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2015 DIGILAW 444 (JK)

Court on its own Motion v. State of J & K

2015-08-26

HASNAIN MASSODI, N.PAUL VASANTHAKUMAR

body2015
JUDGMENT : N. Paul Vasantha Kumar, J. 1. Suo moto Public Interest Litigation was taken up by this Court noticing the fact that 38 Additional/Special Mobile Magistrates and staff attached to the Courts, which have been established under the 13th Finance Commission in lieu of creating morning and evening courts for improving justice delivery system, were not paid salary from March 2015. The said Courts were created by Government Order No. 929-LD (A) of 2012, dated 27.02.2012 and GO No. 2011-L.D(A) of 2012, dated 20.06.2012. The salary of the Presiding Officers as well as the staff attached to the Courts were not paid on the ground that Government of India has stopped funding after the expiry of period of 13th Finance Commission. The continuance of the Courts from March 2015 was felt by the High Court with regard to the pendency of cases numbering more than 15,000 and the High Court submitted a proposal to continue the Courts and pay the salary to the Presiding Officers as well as the staff on 06.06.2015. No action was taken and also the Judicial Officers as well as the staff attached to the Courts were not paid salary. Hence an interim direction was issued on 30.07.2015 to release a sum of Rs. 4.5 crores for payment of salary to 38 Presiding Officers of Additional/Special Mobile Magistrate Courts and the staff attached to these Courts on or before 03.08.2015 and the Court also ordered notices to the Chief Secretary, Jammu and Kashmir State, and Secretary to Government of J&K, Department of Law, Justice and Parliamentary Affairs. On 03.08.2015, response was filed by the State Government contending that a communication dated 06.06.2015 was received from the High Court and the matter was taken up by the Finance Department. The Department of Finance returned an endorsement seeking review of Cabinet decision dated 24.2.2012 and approval to the extent that the Cabinet has sanctioned the posts co-terminus with the Government of India funding and for fixed duration only and for taking over these liabilities as charge on State exchequer from the date Government of India funding has ceased for these posts. The Department of Law, Justice and Parliamentary Affairs accordingly placed a memorandum before the State Cabinet on 03.08.2015 for taking a decision. 2. The Department of Law, Justice and Parliamentary Affairs accordingly placed a memorandum before the State Cabinet on 03.08.2015 for taking a decision. 2. Since the cabinet meeting was not held, repeatedly time was sought for by the learned Advocate General which was also granted by this Court. 3. On 20.08.2015 the learned Advocate General produced two orders passed by the State Government bearing Government Order No. 2414-LD(A) of 2015, dated 19.08.2015 and Order No. 2417-LD(Acctts) of 2015, dated 19.08.2015. 4. In the Government Order No. 2414-LD(A) of 2015, dated 19.08.2015, it is stated that 36 Special/Additional Mobile Magistrates Courts, temporarily created to be co-terminus with the period of the Award of the 13th Finance Commission shall cease to exist after 31.08.2015 and the posts created on this account shall stand abolished. 5. In another Government Order No. 2417-LD (Acctts) of 2015 dated 19.08.2015, the Government has accorded sanction to release of additional funds amounting to Rs. 519.49 lacs under Detailed Head-001-'Salaries' below Major Head-2-14-Administration of Justice, in favour of Registrar General, High Court for clearance of pending liabilities on account of salaries of Judicial Officers and Staff of the Special/Additional Mobile Magistrates temporarily created under 13th Finance Commission Award up to 31.08.2015. 6. We have noticed that about 15,000 cases are pending in these Courts as on 30.06.2015 as per the details furnished by the Registry. 7. The period of 14th Finance Commission is from 01.04.2015 to 31.03.2020. The Central Government has tentatively decided to sanction a sum of Rs. 172.04 crore for a period of five years for setting up Fast Track Courts, Additional Courts, re-designing existing Courts to make them more litigant friendly, providing manpower, technical support and digitization of case records to enhance ICT environment of Courts, Lok Adalats and capacity building activities under 14th Finance Commission. In the proposal of Department of Justice (Govt. of India), a copy of which is addressed to this Court, it is stated that for Jammu and Kashmir State, a sum of Rs. 25.33 crores is earmarked for Additional Courts and Rs. 48.35 Crores for Fast Track Courts is to be sanctioned and Rs. 38.5 Crores for Re-designing the existing Courts. Thus it is clear that a sum of Rs. 112.18 crores is earmarked for five years by the Central Government for additional Courts/Fast Tract Courts & Re-designing Existing Courts.. 8. 25.33 crores is earmarked for Additional Courts and Rs. 48.35 Crores for Fast Track Courts is to be sanctioned and Rs. 38.5 Crores for Re-designing the existing Courts. Thus it is clear that a sum of Rs. 112.18 crores is earmarked for five years by the Central Government for additional Courts/Fast Tract Courts & Re-designing Existing Courts.. 8. Continuance of 38 Courts which are in existence as on date is sought to be ceased from 31.08.2015. The amount required for continuing the Courts per year would be around Rs. 12.00 crores i.e. within the sanctioned amount of Rs. 63.83 crores for five years. 9. When the matter was heard on 20.08.2015 the learned Advocate General prayed for time to get instructions with regard to continuance of these Courts in terms of the 14th Financial Commission and also stated that no amount has been released by the Central Government on the basis of the 14th Finance Commission proposal till date. The Secretary to Government, Ministry of Law and Justice, Government of India, was, therefore, impleaded as party-respondent and Mr. S.A. Makroo, Additional Solicitor General of India, was directed to take notice and get instructions. 10. Mr. Makroo, learned ASGI, has got written instructions on 24.08.2015. Based on the instructions, he submitted that with the increased devolution of funds by the 14th Finance Commission to the States was already recommended and the same was communicated on 03.06.2015 to the State of Jammu and Kashmir and the High Court and, it is for the State Government to implement the recommendations relating to the justice sector contained in the report of the Commission. He submitted that the net proceeds of Union Taxes and Duties for 2015-2016, insofar as State of Jammu and Kashmir is concerned, comes to Rs. 8087.88 crores and 1/14th of this amount is released every month. Till August, 2015, Rs. 2888.51 crores has been released. The learned ASGI also submitted that as per the accepted recommendations of the 14th Finance Commission, the share of the States has been fixed at 42% of the net proceeds of shareable Central Taxes i.e. income tax includes Securities Transaction Tax (STT). The contention of the learned Additional Solicitor General of India is that the Central Government has already sanctioned the amount payable under the 14th Finance Commission to Justice Department upto August, 2015. 11. The contention of the learned Additional Solicitor General of India is that the Central Government has already sanctioned the amount payable under the 14th Finance Commission to Justice Department upto August, 2015. 11. In the affidavit filed by the Under Secretary to Government of India, Department of Law and Justice, New Delhi, it is stated that the Prime Minister of India on 23.04.2015 wrote to the Chief Minister of J&K State, urging upon the State Government to allocate the funds required for the activities recommended by the 14th Finance Commission in the State Budget 2015-16 onwards to improve the working of the judicial system and to provide speedy justice in the country. On 03.06.2015, a communication was sent to the Chief Minister of the State as well as to the Chief Justice of the High Court, by the Union Minister for Law and Justice, emphasizing that efforts need to be made to make full utilization of the funds allocated to the justice sector as per the recommendations of the 14th Finance Commission. A communication was earlier sent on 29.05.2015 from the Department of Law and Justice to the Secretary, Department of Law and Justice, J&K, along with copy of the memorandum submitted to the 14th Finance Commission, urging the State of J&K for allocation of funds in the annual budget for implementation of the recommendations of the 14th Finance Commission/strengthening the justice sector. 12. This fact was disputed by the learned Advocate General, based on the instructions given by the Commissioner/Secretary to Government, Finance Department, J&K, stating that the Commissioner/Secretary to Government of J&K, Finance Department has not come across any communication from the Union Law Ministry, earmarking any fund/release of any funds for continuance of the Courts in question. 13. Mr. R.A. Jan, learned senior counsel appearing for the High Court, relied on the sanction order issued in Government Order No. 929-LD (A) of 2012, dated 27.02.2012 as well as Government Order No. 2011-LD(A) of 2012, dated 20.06.2012. It is specifically stated in these orders that the whole financial implication involved therein shall be borne under the Central funding from the Government of India without any extra burden on the State exchequer. Thus it is evident that no financial burden is put on the State Government for continuance of these Courts beyond 31st August, 2015. It is specifically stated in these orders that the whole financial implication involved therein shall be borne under the Central funding from the Government of India without any extra burden on the State exchequer. Thus it is evident that no financial burden is put on the State Government for continuance of these Courts beyond 31st August, 2015. He submitted that continuance of these Courts due to huge pendency of cases is paramount to ensure speedy justice to the litigants. 14. After hearing the arguments of the learned Advocate General, learned Assistant Solicitor General of India as well as the learned senior counsel appearing for the High Court, the Court put a suggestion to the learned Advocate General as to whether, on the above facts, the Government is willing to reconsider the decision communicated in Government Order No. 2414-LD(A) of 2015, dated 19.08.2015. The learned Advocate General replied that the State Government is not willing to re-consider the same, hence we are left with no other option except to pass an order in the stay application. 15. Speedy justice is guaranteed as a fundamental right under Article 21 of the Constitution of India. Disposal of cases expeditiously, particularly criminal cases, was emphasized by Hon'ble the Supreme Court of India in the decision reported in (2011) 2 SCC 550 (State of Uttar Pradesh v. Chhotey Lal) wherein it is held that strong and efficient criminal justice system is a guarantee to the rule of law and vibrant civil society. Long delay in delivery of justice violates rule of law as held by Hon'ble the Supreme Court in the decision reported in AIR 2012 SC 642 (Imtiyaz Ahmad v. State of Uttar Pradesh and Ors). Establishment of courts is one of the modes to dispose of cases in a time bound manner apart from efficient court management and giving training to the judicial officers. In the decision reported in (2012) 6 SCC 502 (Brij Mohan Lal v. Union of India and ors), on the abolition of Fast Track Courts, which were created under the 11th Finance Commission, on noticing the fact that 2500 crores were allocated for operation of the morning, evening and shift courts in the country as per the 13th Finance Commission Report, it was held that the policy adopted by the government must be fair, promoting public interest and also satisfy the constitutional limitations of ensuring independence of judiciary. In the said judgment it was further held that it will neither be fair nor proper for any level in the bureaucratic hierarchy of the Government to reject such suggestions at the threshold, that too, without any proper reasoning in support thereof. In paragraph 184 it is held thus:- "184. The right to speedy trial is an essential ingredient of such reasonable, fair and just procedure. The State cannot be permitted to deny the constitutional right to speedy trial to the accused on the ground that the State does not have adequate resources to incur the necessary expenditure needed, for improving the administrative and judicial apparatus to ensure speedy trial........." 16. In the light of the stand taken by the Central Government and the fact that a sum of Rs. 172.04 crore has been earmarked for the 14th Finance Commission to the State of Jammu and Kashmir for the judiciary, which is more than 34 crores per year and a sum of around Rs. 12.06 crore being earmarked per year on average basis for creation of new Courts and restructuring of the existing Courts, we are of the firm view that the decision taken by the State Government in Government Order No. 2414-LD (A) of 2015, dated 19.08.2015 appears to be without taking into consideration the funds provided by the Central Government under the 14th Finance Commission. Hence there will be a stay of Government Order No. 2414-LD(A) of 2015, dated 19.08.2015, so as to enable the 38 Courts to continue and dispose of the cases assigned to these Courts until further orders and the State of J&K is directed to release the salary of the Presiding Officers of these Courts, wherever the Presiding officers are available, and the staff attached to all the 38 Courts from September, 2015 onwards. Any subsequent development can be placed before this Court by the State for varying or modifying this order.