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Court No.2
Writ Petition No.1290 (SB) of 1997
Shiv Lal --- Petitioner
Versus
Central Administrative Tribunal Lucknow & Others -- Respondents
Hon'ble Uma Nath Singh, J.
Hon’ble Devendra Kumar Arora, J.
On 20.07.2010, this Court passed the following order:
“On 15.09.2009, we had passed the following order:
“On being asked as to how the expression ‘backlog’ is understood in
respect of vacancies in Railways, learned counsel for Railways prays
for and is granted time till Dashehra vacations to seek instructions and
to ensure presence of a Senior Officer during the course of hearing.
The counsel shall also inform as to whether the disputed vacancies for
Scheduled Caste candidates are still available or they have been filled
up.”Thereafter, the matter was listed on several dates and adjourned for
compliance of the aforesaid order.Today, neither learned counsel for Railways nor is any officer present
in Court in terms of the directions issued earlier. Hence, it is directed that the
General Manager, Northern Railways, shall remain present in Court with
records of this case on the next date of hearing for assistance to facilitate the
early disposal of this matter.List on 28.07.2010.
Let a copy of this order be served upon the General Manager,
Northern Railways by fax by the Registrar of this Court for compliance.”It appears from records that 2 days thereafter, an interlocutory application
being CMA No.72190 of 2010 titled as “Application for permitting the Senior
Divisional Personnel Officer, Northern Railway, Lucknow to answer the query of
this Hon’ble Court, if any, in pursuance of earlier order dated 15.09.2009 passed by
this Hon’ble Court” was filed on behalf of Sr. Divisional Personnel Officer
(Northern Railway) on 22.07.2010 with a supplementary affidavit with following
prayer:“That in view of facts and circumstances explained in the accompanying
Supplementary affidavit, it is most respectfully prayed that this Hon’ble Court
in the interest of justice, may very graciously be pleased to permit the Senior
Divisional Personnel Officer, Northern Railway, Lucknow to answer the
query of this Hon’ble Court, if any and such other orders as this Hon’ble
Court may deem just and proper under the circumstances of the case may
also be passed.” (emphasis supplied)The grounds for filing the said application, as averred in paragraphs 20 to 28
of the Supplementary Affidavit are as under:2
“20. That however, as regards the non presence of counsel for the Railways
as well as senior officer of the Railway on 20.07.2010 before this Hon’ble
Court during call of this matter is concerned, it is most respectfully submitted
that on 20.07.2010, the Counsel for the railways was sick (suffering from
back pain arising out of slip disc), as such, as per prevailing practice, he has
sent his illness slip in the respective cases listed on 20.07.2010 but it seems
the said slip could not be delivered to the Bench Secretary of this Hon’ble
Court during afternoon session with the result the order dated 20.07.2010
was passed by this Hon’ble Court.21. That on 20.07.2010 one fresh case at serial no.4 in Court no.9 i.e.
FAFO No.864 of 2010 alongwith his other cases in same court during
morning session at Sl. Nos. 2, 21, & 23 were listed which were adjourned on
the ground of illness slip submitted on behalf of the present counsel for the
Railways. Similarly, during afternoon session at 02.00 p.m. one another case
listed at serial no.2 in Court No.22 i.e. W.P. No.3098 of 1990 were adjourned
on the ground of illness slip submitted on behalf of the present counsel for
the railways.22. That it seems under some confusion and mistake, the illness slip could
not be delivered to the Bench Secretary of this Hon’ble Court during
afternoon session though the counsel for the Railways remained under
bonafide impression that his illness slips have been delivered to the
respective Bench Secretaries of every Court including this Hon’ble Court
wherever his cases were listed. Due to aforesaid reason and belief that his
cases would be adjourned on the bonafide ground of his illness, the Senior
Officer of the Railway was also not summoned to this Hon’ble Court on
20.07.2010.23. That under the aforesaid circumstances and due to mistake on the part
of clerk of the counsel for the Railways in not giving illness slip to the Bench
Secretary of this Hon’ble Court in the present matter, this Hon’ble Court was
pleased to pass order dated 20.07.2010 summoning the General Manager of
the Northern Railway with records.24. That the controversy involved in the present matter is under the
jurisdiction of Divisional Office headed by the Divisional Railway Manager,
Northern Railway, Lucknow and Senior Divisional Personnel Officer,
Northern Railway, Lucknow is present in this Hon’ble Court in compliance of
the order dated 15.09.2009 passed by this Hon’ble Court.25. That the answering opposite parties sincerely regret for inconvenience
caused to this Hon’ble Court on 20.07.2010 and tender their unconditional
sincere apology for the same.26. That balance of convenience and equity also lies in favour of the
opposite parties.27. That in the interest of justice this Hon’ble Court may very graciously
be pleased to pardon the answering opposite parties in view of facts stated
herein above and take on record the documents filed with this affidavit and
permit the Senior Divisional Personnel Officer, Northern Railway, Lucknow
to answer the query of this Hon’ble Court, if any.28. That the answering opposite parties most humbly unconditionally
assures this Hon’ble Court that as and when this Hon’ble Court would be
pleased to summon any officer of the Railway, he/she will abide by such
directions of this Hon’ble Court.” (emphasis supplied)Thus, from the application as well as the affidavit, it does not appear that a
prayer for exemption from personal appearance of General Manager (Northern
3Railway) has been made. But contrary to the pleadings, it seems that a coordinate
Division Bench (Division Bench No.4) was misled in passing the following order:“An application has been moved for exemption of appearance on the
ground that Sri Anil Srivastava, counsel for the General Manager,
Northern Railway on 20th July, 2010 could not appear on account of
illness. Sri B.K. Shukla, Advocate, has filed Vakalatnama and
submits that all officers concerned with regard to the present
controversy including the Divisional Railway Manager are present.
The Divisional Railway Manager shall appar before the Court to
provide necessary assistance on 28th July, 2010.Put up on 28th July, 2010.
In case, all other officers necessary to resolve the present
controversy including the Divisional Manager appear in person along
with the records, it shall not necessary for General Manager, Northern
Railway to appear.”
However, in the best tradition of judicial discipline and in order to maintain
judicial propriety, we restrain ourselves from making a comment on the said judicial
order but as per the normal practice an application for exemption should generally
be posted only before the Bench which passed the order of appearance, particularly
in the special facts and circumstances of the case, which are exclusively within the
notice of that Bench. Moreover, in no case a coordinate Bench should pass an order
of modification of any order unless the Bench which passed the order sought to be
modified is not available or when Hon’ble the Chief Justice being the Master of the
rosters, lists the matters before some other Bench, lest the Bench modifying the
order may risk to commit the breach of judicial propriety by acting as an appellate
court, assuming for itself the powers of Supreme Court as in the case of an order
passed by a Division Bench of the High Court it ordinarily goes to Supreme Court
in SLP/appeal. Thus, as the General Manager (Northern Railway) did not make a
prayer for exemption from his personal appearance before this Court, he has
undertaken the adventure of committing the breach of directions of this Court.
However, the Railway Officers namely Sr. Divisional Personnel Officer and the
DRM (Northern Railway) present in the Court also mentioned that the General
Manager (Northern Railway) has not challenged the order nor has he sought any
exemption from personal appearance. Thus, he would be glad to appear towards the
compliance of the order dated 20.07.2010. Under the circumstances, the
interlocutory application filed by Sr. Divisional Personnel Officer was only in
respect of the grant of permission to appear for assistance to this Court towards the
compliance of order passed on 15.09.2009.
At it is now 3.30 p.m, the time for Special Bench to sit, let this matter be
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listed on 29.07.2010.
Let a copy of this order be communicated immediately on fax to the General
Manager (Northern Railway), Divisional Railway Manager (Northern Railway),
Lucknow and Sr. Divisional Personnel Officer (Northern Railway), Lucknow for
compliance.
28.07.2010
A. Katiyar