "This case clearly demonstrates the reason why anyone who is paying for driving tuition must ensure that their instructor is an Approved driving record Instructor (ADI). that authority is to be something which is to be respected by others, authority is not something which is to be commanded by the person who is the holder of the public office of trust. Judges and members of the Bars exist for litigants."

egkf/koDrk vkSj ckj ds v/;{k }kjk bafxr djus ij ttksa ds fu;qDr ij ;g dguk fd "---that was something which I addressed as a Senior Judge of the Bombay High Court in the collegium and we tried to bring into the Bombay High Court a sense of inclusion, a sense of diversity; underlining at the same time that merit and merit alone must be the overall criterian for selection to the Bench.

dksVZ :e esa ;kfpdkvksa dh lquokbZ ds nkSjku dqN leL;k mRiknd vf/koDrkvksa (difficult lawyers) us tc muds /kS;Z] fouezrk dh ijh{kk ysus dk iz;kl fd;k rks mUgksaus O;ogkjxr fouezrk ,oa la;e dk ifjp; nsus ds lkFk&lkFk viuh ekufld n`< rk dk ifjp; nsus ds fy,] bl laLFkk dh xfjek o lEeku dks cuk, j[kus ds fy, tks fu.kZ; fn;k og ;g crkus ds fy, i;kZIr gS fd fouezrk o la;e dks mudh detksjh u le>k tk;A

eq[; U;k;k/kh'k cgqeq[kh izfrHkk o cgqvk;keh O;fDrRo ds /kuh gSaA lsaV LVhQsu dkyst fnYyh ls Lukrd gksdj fnYyh fo'ofo|ky; ls ,y,y-ch- dh rFkk fo'o izfl) gkoZM fo'ofo|ky; ls ,y,y-,e- djus ds ckn blh fo'ofo|ky; ls Juridicial Sciences (S.J.D.) ls Ph.D. dh mikf/k xzg.k dhA odkyr ds flfoy i{k esa egkjkr gkfly djus ds i'pkr Hkkjr ljdkj us 1998 esa ,fM'kuy lksfyflVj tujy fu;qDr fd;kA 29 ekpZ 2000 dks ckEcs mPp U;k;ky; esa ,fM'kuy tt fu;qDr gksus ds ckn vius nkf;Ro dk fuoZgu dq'kyrk iwoZd dj jgs gSaA fu.kZ;ksa dk Li"V ,oa Øec) ys[ku vkidh fo'ks"krk gS ftldks i< us vkSj le>us esa vkuUn dh vuqHkwfr gksrh gSA

Last Updated on Friday, 20 March 2015 01:45

राजनीतिक शुद्धीकरण की ध्वजवाहक बनी


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Last Updated on Sunday, 05 April 2015 12:17

वृहद पीठ ने मुख्य न्यायाधीश की मनमर्जी पर रोक लगायी


bykgkckn mPp U;k;ky; dh ikap lnL;h; ¼ek- U;k;ewfrZ ,y-ds- egkik=k] U;k;ewfrZ lquhy vEcokuh] U;k;ewfrZ ,-ih- 'kkgh] U;k;ewfrZ Hkkjrh lizw] U;k;ewfrZ eukst feJk½ o`gn ihB us prqFkZ deZpkfj;ksa ,oa Mªkbojksa dh fu;qfDr ,oa fofu;ferhdj.k ds lsok laca/kh ekeys esa tufgr ;kfpdk Lohdkj djrs gq, eq[; U;k;k/kh'k dks lafo/kku ds }kjk vuqPNsn 229 esa nh x;h 'kfDr;ksa dks O;k[;kf;r djrs gq, mudh euethZ ij vadq'k yxkrs gq, vo/kkfjr dj fn;k gS fd eq[; U;k;k/kh'k euekus rkSj ij budks fu;qDr ,oa fofu;fer ugha dj ldrsA eq[; U;k;k/kh'k dks fu;qDr djus dk vf/kdkj lafo/kku ds vuqPNsn 14 o 16 lifBr bykgkckn mPp U;k;ky; vf/kdkjh ,oa deZpkjh ¼daMh'ku vkWQ lfoZl ,aM daMDV½ fu;e 1976 ,oa bykgkckn mPp U;k;ky; LVkQ dkj MªkbolZ ¼d.Mh'ku vkWQ lfoZl ,aM d.MDV½ fu;e 2000 ds v/khu gksxkA

Kkr gks fd 2004 esa prqFkZ deZpkfj;ksa ,oa pkydksa dh fu;qfDr;ka rRdkyhu dk;Zokgd eq[; U;k;k/kh'k us vkuu&Qkuu esa fcuk foKkiu izdkf'kr djk;s fu;eksa dks njfdukj djrs gq, dj nh Fkh ftl ij nks U;k;ewfrZ;ksa dh ihB us tufgr ;kfpdk ds :i esa Lor% laKku ysdj 17-12-2004 dks vkns'k ikfjr fd;kA

“It has been brought to our notice that 355 posts of class IV employees have been sanctioned by the State Government on 10.12.2004 and the process of regularisation of casual labourers, daily wage employees and daily wage drivers has been completed within 3 days. It has also been brought to our notice that out of 355 posts, 192 posts have been earmarked for Lucknow Bench. It is surprising that about 19 Judges hold court at Lucknow and about 56 Judges are at Allahabad, but the number of daily wage class IV employees is alarmingly very high at Lucknow than at Allahabad. It is not known how these persons have been recruited and appointed as daily wagers etc. and who was responsible for their recruitment. We have also been informed that 7 daily wage class IV employees at Allahabad have not been regularized on the ground that they are over age. In the past the persons engaged as daily wagers, who were appointed by the Judges, have been regularized even though they were over age. It is also surprising that these seven daily wagers have not been regularized. Further in the cadre of drivers also we notice that only 7 drivers are being regularized at Allahabad whereas 16 drivers are being regularized at Lucknow Bench.

We have also been informed that persons have been appointed on class-III posts though no employee could be appointed on ad hoc basis without there being any written examination. It has also come to our notice that there is also mal-practice in the allotment of quarters to class IV employees working in the High Court, which is being allotted out of turn without considering the seniority of employees. Even daily wagers had been allotted quarters.

We have taken suo moto cognizance of the matter in public interest and the registry is directed to allot a number to this case. We called for the Registrar General of this Court, but we were informed by Sri G.K. Chaturvedi, Registrar (Budget) that he had already proceeded to Lucknow.

The Registrar General and Registrar, Lucknow Bench, are directed to place the entire records of Allahabad as well as of the Lucknow Bench of all daily wagers, casual labourers and class III ad hoc employees, as directed  above, before us on 20.12.2004.

Considering the entire facts and circumstances narrated above, until further orders of this Court, regularization of 355 class IV employees viz. Casual labourers, daily labourers and daily wage drivers made by the High Court pursuant to sanction of 355 posts by order of the State Government dated 10.12.2004 shall remain stayed. Till this matter is decided, no appointment of daily wage employees or casual labourers shall be made.

Sri G.K. Chaturvedi, Registrar (B) is directed to inform the order passed by us to the Registrar General today. The Registrar General shall also bring this order to the notice of Hon'ble the Acting Chief Justice.

Sd/- Hon. V.M. Sahai, J
Sd/- Hon. Tarun Agarwala, J
Dt. 17.12.04”

mDr vkns'k ds dk;Zokgd eq[; U;k;k/kh'k ds laKku esa vkus ij mUgksaus 18-12-2004 dks ,d iz'kklfud vkns'k ikfjr djrs gq, fy[kk& “O R D E R

(In Re: Regularisation of Class IV employees of High Court)

“I have perused the order dated 17.12.2004 passed by a Division Bench of this Court comprising of Hon. V.M. Sahai and Hon. Tarun Agrawala, JJ, which as directed by the said Bench was placed before me by the Registrar General of the Court.

A perusal of the said order would show that the Division Bench has directed the Registrar General and the Registrar, Lucknow Bench, Lucknow, to place the entire records of Allahabad and Lucknow of all daily wagers, casual labourers and class-III ad-hoc employees before them on 20.12.2004. .......

In the circumstances, I withdraw the case (in Re: Regularisation of class IV employees of High Court) from the Division Bench of Hon. V.M. Sahai and Hon. Tarun Agrawala, JJ. Considering the importance of the matter and the issues raised in the order dated 17.12.2004 passed by the said Bench including the jurisdiction of a Division Bench of the High Court of suo motu taking cognizance as a Public Interest Litigation, I assign it to a larger Bench comprising of:- (1) Hon. S.R. Alam, J (2) Hon. Pradeep Kant, J (3) Hon. U.K. Dhaon, J (4) Hon. Sushil Harkauli J and (5) Hon. Khem Karan, J.

The larger Bench shall hear the case on 20.12.2004, at 10.00 a.m., at Allahabad. The relevant records stipulated in the order dated 17.12.2004 shall be produced by the Registrar General and the Registrar, Lucknow Bench, Lucknow before it.”

fnukad 20-04-2004 dks dk;Zokgd eq[; U;k;k/kh'k }kjk xfBr o`gn ihB us vkns'k ikfjr fd;k&“We have heard Sri Sudhir Agarwal, learned Additional Advocate General, who has appeared on behalf of the High Court. We have also perused the order of the learned Division Bench dated 17th December, 2004.

Having considered the questions involved and the issues raised in the order of the Division Bench under reference, we are of the view that no interim order was required to be passed by the learned Division Bench. We, therefore, discharge and vacate the interim order dated 17th December, 2004 passed by the Division Bench. It is, accordingly, provided that the process for regularisation/regular appointment/absorption of Class-IV Employees may be completed which would be subject to the final orders of this case.

Sri Agarwal, learned Additional Advocate General appearing for the Allahabad High Court may file detailed report. The question regarding maintainability of the writ petition and taking suo moto cognizance in the facts and circumstances of the case as appears from the order of the learned Division Bench shall also be considered on the next date.

List the matter on 21.1.2005.”

o`gn ihB ds bl vkns'k ds ckn ;g dsl yxHkx lkr o"kksZa rd cLrk [kkeks'kh eas Mky fn;k x;k vkSj bldh vkM esa le;&le; ij fu;qfDr;ka ,oa fofu;ferhdj.k cnLrwj tkjh jgkA yxHkx 8 o"kksZa ckn ihB ds iquZxBu ds mijkUr eSVj ds 14-05-2012 dks lquokbZ ds fy, lwphc) gksus ij mPp U;k;ky; ds vf/koDrk us 20-12-2004 ds vkns'k ds vuqikyu ds laca/k esa fjiksVZ izLrqr djus ds fy, le; ekaxk rFkk ckn esa 20-12-2004 ,oa 14-05-12 ds vkns'k ds vuqikyu esa fjiksVZ izLrqr dhA

izLrqr 'kiFk i=ksa ,oa fjiksVZ ij xkSj djus ds ckn o`gn ihB us fy[kk& "...From the facts on record as contained in the reports and affidavits that we have traversed; it would not be unsafe to assume that there had been no honest attempt to diagnose the infirmities that have seeped into the system primarily on account of non-observance of the statutory rules namely the 1976 and 2000 Rules referred to hereinabove. They have been observed partially but mostly there has been a breach thereof. The fact of non-observance of the rules is admitted in para 13 of the affidavit dated 16.8.2012 which has been extracted and dealt with hereinafter.

There does not appear to be any serious exercise having been undertaken prior to these proceedings by the High Court in the past two decades for laying down a blue print to define the requirement of the infrastructural Class IV staff for catering to the various requirements of the High Court. The staffing pattern and the structure, department wise, that may indicate the actual or approximate requirement, does not appear to have been investigated or analysed. Daily Labourers and Casual Labourers have been conveniently introduced followed by attempts to regularize them under the powers of Hon'ble the Chief Justice enshrined under Article 229 of the Constitution of India.

Appointments have been made against Class IV posts as and when the necessity arose or as and when the powers were invoked under Article 229 or under the residuary powers and extraordinary powers preserved with Hon'ble the Chief Justice under Rule 41 and Rule 45 of the 1976 Rules. A similar position emerges in relation to the drivers under the 2000 Rules where also the same provisions exist. Orders were passed by Hon'ble the Chief Justice either himself or even at times on the recommendations of Hon'ble Judges. Regular appointments through such methods became a routine.

The State Government has been sanctioning posts from time to time that have been filled up by the High Court to meet various exigencies. The procedure however adopted indicates an improper method of discretion being exercised when the rules specify a particular mode to be adopted. It is these disturbing facts that led to the suo motu cognizance of this matter by the Division Bench that was referred to be heard like a public interest litigation."

mPp U;k;ky; us bl dsl esa ,d vkSj egRoiw.kZ fcUnq fu.khZr djrs gq, lsok ekeyksa esa tufgr ;kfpdk dh iks";rk dks vo/kkfrjr djrs gq, dgk& ....."The cognizance of a public interest litigation can be taken if the initiation is pro bono publico. The issue involved relates to public employment on the establishment of one of the organs of the State namely the Judiciary. The powers, in so far as the High Court is concerned, for controlling the service conditions of its employees vests in the Chief Justice of the High Court as per Article 229 of the Constitution of India. The power therefore has to be exercised in the interest of the institution and for its smooth running. There cannot be any doubt that the employment of Class IV employees in the High Court therefore falls within the definition of public employment. Such employment therefore has to be made under Rules and under Orders of the competent authority. The question of exercise of such powers in public interest and in the larger interest of the institution is what with which this reference is concerned.

The present case is not one of adversarial litigation. It is to streamline the use of the powers conferred under the Constitution, and the rules framed thereunder. The reference has been made to rectify a genuine wrong that has crept into the system and therefore a public interest litigation is the right method that can be utilized in order to establish transparency and credibility of the institution.

We are aware that in service matters public interest litigations are rarely admissible and the guidelines that have been framed for dealing with public interest litigation have been laid down from time to time. In the instant case it is no citizen of this country who has come up before the court and who has to satisfy us about his locus-standi. Here the High Court on the judicial side itself has taken cognizance for redeeming its past and setting its own house in order. It is not the bonafides of any individual that are to be tested but it is the cause of the High Court itself that has been noticed by the Judges for resolving an intricate problem relating to the workforce of the High Court. Public interest in the present matter has to be viewed from the angle of a public image namely the interest of an average citizen."

mPp U;k;ky; ds lsok lacaf/kr ekeyksa esa eq[; U;k;k/kh'k dh 'kfDr;ksa ds ckjs esa ihB us dgk& "The Chief Justice of a High Court has the authority and his supremacy has been acknowledged in matters of employment on the Establishment of the High Court through several decisions of the apex court.

.....The question is, how is this power to be exercised, and the limitations if any. The exercise of powers cannot be unguided or unbridled. There is no authority under the Constitution, who has not been specified the extent of the powers conferred, hedged with its limitations. To our mind, the powers are subject to the limitations being exercised not beyond the purpose for which they have been conferred. The powers are to be exercised within the framework of the Constitution.

This being the position, the powers cannot be exercised in violation of the basic structure of the Constitution of India of which the chapter of fundamental rights is one of the limitations. The reason is that our country is a democracy that is governed by rule of law. It is the supremacy of law that is acknowledged in order to supervise the functioning of the governmental set up. The doctrine of separation of powers between the organs of the State and the doctrine of distribution of powers within the authorities under the Constitution are therefore subject to the rule of law. The apex court has time and again ruled that the absence  of arbitrariness is the essence of rule of law and therefore the powers have to be canalised and not unbridled, so as to breach the basic structure of the constitution, particularly the fundamental rights guaranteed under Part III of the Constitution of India.

It need not be pointed out by us that in matters of public employment what keeps on being discussed by courts, is the infringement of the fundamental rights guaranteed under Article 14 and 16 of the Constitution of India. Equality of opportunity in matters of employment being a constitutional mandate, has to be observed even if the powers are being exercised by the Chief Justice under Article 229 of the Constitution of India and the rules framed thereunder.

In our opinion howsoever supreme the authority of the Chief Justice may be, the same is subject to judicial scrutiny on the anvil of Fundamental Rights of Part III of the Constitution as well as the rules framed by the authority under the constitutional provisions. The unquestionable authority is always subject to the authority of the Constitution. The Chief Justice under Article 229 of the Constitution read with the rules framed thereunder does not act as an extra constitutional authority. To the contrary he derives his powers under the same constitution which guarantees the fundamental rights to the citizens of this country. We therefore are of the opinion that the exercise of such powers, with its limitations, is subject to judicial review on the abovementioned parameters. We are fortified in our view by the ratio of the decisions in the case of H.C. Puttaswamy and others Vs. The Hon'ble Chief Justice, Bangalore and others reported in 1991 Supp (2) SCC 421 and the latest Als je online speelt, zul je ontdekken dat er veel meer mogelijkheden zijn wat betreft het aantal en soorten spellen . decision of the apex court in the case of State of West Bengal and others Vs. Devasis Mukherji and others reported in 2011 JT (11) Pg. 1.

We have been reminded of the decisions in the case of High Court of Judicature for Rajasthan Vs. Ramesh Chandra Paliwal and another reported in 1998 (3) SCC 72, and it has been urged by the High Court that such powers cannot be questioned by any Judge or the number of Judges on the administrative side. The powers of the Chief Justice as culled out therein and then subsequently asserted more vehemently in the case of High Court of Judicature at Allahabad Vs. Diwakar Singh reported at the interim stage in 2010 (4) ADJ 584 and finally in 2010 (9) ADJ Pg. 292 and the division bench judgment in Special Appeal No. 563 of 2008 decided on 20th of September, 2011 Hon'ble High Court of Judicature at Allahabad through its Registrar Vs. Devendra Kumar Pandey and others [2011 (9) ADJ Pg. 385] have been heavily relied on. We are therefore under an obligation to answer the submission as to the impact of the same on the issues presently raised.

We have gone through these decisions as well as other decisions relied on, but at the same time it would be appropriate for us to point out that the issue that has been raised, and has come up for consideration before us, had already been visualized long back in the year 1993 when a learned single judge had issued directions for the regularisation of Class IV Daily and Casual Labourers against permanent posts that came up casino online for consideration in Special Appeal No. 269 of 1993 decided on 22.9.1993 State of U.P. Vs. Class IV Employees Association, High Court of Judicature at Allahabad reported in 1993 (3) U.P.L.B.E.C. Pg. 2083.

From the facts that have been set out in the various affidavits and the reports on record, we did not find any exercise worth the name in the present matter to have been undertaken by the High Court to sort out this problem of defining the structure of the staffing pattern of the High Court in correct perspective as visualized as far back as in 1993 in the aforesaid decision which however has now been attempted during the pendency of these proceedings on our insistence.

The High Court seems to be more concerned with the powers of the Chief Justice and its exercise thereof with its unquestionable discretion. We, having carefully examined the same, are unable to subscribe to the view of the high pedestal on which it has been placed, both in the decisions of the Full Bench in the case of High Court of Judicature Vs. Diwakar Singh (supra) and the division bench judgment in the case of Hon'ble High Court of Judicature Vs. Devendra Kumar Pandey (supra). The logic given in both judgments is palpably at odds with the purpose. To our mind it would be perilous to risk an interpretation on the parameters of absolute superior powers that would be fraught with danger, as it involves the management and administration of one of the main organs of governmental function, that too even of the most essential component of governance – the judiciary.

The reason is the supremacy of the rule of law – its paramount majesty in which the people of this country have reposed their faith while accepting the declaration in the opening words of the preamble 'We the people of India…...give to ourselves....”. The other reason is that this faith in the “sense of justice” and its administration, is founded on the obligation cast on this institution as the sole arbiter of laws, to apply the laws correctly and faithfully, so as to rest the logic of law on surer foundations. This creates responsibility on the High Court and its judges including the Chief Justice to administer the laws constitutionally on the judicial side and observe and obey the laws on the administrative side.

The principles governing public employment that flow constitutionally, including the protection of Article 14, have to be observed as held by the apex court in the decisions of Puttaswamy H.C. (supra) and State of West Bengal Vs. Debashish (supra). Thus the exclusive powers residually conferred on the Chief Justice are subject to constitutional controls under Chapter III thereof. It is this part that we wish to emphasize without intending in any way to diminish the authority and powers of the Chief Justice under Article 229 and the rules framed thereunder." ....

..... "Coming to the ratio of the judgment of the division bench in the case of Devendra Kumar Pandey (supra), a sweeping observation has been made that the Chief Justice is empowered under Article 229 (2) to make appointments as per rules and therefore the appointment cannot be illegal or irregular. This presumptive proposition has been culled out by placing reliance on the judgment of the apex court in the case of M. Gurumoorthy (supra). Further the bench has observed that if the Chief Justice has taken a decision to appoint some persons to serve the High Court, it can be presupposed that it has been consciously done for the benefit of the institution and faith is required to be reposed by all judges in the Chief Justice as he being the head of the institution is definitely worried about the necessity of appointments. It has been observed that if the Chief Justice is under a pressure of workload, he cannot be debarred from making appointments. According to the bench, it is absurd to believe that the Chief Justice would be swayed away by favouritism and any criticism should be avoided.

Having given our thoughtful considerations, but with due deference to the aforesaid observations of the full bench in Diwakar Singh's case and the division bench judgment in the case of High Court Vs. Devendra Kumar Pandey (supra), we are the least persuaded to approve the same. The pronouncement appears to be authoritative but it lacks the substance of consideration of Article 14 and Article 16 of the Constitution of India. Howsoever high a dignitary may be, once the power conferred is governed by the Constitution, the laws made thereunder and the rules framed, then the authority is bound to act within the rules and not ascribe to himself an authority to act beyond it or else the exercise of power will be a camouflage to act arbitrarily in the solemn name of discretion.

The higher the dignitary, the more objectivity is expected to be observed. This does not mean that the power should be curtailed, but at the same time it should be stretched only to the width of the constitutional and legal limits. The observance of law has to be calibrated – doing what you need to, no more no less. The presumption and the presupposition of the validity of orders on the administrative side are dependant on the alleged constitutional violation and its judicial scrutiny. They are not immune to law nor to judicial review. The residuary powers of the Chief Justice under Rule 8, Rule 41 and Rule 45 of the 1976 Rules and similar powers under the 2000 Rules are supposed to be exercised notwithstanding contained in the rules, but the same cannot be construed to mean notwithstanding the fundamental rights and obligations under the Constitution. Giving the interpretation as suggested by the said decisions would belittle the esteem of the office of the Chief Justice thereby reducing its respect.

We would like to clarify that the observations made by the Division Bench in the case of High Court of Judicature at Allahabad Vs. Devendra Kumar Pandey (supra) to the effect that Uma Devi's case has not touched the ratio of the decision of the Apex Court in the Constitution Bench judgment of M. Gurumoorthy (supra) is not correctly stated in the context of the Division Bench judgment, inasmuch as the decision in the case of M. Gurumoorthy only spells out the powers of the Chief Justice but the same does not in any way hold that the Chief Justice can exercise powers that may run-counter to Articles 14 and 16 of the Constitution while making appointments in the establishment of the High Court. Consequently, the case of Uma Devi (supra) is a decision on the limitations prescribed while making appointment against public posts in terms of Articles 14 and 16 of the Constitution of India. What Uma Devi's case has deprecated is back door appointment or appointment de-hors the Rules. The present is clearly a case which involves these issues and, therefore, the reliance by the learned Counsel for the High Court on the Division Bench judgement seeking to clarify the ratio of Uma Devi's case is misplaced.

The question relating to the rules for employment that are to be framed in respect of Class IV employees and drivers flow from the powers under Article 229 of the Constitution of India. The powers of the Chief Justice, and the judgements relating thereto, have already been noticed by us that indicate that the exercise of such powers are subject to the limitations of Article 14 and 16 of the Constitution of India."

mPp U;k;ky; }kjk fu;eksa ij fopkj djds fu;qfDr;ka djus ds ckjs esa Lo;a izfr mÙkj 'kiFki= esa Lohdkj djus ds ckjs esa rFkk foKkiu u izdkf'kr gksus ds ckjs esa ihB us dgk& ...."To our mind, the said rules, if put to test on the anvil of Articles 14 and 16, run the risk of being struck down of being violative of Articles 14 and 16 of the Constitution of India as it amounts to virtually reserving the posts for recruitment only from amongst the Daily Labourers already engaged by the High Court. If this method is permitted then Daily Labourers would be perennially available and no Class-IV posts or the post of drivers would ever be advertised for direct recruitment from the open market. The aforesaid provisos were added vide Notification dated 10.10.2002 prior to the decision in the case of Uma Devi (supra). The Rules are not under challenge but we have to pronounce upon the source and method of recruitment under the proviso to Rule 4 (a) and Rule 14 in view of the submissions that have been raised on behalf of the High Court.

In our considered opinion, interpreting the Rules as aforesaid would also save the Rules from being declared ultra vires and would simultaneously protect its operation within the fold of Articles 14 and 16. Rule 25 of the 1976 Rules and Rule 8 of the 2000 Rules clearly mandate an advertisement to be made for the public at large to know about the vacancies so that eligible candidates may apply. With there being no advertisement, the others can never get an entry. If the method of recruitment as suggested in the proviso is adhered too, then no situation would arrive for inviting applications through the Employment Exchange or from the general public as is evident from the experience of the past and presently reflected in all the reports of the High Court. We are fortified in our view from the said fact having been admitted by the High Court in para 13 of the affidavit dated 16.8.2012 extracted hereinunder:-

“13. It is submitted that no specific procedure has been laid down in the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976 for the appointment to the post of Class IV employees. While the Rule 7 of the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976 says that the post of Jamadar, Daftari & Bundle lifter or Head Mali of the promotional post.

It appears that to fill up the permanent and temporary vacancies of class IV employees in the establishment of Allahabad High Court, no regular procedure, viz, advertisement and taking some test/examination and making provision for reservation, etc., has been observed. Perhaps because of the reason that this procedure was cumbersome, hence, to meet the exigencies D.L., C.L., D.L. (Drivers) have been appointed by the Hon'ble Chief Justice, who were thereafter given preference in regularization to the class IV post for which rule 4 (a) of the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976, empowers the Hon'ble Chief Justice.”

The said facts had also been reiterated in the affidavits filed by the Registrar before the learned Single Judges in the case of Radhey Shyam Tiwari (supra) and Diwakar Singh (supra).

It is for this reason that in the entire history of 137 years of the High Court that no advertisement was made particularly after 1976 in the post constitution period when the Rules were framed and adopted. The rules appear to have gone unnoticed.

....... The most important rule that attains significance in the present dispute is Rule 45 which opens with a non-obstante-clause empowering the Chief Justice to make such orders as he may consider fit in respect of recruitment, promotion, confirmation or any other matter.

It is in this context that the powers of the Chief Justice under Article 229 of the Constitution of India and Rules 41 and 45 of the 1976 Rules have to be considered. To our mind, Rule 41 and 45 are powers available to be utilised when the smooth implementation of the Rules get impeded. They are not as a substitute for the rules of regular employment. They are to remove rare and occasional difficulties. We have already indicated that Rule 41 and Rule 45 coupled with the powers under Article 229 are subject to Articles 14 and 16 of the Constitution of India. To this extent, we have already indicated that the interim order and the judgment of the full bench in the case of High Court of Judicature at Allahabad Vs. Diwaker Singh (supra) has not explained the law correctly.

Secondly the process of regular appointment through advertisement or through the known methods of public employment was not followed. Even if preference was to be given to the existing daily labourers/ casual labourers/ DL drivers, the same ought to have been after an advertisement as per Rule 25 of the 1976 Rules and Rule 8 of the 2000 Rules. The entire exercise was completed within three days which fact remains undisputed. The regularisation is sought to be justified on the basis of the Class IV Employees Association case (supra) of the year 1993 where directions had been given by the division bench to undertake this exercise on the basis of the guidelines mentioned therein. Consequently, the posts that were created in 2004 and the method of recruitment of such employees who were regularised was sought to be protected in terms of the proviso to Rule 4(a) and Rule 14 that came to be added on 10th October, 2002 coupled with the 1993 judgment referred to hereinabove.

We have carefully examined all the affidavits that have been filed and it is evident that all the appointments that were sought to be regularised prior to sanction of the post on 10th December, 2004 had been made by engaging daily labourers and casual labourers including the post of Drivers without following the procedure prescribed for recruitment under Part-VII of the 1976 Rules, particularly, Rule 25 and Rule 8 of the 2000 Rules which mandates the calculation of the age of the candidate to be not less than 18 years and not more than 35 years for a Class IV post on the 1st day of July of the year in which the advertisement is published. We would like to emphasise the words “advertisement is published” which leaves no room for doubt that after the promulgation of the 1976 and 2000 Rules an appointment has to be made only after an advertisement. It would not be a futile repetition to say that no advertisement was ever made in the High Court for appointment on the post of a Class IV employee or a driver, except for one insignificant advertisement at Lucknow in 2011 that we have noted in this judgment. No other advertisement for such engagement was ever made either at the principal seat at Allahabad or at the bench at Lucknow including their appointments in 2004 presently involved.

We have examined the 1976 and 2000 Rules carefully but we do not find any separate provision for regularisation of such engagements that have been made and are presently involved."

bu fu;qfDr;ksa ds fy, vkuu&Qkuu esa fjiksVZ rS;kj djus ds ckjs esa ihB us dh fd& ........"It is on the strength of such guidelines that steps were undertaken to extend the benefit of regularisation in the past. The aforesaid judgement came to be implemented when 500 posts were sanctioned way back vide Government Order dated 5.12.1995 against the request of the High Court to sanction 855 posts.

In addition to those posts, 355 posts were subsequently sanctioned on 10.12.2004 which is subject matter of present controversy where again the aforesaid judgment appears to have been pressed into service keeping in view the 1976 and 2000 Rules. It is worth mentioning that when 855 posts were demanded and only 500 posts were sanctioned in 1995, a proposal approved by Hon'ble the Chief Justice on 5.3.1994 was sent to the State Government reflecting the position that existed then.

In the instant case, when the Hon'ble Acting Chief Justice passed orders on 13.12.2004, a proposal was submitted and an exercise was undertaken for interviewing about 150 Daily Labourers and Casual Labourers to assess their performance appraisal on 13.12.2004 in tune with the judgment in the case of State of U.P. Vs. Class-IV Employees Association. It was also stated in the report then that when 500 posts were sanctioned in 1995, a Committee comprising of the then Hon'ble Judges (Mr.Justice A.K. Banerjee and Mr. Justice S.R. Singh) had regularised Daily Labourers and Casual Labourers on the basis of number of working days coupled with the assessment of their work appraisal. The report in the present case that was prepared and submitted on 14.12.2004 and accompanies the Affidavit dated 23.7.2013, indicates that the assessment was carried out on the same day and on 14.12.2004, the same was also approved by Hon'ble the Acting Chief Justice.

To our mind, such an exercise, within 24 hours that was carried out, does not conform to any serious exercise having been undertaken in terms of the judgment of 1993 referred to herein above and the conditions mentioned therein.

The issue that still remains to be answered by us is the issue of regularisation. After the Division Bench judgment in the case of State of U.P. Vs. Class-IV Employees Association (supra), the law on this issue went a sea change with the pronouncement of the Apex Court from time to time. The judgment, which stares at the face of such claims of regularisation in matters of public employment, is the leading case of Secretary, State of Karnataka and others Vs. Uma Devi (3) and others, (2006)4 SCC 1. Practically for all purposes appointments without following the Rules and described as back door entries were clearly deprecated and it was held that no such rights exists for being enforced in view of the clear mandate of Articles 14 and 16 of the Constitution of India. The ratio of the said decision has been spelled out in paragraph Nos. 43 to 54 of the said judgment. If the ratio of the said decision is applied herein, then the observations made in the Division Bench judgment in the case of State of U.P. Vs. Class-IV Employees Association (supra) would stand diluted. In the said 17.12.2004 need not be re-opened by us in view of the aforesaid ratio of the Apex Court but the Division Bench judgment of 1993 of our Court now cannot be pressed into service for an exercise of any further regularisation.

So far as the appointments and orders of regularisation made after 17.12.2004 are concerned, the same have been made subject to the orders of the present proceedings as per the order dated 20.12.2004 itself. Such appointments and regularisation or orders that have been made during the pendency of these proceedings, therefore, will have to be judged as per the law laid down in the case of Uma Devi (supra) and in the event any such appointment or regularisation orders have been made dehors the rules, the same would not have any legal effect, subject to the directions given hereinafter.

We are, however, not entering into the merits of the regularisation orders of the appointees against the 355 posts sanctioned by the State Government on 10.10.2004 as that are not parties before us, nor their appointment has been assailed or challenged. The Division Bench, while taking cognizance, had commented upon the ratio of the bifurcation as also the procedure for such engagement but in view of the fact that all the 355 appointees are not before us, who were given regular appointments under the orders of Hon'ble the Acting Chief Justice or the Chief Justice we would not like to add anything further in this respect."

deZpkfj;ksa ds mudh fu;r dk;Z ds brj rSukrh ij xaHkhj iz'u [kM k djrs gq, ihB us dh& "There is yet one disturbing feature with regard to actual deployments of Class IV employees as per their categorisation. We find that the deployment is against the structural set up, for e.g. A bhisti being asked to do the job of a peon and a peon being asked to perform the job of a driver.

There are other examples to say the least but what is more astonishing is deployment outside the establishment, particularly at the service of former Judges. The details do not deserve to be recounted with any pride. Apart from this, officers of the establishment who are otherwise not entitled to any such benefit under their statutory service rules have been favoured with such deployment.

2011 esa DL/CL dh fu;qfDr ds izkslsl ij izdk'k Mkyrs gq, ihB us dgk& "It appears that some order dated 14.3.2011 was passed by Hon'ble the Chief Justice as is evident from the order dated 21.1.2012 of the then Registrar at Lucknow for engagement of 12 Daily Labourers and 10 Casual Labourers. Referring to the procedure as approved of a 3 member selection committee for District Judgeship, a report on the basis of the said order of the Chief Justice was submitted indicating a 3 member committee constituted for engagement in the High Court. The said report was entertained by Hon'ble the Senior Judge at Lucknow and approved on 6.4.2011 whereafter the process commenced. It is then that a notice is said to have been published in “Workers Herald” which according to the District Judgeship of Lucknow, and not the High Court, is an approved newspaper. After applications were invited, a similar notice was published in the same newspaper on 17.5.2011 calling upon candidates who had applied to appear in the interview between 24.5.2011 and 28.5.2011. This timing was extended upto 31.5.2011 with the approval of the Senior Judge without any further notice. These facts were borne out from the affidavit and its annexures dated 16.8.2012. The order dated 21.1.2012 reflects approval by the then Senior Judge at Lucknow.

This procedure speaks for itself and the newspaper chosen is an insignificant newspaper and neither a known local daily nor a national daily or a newspaper of wide circulation in the State. It is not understood as to why the Registrar at Lucknow chose to rely on such a list when reputed newspapers of Hindi like “Dainik Jagran”, Amar Ujala, Nav Bharat Times, Hindustan and English dailies like Hindustan Times, Pioneer etc. are all published from Lucknow and are the most widely circulated newspapers throughout the State including Lucknow. The High Court has all the resources of the State to publish advertisements for all appointments as is being done and was also done in the past for all other posts. The Registrar appears to have completed a formality to justify the advertisement which does not inspire any confidence worth mentioning. We are not satisfied with the said procedure and the matter will have to be re-examined de-novo in its entirety including any orders that were required by the competent authority including the Hon'ble Chief Justice. ............

........ We may place on record that according to the affidavits the exercise prior to 2004 had been done by Hon'ble the Chief Justice in 1997 by constituting a two judges committee when 500 posts were sanctioned by the State Government in 1995 to be filled up by regular appointment. The exercise undertaken in 2004 was through the officials of the Registry within three days which deserves to be taken notice of and it is for this reason that the matter was referred to this five judges full bench. We do not in any way intend to mantle ourselves with the authority of carrying out this administrative exercise and our only effort has been to bring on record that such an effort is necessary to be undertaken periodically.

mPp U;k;ky; dks funsZf'kr djrs gq, ihB us dgk& "The date of retirement of employees is well known in advance and therefore the number of vacancies that are likely to occur each year in these cadres is known to the High Court. In our opinion such an exercise should be taken at least every six months in order to ensure that the smooth functioning of the High Court is not hampered on account of non-availability of regular employees. If such an exercise is undertaken honestly any such problem can be safely avoided by providing hands at the appropriate time. To wait till the last moment and then to induct Daily Labourers, who are ensured of a regular appointment by the methods that have been adopted uptill now cannot be said to be a fair procedure and to avoid this, as has been happening in the past, the aforesaid exercise has to be undertaken.

Consequently, we are of the opinion, that the reports which are accompanied with the affidavits should now be given a relook in the light of the principles that we have laid down in the present judgment and then after examining the sanctioned strength, the adjustments to be made in accordance with the ratio currently invoked and the appropriate deployments.

The matter be placed by the Registrar alongwith a comprehensive report for the entire Establishment both at Allahabad and Lucknow before Hon'ble the Chief Justice alongwith a copy of this judgment for setting the process into motion in the light of what has been said above. This exercise may be desirable within a period of three months or even earlier as may be convenient to Hon'ble the Chief Justice for passing appropriate orders. It is only thereafter that the High Court may proceed to make appointments as per rules keeping in view the ratio of this judgment. No appointments of DL/CL/Adhoc/ Temporary/Permanent Class IV employees including drivers shall be made unless the matter is finalized as directed hereinabove and hereinafter.

....... We further direct that the bifurcation shall henceforth be made in the ratio which has been maintained uptill now and indicated above subject to any further modifications that may be required in an administrative exigency.

The requirement of future posts as reflected in the reports shall also be finalized and the matter shall be sent to the State Government for sanction keeping in view the requirements as reflected therein.

The process of regular appointments shall be made in accordance with the 1976 and 2000 Rules read with the interpretation given by us in the present judgment by following the due process of advertisement and fair selection. The Daily Labourer or Casual Labourer engaged by the High Court shall only have a preferential consideration at the time of recruitment and shall not be a permanent source of recruitment for regular appointment. The same would also apply equally to the cadre of Drivers who are governed by the 2000 Rules."

ihB us fookfnr fu;qfDr;ksa ij dgk fd& "The regular appointments through the inducted method as per the proviso to Rule 4(a) and Rule 14 after December, 2004, were made subject to the result of the present proceedings. We accordingly, hold that any appointments de-hors the rules and as indicated hereinabove contrary to the principles laid down in State of Karnataka Vs. Uma Devi's case (supra) can not be treated to be regular appointments.

At the same time we clarify, that by toning severity with leniency, as was finally done by the Apex Court in Puttaswami H.C.'s case (supra), regular engagements already made against the 355 posts shall not be disturbed as the said 355 appointees against the sanctioned posts are not before us. We are simply inclined to be forgiving but the same shall not be treated as a precedent as, to be amiable at the expense of a rule, would be to sacrifice the principle that would defy the constitutional mandate.

.....Having said so we may add for the benefit of the registry that the High Court has to carry its own sack of rocks and a little bit of insight would improve everybody's lot inasmuch as the credibility of any institution depends upon the transparent action of its functionaries. It is for this reason that we have indicated the principles on which the High Court should proceed to put to rest this burden that has been cast on account of the mismanagement as noted by us hereinabove. Our view expressed for undertaking regular exercises every six months would ensure regularity and, therefore, we would lay to rest this decision with the aforesaid directions by remembering Angelique Arnauld who said :-

“Perfection consists not in doing extraordinary things, but in doing ordinary things extraordinarily well. Neglect nothing; the most trivial action may be performed to God.”

bl QSlys us blh U;k;ky; ds iw.kZihB ds QSlys dks iyV fn;k gSSA

Last Updated on Saturday, 27 June 2015 05:36

न्यायिक सक्रियता से खीझी सरकार द्वारा उच्च न्यायपालिका को पंगु बनाने का कुचक्र


mPp U;k;ikfydk dh U;kf;d lfØ;rk ds dkj.k mPpre U;k;ky; o mPp U;k;ky;ksa }kjk fn, x, tufgr] lektfgr o ns'kfgr ds QSlyksa ls lÙkkyksiqi] Hkz"V] csbeku usrk] ny o ljdkjsa] bruk [kh> x;h gSa fd bu tufgrdkjh QSlyksa dks vikLr djus ds fy, dkuwu cukus ij mrj vk;h gSaA

fo/kkf;dk o U;k;ikfydk dk Vdjko dksbZ u;k ugha gS tc&tc U;k;ikfydk us tufgrdkjh fu.kZ; nsdj ljdkj ds pky] pfj=] psgjs ij loky [kM k fd;k gS bu usrkvksa dks ,slh fryfeykgV gqbZ tSls dqÙks dh iwaN ij ikoa iM x;k gks vkSj fujk'kk o grk'kk esa tks izfrfØ;k nsrh gS og f[kfl;kuh fcYyh [kEck ukspus tSlh yxrh gSA

ywVra= esa cny pqds nqfu;k ds lcls cM s ysfdu lcls Hkz"V yksdra= dk ,slk psgjk nqfu;k ds lkeus vk;k gS fd vc rks Hkkjrh; dgykus esa Hkh 'keZ vkrh gSA

mPpre U;k;ky; }kjk jktuhfr ds vijk/khdj.k ij jksd yxk;s tkus okys nks QSlyksa us lHkh nyksa }kjk jktuhfr ds vijk/khdj.k ij igys cgk;s tkus okys ?kfM ;kyh vkalw dh vlfy;r [kksydj lcds psgjs ls LoPN jktuhfr o ikjnf'kZrk dk eq[kkSVk mrkj fn;k gS blls ckS[kyk, vf/kdka'k jktuhfrd ny ,sls bdV~Bs gks x;s tSls ladV ds le; HksM s ,dtqV gks tkrh gSaA

fiNys 66 o"kksZa esa ,d yksdiky fo/ks;d u ikl djk ikus okys ny U;k;ikfydk dks Mjkus] fu;af=r djus o iaxq cukus ds fy, mPp U;k;ky; o mPpre U;k;ky; ds ttst dh fu;qfDr ds fy, vk;ksx cukus dk fcy jkT;lHkk esa is'k fd;k gSA

usrkvksa us viuh Hkz"V ekufldrk dk fuyZTt izn'kZu djrs gq,] viuh rkdr dk cstk bLrseky djrs gq, mPpre U;k;ky; ds fu.kZ; dks izHkkoghu djus ds fy, u flQZ cSd MsV ls dkuwu ykxw djus dh izfØ;k pkyw dj nh gS cfYd ttst dks Mjkus ds fy, mudh fu;qfDr esa ljdkj o nyksa ds usrkvksa ds gLr{ksi dk ekxZ iz'kL= djus dk iz;kl Hkh 'kq# dj fn;k gSA ;g ckr le> ls ijs gS fd yksdiky] efgyk vkj{k.k tSls vusd dkuwuksa ij pqi cSBh usrk blds fy, brus mrkoys D;ksa fn[k jgs gSaA

tc U;k;ky; i{k esa cksyrk gS rks usrk] ljdkj lcdh vkLFkk U;k;ikfydk esa ,sls c< tkrh gS tSls ?ku?kksj ckfjl esa unh esa ikuh vkSj tc U;k;ikfydk ljdkjksa] usrkvksa dh nq[krh jx] v{kerk] Hkz"Vkpkj] vdeZ.;rk ij maxyh j[k nsrh gS rks buds eqag ls U;k;ikfydk ds gn esa jgus dh ,slh ph[k fudyrh gS tSls dqÙks dh iw¡N ij fdlh dk iSj iM x;k gksA

2 th LisDVªe vkoaVu ?kksVkyk] eq[; lrdZrk vk;qDr dh nks"kiw.kZ fu;qfDr] fons'kksa esa tek dkyk/ku] vijk/kh usrkvksa ds pquko yM us ij izfrcU/k] ltk;kQrk tuizfrfuf/k;ksa dh lnu lnL;rk dh lekfIr] ohvkbZih lqj{kk ij coky] lhchvkks dks Lora= djus dh xqgkj] usrkvksa] vQljksa ds in ls gVkus ds chp ,d eghus esa vkokl [kkyh djus ds funsZ'k rFkk dqN vU; ekeyksa esa mPpre U;k;ky; dh lfØ;rk ls vkgr ns'k ds vc rd lcls detksj o Hkz"Vkpkj dks c< kok nsus okys iz/kkuea=h }kjk U;k;ikfydk dks gn esa j[kus dh uh;r ls lafo/kku esa la'kks/ku o ttst dh fu;qfDr ds fy, vk;ksx cukus dk tks fcy yk;k x;k gS] ;g cgl fNM x;h gS fd U;k;ikfydk dh gn D;k gS\ ;g igyk volj ugha gS tc ;g gn ;kn fnykus dh dksf'k'k dh x;h gS blds igys Hkh dbZ volj ,sls vk;s gSa tc ,slh fLFkfr;k¡@ifjfLFkfr;k¡ vkbZ gSaA

gekjk lafo/kku ,d f[kpM h dh rjg gS ftlesa lkr ns'kksa ls mldh vPNh&vPNh ckrksa dks ysdj bls rS;kj fd;k x;k gSA tgk¡ fczVsu esa laln loksZPp gS ogha vesfjdk esa U;k;ikfydk loksZPp gS ysfdu gekjs lafo/kku esa fo/kkf;dk] dk;Zikfydk o U;k;ikfydk ds :i esa rhu izeq[k vax cuk, x, gSa ftlesa lcdh vyx&vyx Hkwfedk fu/kkZfjr gSA lafo/kku ds bu rhuksa vaxksa esa lkeatL; cgqr vko';d gS vU;Fkk laoS/kkfud foQyrk (Constitutional Failure) dk [krjk mRiUu gks tk;sxkA gekjs ns'k esa lafo/kku dh gh lÙkk loksZPp gS] ;gh yksdra= dh og tM gS tgk¡ ls rhuks vax dk;Zikfydk] fo/kkf;dk vkSj U;k;ikfydk viuk bZa/ku ysdj vius vfLrRo dks cpk;s j[ks gaSA

yksdra= esa turk lcls vge gS tc rd lafo/kku cnyk ugha tkrk bl lafo/kku ds fglkc ls rks lc dqN turk }kjk turk ds fy, gh fd;k tk jgk gSA

vktknh ds ckn bu 66 o"kksZa esa lcls vf/kd le; yxHkx 54 o"kZ dkaxsl us gh jkt fd;k gS blfy, U;k; ikfydk ls mldk Vdjko Hkh iqjkuk gSA dkaxzsl dk U;k;ikfydk ls NÙkhl dk vkadM k jgk gSA vktknh ds ckn tc lafo/kku fuekZ.k izfØ;k esa Fkk ml le; Hkh dkaxzsl ds 'kykdk iq#"k iafMr tokgj yky usg: U;k;ikfydk dks cgqr 'kfDr'kkyh cukus ds i{k/kj ugha FksA os laln dks loksZPp cukuk pkgrs FksA gks ldrk gS mldk ,d dkj.k ;g jgk gks fd os fczVsu esa i< s fy[ks blfy, ogk¡ dk izHkko mu ij jgk gks D;ksa fd ogk¡ laln gh loksZPp gSA lafo/kku lHkk esa 6 twu 1949 dks loksZPp U;k;ky; ds vf/kdkjksa ij cgl ds nkSjku iafMr th us dgk Fkk fd laln dh bPNk ij dksbZ loksZPp U;k;ky; ;k dksbZ U;k;ikfydk viuk fu.kZ; ugha Fkksi ldrh ¼'kk;n ml le; muds tsgu esa ;g ckr u vk;h gks fd Hkkjrh;ksa ds vkSj fczVsu ds uSfrd vkSj jk"Vªh; lksp esa D;k QdZ gS½ ysfdu muds fojks/k dks njfdukj djrs gq, lafo/kku lHkk us U;k;kikfydk dks U;kf;d leh{kk dk vf/kdkj ns fn;kA bl vf/kdkj ls U;k;ikfydk dks rhuksa vaxksa ds vf/kdkj {ks= dh lhek,a ?kksf"kr djus vkSj laln }kjk ikfjr fd;s x;s dkuwuksa rFkk dk;Zikfydk ds fu.kZ;ksa dh U;k;f;d leh{kk dk vf/kdkj izkIr gks x;kA

fojks/k dk og flyflyk vkt rd cnLrwj tkjh gSA; iz'u ;g gS fd tc dkaxszl lÙkk esa gksrh gS rHkh U;k;ikfydk ls mldks f'kdk;r D;ksa gksrh gS\ D;k bldk vFkZ ;g fudkyk tk; fd dkaxzsl Lora= U;k;ikfydk dh fojks/kh gS\ bl Vdjko dk ,d dkj.k rks ;g le> esa vkrk gS fd dkaxzsl dh fujadq'k lÙkk ij udsy Mkyus dk dke vc rd U;k;ky;ksa us gh fd;k gS pkgs og vkfVZfdy 356 dk nq#i;ksx gks ;k >kj[k.M ds pquko ds ckn ljdkj xBu dk ekeykA bykgkckn mPp U;k;ky; ds fo}ku U;k;ewfrZ txeksgu yky flUgk dk bafnjk xka/kh dk pquko voS/k ?kksf"kr djus okyk QSlyk rks vkikrdky dk vk/kkj cuk fn;k x;kA mlh le; 38osa la'kks/ku ds tfj;s vkikrdky dh ?kks"k.kk dks U;k;f;d leh{kk dh ifjf/k ls ckgj dj fn;k x;kA 39osa la'kks/ku ds tfj;s loksZPp U;k;ky; ij vkf/kiR; dk;e djuk FkkA bu lcls larq"Vh u feyus ij 42oka lafo/kku la'kks/ku vk;k ftlesa izko/kku dj fn;k x;k fd vc vkxs lafo/kku esa fd, x;s fdlh Hkh la'kks/ku ij dksbZ maxyh ugha mBk ldrkA iafMr tokgj yky usg# dh bPNk dks mudh csVh Jherh bafnjk xka/kh us iwjk dj fn[kk;k fd laln dks lafo/kku esa dqN Hkh djus dk vf/kdkj izkIr gS mldh fdlh Hkh U;k;ky; }kjk U;kf;d leh{kk ugha dh tk ldrh gSA fujadq'k lÙkk us xqaMbZ dk [kqyk izn'kZu djrs gq, U;k;ikfydk dh voekuuk ds lkFk&lkFk mldks /kefd;k¡ Hkh nsus yx x;h FkhaA

1976 esa U;k;y;ksa ij vf'k"Vrk dk vkjksi yxkrs gq, yksd lHkk esa dgk x;k fd lafo/kku mPp o mPpre U;k;ky; dks ;g vf/kdkj ugha nsrk fd fdlh laoS/kkfud lalks/ku dh oS/krk dk ijh{k.k djsa] ^^nqHkkZX; ls vnkyrksa us viuh fu/kkZfjr lhekvksa dk mYya?ku fd;k gS**A ,u-ds-ih- lkYos us dgk fd oDr vk x;k gS tc gesa lafo/kku dks vnkyrksa ls cpkuk gksxkA bruk gh ugha izp.M cgqer izkIr rRdkyhu iz/kkuea=h Jherh bafnjk xka/kh us Lo;a ?kks"k.kk dj nh fd ge ewy <kaps ds fl)kUr dks Lohdkj ugha djrsA ¼Kkr gks fd 1973 esa ds'kokuUn Hkkjrh ekeys esa ekuuh; mPpre U;k;ky; us ewy <kaps ds fl)kUr dks izfrikfnr djrs gq, dgk Fkk& ^^tcfd laln&lafo/kku ds fdlh Hkkx dks la'kksf/kr dj ldrh gS mls lafo/kku ds ewy <kaps esa ifjorZu ugha djuk pkfg,**½ vkSj Lo.kZ flag dh bl ckr dks fd U;k;/kh'kksa us bl okD; dk vk;kr fd;k gS] dks vkSj vkxs c< krs gq, dgk Fkk fd eSa ;g ugha dgwaxh fd U;k;k/kh'kksa us bldk vk;kr fd;k gSA pawfd bldk fdlh vU; lafo/kku esa vfLrRo ugha gS blfy, eSa rks ;gh dgwaxh fd mUgksaus bldk vfo"dkj fd;k gSA Jherh xka/kh ds fdpsu dSfcusV ds ,d vkSj peps lh-,e- LVhQsu us nks dne vkSj vkxs c< rs gq, dgk ^^vc bl laln dk vf/kdkj ?kksf"kr gks x;k gS tks vlhfer gSA la'kks/kuks ds tfj, ikl fd;s x;s dkuwu fdlh Hkh vnkyr dh lhekvksa ls ijs ?kksf"kr fd;s tkrs gSa vc ;g vnkyrksa ds Åij gS fd D;k mUgsa bldk mya?ku djuk pkfg,\ eSa ugha tkurk gw¡ fd D;k muds vanj ,slk djus dk lkgl gksxk] ysfdu ;fn os ,slk djrh gSa] rks tSlk dkuwu ea=h us dgk] og U;k;kikfydk ds fy, ,d [kjkc fnu gksxkA U;k/kh'kksa ds vkpj.k ds tkap ds laca/k esa lnu dh lfefr cSB jgh gS] gekjs ikl vius rkSj&rjhds vkSj e'khujh ekStwn gS**A

dkaxzsl us lke] nke] n.M] Hksn dk bLrseky djds U;k;ikfydk dks vius o'k esa djus dh dbZ ckj dksf'k'k dh vkSj dqN voljksa ij mls mlesa lQyrk Hkh feyh ysfdu vf/kdka'k mls vlQyrk gh gkFk yxh vkt U;k;ikfydk dh n`< rk dk gh ifj.kke gS fd gekjs lafo/kku iznÙk beste online casino ekSfyd vf/kdkj iwjh rkSj ij rks ugha ysfdu dqN gn rd lqjf{kr gSA

bafnjk xka/kh us U;k;ikfydk dks uhpk fn[kkus dk tks flyflyk 'kq: fd;k Fkk jktho xka/kh us Hkh mls tkjh j[krs gq, 'kkgckuks dsl esa mPpre U;k;ky; ds fu.kZ; dks vikLr djus ds fy, lafo/kku la'kks/ku djds U;k;ikfydk ds izfr vius izpUM cgqer okyh dkaxszl dk bjknk lkQ djrs gq, ;g fl) dj fn;k Fkk fd feLVj Dyhu Hkh mlh nyny dk ,d fgLlk Fks vc eueksgu flag us jktuhfr ds vijk/khdj.k dks LFkkf;Ro iznku djus ds fy, lafo/kku esa lalks/ku djkdj mPpre U;k;ky; dks uhpk fn[kkuk pkgrs gSaA

dkaxzsl uhr la;qDr izxfr'khy xBca/ku ds iz/kkuea=h eueksgu flag us viuh igyh ikjh esa Hkh blh rjg dh ulhgr U;k;ikfydk ¼mPpre U;k;ky;½ dks ns pqds gSa vc ,d ckj fQj mUgksaus viuh v{kerk] Hkz"Vkpkj dks fNikus ds fy, U;k;ikfydk dks canj ?kqM dh nh gS ftlesa oMZ vkWQ Qsnj ¶ykd Vqxsnj dh rtZ ij lHkh jktuhfrd ny ladV ds le; fl;kjksa dh rjg ,d gks x;s gSaA

U;k;ikfydk viuk lafo/kku iznÙk vf/kdkj {ks= cgqr vPNh rjg ls tkurh gS vkSj ml nk;js esa jgdj gh dke djrh gS ;fn dHkh dgha vfrØe.k gks Hkh x;k rks ml ij Lo;a gh ,D'ku ys fy;k gSA ,sls vusd volj vk;s gSa tc U;k;ky;ksa us Lo;a ,sls ekeyksa dk laKku fy;k gS vkSj viuh gn ls ckgj tkus okyksa dks QVdkjk Hkh gSA U;k;ewfrZ ,-ds- ekFkqj ,oa U;k;ewfrZ ekdZUMs; dkVtw dh csap us ,sls gh ,d fu.kZ; esa vius vkns'k esa dgk fd gky ds dqN ekeyksa esa ,slk yxrk gS fd U;k;ky; us dk;Zikfydk ds vf/kdkj {ks= vFkok uhfrxr ekeyksa esa n[ky fn;k gSA vkxs vkxkg djrs gq, dgk fd ;fn U;k;k/kh'k Hkh fuokZfpr izfrfuf/k;ksa vFkok iz'kkldksa dh rjg dke djsaxs rks ,slh fLFkfr esa U;k;/kh'kksa dk fuokZfpr izfrfuf/k;ksa dh rjg gh pquko gksxk vFkok iz'kkldksa dh rjg pquko o izf'k{k.k gksxk tks fuf'pr gh uqdlkunk;d gksxkA ;gh dkj.k gS fd U;k;ikfydk dh Lora=rk cuk;s j[kus dk egRoiw.kZ fcUnq bls jktfufrd vFkok iz'kklfud izfØ;k ls nwj j[kk x;k gSA

U;kf;d lfØ;rk ds  vkykspd U;k;ewfrZ ekdZ.Ms; dkVtw us Hkh vka/kzizns'k ljdkj o vU; cuke Jherh ih y{eh nsoh ds ekeys esa QSlyk nsrs gq, dgk&In our opinion, therefore, while Judges should practice great restraint while dealing with economic statutes, they should be activist in defending the civil liberties and fundamental rights of the citizens. This is necessary because though ordinarily the legislature represents the will of the people and works for their welfare, there can be exceptional situations where the legislature, though elected by the people may violate the civil liberties and rights of the people. It was because of this foresight that the Founding Fathers of the Constitution in their wisdom provided fundamental rights in Part III of the Constitution which were modeled on the lines of the U.S. Bill of Rights of 1791 and the Declaration of the Rights of Man during the Great French Revolution of 1789. ....
It must be understood that while a statute is made by the peoples’ elected representatives, the Constitution too is a document which has been created by the people (as is evident from the Preamble). The Courts are guardians of the rights and liberties of the citizens, and they will be failing in their responsibility if they abdicate this solemn duty towards the citizens. For this, they may sometimes have to declare the act of the executive or legislature as unconstitutional. ..."

dksbZ Hkh ljdkj 'kfDr'kkyh U;k;ikfydk ugha pkgrhA bl izp.M Xyksoykbts'ku o mnkjhdj.k ds nkSj esa ftlds Hkkjrh; iqjks/kk iz/kkuea=h th gSa] us viuh ulhgr ml lEesyu ¼jk"VªeaMy] fof/k lEesyu½ esa  igys nh Fkh ftlesa 53 ns'kksa ds yxHkx 800 izfrfuf/k Hkkx ys jgs FksA Lora= Hkkjr esa dkaxzsl Hkz"Vkpkj dh tuuh gS rks vU; ny mlds ikyu iks"k.k drkZ gSaA gj tuuh dks viuh larku I;kjh gksrh gS pkgs og fdruh gh fouk'kd D;ksa u gks\ dkaxzsl viuk tuuh /keZ fuHkk jgh gS] U;k;ky; viuh djuh dj jgs gSaA

dYiuk dhft, vxj U;k;ikfydk Hkh fo/kkf;dk o dk;Zikfydk ds Loj esa Loj feykdj [kkeks'k cSB tk; rks bl fnXHkzfer yksdra= dk D;k gksxk\ tks yksx vkt U;k;ikfydk dks bldh y{ke.k js[kk ;kn fnyk jgs gSa os 'kk;n viuh deZ js[kk Hkwy x;s gSaA dksbZ y{e.k js[kk rc rd fdlh lhrk dks ugha cpk ldrh tc rd og ekuorkoknh n`f"Vdks.k dks ifjR;kx u dj ns ;gk¡ ;g crkuk lehphu gksxk fd lhrk us y{e.k js[kk vius fgr ds fy, ugha cfYd ,d lk/kw dks thou ;kiu ds fy, fHk{kk nsus ds fy, ikj dh Fkh u fd ,d /kks[ksckt ds fy,A vxj dksbZ O;fDr U;k;fgr esa viuh y{e.k js[kk yka?krk Hkh gS rks mldk rgsfny ls bLrDcky gksuk pkfg, D;ksfd dbZ ckj U;k;fgr esa U;k;/kh'kksa }kjk ,slk djuk t:jh gks tkrk gSA

fo/kkf;dk vkSj dk;Zikfydk ds ^pksj&pksj* ekSlsjs HkkbZ lkfcr gksus ds ckn vke vkneh dks vc flQZ U;k;ikfydk dk gh lgkjk cpk gSA ,slk ugha gS fd U;k;ikfydk nw/k dh /kqyh gS ysfdu vkuqikfrd rkSj ij og vkt Hkh lcls csgrj o yksd dY;k.k dkjh dk;Z djus esa vkxs gSA orZeku esa mPp U;k;ky; ,oa mPpre U;k;ky; ds ttst dh fu;qfDr izfØ;k esa deh ikjnf’kZrk dh gS ;fn mls ikjnf’kZrk ckrs gq, foeqfDr dh tk; rks 'kk;n fdlh dks maxyh mBkus dh t:jr ugha iM sxhA
vxj pUn ekeyksa dks NksM fn;k tk; rks U;k;ikfydk us vc rd dksbZ ,slk dk;Z ugha fd;k ftlls ns'k o ns'k okfl;ksa dk flj 'keZ ls >qdk gks tcfd fo/kkf;dk o dk;Zikfydk esa ,sls gtkjksa mnkgj.k ekStwn gSaA

U;k;ikfydk dk nkf;Ro gS fd og vke vkneh dh ijs'kkfu;ksa fo'ks"kdj blds thou] Lora=rrk] lekurk] i;kZoj.k o Je dk fujkdj.k djsaA ;gh dk;Z dkuwu dk 'kklu dk;e j[kus ds fy, Hkh vko';d gS blds fy, ;g vko';d ugha gS fd og fo/kkf;dk o dk;Zikfydk dk dk;Z Lo;a djus yxsA oSls Lo;a og ;g dk;Z dj Hkh ugha ldrh D;ksafd mlds ikl ;g lc djus ds fy, u rks bUÝkLVªDpj gS u gh n{krkA ;g lc djkus ds fy, laof/kku iznÙk vf/kdkj mlds ikl t:j gS ftlds rgr og funsZ'k ns ldrh gSA

vkt lkekU; U;kf;d izfØ;k dks U;kf;d lfØ;rk vkSj U;kf;d lfØ;rk dks U;kf;d vfrokfnrk dh laKk nh tk jgh gS okLro esa U;kf;d lfØ;rk ls ogh yksx ihfM r] nq%[kh vkSj vlgt gks jgs gSa tks ;k rks Lo;a Hkz"Vkpkj esa fyIr gSa ;k mldks c< kus esa lgk;d gSaA vijk/k@Hkz"Vkpkj eqDr ns'k esa jguk O;fDr dk laoS/kkfud vf/kdkj gS vkSj bl dk;Z ds fy, U;k;ikfydk dks fdlh Hkh gn rd tkuk pkfg,A tks mlusa jktuhfrd ds vijk/khdj.k ij vadq'k yxkus ds QSlys ds tfj;s fd;k gSA vc vxj ;s Hkz"V] vijk/kh usrk bl QSlys dks csvlj djus ds fy, lafo/kku la'kks/ku djds dkuwu cukrs gSa rks vkus okys pquko esa tks Hkh ny oksV ekaxus vk;s mudks lkS twrs ekjdj vkSj ,d lkS ,d twrs piiyksa dh ekyk igukdj Bhd mldh rjg Lokxr djsa tSls muds ea=h] eq[;ea=h cuus ij Hkz"Vpkjh uksVksa dh ekyk iguk dj djrs gSaA

ge U;k;ikfydk dh /kkj dks dqan djus okys ls gj ml lafo/kku la'kks/ku dk fojks/k lM d ls laln rd djsaxs ftlls tukdka{kk ij dqBxkj?kkr gksrk gks D;ksafd yksdra= turk dh otg ls gS usrkvksa dh ugha] turk ds izfr usrkvksa@nyksa dk tks joS;k gS] ywV [klksV dk tks okrkoj.k gS ml ij 'kk;j dh nks iafDr;kA

^^oDr tc eqYd dk vk;k rks ygw eSus fn;kA
vkt os eq>ls iwNrs gSa rsjk dke D;k gSA**

Last Updated on Friday, 24 July 2015 16:39

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