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2002 DIGILAW 286 (JK)

State Of J. &K. v. Jawahar Lal Kher

2002-09-06

S.K.GUPTA, T.S.DOABIA

body2002
Per : Per Dobia, J. "In the general course of human nature, a power over a mans subsistence amounts to a power over his will." These words are attributed to Alexander hamilton in the Federalists No. 79(3) and are quoted in Evans v. Gore (1920) 253 US 245. The issue was with regard to the privileges which are conferred upon the judiciary and to what extent these privileges are required so that the independence of action and judgement which is essential to the maintenance of guarantees, limitations and pervading principles of the Constitution and to the administration of Justice with respect to the persons and with equal concern for the poor and the rich. Whether a provision of housing accommodation for the subordinate judiciary of the staff should be regulated by the judiciary itself or the judiciary is supposed to make a request every time a need is felt in this regard and whether making a request on each and every occasion does compromise the concept of independence of judiciary. This is a broad argument which prevailed with a learned Single Judge who decided a batch of writ petitions and gave five directions which are being reproduced below :-- (1) That all those persons who have ceased to be Government servants, for any reason, shall be evicted from the houses allotted to them as Government servants immediately. This direction shall not, however, apply to persons whose eviction has been stayed by the High Court in any proceedings. (2) Persons who are not in Government service but require Government accommodation, because of security reasons, should be tried to be accommodated within one complex so that their security is ensured and State has to incur lessor amount for their security. (3) No person who is not a Government servant, but is provided the Government accommodation for security reasons, shall be given more than one unit of accommodation in the State of Jammu and Kashmir. Persons who are at present having Government houses both at Jammu and Srinagar be asked for a choice and evicted from the other house. This shall also be done within one month. Persons who are at present having Government houses both at Jammu and Srinagar be asked for a choice and evicted from the other house. This shall also be done within one month. (4) The Houses and the accommodation units available with the State Government shall be classified by a Committee to be appointed by the Chief Secretary of the state with in six months and the entertainment of a particular officer to a particular type of accommodation shall be determined by that classification. A separate queue shall be maintained for separate type of accommodation in which applications shall be considered for the type of accommodation to which the applicant will be entitled on the basis of his status and grade, which may be classified by the Committee. (5) A Government Officer who has his own house at the place where he is stationed, shall not be entitled to Government accommodation. 2. The above directions, as indicated came to be given in a batch of writ petitions which came to be decided on 24th Jan97. A perusal of the aforementioned directions makes it apparent that all the directions given above are such to which the State should not have taken any exception, nevertheless, an appeal has been preferred. 3. The learned Advocate General who has put in appearance on behalf of State submits that the Rules have been framed. The system of discretionary quota is no-longer adhered to. Therefore, whatever was required to be done has been done. It is accordingly submitted that the writ petitions have become infructuous and should be disposed of as such. As indicated above, exception is being taken to the view expressed by the learned Single Judge that some accommodation should be earmarked and this should be at the disposal of the High Court so that allotments could be made to the staff members. 4. At this stage, it would be apt to notice the observations which have been made by the learned Single Judge regarding earmarking of some accommodation and allotting the same to the judicial officers and to the staff members of the High Court and subordinate courts. 4. At this stage, it would be apt to notice the observations which have been made by the learned Single Judge regarding earmarking of some accommodation and allotting the same to the judicial officers and to the staff members of the High Court and subordinate courts. These are as under :-- "Reverting back to the problem of accommodation of the employees of the Judicial Department, I am of the view that although the employees of the High court and the Subordinate Courts are Government servants but strictly speaking they are a class apart and need to be dealt with separately. The Government is bound to provide accommodation to the judges of the High Court, Judicial Officers, of the High Court, Staff of the High Court and staff of the Subordinate Courts ......." ".....The problem of the providing accommodation to the Judicial officers has already been taken care of by the Apex Court and there is already a judgement from the Apex Court under which the Government is bound to provide accommodation to the Judicial Officers...." ".......The law laid down by the Supreme Court makes it abundantly clear that even the staff members of the Judiciary have to be insulated and protected from the Executive influence. If an officer of the court has to approach day in and day out, the officers of the Executive, for suitable accommodation, the whole concept of the Judicial independence shall fall to the ground. It is not a luxury which we are asking for from the Government for our employees but the basic need has to be fulfilled and in these circumstances, I had asked the state Government to come out with a proposal but no proposal was presented. The Government on the other hand, is creating accommodation for the employees of the Government by incurring huge amounts. It is also spending huge amount in maintenance and up-keep of houses but is said that the employees of the judiciary are treated like orphans...." 5. According to the Advocate General, this is a matter which should have been left to the State Government and no direction should have been given to earmark some accommodation for the staff of the High Court. According to the Advocate General, this is a matter which should have been left to the State Government and no direction should have been given to earmark some accommodation for the staff of the High Court. It is further submitted that the direction given by the learned Single Judge to place 4% of the total residential accommodation for the judiciary at the disposal of Registrar (Genl.) of the High Court is a direction which could not be given. It is submitted that the learned Single Judge has specified not only the number of residential houses which should be so reserved but also indicated the type of houses which are to be placed at the disposal of Registrar (Genl.) of this Court. It is submitted that on what basis, this 4 percent calculation has been arrived at is not apparent. It is further submitted that the ratio proportion of the staff of the High Court and that of the rest of the State employees, if taken note of, then the ratio proportion so fixed by the learned Single Judge is not justifiable. In ground of the appeal, it is urged that the learned Single Judge in his bid to separate judiciary from the Executive influence has inadvertently encroached upon the field which is purely the domain of the executive. The learned Single Judge has not appreciated the fact that it is not only the judiciary, but executive also which needs to be independent. All the three pillars of the Government viz. legislative, Executive and judiciary have been conferred with powers to be exercised by them in their respective fields without being influenced by each other." It is submitted that the directions given by the learned Single Judge impinge upon the field which is exclusively with the executive and it is in this manner independence of executive being available for judicial officers, and there was absolutely no necessity to give further directions to accommodate the employees of the High Court or subordinate judiciary. The sum and substance of the arguments raised by the learned Advocate General is that the matter regarding allotment of houses is a matter which should be left to the discretion of State Government and the rules which may be framed by the State Government in this regard, by giving directions and by making observations, the power which is supposed to be exercised by the executive is being encroached upon. 6. We appreciated the concern shown that the executive action should also be protected in the same manner as independence of judiciary. There can be no dispute with this. If this argument of the State is taken note of if the system of administration of justice which according to the State requires to be insulated completely is likely to be affected in any manner, then the very argument which has been raised by the State would go against it. As urged by the Advocate General, during pendency of this litigation, Rules have been framed. These rules a copy where of has been placed on the record as Annexure D, however, do not deal with the accommodation which has to be provided to the High Court staff. The accommodation which is being provided to the judicial officers is being provided because of the decision given by the Supreme Court of India. This is because providing accommodation is part and parcel of the conditions of the judicial officers. Therefore, simply because some accommodation is being provided to judicial officers is a factor which totally alien to the plea put across who are discharging judicial functions. The dispute is narrow; this is as to whether some accommodation should be earmarked and placed at the disposal of the High Court so that the High Court is not called upon to request the executive wing every-time a need is felt in this regard. 7. The American Constitution and also the Constitution of India and for that matter all constitution contain a provision not only for securing a fixed tenure of the Judges but also for security of service and emoluments. These guarantees are based on consideration of public interest and are not dictated by any special considerations. The paramount purpose is to see that the judicial system is insulated from outer influences including those from the executive. These guarantees are based on consideration of public interest and are not dictated by any special considerations. The paramount purpose is to see that the judicial system is insulated from outer influences including those from the executive. Therefore, when a provision is made for housing accommodation for the judges whether members of superior service or otherwise and when the purpose is to uphold the dignity of the office and to insulate the system from Executive influence, then making a provision for housing accommodation for accommodating the staff attached with the Courts would lead to the upholding of the principle i.e. there should be an independent judiciary. This insulation is required not only at the level of judges but also with regard to the staff which is attached with the judges. Therefore, when the directions were given by the learned Single Judge that there should be a quota meant for the staff attached to the judicial system, then this should have been taken note of when State was framing Rules and this aspect of the matter should have been adverted to. Nothing has been said qua this. One aspect of the matter which cannot be lost sight of is that the judgement was passed by the learned Single Judge on 24th Jan97 the Rules were framed about a year after the passing of the above judgment, but as indicated above, no intention was shown on the part of the State Government to take notice of what was observed by the learned, Single Judge. As a matter of fact, interim orders passed by this Court from time to time show that the appellants were called upon to take some effective steps in this regard. Interim circular passed on 27th Jan99 by a Bench presided over by the then Chief Justice of this Court is being reproduced below:-- "Let learned Advocate General file affidavit mentioning clearly the total residential accommodation available with the State Government for allotment to the employees. Interim circular passed on 27th Jan99 by a Bench presided over by the then Chief Justice of this Court is being reproduced below:-- "Let learned Advocate General file affidavit mentioning clearly the total residential accommodation available with the State Government for allotment to the employees. It may also be stated how many sets have been allotted to State Government employees and how many to judicial employees generally and Move employees particularly indicating also whether Government has policy for preferential allotment of accommodation to move employees as compared to other employees, if so, how many sets have been allotted to such employees of the State Government and High Court employees and how many sets are left for distribution to other employees of the two wings namely the State and the Judiciary. Other information touching the question and for proper disposal of the matter may also be supplied. The affidavit be filed within a month." 8. No such information has been made available to this Court. We are accordingly of the view that no exception can be taken to the view expressed by the learned Single Judge. Action should have been taken by the State at its own level without there being any reminder in this regard from this Court. This, as indicated above, has not been done. As such we direct that this is a matter which is required to be dealt with by the State and they would now do so by complying with the directions given by the learned Single Judge with a view to earmark accommodation which would be placed at the disposal of the High Court to be dealt with and allotted by the Registrar General of this court. 9. At this stage, it has also been brought to our notice that the accommodation which has been provided by the State Government to the Staff of the High Court is not being repaired and is in a dilapidated condition. Steps are not being taken with a view to carry out the repairs and even the normal activities of the white-washing etc. are not being carried out. 10. Taking into consideration the above aspect of the matter the appellant state is directed to carry out the requisite repairs and also the process of white-wash. Let this be done when this exercise is taken vis-a-vis other accommodation which is meant for the darbar move staff. are not being carried out. 10. Taking into consideration the above aspect of the matter the appellant state is directed to carry out the requisite repairs and also the process of white-wash. Let this be done when this exercise is taken vis-a-vis other accommodation which is meant for the darbar move staff. It is hoped that this would be completed on or before 31st Oct 2002. In case, it is not done, the High Court would be at liberty to carry out the repair works and white washing of the accommodation which is being occupied by the High Court Staff and the expenses so incurred shall be reimbursed by the State Government. 11. We accordingly, find no merit in this appeal and the same shall stand dismissed.