All of us are about State of Indian Judiciary which is going through tough time. Biggest issue is the pendency of cases across country. Indian Judiciary also needs good amount of funding for discharging its duty. Central and State Government funds helps in this regard. Some funds are specially allocated to state govt. by Ministry of Law & Justice planned in Finance Commissions. In the recent budget, Rs. 3055.11 Cr was allocated for Ministry of Law & Justice for the year 2019-2020, last year it was Rs. 4386.33 which shows significant fall in funding.
13th Finance Commission (2010-15) allocated Rs. 5,000/- Cr. For State Judiciary for heads like Morning/Evening Courts (Rs. 2,500 Cr.) , Lok Adalat & Legal Aid (Rs. 300 Cr), Training for Judicial Officers (Rs. 250 Cr.), Training for Public Prosecutors (Rs. 150 Cr.), Heritage Court Building(Rs. 450 Cr.), State Judicial Academy(Rs. 300 Cr.), ADR Centres (Rs. 750 Cr.), Court Managers(Rs. 300 Cr.).
In 14th Finance Commission (2015-20) proposal of Rs. 9,775 Cr. was proposed by Department of Justice for segments like Additional Courts(Rs. 859 Cr.), Fast Track Courts (Rs. 4144 Cr.), Family Courts(Rs. 541 Cr.), Redesigning Existing Courts(Rs. 1,400 Cr.), Technical Manpower(Rs. 500 Cr.), Scanning & Digitization (Rs. 752.5 Cr.), Law Schools(Rs. 50.50 Cr.), Lok Adalat(Rs. 100 Cr.), ADR Centres(Rs. 300 Cr.), Mediators(Rs. 503 Cr.), Capacity Building (Rs. 625 Cr.). It is pertinent to note that no fund was proposed for Court Managers across country. From budget of 13th Finance Commission, hardly 20% spent for appointment of court managers till date (See Summary of Grant here). Ten States did not spend a single rupee from the allocated budget for appointment of court managers. After 13th Finance Commission’s ambitious plan for appointment of court manager across country, state started recruiting court managers on contract basis as funded by the central government. In absence of continuous funding, it is the history that state govt stopped implementing the scheme/policy ultimately affecting Indian Judiciary. Foremost example is budget for Fast Track courts which exist for almost two decades, many states closed the fast track courts in last one decade because of funding issue from central government. It is good news that significant funding earmarked for fast track court. Past funding issue with regard to Fast Track courts, now Court Manager witnessing the same. Some states have stopped appointing court managers or have not extended the service period or given permanent appointment. Following case is the recent example in this regard. Court Managers are playing crucial role in Indian Judiciary, there are evidences for that. It is the sad part that no proper Impact Assessment done with regards to appointment of court managers and their performance and impact in Indian Judicial System. Few studies carried out on court managers but not effective one.
Let’s discuss recent case Nishant Rana & Ors v/s. Union of India & Ors. (CWP No. 5582/2015) & Preet Inder Singh Negi v/s. Union of India & Ors. (CWP No. 6612/2015) regarding court managers decided by Hon’ble High Court of Punjab & Haryana on September 12, 2019
Committee was constituted to see progress of appointment of court managers in the state. Proposal was prepared which was approved by Hon’ble Chief Justice in August 2010.
Since the stage was set for inviting applications, an Employment Notice was published in the newspapers etc. inviting applications for 18 posts of Court Managers in the Subordinate Courts of Haryana and 16 posts of Court Managers in the Subordinate Courts of Punjab containing the prescribed qualifications, age limit and mode of selection, as referred to above. The employment notice stated that the posts have been created on temporary basis, which are likely to be continued. However, selections were made by departing from the prescribed mode of written examination by holding only an interview. Offers of appointments were issued to the successful candidates on 10.05.2012. The relevant terms and conditions mentioned in the offer of appointment are as follows:
“1. That your appointment is purely on temporary basis under a scheme approved and funded by the Ministry of law and Justice, Government of India under the 13th Finance Commission till the financial year 2014-2015.
xx xx xx 3. That your services shall be liable to be terminated with the termination of the scheme unless it is further continued by the Government of India/State Government.”
Several District & Sessions Judges sought clarifications regarding the post of Court Managers and it was clarified by the High Court that the posts are purely temporary under a scheme approved and financed by the Ministry of Law and Justice, Government of India. The incumbents were not given benefit of New Contributory Pension Scheme in view of letter dated 19.10.2012 treating the post as purely contractual in nature in terms of the Scheme. The letter dated 19.10.2012 was annexed with CM No.4534 of 2015 as Annex A-1 (Colly.) at internal pp.23 of the application. There was a slight departure from the appointment letter which spoke of ‘temporary’, but not ‘contractual’. Aggrieved by the alleged anomaly in fixing the terms and conditions of service in terms of letter dated 19.10.2012, the aggrieved petitioners made a representation to the respective District & Sessions Judge, which was declined on 28.01.2013.
On 02.12.2014, Government of India, Ministry of Law and Justice (Department of Justice), New Delhi addressed letter to all the Chief Secretaries of States on the subject of ‘Employment of Court Managers under Thirteenth Finance Commission Award – Evaluation of the impact & non-availability of Central funds beyond 31st March, 2015’. The letter highlighted that Rs. 300 crores were allocated for employment of a professionally qualified Court Manager in each judicial district to assist the Principal District & Sessions Judge. In addition, two Court Managers for each High Court and one for each bench of High Court were to be employed under the scheme. It was decided that in order to have a wider field of choice, in addition to direct recruitment, these posts may be filled up through deputation. It was only Rs. 32 Cr. which could be released by the Central Government in the subsequent grant period. The primary reason for which was non-appointment of Court Managers by States/High Courts and non submission of Utilization Certificates. As per the data then available, the Court Managers were functional only in 14 states totaling about 448 Court Managers against the anticipated more than 700 Court Managers. Government had also received a number of representations from the Court Managers stating that their roles have not been clearly defined or they were not being assigned functions as per the job description communicated to them. The States were reminded by the Government of India of the conditions in the 13th Finance Commission in its report that the impact of this innovation may be evaluated after 2015. The States and the High Courts were called upon to review the impact of deployment of Court Managers in the respective State and get an evaluation done regarding enhancement of efficiency of court management and resultant improvement in case disposal in consultation with the High Court concerned. Feedback from this evaluation, it was felt, will benefit both the State Government and the Central Government in planning such initiative in the future. However, the Central Government threw the spanner in the works informing it decision that the Central Government will be no longer be in a position to fund the scheme of Court Managers after the current financial year. Any commitment on account of Court Managers beyond 31.03.2015 shall be liability of the States from its own sources. In case, after evaluation, the State Government and the High Court concerned feels the need for continuation of these Court Managers, appropriate budgetary resources may be kept in the budget for the State from the FY 2015-16 onwards.
Faced with immanent dislocation depending on budgetary approvals, the petitioners feeling aggrieved at the prospect of being discontinued in service made a representation on 11.12.2014 claiming continuation and absorption from the date of their respective appointments and for allocation of funds from the respective States/UT Government. This matter was taken up by the Hon’ble Computer Committee under the Chairmanship of Hon’ble Mr. Justice Hemant Gupta on 17.12.2014. The Committee seized of the deadline up to 31.03.2015 was called upon to decide the fate of 16 sanctioned posts in State of Punjab and 21 posts in the State of Haryana and two temporary posts of Court Managers in the High Court. The Hon’ble Committee recommended that the Chandigarh Administration be asked to make these posts as permanent. Due to increase in number of districts to 22 in the State of Punjab, the Punjab Government be requested to bring one post of Court Manager for each district. Since no post of Court Manager exists in Chandigarh, the Chandigarh Administration be requested for creation of post for District Courts, Chandigarh. The State of Haryana was requested to make provisions for payment of salary of Court Managers in the newly carved districts Palwal and Nuh in Haryana after 31.03.2015.
Another meeting was held on 03.03.2015 regarding Extension of service of Court Managers in view of Central Government declaration that the scheme is not being extended after 31.03.2015. Therefore, situation arose that their services would stand dispensed w.e.f. 31.03.2015. A decision was taken that since the process of filling regular posts of Court Managers as sanctioned by the Punjab and Haryana Governments is under contemplation and process may take 3 to 6 months, it was resolved that till the process of regular appointments is completed, the State Governments be requested to approve the appointment of existing Court Managers on contract basis at consolidated salary of Rs. 50,000/- per month. The Governments were also requested to inform whether the post of Court Manager is a State or District cadre post (single post) for application of the State reservation policy at the time of recruitment. The existing incumbents would be considered for regular appointment in terms of the rules and the conditions of advertisement. That is the decision against which the petitioners have approached this Court praying that it be set aside and the petitioners be treated as regular appointees or in the alternative to regularize and absorb them on the sanctioned posts. It is this decision dated 03.03.2015 which is challenged in these petitions as illegal and arbitrary and contrary to the scheme.
The consequence of the decision would be that the services of the petitioners would stand dispensed w.e.f. 31.03.2015. They claim benefits of regular employees including pay scales, seniority etc. w.e.f. the dates of their initial appointment. They also sought a stay on their appointments.
On 18.05.2015, the Court was informed that the Impact Assessment Study was underway and a short adjournment was required for the results of the study to be received and for the competent authority to take a decision thereon. The prayer for interim relief was still kept alive till the next date of hearing i.e. 07.07.2015.
Mr. Patwalia relies on an order of the Supreme Court issued on 02.08.2018 in Interlocutory Application No.279 of 2010 in Writ Petition (Civil) No.1022 of 1989 titled ‘All India Judges Association & others Vs. Union of India & others’, wherein direction (ix) re-affirms the terms and conditions of Court Managers that professionally qualified Court Managers, preferably with an MBA degree, must be appointed to render assistance in performing work in the court administration. This would enhance the efficiency of the District Judicial System. The Court Managers would help in identifying the weaknesses in the court management systems and recommending workable steps under the supervision of their respective judges for rectifying the same. He lays particular emphasis on the direction to the effect that ‘the services of any person already working as a Court Manager in any district should be regularized by the State Government as we are of the considered view that their assistance is needed for a proper administrative set up in a Court’.
Referring to these directions, Mr. Patwalia says that the letter and spirit of the direction should be read in favour of the petitioners and they should be deemed to be in service due to an illegal termination for giving effect to the purposes of the direction of the Supreme Court. However, the fact of the matter is that long before the direction was issued on 02.08.2018, the petitioners had ceased to hold office after 01.04.2015.
In this regard Mr. Patwalia also relies on Annex P-30, which are orders by the Governor of Assam notifying Rules called the “Gauhati High Court (Appointment and Conditions of Service of Court Managers for the State of Assam) Rules, 2018”. There the Government of Assam had statutorily notified the ‘method of recruitment’ to the cadre of Court Managers to be made by direct recruitment only except as provided in clause (b). Clause (b) permitted existing Court Managers, who were earlier recruited, on contractual basis, following the procedure of recruitment as provided under the Gauhati High Court (Appointment and Condition of Service of Court Managers) (Assam) Rules, 2012, and who have completed two years of service, may be absorbed in the newly created posts of Court Managers, on the commencement of those rules, subject to their continued utility and suitability (to be assessed by the High Court) and they shall be entitled to the pay and allowances and other facilities as admissible to the post of Court Managers provided under the rules. The exercise of absorption of existing Court Managers shall be for one time only, as is the mandate in then statutory rules of service. The remaining vacant posts shall be filled up by direct recruitment following the procedure as laid down under rule 6. Thus, Mr. Patwalia prayed that the same treatment be given to the petitioners.
Defence/stand of the High Court
On the other hand, Mr. Ashwani Chopra, learned senior counsel representing the High Court has produced the record of the decisions taken by the High Court from time to time in this behalf. He submits that even the initial creation of posts on acceptance of the recommendation of Hon’ble the Chief Justice of India was for a limited period. Continuance on the post would be based on Impact Assessment Report carried out by the respective State Government/High Court about the functional necessity of continuing with the post. The High Court made such an effort through the Registrar (Computerization) to produce an Impact Assessment Report for the consideration of the Hon’ble Committee. The Impact Assessment Report prepared by the Registrar (Computerization) has been produced in Court for its perusal. The material taken in consideration for making assessment was based on (i) feedback of the learned District & Sessions Judge of Punjab and Haryana regarding role and efficiency of the Court Managers; (ii) material received/retrieved from National Judicial Data Grid; (iii) working of two Court Managers posted in Punjab and Haryana High Court, who were reporting to the author of the report; (iv) Monthly and quarterly reports (general as well as related to computerization) from districts; (v) quarterly assessment of work by the District & Sessions Judges counter signed by Nodal Officers appointed for computerization; (vi) Interaction with Court Managers on a number of occasions through video conferencing; & (vii) evaluation of Court Managers being Central Project Coordinator-cum-Registrar (Computerization).
The assessment was made on cumulative appreciation of all the data available. The report throws up in its recommendations many interesting facets, such as; (a) experience shows that Court Managers have discharged their duties as regards to data management, e-Management and Website Management with the technical support from System Officers (SO) and System Assistants (SA) as well as District System Administrators (DSA) trained by Hon’ble e-Committee/Master Trainers, as per the expectations; (b) computerization of court records, backlog case entries, date & data up-gradation has been achieved with active participation of Court Managers, SOs, SAs and Court Staff; (c) nature of role played by Court Managers is more of managerial nature than technical and that technical role was mostly played by SOs assisted by SAs. In each district, there was one SO assisted by 2/3 SAs, who are technically qualified and have experience in technical field. The technical contribution of Court Managers was less than expected, as it was mostly provided by SOs and SAs; (d) in the matter of human resources, software and infrastructure management, their contribution is less than what is expected from them. Barring a few, most have facilitated the working being additional hands without there been much value addition; (e) in the matters relating to budget, stock, security and record management, they have played a limited role and have not used their full managerial and technical potential; (f) impact of miscellaneous initiatives varies from district to district depending upon individual personality of Court Manager and his dependability and ability to assist District & Sessions Judge in court management. They may have been able to supervise SOs and SAs, but have taken few of miscellaneous initiatives.
The report states that the overall assessment regarding Court Managers can be termed as ‘Average’. However, they alone cannot be blamed for average performance. Due to lack of domain knowledge i.e. court procedures and requirements, hierarchical confusion viz-a-viz existing staff (especially between Court Managers and Superintendents), contractual nature of employment and lack of refresher training has impacted working of Court Managers as is clear from feedback received from District & Sessions Judges. Few observations are, Court Managers have played less technical role than expected. There is confusion regarding role of Court Managers and existing Court staff. Their duties are overlapping, which has hindered the desired results. Hierarchy and reporting matrix needs to be settled for effective and cohesive court management. Clear work distribution is also required for synchronized working.
These and other suggestions made in the Impact Assessment Report were placed in the Meeting Note. The report was considered in the meeting held on 15.07.2015 by the Hon’ble Executive Committee regarding role and efficiency of Court Managers. Upon a consideration of the Impact Assessment Report and working of Court Managers since 2012, the Committee was of the view that the office of Court Manager requires relook and accordingly, the Committee proceeded to recommend the changes regarding Post, Qualification, Age limit, Pay Package, Promotional Avenues, Mode of Selection etc.
Mr. Chopra further submits that the creation of the post of Court Manager in the recommendations of the 13th Finance Commission was an experiment for 5 years supported by Central Government funding and it was made clear in the beginning that the success of the innovation and its continued utility would have to be evaluated, the impact of which would have to be evaluated after 2015. It was for this reason that applications were invited on 21.01.2011 for filling up posts on temporary basis, which were likely to be continued. No permanency was attached to the post nor could be since the experiment would terminate in 2015 with no future guidance at least at the hands of the Central Government. The petitioners were neither appointed on regular basis nor against any regular/cadre post. Rather their appointments were in the nature of contractual appointments under a time bound centrally funded scheme, which remained in force to run till 31.03.2015 and not thereafter. The appointment itself narrated that it was under the 13th Finance Commission upto the financial year 2014-15. He would refer to Clauses (1) & (3) of the appointment letter to emphasize that no promise was made of continuing them after efflux of time. The words ‘likely to be continued’ deserves to be construed in this manner. The funds from the 13th Finance Commission were available only until 31.03.2015. Neither the Government of India nor the respective State Governments chose on their own to continue with the scheme of employment of petitioners beyond the date fixed. The services of the petitioners were liable to be terminated w.e.f. 31.03.2015 as per the terms of the appointment letter/s and were accordingly terminated with effect from the said date. The terms and conditions of the offer of appointment were in the realm of contract and their having agreed to join service, they were bound by the contract and cannot claim, as a matter of right, absorption or regularization or to be made permanent employees or to continue in service beyond 31.03.2015 that too without any budgetary arrangements by the respective State Governments. The petitioners did not belong to the State cadre in view of the nature of their appointment based on innovation and experiment initiated by the Supreme Court and the thread taken up by the 13th Finance Commission for the better management of the Justice Delivery System.
The Central Government was categorical in its letter dated 02.12.2014 addressed to the Chief Secretaries of the States that any commitment on account of Court Managers beyond 31.03.2015 shall be the liability of the State from its own sources. Continuation of scheme would depend on evaluation of the State Governments. For continuance of the posts of Court Manager, the State Governments had been forewarned that appropriate budgetary resources may be kept by the State from the financial year 2015-16 onwards. The Central Government had washed its hands off the scheme and the ball was left at the court of the State Governments.
In conclusion, Mr. Chopra relies on the decision of the Supreme Court in Brij Mohan Lal Vs. Union of India & others, 2012 (6) SCC 502. Referring to paras 19, 34, 38, 40, 46, 53, 60 & 145, Mr. Chopra submits that the Supreme Court had held that ad hoc temporary appointees under the Special Scheme of Fast Tract Courts (sponsored by Central Government) cannot have legal rights. The Supreme Court observed that mere expectation or legitimate expectation of absorption cannot be a cause of action for claiming relief of regularization particularly when the same is contrary to the rules and letters of appointment.
Justice Rajiv Narain Raina's Final Remarks
Even in the case of Fast Track Court Scheme, it was a well known fact that the financial aid and the responsibility of the Central Government to run the scheme would eventually come to an end, was a fact known to all the State Governments and the High Courts right from the inspection of the FTC Scheme and as such, action of the Central Government in not continuing with the FTC Scheme cannot be faulted with.
On these premises, it is urged that the petitions deserve to be dismissed as there are no fundamental rights in favour of the petitioners which have been infringed and merely because the appointment was on temporary basis likely to be continued in the scenario presented on facts would not detract from the inherent nature of the appointment which was only contractual in nature even though the word has not been used, the effect remains throughout the period of employment. The petitioners are bound by their letters of appointment and cannot be heard to wriggle out of them.
On the argument advanced which is based on the Notification dated 15.10.2018 enacting Rules by the Assam Government, it is submitted on behalf of the High Court that the initial induction of the Court Managers in Assam was based on statutory Rules of 2012 i.e. the Gauhati High Court (Appointment and Condition of Service of Court Managers) (Assam) Rules, 2012 and in all possibility they had continued to serve as Court Managers and accordingly the Assam Government gave effect to the directions of the Supreme Court dated 02.08.2018 in All India Judges Association case. The situation in this Court and the two States is different and no parallel can be drawn from Assam. In the present case, the petitioners were not in service for three years till the directions came and the direction of the Supreme Court has to be read accordingly as protecting services of any person already working in any district on the date of the order should be regularized by the State Government.
I find there is a considerable, merit in the submissions of Mr. Chopra that neither would the Assam Rules nor do the directions of the Supreme Court apply to the present case. The appointment of the petitioners were not based on any statutory rules as in Assam where they were recruited under the enactment of 2012 Rules and, therefore, their services were statutory in nature and not merely temporary/contractual appointments before they came under the rules notified in 2016.
Though the appointment of the petitioners is not through the back-door, but their selection was deficient inasmuch as the criteria of written examination was not adopted. This is inherent infirmity and normal rule is that the procedure laid down for selection should not be departed from. Thus, they cannot claim, as a matter of fact, continued employment by reinstatement into service. In view of this lacuna and for the variety of reasons mentioned above, while endorsing the view of the High Court and rejecting the case pleaded by the petitioners, I believe that there is no intrinsic merit in these petitions and the same are dismissed.
In case of direct recruitment, the petitioners who qualify the existing criteria would have a right of consideration and in this regard, it is for the High Court to consider the period spent by them in service keeping in mind the upper age limit.
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