IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL...
Transcript of IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL...
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IN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTION
PUBLIC INTEREST LITIGATION NO. 188 OF 2015WITH
CIVIL APPLICATION NO. 75 OF 2016CIVIL APPLLICATION NO. 42 OF 2018
Vihar Durve
Vs
The State of Maharashtra and others
Mr.Jalan Sandeep for the petitioners
Mr.A.B.Vagyani, G.P with Mr.P.G.Sawant, AGP for the
respondent No.1 in CAI/42/2018
Mr.Sanjay Udeshi with Mr.Netaji Gawade i/b
M/s.Sanjay Udeshi & Company for the respondent No.2
CORAM : A. S. OKA AND M. S. SONAK, JJ.
DATE : 27th SEPTEMBER 2018, 4th OCTOBER 2018and 11th OCTOBER 2018.
ORAL JUDGMENT: (PER A.S.OKA, J.)
OVERVIEW
The submissions of the learned Counsel
appearing for the parties were heard on the earlier
date. The petitioner who is a Chartered Accountant
by profession has raised several issues concerning
the infrastructure of the judiciary in the State.
2. Before we go to the details, we must
refer to the prayers. The first prayer is for
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seeking a direction to establish additional 867
Courts in the State of Maharashtra. There is a
prayer for setting up 20 fast track Courts for
exclusively trying the cases of senior citizens,
differently abled persons and marginalised sections
of the society. In the petition, there are averments
regarding necessity of establishing adequate number
of Special Courts in the State for exclusively
trying the cases under the Prevention of Corruption
Act, 1988. Therefore, there is a prayer seeking a
direction to establish 48 Special Courts in the
State. The petitioner has contended that there is a
need to have more family Courts in the State.
Therefore, there is a prayer made that there should
be additional 17 posts of family Court judges in the
city of Mumbai, 5 in Pune and 5 at Nagpur. There is
a prayer for establishment of Courts of District
Judges and Senior Civil Judges at the specific
places in various Taluka places mentioned in prayer
clauses (e) to (i). There is also a prayer made for
establishing a District Court for the newly created
Nandurbar Revenue District. Another important prayer
in the petition is regarding furnishing a road map
for the establishment of Courts which are subject
matter of specific prayers in the petition. Pending
the petition, another issue was raised in this PIL
concerning pension payable to the judicial officers
in the State. It is pointed out that the Defined
Contributory Pension Scheme (DCPS) which was
introduced by a Government Resolution was applied to
the judicial officers who were appointed on or after
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1st November, 2005. It was pointed out that the new
pension scheme (DCPS) as compared to the old
pension scheme which was applicable to those who
were in judicial service as on 31st October 2005 is
not at all beneficial to the Judicial Officers and
in fact as a result of applying the new pension
scheme to the Judicial Officers appointed after 31st
October 2005, deduction of 10% of the salary was
being made as a contribution to DCPS. Accordingly,
prayers (m) and (n) were incorporated for
challenging the applicability of DCPS.
3. We may note here that as regards the
controversy regarding the applicability of the new
pension scheme (DCPS) to the judicial officers, the
issue is finally decided by this Court by the
Judgment and Order dated 11th August, 2017 by holding
that the judicial Officers appointed after 31st
October 2005 will be governed by the old Pension
scheme. Being aggrieved by the said judgment, the
State of Maharashtra preferred Special Leave
Petition (Civil) No. 3146 of 2017. By an order dated
1st December, 2017 passed in the said SLP, this PIL
was transferred to the Apex Court. However, by
further order dated 27th March, 2018 the Apex Court
disposed of the said SLP without disturbing the
order dated 11th August, 2017 and the present
petition was again ordered to be retransferred to
this Court. While retransferring the petition, the
Apex Court added a rider that this Court should not
deal with the issues which have been referred to the
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commission headed by Shri Justice Venkatarama Reddy
for resolution.
4. After the present PIL was retransferred to
this Court, consequential orders have been passed by
this Court for the implementation of the directions
issued in the Judgment and order dated 11th August,
2017.
5. Therefore, now, while finally deciding the
petition, we are not dealing the issue regarding
pensionary benefits to the judicial officers
appointed on or after 1st November, 2005 inasmuch as
the decision on the said issue has become final by
virtue of the disposal of SLP filed by the State of
Maharashtra against the Judgment and order dated 2nd
August, 2017.
6. The discussion made in this Judgment will
show that a very important issue was canvassed for
consideration of this Court. The issue is which
Authority is empowered in law to decide the number
of Judicial Officers of various categories required
in the State and the number of additional Courts of
various categories required in the State. The issue
is whether the views of the High Court
Administration on these aspects will have the
primacy and the State Government will be bound to
follow the views of this Court. This issue arose in
view of the submission made by the learned
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Government Pleader on behalf of the State Government
that on these aspects, the views of the Government
will prevail. In fact, we may note here that we had
also given an opportunity to the learned Government
Pleader by granting him time to take instructions on
the question whether the State Government was
willing to reconsider its stand on the subject. The
learned Government Pleader on instructions stated
that the State Government has unable to change the
stand.
AFFIDAVITS ON RECORD
7. Before we advert to the submissions made
across the bar, a brief reference to the affidavits
filed on record will be necessary. There is an
affidavit dated 19th July 2016 filed by Neeraj Pradip
Dhote, Joint Secretary, Law and Judiciary Department
which basically deals with pensionary benefits to
the Judicial Officers which issue has been already
concluded. Prior to that, an affidavit was filed on
16th June 2016 by the same Joint Secretary dealing
with the issue of pension.
8. There is an affidavit filed on 11th January
2017 by Shri Atul Madhukar Kurhekar, the learned
Registrar (Legal and Research) of this Court which
essentially deals with the prayers regarding
establishment of the new Courts/creation of posts.
He has stated that a proposal for creation of 867
additional posts of Judicial Officers was forwarded
initially to the State Government on 3rd September
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2012 which is followed by several letters issued
thereafter from time to time and the proposal is
still pending with the State Government. As regards
prayer (b) seeking a direction for establishing 20
Fast Track Courts exclusively for trying the cases
of differentlyabled persons, Senior Citizens and
Marginalised Sections of Society, Shri Kurhekar has
stated that the Committee appointed by this Court
approved the suggestion of establishing 20 Special
Fast Track Courts and accordingly, a proposal has
been sent to the State Government on 24th April 2015.
Shri Kurhekar while responding to the prayer for
establishing 48 Special Courts in 27 judicial
District to try the cases under the Prevention of
Corruption Act,1988 has stated that by a
notification dated 27th August 2014, the State
Government has conferred the power of the Special
Courts under the said Act of 1988 on all the Session
Judges, Additional Session Judges and Adhoc
Additional Sessions Judges. While dealing with the
prayer for establishing additional Family Courts in
Mumbai, Pune and Nagpur, it is pointed out that a
proposal has been submitted way back on 14th November
2014 for creating additional posts of Family Court
Judges and for making necessary budgetary provision.
About the prayers (e), (f) and (g) dealing with the
establishment of the Courts at the places stated
therein, Shri Kurhekar has referred to the proposals
forwarded to the State Government and the
correspondence made in that behalf. The same is the
case with the prayer clauses (h), (i) and (j).
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9. There is a further affidavit dated 3rd April
2017 filed by Shri Neeraj Pradip Dhote, Joint
Secretary, Law and Judiciary Department. As regards
the prayer (a) for sanction/creation of additional
867 posts, the reply is based on the Government
Resolution dated 6th January 2015. We must, however,
note here that the said GR deals with a completely
different aspect of creating 10% additional posts of
Judicial Officers in terms of the decision of the
Apex Court in the case of Brij Mohan Lal vs. Union
of India1. As regards the prayer clause (b)
regarding establishing 20 separate Special Courts,
it is merely mentioned that the said subject was
discussed in the meeting held on 1st April 2017
between the Hon'ble the Chief Justice and the
Hon'ble Chief Minister. As regards creating
additional posts of Family Court Judges, Shri Dhote
has taken a very peculiar stand. He has referred to
the proposal submitted by this Court and stated that
the information sought by the State Government has
been provided by the High Court. He has stated that
while determining the Judge strength pursuant to the
directions issued by the Apex Court in the case of
Imtiyaz Ahmad vs. State of Uttar Pradesh2, the High
Court may add the requisite number of Family Court
Judges. About creating posts of Judicial Officers
at Shrigonda, he has merely stated that the matter
is placed before the High Power Committee. The same
is the case made out by Shri Dhote as regards the
1 (2012) 6 SCC 5022 (20127) 3 SCC 658
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prayer regarding establishment of the Court at
Umred. As regards the establishment of the Court at
Rajur, District Ahmednagar, he claims that
information regarding the recurring and non
recurring expenditure of the said Court is
necessary. As regards the prayer regarding
establishment of the Court at Mehkar, District
Buldhana, it is contended that certain information
required by the Finance Department has been called
for. The same is the case made out as regards the
establishment of the Court at Malkapur, District
Buldana.
10. Though the subsequent factual narration
will show that in some cases, the State Government
has granted approval, we have referred to the
response of the State Government to each and every
proposal just to indicate the approach of the State
Government while dealing with the proposals for
establishment of new Courts. The stand taken in the
affidavit shows that even after a new Revenue
District at Nandurbar was created by the State
Government, when it came to creation of new Judicial
District by establishing a separate District and
Sessions Court, all sorts of queries were made by
the Finance Department for deciding the proposal for
establishing the District and Sessions Court for the
newly created Nandurbar District.
11. The Affidavit dated 5th October 2017 filed
by Shri Kurhekar throws some light on some progress
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made in the proposals pending with the State
Government. As regards establishing 20 Special
Courts, it is stated that the State Government took
a decision to establish the Special Courts where
there were one thousand or more cases pending. It
is stated that 11 Districts have been accordingly
identified and information has been furnished to the
State Government. As regards creating extra Family
Courts at 3 places, Shri Kurhekar has referred to
further correspondence made by the High Court
Administration in response to several queries raised
by the State Government from time to time. The last
of such letters is dated 19th June 2017. About the
issue of establishing a Court at Srigonda, again he
has referred to several letters addressed by the
High Court Administration. As regards the Court at
Umred, it is stated that by GR dated 21st June 2017,
the post of Civil Judge (S.D) at Umred, District
Nagpur has been created but budgetary provision has
not been yet made. About the proposal for the Court
at Rajur, Shri Kurhekar pointed that several letters
were addressed by the High Court Administration.
The Affidavit refers to establishment of the new
Courts at Kale Khriwade in District Kolhapur and
Hinganghat in District Wardha. It is stated in the
affidavit that a decision has been taken to
establish 14 Family Courts by utilising grant of
14th Finance Commission out of which Family Court at
Latur has started functioning. A statement is made
that 18 additional Courts of District Judges and
Civil Judge (S.D.) have been decided to be set up by
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utilising grant of 14th Finance Commission. One
important factual aspect pointed out by Shri
Kurhekar is that by GR dated 14th July 2017 112 posts
of Civil Judge (J.D.) have been upgraded to the
posts of Civil Judge (S.D.).
12. It will be also necessary to make a
reference to a note submitted regarding further
compliance. It is stated that the High Court
Administration by the letters dated 21st August 2017,
8th February 2018 and 13th March 2018 pointed out to
the State Government that 179 new posts created of
the Judges and 751 posts of supporting staff has
nothing to do with the proposal for creating for 867
Courts and the proposal for creation of 867 posts is
still pending. The chart produced indicates that
the Court of Civil Judge (S.D.) Umred was ultimately
established and has started functioning from 2nd
December 2017.
13. A chart has been tendered across the bar on
5th September 2018 which is signed by Shri
R.M.Lokhande, Section Officer of “A Civil” Branch of
this Court. It records that the sanctioned strength
of Judges in Maharashtra Judiciary in the year 2012
was 1780 and the working strength was 1628. It is
pointed out that on 5th September 2018, the
sanctioned strength is 2008 and the working strength
is 1871.
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JUDGE STRENGTH
14. Many factual submissions have been made as
regards the pendency of proposals for increasing the
Judge strength. As regards the Judge strength, in
fact a very little debate is required. We may note
here that the Apex Court by the Judgment and Order
dated 21st March 2002 in the case of All India Judges
Association (3) Vs. Union of India3 approved 120th
report of the Law Commission on manpower planning in
judiciary which suggested a formula for fixation of
Judge strength by adopting demographic approach.
The Law Commission noted that as of the year 1981,
though United States had one third of the
population of India, it had a judge to population
ratio of 107 judges per million whereas the said
ratio was 10.5 Judges per million population in
India which was grossly inadequate. Considering the
said report, in the aforesaid decision, a specific
direction was issued that the existing Judge
strength should be increased to 50 Judges per
million. This was to be implemented by filling up of
the posts in a phased manner to be determined and
directed by the Union Ministry of Law. However, it
was specifically mentioned that the Judge strength
should be increased to 50 Judges for 10 lakh people
within a period of five years. If the
recommendations of Law Commission were implemented,
by the year 2000, India would have achieved target
of 107 Judges per million population. Thus, there
would have been 1,36,794 Judges as on 31st December
3 (2002) 4 SCC 247
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2015. However, as on 31st December 2015, sanctioned
strength was only 21,607. The decision of the Apex
Court in the case of Imtiyaz Ahmad (supra) records
that earlier approach for determining the Judge
strength was demographic approach. The Judgment
refers to the Constitution of the National Court
Management Systems Committee (for short “NCMSC”).
It is noted that NCMSC worked on scientific method
of calculation of Judge strength and arrived at a
formula which is discussed in detail in the said
decision. The said formula was evolved on the basis
of interim report submitted by NCMSC. What is
material is the direction given in paragraph 43.1.
The directions contained in paragraphs 43.1 to 43.8
of the decision of the Apex Court read thus:
“43.1 Until NCMSC formulates a scientificmethod for determining the basis forcomputing the required Judge strength of theDistrict judiciary, the Judge strength shallbe computed for each State, in accordancewith the interim approach indicated in thenote submitted by the Chairperson,NCMSC;
43.2 NCMSC is requested to endeavour thesubmission of its final report by 31.12.2017;
43.3A copy of the interim report submittedby the Chairperson, NCMSC shall be forwardedby the Union Ministry of Law and Justice tothe Chief Justices of all the High Courts andChief Secretaries of all States within onemonth so as to enable them to take followupaction to determine the required Judgestrength of the District judiciary based onthe NCMSC interim report, subject to what hasbeen stated in this judgment;
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43.4 The State Governments shall take upwith the High Court concerned, the task ofimplementing the interim report of theChairperson, NCMSC (subject to what has beenobserved above) and take necessary decisionswithin a period of three months from todayfor enhancing the required Judge strength ofeach State judiciary accordingly;
43.5 The State Governments shallcooperate in all respects with the HighCourts in terms of the resolutions passed inthe joint conference of Chief Justices andChief Ministers in April 2016 with a view toensuring expeditious disbursal of funds tothe State judiciaries in terms of thedevolution made under the auspices of theFourteenth Finance Commission;
43.6 The High Courts shall take up theissue of creating additional infrastructurerequired for meeting the existing sanctionedstrength of their State Judiciaries and theenhanced strength in terms of the interimrecommendation of NCMSC;
43.7 The final report submitted by NCMSCmay be placed for consideration before theConference of Chief Justices. The directionsin para 43.1, above shall then be subject tothe ultimate decision that is taken onreceipt of the final report; and
43.8A Copy of this order shall be madeavailable to the Registrars General of eachHigh Court and to all Chief Secretaries ofthe States for appropriate action.”
(emphasis added)
15. We may note that though the case of Imtiyaz
Ahmad (supra) was finally disposed of by the Apex
Court, the aforesaid directions were not modified.
Thus, today there is a direction of the Apex Court
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that until NCMSC formulates scientific method for
determining the Judge strength, for each State, the
Judge strength shall be calculated as per the
interim approach incorporated in the note submitted
by NCMSC. In paragraph 43.3, the Apex Court
directed that interim report of the NCMSC shall be
forwarded by the Union Ministry of Law and Justice
to the Chief Justices of all the High Courts and the
Chief Secretaries of all States so as to enable them
to determine the required Judge strength of the
District Judiciary. Paragraph 43.4 clearly gives a
direction to the State Governments to implement the
interim report of NCMSC. Paragraph 43.6 also
proceeds on the footing that in each State, Judge
strength will be enhanced on the basis of the
recommendations of NCMSC. So long as the directions
issued in the aforesaid decision by the Apex Court
in the case of Imtiyaz Ahmad (supra) are not
modified, all the States including the State of
Maharashtra continue to bound by the same. We are
informed across the Bar that this Court on the
administrative side has accordingly worked out the
Judge strength and submitted a proposal for sanction
to the State Government. The State Government has no
choice but to implement the directions of the Apex
Court.
THE ISSUE OF PRIMACY
16. Now coming to the issue of primacy, when it
comes to deciding the number of Judicial Officers or
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number of judicial posts which should made
available, the learned Government Pleader invited
our attention to various provisions of the
Constitution including Articles 233 and 235. His
main contention was that the power of establishing
Courts will have to be exercised in consultation
with the High Court. However, the creation of posts
in judicial service as well as the creation of
cadres can be resorted to either by the Hon'ble
Governor in exercise of his Rule making power under
Article 309 or by an appropriate legislation. In
this behalf, he placed reliance on the decision of
the Apex Court in the case of State of Bihar and
another vs. Bal Mukund Sah4. He submitted that if
the High Court Administration is of the opinion that
a particular number of posts ought to be created in
judicial service, the same will be subject to
Article 309 of the Constitution in which case only
the Hon'ble Governor or the legislature of the
State will have an authority to do so after taking
into consideration various factors, budget etc. His
contention is that the question of exercising the
control under Article 235 arises only after the
posts are created by making rules or a legislation
under Article 309. He submitted that it is true that
whenever the High Court Administration comes to the
conclusion that a particular number of Judicial
posts are required to be created, it is done after
considerable thought. But ultimately it is for the
State to decide on the requirement of creation of
4 (2000) 4 SCC 640
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judicial posts in judicial service after taking into
consideration various factors such as expenditure
involved, availability of funds etc.
17. Before we deal with the submissions based
on various constitutional provisions such as
Articles 235 and 309, we must make a reference to
the decision of the Apex Court in the case of All
India Judges Association (3) (supra). In the said
decision after considering 120th report of the Law
Commission, a direction was issued by the Apex Court
to increase number of judicial posts in the entire
country so as to achieve Judge to population ratio
of 50 Judges for one million population. This was
to be done within a period of five years from the
date of decision of the Apex Court which is of 21st
March 2002. Going by the present position of the
Judge to population ratio, it is between 16 to 18
per million. Thus, the target laid down by the Apex
Court which was to be achieved by March 2007 is not
yet achieved. It is not even achieved to the extent
of 50%. As pointed out in the earlier paragraphs,
different methodology was adopted by the Apex Court
in the case of Imtiyaz Ahmad (supra) for the purpose
of calculating the Judge strength. That was based
on interim recommendations of the NCMSC. As
observed earlier, there is already a direction
issued by the Apex Court in the said decision to
make computation of the Judge strength as per the
formula laid down in the interim report of NCMSC.
This specific direction under 43.1 is already
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quoted. In the face of these two judicial
pronouncements, it is not open for the State to
argue that it has a primacy or prerogative to
determine how many Judicial Officers should be
appointed in the State. Irrespective of the issue
of primacy, what binds the State is the aforesaid
decision of the Apex Court in the case of Imtiaz
Ahmad (supra).
18. On this aspect, it will be necessary to
make a reference to the decision dated 5th May 2017
of this Court in the case of Mumbai Grahak Panchayat
Vs. State of Maharashtra and others in PIL No.156 of
2011 and other connected petitions. The said
decision has been accepted by the State Government
in the sense, there is no challenge to the same. As
far as Judge strength is concerned, the Division
Bench has referred to the directions issued by the
Apex Court in the case Imtiyaz Ahmad (supra). In
fact directions have been issued to the State
Government to comply with the directions issued by
the Apex Court. Clauses (a) to (g) of subparagraph
(A) of paragraph 191 reads thus:
“191. Hence, we pass the following order:
ORDER
A] We hold that:(a) It is the constitutional obligation ofthe State Government to provide lands and/oradequate premises for establishing adequatenumber of Courts;(b) It is an obligation of the StateGovernment to appoint sufficient number of
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Judicial officers consistent with pendencyand filing in the concerned Courts andTribunals. The cadre strength should be suchthat there will be no pendency of old cases;(c) It is the obligation of the StateGovernment to provide all necessaryinfrastructure to the newly established aswell as the existing Courts and Tribunals forthe benefit of the Judicial Officers,litigants, members of the staff as well asmembers of the Bar;(d) The infrastructure has to be provided insuch a manner that the Courts are able tofunction efficiently;(e) The infrastructure has to be consistentwith the concept of dignity of the Court;(f) Speedy disposal of cases in consonancewith the mandate of Article 39A of theConstitution of India cannot be achievedunless adequate number of Courts andTribunals are established and adequate andproper infrastructure is provided to all theCourt premises;(g) Financial constraints is no ground todeny permission for establishing new Courtsand denying essential infrastructure to allthe Courts, whether existing or new. Theseprinciples will apply to all Civil andCriminal Courts in the State, CooperativeCourts and Maharashtra State CooperativeAppellate Court, State Commission andDistrict Forum under the Consumer ProtectionAct, 1986, the Motor Accidents ClaimsTribunals under the Motor Vehicles Act,1988as well as Labour and Industrial Court;”
(emphasis added)
19. Thus, it is held that it is the
constitutional obligation of the State Government to
appoint sufficient number of Judicial Officers
consistent with the pendency and filing in the
concerned Courts and Tribunals. It is also held
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that the cadre strength should be such that there is
no pendency of old cases. In clause (f), it is
categorically laid down that speedy disposal of the
cases in consonance with Article 39A of the
Constitution cannot be achieved unless adequate
number of Courts and Tribunals are established and
adequate and proper infrastructure is provided to
all the Court premises. What is important is that
it is held in the said decision that financial
constraints is no ground for denying establishment
of new Courts and essential infrastructure to all
the Courts whether existing or new. The obligation
of the State to provide adequate infrastructure to
the judiciary will naturally include providing
adequate number of Judges. One of the submissions
made by the learned Government Pleader was that
that when the High Court Administration comes to the
conclusion that certain number of additional posts
of Judges are required to be created, it is
ultimately for the State to decide whether it is
possible to create additional posts considering the
availability of funds and financial constraints.
This submission hardly merits consideration in the
light of the aforesaid decision of this Court. The
nonavailability of funds is really no ground to
refuse the creation of new posts of Judges. At
highest, the appointments can be made in a phase
wise manner.
20. In fact, what is held in the aforesaid
decision in the case of Mumbai Grahak Panchayat
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(supra) that financial constraints is no ground to
deny establishment of new Courts is based on the law
laid down by the Apex Court in the case of Brij
Mohan Lal (supra). For the sake of clarity, we
reproduce paragraphs 136 and 137 of the aforesaid
decision in the case of Brij Mohan Lal (supra).
“136. However, as far as functioning ofthe courts i.e. dispensation of justice bythe courts is concerned, the Government hasno control whatsoever over the courts.Further, in relation to matters ofappointments to the judicial services of theStates and even to the higher judiciary inthe country, the Government has some say,however, the finances of the judiciary areentirely under the control of the State. Itis obvious that these controls should beminimised to maintain the independence ofthe judiciary. The courts should be able tofunction free of undesirable administrativeand financial restrictions in order toachieve the constitutional goal of providingsocial, economic and political justice andequality before law to its citizens.
137. Article 21 of the Constitution ofIndia takes in its sweep the right toexpeditious and fair trial. Even Article 39A of the Constitution recognises the rightof citizens to equal justice and free legalaid. To put it simply, it is theconstitutional duty of the Government toprovide the citizens of the country withsuch judicial infrastructure and means ofaccess to justice so that every person isable to receive an expeditious, inexpensiveand fair trial. The plea of financiallimitations or constraints can hardly bejustified as a valid excuse to avoidperformance of the constitutional duty ofthe Government, more particularly, when such
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rights are accepted as basic and fundamentalto the human rights of citizens.” (emphasis added)
21. Even in the case of Hussainara Khatoon and
others vs. Home Secretary, State of Bihar5, the Apex
Court has reiterated the same legal position by
supplying additional reasons. Paragraph 10 of the
decision in the case of Hussainara Khatoon and
others (supra) reads thus:
“10 We find from the counteraffidavit filedon behalf of the respondents that no reasonshave been given by the State Government asto why there has been such enormous delay inbringing the under trial prisoners to trial.Speedy trial is, as held by us in ourearlier judgment dated February 26, 1979, anessential ingredient of `reasonable, fairand just' procedure guaranteed by Article 21and it is the constitutional obligation ofthe State to device such a procedure aswould ensure speedy trial to the accused.The State cannot be permitted to deny theconstitutional right of speedy trial to theaccused on the ground that the State has noadequate financial resources to incur thenecessary expenditure needed for improvingthe administrative and judicial apparatuswith a view to ensuring speedy trial. TheState may have its financial constraints andits priorities in expenditure, but, aspointed out by the Court in Rhem v.Malcolm : “The law does not permit anygovernment to deprive its citizens ofconstitutional rights on a plea of poverty”.It is also interesting to notice whatJustice, then Judge, Blackmum said inJackson v. Bishop:
Humane considerations andconstitutional requirements are not, in thisday, to be measured by dollarconsiderations.
5 (1980) 1 SCC 98
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So also in Holt V. Saver, affirmed in 442 FSupp 362, the Court dealing with theobligation of the State to maintain aPenitentiary System which did not violatethe Eighth Amendment aptly and eloquentlysaid:
Let there be no mistake in the matter;the obligation of the respondents toeliminate existing unconstitutionalitiesdoes not depend upon what the legislaturemay do, or upon what the Governor may do,or, indeed upon what respondents mayactually be able to accomplish. If Arkansasis going to operate a Penitentiary System,it is going to have to be a system that iscountenanced by the Constitution of theUnited States.
The State cannot avoid its constitutionalobligation to provide speedy trial to theaccused by pleading financial oradministrative inability. The State isunder a constitutional mandate to ensurespeedy trial and whatever is necessary forthis purpose has to be done by the State.It is also the constitutional obligation ofthis Court, as the guardian of thefundamental rights of the people, assentinel on the qui vive, to enforce thefundamental right of the accused to speedytrial by issuing the necessary directions tothe State which may include taking ofpositive action, such as augmenting andstrengthening the investigative machinery,setting up new courts, building new courthouses, providing more staff and equipmentto the courts, appointment of additionaljudges and other measures calculated toensure speedy trial. We find that in factcourts in the United States have adoptedthis dynamic and constructive role so far asthe prison reform is concerned by utilisingthe activist magnitude of the EighthAmendment. The courts have ordered
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substantial improvements to be made in avariety of archaic prisons and jails throughdecisions such as Holt v. Sarver, Jones V.Wittenberg, Newman v. Alabama and Gates V.Collier. The Court in the last mentionedcase asserted that it “has the duty offashioning a decree that will requiredefendants to eliminate the conditions andpractices at Parchman herein above found tobe violative of the United State'sconstitution” and in discharge of this dutygave various directions for improvement ofthe conditions of those confined in theState Penitentiary. The powers of thisCourt in protection of the constitutionalrights are of the widest amplitude and we dono see why this Court should not adopt asimilar activist approach and issue to theState directions which may involve taking ofpositive action with a view to securingenforcement of the fundamental right tospeedy trial. But in order to enable theCourt to discharge this constitutionalobligation, it is necessary that the Courtshould have the requisite informationbearing on the problem. We, therefore,direct the State of Bihar to furnish to uswithin three weeks from today particulars asto the location of the courts of Magistratesand courts of sessions in the State of Bihartogether with the total number of casespending in each of these courts as onDecember 31, 1978 giving year wise breakupof such pending cases and also explainingwhy it has not been possible to dispose ofthose cases as have been pending for morethan six months. We would appreciate if theHigh Court of Patna also furnishes the aboveparticulars to us within three weeks fromtoday since the High Court on itsadministrative side must be having recordsfrom which these particulars can be easilygathered. We also direct the State of Biharto furnish to us within three weeks fromtoday particulars as to the number of caseswhere first information reports have been
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lodged and the cases are pendinginvestigation by the police in each subdivision of the State as on December 31,1978 and where such cases have been pendinginvestigation for more than six months, theState of Bihar will furnish broadly thereasons why there has been such delay in theinvestigative process. The writ petitionwill now come up for hearing and finaldisposal on April 4, 1979. We have alreadyissued notice to the Supreme Court BarAssociation to appear and make itssubmissions on the issues arising in thewrit petition since they are of greatimportance. We hope and trust that theSupreme Court Bar Association will respondto the notice and appear to assist the Courtat the hearing of the writ petition.” (emphasis added)
22. The Apex Court in the same decision
reiterated that the right to have a speedy trial is
an essential ingredient of the rights guaranteed by
Article 21 of the Constitution and therefore, it is
the constitutional obligation of the State to device
such a procedure which would ensure speedy trial of
the cases. It is in this context, the Apex Court
observed that it is the Constitutional obligation of
the State to take steps such as setting up new
Courts, provide staff, infrastructure etc to the
Court.
23. Coming back to the decision in the case of
Mumbai Grahak Panchayat (supra), it is held that it
is the obligation of the State to sanction requisite
number of posts of Judges as directed in the
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decision of the Apex Court in the case of Imtiyaz
Ahmad (supra). By relying upon findings in paragraph
191 of the said decision, there are consequential
directions issued in the operative part of the
Judgment for giving effect to the directions in the
case of Imtiyaz Ahmad (supra). The State is bound by
the said directions. Considering the aforesaid
legal position, the argument canvassed by the
learned Government Pleader is of very little
significance. Nevertheless, we are dealing with the
said argument.
24. Article 309 of the Constitution of India
reads thus:
“309. Recruitment and conditions of serviceof persons serving the Union or State –Subject to the provisions of thisConstitution, and conditions of service ofpersons appointed, to public services andposts in connection with the affairs of theUnion or of any State:
Provided that it shall be competent forthe President or such person as he may directin the case of services and posts inconnection with the affairs of the Union, andfor the Governor of a State or such person ashe may direct in the case of services andposts in connection with the affairs of theState, to make rules regulating therecruitment, and the conditions of service ofpersons appointed, to such services and postsuntil provision in that behalf is made by orunder an Act of the appropriate Legislatureunder this article, and any rules so madeshall have effect subject to the provisionsof any such Act.”
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25. Other two material Articles for the
purposes of deciding the controversy involved are
the Articles 233 and 235 which read thus:
“233 Appointment of District judges – (1)Appointments of persons to be, and theposting and promotion of, District judges inany State shall be made by the Governor ofthe State in consultation with the High Courtexercising jurisdiction in relation to suchState.(2) A person not already in the service ofthe Union or of the State shall only beeligible to be appointed a District judge ifhe has been for not less than seven years anadvocate or a pleader and is recommended bythe High Court for appointment.
233A. Validation of appointments of, andjudgments, etc., delivered by, certainDistrict judges. Notwithstanding anyjudgment, decree or order of any Court, (a) (I) no appointment of any person alreadyin the judicial service of a State or of anyperson who has been for not less than sevenyears an advocate or a pleader, to be aDistrict judge in that State, and (ii) no posting, promotion or transfer of anysuch person as a District judge, made at anytime before the commencement of theConstitution (Twentieth Amendment) Act,1966,otherwise than in accordance with theprovisions of article 233 or article 235shall be deemed to be illegal or void or everto have become illegal or void by reason onlyof the fact that such appointment, posting,promotion or transfer was not made inaccordance with the said provisions;(b) no jurisdiction exercised, no judgment,decree, sentence or order passed or made, andno other act or proceeding done or taken,before the commencement of the Constitution(Twentieth Amendment) Act,1966 by, or before,
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any person appointed, posted, promoted ortransferred as a District judge in any Stateotherwise than in accordance with theprovisions of article 233 or article 235shall be deemed to be illegal or invalid orever to have become illegal or invalid byreason only of the fact that suchappointment, posting, promotion or transferwas not made in accordance with the saidprovisions.
234 ..........
235. Control over subordinate Courts. Thecontrol over District Courts and Courtssubordinate thereto including the posting andpromotion of, and the grant of leave to,persons belonging to the judicial service ofa State and holding any post inferior to thepost of District judge shall be vested in theHigh Court, but nothing in this article shallbe construed as taking away from any suchperson any right of appeal which he may haveunder the law regulating the conditions ofhis service or as authorizing the High Courtto deal with him otherwise than in accordancewith the conditions of his service prescribedunder such law.”
26. The main thrust of the argument of the
State is on the basis of the Article 309. While we
deal with this argument, we must state that the same
will be tested on the basis of the well settled
proposition that the independence of judiciary and
separation of powers forms a part of the basic
structure of the Constitution. Argument canvassed
based on Article 309 is virtually answered by the
Apex Court in the case of All India Judges'
Association vs. Union of India6. Paragraphs 9 and
6 (1993) 4 SCC 288
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10 of the said decision in the Review Petition read
thus:
“9 So much for the contention of thereview petitioners that the directions givenby this Court would lead to the demand fromthe members of the other services forsimilar service conditions. It is high timethat all concerned appreciated that for thereasons pointed out above there cannot beany link between the service conditions ofthe Judges and those of the members of theother services. It is true that underArticle 309 of the Constitution, therecruitment and conditions of service of themembers of the subordinate judiciary are tobe regulated by the Acts of the appropriatelegislature and pending such legislation,the President and the Governor or theirnominees, as the case may be, are empoweredto make rules regulating their recruitmentand the conditions of service. It is alsotrue that after the Council of States makesthe necessary declaration under Article 312,it is the Parliament which is empowered tocreate an All India Judicial Service whichwill include posts not inferior to the postof District Judge as defined under Article236. However, this does not mean that whiledetermining the service conditions of themembers of the judiciary, a distinctionshould not be made between them and themembers of the other services or that theservice conditions of the members of all theservices should be the same. As it is, evenamong the other services, a distinction isdrawn in the matter of their serviceconditions. This Court has in the judgmentunder review, pointed out that the linkagebetween the service conditions of thejudiciary and that of the administrativeexecutive was an historical accident. Theerstwhile rulers constituted, only oneservice, viz., the Indian Civil Service forrecruiting candidates for the judicial as
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well as the administrative service and it isfrom among the successful candidates in theexamination held for such recruitment, thatsome were sent to the administrative serviceand it is from among the successfulcandidates in the examination held for suchrecruitment, that some were sent to theadministrative side while others to thejudicial side. Initially, there was also noclear demarcation between the judicial andexecutive services and the same officersused to perform judicial and executivefunctions. Since the then Government hadfailed to make the distinction between thetwo services right from the stage of therecruitment, its logical consequences interms of the service conditions could not beavoided. With the inauguration of theConstitution and the separation of the Statepower distributed among the three branches,the continuation of the linkage has becomeanachronistic and is inconsistent with theconstitutional provisions. As pointed outearlier, the parity in status is no longerbetween the judiciary and the administrativeexecutive but between the judiciary and thepolitical executive. Under the Constitution,the judiciary is above the administrativeexecutive and any attempt to place it on apar with the administrative executive has tobe discouraged. The failure to grasp thissimple truth is responsible for thecontention that the service conditions ofthe judiciary must be comparable to those ofthe administrative executive and anyamelioration in the service conditions ofthe former must necessarily lead to thecomparable improvement in the serviceconditions of the latter.
10 This leaves us with the contention ofthe review petitioners that by thedirections in question, this Court hasencroached upon the powers of the executiveand the legislature under Article 309 toprescribe the service conditions for the
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members of the Judicial Service. In view ofthe separation of the powers under theConstitution, and the need to maintain theindependence of the judiciary to protect andpromote democracy and the rule of law, itwould have been ideal if the most dominantpower of the executive and the legislatureover the judiciary, viz., that ofdetermining its service conditions had beensubjected to some desirable checks andbalances. This is so even if ultimately,the service conditions of the judiciary haveto be incorporated in and declared by thelegislative enactments. But the mere factthat Article 309 gives power to theexecutive and the legislature to prescribethe service conditions of the judiciary,does not mean that the judiciary should haveno say in the matter. It would be againstthe spirit of the Constitution to deny anyrole to the judiciary in that that behalffor theoretically it would not be impossiblefor the executive or the legislature toturn and twist the tail of the judiciary byusing the said power. Such a consequencewould be against one of the seminal mandatesof the Constitution, namely, to maintain theindependence of the judiciary.”
(emphasis added)
27. Therefore, while interpreting Article 309,
when it comes to making of the Rules regarding
service conditions of Judicial Officers, the concept
of independence of judiciary which forms a part of
the basic structure of the Constitution will have to
be borne in mind. In the same decision, in
paragraph 22, the Apex Court observed thus:
“22 To the above observations, we may addthat the separation of the judiciary fromthe executive, as ordained by Article 50 of
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the Constitution, also requires that eventhe judicial appointments at the lowestrung are made in consultation with the HighCourt. If the judicial stream is pollutedat its very inception, the independence ofjudiciary will remain in jeopardy, forever.”
28. If the argument that it is for the State to
ultimately decide how many judicial posts are
required to be created is accepted, it will
jeopardize the independence of the judiciary.
29. A Division Bench of this Court in the case
of Purshottam s/o Manohar Kamone vs. State of
Maharashtra7 dealt with the issue of establishment
of Motor Accident Claims Tribunals. In paragraph 6
of the said decision, the Division Bench of this
Court held thus:
“6. It is no longer debatable and ratherit is well settled that the speedy justiceis an ingredient of Article 21 of theConstitution of India and, therefore, eachlitigant has a fundamental right of aspeedy justice. That being so, it is thecorresponding obligation of the State toconstitute sufficient number of Courts,Tribunals and Forums so that a litigant,who has knocked the door of the Court orTribunal, is able to get justice speedly.Taking into consideration the huge pendencyof motor accident claim cases at Nagpur,expected future filing and slow disposal ofsuch cases, it is necessary for the StateGovernment to provide sufficient MotorAccident Claims Tribunals at Nagpur. Thisis essential to ensure the speedy disposal
7 (2001) All M.R.786
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of cases and in consonance with Article 39A of the Constitution of India, whichprovides that the State shall secure thatthe operation of the legal system promotesjustice. As observed by the Apex Court inS.C. AdvocatesonRecord v. Union of India,(1993) 4 SCC 441 : AIR 1994 SC 268, withreference to Article 216 of theConstitution of India, which deals with theconstitution of High Courts, “This isessential to ensure speedy disposal ofcases, to ‘secure that the operation of thelegal system promotes justice’ — adirective principle ‘fundamental in thegovernance of the country’ which, it is theduty of the State to observe in all itsactions; and to make meaningful theguarantee of fundamental rights in part IIIof the Constitution.” The Apex Courtfurther observed that the failure toperform this obligation, resulting innegation of the rule of law by the laws'delay must be justiciable, to compelperformance of that duty. Applying the sameprinciple, in our view, it” must be heldthat the constitution of Motor AccidentClaims Tribunal, as required by the Stateunder Section 165 of the Motor Vehicles Actis justiciable issue and if it is shownthat the existing Tribunal is inadequate toprovide speedy justice to the people, adirection can be issued to the StateGovernment to take appropriate steps indischarge of their duty, commensurate withthe need to fulfil the State obligation ofproviding speedy justice to the victims orthe dependents of the victims of motoraccident.” (emphasis added)
30. The learned counsel for the High Court
Administration relied upon the order dated 2nd August
2018 passed by the Apex Court in the case of All
India Judges' Association vs. Union of India. It is
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held that the responsibility for securing justice
rests upon judiciary which makes it imperative upon
the State to provide to the Judiciary the requisite
infrastructure which is the constitutional
obligation of the State. In paragraph 105 of its
decision in the case of Brij Mohal Lal (supra), the
Apex Court has summarized the law on point which
reads thus:
“105. The independence of the Indianjudiciary is one of the most significantfeatures of the Constitution. Any policy ordecision of the Government which wouldundermine or destroy the independence of thejudiciary would not only be opposed topublic policy but would also impinge uponthe basic structure of the Constitution. Ithas to be clearly understood that the Statepolicies should neither defeat nor causeimpediment in discharge of judicialfunctions. To preserve the doctrine ofseparation of powers, it is necessary thatthe provisions falling in the domain ofjudicial field are discharged by thejudiciary and that too, effectively.” (emphasis added)
31. In the case of Partur Bar Association vs.
State of Maharashtra8 wherein the issue of primacy
in decision making for establishing the new Courts
arose. A Division Bench of this Court examined the
Maharashtra Civil Courts Act,1869 as well as the
Code of Criminal Procedure,1973 and ultimately came
to the conclusion in paragraph 25 which reads thus:
“25 If the argument of the Petitioner isaccepted that the power under the Criminal
8 2016 (4) Mh.L.J. 498
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Procedure Code and powers under variousprovisions of the Civil Courts Act and inparticular sections 3,4, 12, 12A, 15, 19,21, 22, 22A and 23 has to be exclusivelyexercised by the State Government withoutconsultation of the High Court, it will becompletely contrary to the spirit of Article235 of the Constitution of India and it willbe contrary to the principle of separationof powers between the judiciary andexecutive adopted by the Constitution.Moreover, in a given case, it will create apeculiar situation. The State Governmentmay decide to establish a Court of DJ withina judicial District for one or more Talukaswithout consultation with the High Court.The High Court after finding that the Courtis not viable, will be justified in refusingto post a judicial officer to preside oversuch Court established by the StateGovernment as the said power is theexclusive domain of the High Court underArticle 235 of the Constitution. Hence,harmonious construction of the provisions ofthe Civil Courts Act and Criminal ProcedureCode with the Constitutional provisions isnecessary. The power of establishing Courtswherever conferred on the State Government,both under the Civil Courts Act and theCriminal Procedure Code will have to beexercised by the State Government afterconsultation with the High Court. In viewof the provisions of Article 235, the viewsof the High Court will have the primacy.This can be the only harmoniousinterpretation put to the relevantprovisions of the Civil Courts Act andCriminal Procedure Code to make itconsistent with the provisions of theConstitution. If any other interpretationis made, the relevant provisions of theCivil Courts Act and Criminal Procedure Codewill be exposed to vice ofunconstitutionality. In the case of NamitSharma vs. Union of Inda (2013) 1 SCC 745,the Apex Court in paragraph 51 held thus:
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“51 Another most significant canon ofdetermination of constitutionality isthat the Courts would be reluctant todeclare a law invalid or ultra vires onaccount of unconstitutionality. TheCourts would accept an interpretationwhich would be in favour of theconstitutionality, than an approach whichwould render the law unconstitutional.Declaring the law unconstitutional is oneof the last resorts taken by the Courts.The Courts would preferably put intoservice the principle of “reading down”or “reading into” the provision to makeit effective, workable and ensure theattainment of the object of the Act.These are the principles which clearlyemerge from the consistent view taken bythis Court in its various pronouncements”
(emphasis added)
32. This Court went to the extent of holding
that when the State Government is conferred with the
power to establish the Courts, the said power has to
be exercised after consultation with the High Court
and in the matter of such consultation, the views of
the High Court will have a primacy.
33. Thus, it is already held that in the matter
of establishing the new Courts, the views of the
High Court will have the primacy. Considering the
mandate of Article 21 and Article 39A, it is the
duty of the judicial system to take all such steps
so as to ensure that no citizen is deprived of his
fundamental rights guaranteed under Article 21 of
the Constitution of speedy trial. It is a settled
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position that it is the obligation of the State to
provide all possible infrastructure to the judiciary
to ensure that the mandate of Article 21 is
followed. If the argument of the State is accepted,
it would mean that in a given case, when the High
Court Administration is of the considered view that
at a particular place, it is necessary to create
certain number of additional posts of Judges,the
State will finally decide whether creation of
additional posts of the Judges is necessary at that
particular place. Therefore, it comes to it that the
State will decide how many Judges are required to
deal with the pendency of cases at a particular
place and for ensuring the speedy trial. If this
view is accepted, it will impinge upon the
independence of judiciary which is a part of the
basic structure of the Constitution of India.
34. Whenever the High Court Administration
comes to a conclusion that a particular number of
additional Courts/posts are required to be created,
there is always an indepth consideration made of
not only the pendency at a particular place but
several other important factors. More importantly,
the requirement of number of Judges cannot be
determined only on the basis of the statistics or
figures. Just by way of illustration, we may state
here that in the city of Mumbai, during the last 20
to 30 years, there were few criminal cases regarding
Bomb Blasts wherein the examination of hundreds of
witnesses was necessary. Therefore, necessity of
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appointing a particular number of Judges can be
properly understood only by the High Court
Administration. The number of cases pending and
figures of filing is not the only criteria. At a
particular station, there may be a huge pendency of
the cases under the Maharashtra Prohibition Act,
1949 whereas at some other stations, there may be a
pendency of large number of criminal cases involving
commercial transactions or involving cyber crimes.
As compared to the criminal cases involving cyber
crimes or commercial transactions, the disposal of
cases under the Maharashtra Prohibition Act does not
take much time. This is a practical reason which we
have given for holding that the argument of the
learned Government Pleader cannot be accepted.
35. The Apex Court has already explained in one
of the aforesaid decisions the relevance of Article
309. It is not necessary to reproduce the directions
issued by the Apex Court by which all the State
Governments were directed to provide the service
conditions to the Judicial Officers as laid down in
the reports of Shetty Commission and Padmanabhan
Commission. Considering the Constitutional Scheme
and the fact that the independence of the judiciary
is the basic structure of the Constitution, it is
impossible to read Article 309 as conferring the
exclusive power on the Government to finally decide
as to how many judicial posts should be created and
to hold that the Government is not bound by the
views of the High Court.
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36. The legal position which we have restated
earlier is that it is the Constitutional obligation
of the State to provide adequate infrastructure to
the judiciary with a view to ensure that fundamental
right of citizens under Article 21 of the
Constitution of right of speedy trial is not
violated. As observed earlier, adequate
infrastructure of the Courts will include adequate
number of Judges. If the State Government is serious
about its contention about the primacy, the State
will be doing breach of the Constitutional
obligation of providing adequate infrastructure to
the judiciary. In the circumstances, we are
constrained to reject the contention raised by the
State regarding its primacy when it comes to
deciding the number of Judicial Officers required by
the judiciary.
37. As far as the factual aspects are
concerned, we have dealt with most of the factual
aspects. In the context of the discussion which we
have made on number of judicial posts which are
required to be created, we must come back to the
controversy regarding the creating 867 additional
posts in Maharashtra. We have already observed that
the stand taken on this aspect by the State is quite
misleading in the sense that while dealing with the
said grievance, the State has tried to rely upon the
number of appointments made of the ad hoc Judges. We
have already clarified that creating posts of ad hoc
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Judges has nothing to do with the proposal of the
High Court Administration of creating 867 additional
permanent posts of various category of Judges.
38. Before we part with the Judgment, we will
have to deal with the manner in which the State has
dealt with the request made by the High Court
Administration for creating additional 867
Courts/posts. From the affidavits filed on record
by the Registrar (Legal) and some of the affidavits
filed by the State Government, it is crystal clear
that the proposal for creation of 867 Courts has
remained pending with the State from the year 2012.
What is material to note is the number of queries
made by the State Government with the High Court
Administration when it comes to creation of new
posts and establishment of new Courts. If some of
the queries made by the State are perused, it is
apparent that the said queries have been made in
ignorance of the constitutional obligation of the
State. In fact, enclosures to the affidavits will
indicate that no proposal moved by the High Court
Administration is approved by the State Government
without making large number of queries. For
example, we may deal with the proposal for
establishing 17 Family Courts at Mumbai, 4 Family
Courts at Pune and 5 Family Courts at Nagpur. By a
letter dated 30th March 2017, a very peculiar query
was made. The query itself records that as per the
Government Resolution dated 22nd December 2015,
recommendations of the Shetty Commission have been
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made applicable to the Family Courts. The Government
stated that the High Court Administration should
submit a statement of expenditure which is likely to
be incurred on the payment of salaries to the
additional Judges as proposed. The State Government
is aware about the pay of the Family Court Judges.
It was a matter of simple arithmetic calculation for
the State. However, queries were made to the High
Court Administration. Such approach on the part of
the State Government is completely contrary to its
constitutional obligations. In fact, the State
Government should be equally concerned as the High
Court Administration is concerned with the disposal
of the old cases and for ensuring that a speedy
trial is made available to the litigants. In fact,
when the High Court Administration submits a
proposal for creation of posts of additional Judges
or additional Courts for dealing with the pendency,
the State should cooperate by creating additional
posts of Judges instead of making large number of
queries. Whenever such a proposal is submitted to
the State, an adversarial stand is always taken by
raising several objections and queries. In the light
of the law laid down by the Apex Court and in this
Court, it is obvious that the State Government
requires to change its approach. We are constrained
to observe that it is a matter of record in the form
of various Judgments delivered by this Court that
repeatedly this Court on its judicial side was
required to issue directions to the State Government
only for ensuring establishment of adequate number
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of Courts and for ensuring that adequate
infrastructure is provided to the Courts. Ideally,
in terms of the constitutional mandate, there cannot
be any opposition by the State Government when High
Court Administration seeks creation of additional
Courts or posts and seeks to appoint additional
Judicial Officers.
CONCLUDING PORTION
39. Now, coming back to the conclusions, we
have already reiterated the constitutional
obligation of the State. We hold that when it comes
to deciding on the proposal for the appointment of
additional Judicial Officers or creating additional
Courts or creating additional posts, the views of
the High Court Administration will always have a
primacy and it is the constitutional obligation of
the State to ensure that additional Courts or
additional posts as suggested by the High Court
Administration are sanctioned as expeditiously as
possible in as much as if there is a delay on the
part of the State Government, it may amount to
violation of fundamental rights of the litigants
under Article 21 of the Constitution of India.
40. As far as the directions which are required
to be issued are concerned, as pointed out in the
discussion made earlier, some of the prayers have
been worked out. However, if the proposals of the
High Court Administration which are referred in the
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prayer clauses are still pending with the State,
it will have to take appropriate decision within a
period of three months from today. As far as the
wider prayers for appointing additional Judges are
concerned, we are not issuing specific directions as
in the case of Mumbai Grahak Panchayat (supra),
specific directions regarding the State Government
sanctioning the posts as per the directions in the
case of Imtiyaz Ahmad (supra) have been already
issued. The State Government is bound by the said
direction.
41. In the prayers made and especially prayer
clauses (d) to (j), there is a direction sought
regarding making budgetary provision for meeting the
expenditure for creating additional posts or Courts.
Once we hold that it is the obligation of the State
to provide adequate number of Courts and adequate
number of posts of Judicial Officers, the obligation
to make necessary budgetary provision for that
purpose is implicit.
42. There is a Civil Application filed by the
Pune Family Court Lawyers Association seeking a
direction regarding construction of Family Court
building at Pune. With the passage of time, the said
grievance is worked out in as much as new Family
Court building at Pune is already constructed and
the Family Courts have started functioning therein.
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43. Before we dispose of the petition, we must
record our appreciation for the role played by the
PIL petitioner by taking up cause of the legal
system and judiciary.
44. Accordingly, we dispose of the petition by
passing the following order:
(I) As observed earlier, as far as the issue
regarding pension is concerned, appropriate
final directions have been already issued
under the Judgment and Order dated 11th
August 2017;
(II) If the proposals for creation of posts
(including 867 posts) which are the subject
matter of this PIL are still pending, the
State Government shall take appropriate
decision thereon in the light of the law
laid down by the Apex Court and this Court
as expeditiously as possible and in any
event, within a period of three months from
the date on which this Judgment is uploaded;
(III) As stated earlier, we are not issuing any
specific directions as regards the prayer
for creating adequate number of posts of
Judges as the decision of this Court in the
case of Mumbai Grahak Panchayat (supra) and
the directions given therein are holding the
field;
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(IV) Place the PIL under the caption of
'Directions' for reporting compliance on 25th
January 2019 at 3.00 p.m.;
(V) Considering the nature of the directions
issued under this Judgment, it will be
appropriate if for considering compliance,
this petition is placed before the Bench of
which one of us is a party. The Registrar
(JudicialI) will seek appropriate
directions in that behalf from the Hon'ble
the Acting Chief Justice;
(VI) In view of disposal of petition, all pending
civil applications are also disposed of.
(M.S.SONAK,J.) (A.S.OKA,J.)
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