In that regard, we invited the attention of Mr. Sonpal to the affidavit filed by one Mr. S. N. Bagul Joint Secretary, Department of General Administration, Government of Maharashtra. That is affirmed on 15th June, 2016. Paras 3, 4 and 5 of this affidavit make interesting reading. They are reproduced hereinbelow:- “3. I say and respectfully submit that, according to GR dated 30.12.2014, Government servant who desires/ requires Government Accommodation, has to submit his application online. According to para 3(D) of the said Government Resolution the Government Servant has to submit requisite scanned documents along with the application online to the concerned Head of the Office/Department using given user ID. According to para 3(E) of the said Government Resolution, after receiving the application the concerned Head of the Office/Department has to scrutinize whether office of the applicant is under his purview as well as the applicant's appointment is regular, birth date/date of retirement is correct and if it is found that the information filled in by the applicant is correct and applicant has submitted all the required documents, Head of the Office/Department has to send the application to the General Administration Department online. Thus the applicant can submit his application only after he assumes his duty on the post of his posting since the Head of the Office/Department has to certify documents to be submitted by Applicant. The applications are scrutinized as and when received online by General Administration Department. If applicants fulfill criteria then their applications are waitlisted. A copy of the said Government Resolution dated 30.12.2014 G. R. is annexed hereto and marked as Exhibit-A. 4. I say and respectfully submit that as per Government Resolution dated 05.10.2012 Judicial Officers are categorized in different categories as per their pay scales. In the said Government Resolution dated 05.10.2012 the grades of the judicial officers are classified in various categories for the purpose of entitlement of nature and place of accommodation on the basis of area and size of accommodation. They are thus entitled for the government accommodation as mentioned in the said Government Resolution dated 05.10.2012. A copy of the Government Resolution dated 05.10.2012 is annexed hereto and marked as Exhibit-B. 5. I further say and submit that category wise common waiting lists are prepared for the Administrative as well as Judicial Officers by the General Administration Department. Government Accommodations are allotted as per waiting list and the demand (demand in particular area or building) of the Applicants. However Judicial Officers are given priority as Administrative and Judicial Officers are allotted Government Accommodations in the ratio 1:1 as per the decision taken by the Government.”
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2069 OF 2015
Sales Tax Tribunal Bar }
Association and Anr.
v
The State of Maharashtra.
CORAM :- S. C. DHARMADHIKARI &
DR. SHALINI PHANSALKAR-JOSHI, JJ.
DATED :- JUNE 28, 2016
When this petition was listed today, we took the
further affidavit of the Joint Secretary in the Finance
Department, Government of Maharashtra on record. We have
heard the learned Senior Advocates practicing in the tribunal and
members of the association and Mr. Sonpal at some length.
2) We are informed that there are two posts of judicial
members, which are presently vacant. The details of this are set out in the affidavit of Mr. Vinay D. Athavle Joint Secretary,
Finance Department, Government of Maharashtra tendered
today and taken on record.
3) On instructions, Mr. Sonpal assures the court that
these vacancies will be filled in expeditiously.
4) It is common ground and undisputed that a judicial
member who retired on 25th January, 2016, the vacancy caused
by his retirement was sought to be filled in and by coordinating
with the Registrar General of this court. The High Court
administration recommended two names. One of the
recommendations, of the then Principal District and Sessions
Judge, Dhule for appointment as judicial member was accepted by
the Government. The order of appointment was also issued.
However, that judicial member expressed his inability to join due
to personal difficulties. On the earlier occasion, we have noted his
personal difficulties, which included the Government's apathy in
not making available to him the Government accommodation
commensurate to his dignity and status. The present market
rates were not affordable and therefore, when he was informed
that he must first join and thereafter his accommodation issue
will be looked into, therefore, he refused to join. He had other
personal difficulties as well. However, one of the reasons was non
availability of the residential accommodation. 5) Therefore, a request has been made to the High Court
administration to recommend names for appointment and the
administration will surely process it expeditiously and duly
recommend the name. The other vacancy is sought to be filled in
and the process is on. The file is now moved for seeking approval
of the Hon'ble Chief Minister. The files are being processed
through the Finance Ministry and the Department of Law and
Judiciary. Mr. Sonpal, on instructions, states that within two
weeks from today, the recommendation would be finalised, the
process of appointment will be completed and the appointee will
be requested to take charge.
6) When such state of affairs were disclosed and during
the course of arguments, we pointed out to the State that once a
senior judicial officer (retired District Judge) has been chosen for
the post, the problem of his accommodation should be addressed
well in advance so that he does not suffer any indignity and
embarrassment.
7) In that regard, we invited the attention of Mr. Sonpal
to the affidavit filed by one Mr. S. N. Bagul Joint Secretary,
Department of General Administration, Government of
Maharashtra. That is affirmed on 15th June, 2016. Paras 3, 4
and 5 of this affidavit make interesting reading. They are
reproduced hereinbelow:- “3. I say and respectfully submit that, according to GR
dated 30.12.2014, Government servant who desires/
requires Government Accommodation, has to submit
his application online. According to para 3(D) of the
said Government Resolution the Government Servant
has to submit requisite scanned documents along with
the application online to the concerned Head of the
Office/Department using given user ID. According to
para 3(E) of the said Government Resolution, after
receiving the application the concerned Head of the
Office/Department has to scrutinize whether office of
the applicant is under his purview as well as the
applicant's appointment is regular, birth date/date of
retirement is correct and if it is found that the
information filled in by the applicant is correct and
applicant has submitted all the required documents,
Head of the Office/Department has to send the
application to the General Administration Department
online. Thus the applicant can submit his application
only after he assumes his duty on the post of his
posting since the Head of the Office/Department has to
certify documents to be submitted by Applicant. The
applications are scrutinized as and when received
online by General Administration Department. If
applicants fulfill criteria then their applications are
waitlisted. A copy of the said Government Resolution
dated 30.12.2014 G. R. is annexed hereto and marked
as Exhibit-A.
4. I say and respectfully submit that as per
Government Resolution dated 05.10.2012 Judicial
Officers are categorized in different categories as per
their pay scales. In the said Government Resolution
dated 05.10.2012 the grades of the judicial officers
are classified in various categories for the purpose of
entitlement of nature and place of accommodation on
the basis of area and size of accommodation. They are
thus entitled for the government accommodation as
mentioned in the said Government Resolution dated
05.10.2012. A copy of the Government Resolution
dated 05.10.2012 is annexed hereto and marked as
Exhibit-B.
5. I further say and submit that category wise
common waiting lists are prepared for the
Administrative as well as Judicial Officers by the
General Administration Department. Government
Accommodations are allotted as per waiting list and
the demand (demand in particular area or building) of
the Applicants. However Judicial Officers are given priority as Administrative and Judicial Officers are
allotted Government Accommodations in the ratio 1:1
as per the decision taken by the Government.”
8) The deponent of this affidavit is present in court and
has identified himself. On taking instructions from him,
Mr.Sonpal states that the Government would alter the process
and bring about a radical change so that no judicial officer will
have to wait for allotment of residential accommodation if he does
not have one of his own in Mumbai. He would not have to suffer
for want of accommodation or wait endlessly in the hope that
during his tenure he would be able to obtain it.
9) Mr. Sonpal states that now no Government official will
sit on the files or hold on to the request of such judicial officers
who are to join as members of any judicial tribunal or court in the
State of Maharashtra. Mr. Sonpal submits that the moment the
appointment is notified and a request comes from such official for
allotment of residential accommodation in Mumbai, an allotment
order would be placed in hands even before he joins duty or at
least on the date he joins the duty. The insistence on compliance
with the Government Resolutions particularly that the officer
must first join the post and thereafter notify his requirement to
the Departmental Head would be relaxed in cases of judicial
officers and who have no residential accommodation of their own
in Mumbai. 10) Although we welcome these statements and accept
them as undertakings given to this court, we are sceptical.
Meaning thereby, we have our own doubts whether the State will
abide by these undertakings. There are ways and means by
which the General Administration Department and the Finance
Department of the State create hurdles and obstacles in the
smooth working and functioning of all the tribunals and courts set
up by the State. Ordinarily, these courts are under the
administrative and judicial control of this court. Our experience
is that most of the judicial officers, who have no base in Mumbai
but chosen for manning such tribunals and courts are not allotted
residential accommodation expeditiously. Their wait is endless.
Sometimes the High Court administration had to arrange for a
dormitory type accommodation for their temporary or transit
stay. This situation has never undergone any change for decades
together.
11) Equally, we must note the plight of the support staff.
Those working as Class III and Class IV officers and serving either
on the establishment of the High Court, City Civil Court, Small
Causes Court and other such courts and tribunals are not allotted
a residential accommodation from the Government for years
together. The High Court administration goes on corresponding
Page 6 of 12
J.V.Salunke,PA
::: Uploaded on - 01/07/2016 ::: Downloaded on - 02/07/2016 14:04:15 :::
http://www.itatonline.org
Bombay High Court
903-WP.2069.2015.doc
and making requests in writing in that behalf. The files are
moved by the High Court officials, but even they have to wait
endlessly for response, much less favourable and positive.
Whenever requests with specific names have been made, the
State desires to treat them as out of turn or special requests.
They would treat such a request as a special case and process the
files only then. There also the stock reply is that the powers are
vested only in the Chief Minister of the State and so long as the
files are not cleared from his secretariat under his signatures, no
allotment orders can be issued. This is the experience of the
judicial as well as administrative staff in the State.
12) It is these dismal state of affairs which compell us to
observe as above. We are still apprehensive for this State has yet
to adopt a culture of respect and regard for the judiciary. The
judiciary is an important organ of the State. The State has a
wider connotation and included in it are the legislature, executive
and the judiciary. The executive wing of the State Government
continues to show disrespect and disregard to the judiciary in
matters which are of above routine nature. We have seen
precious time being wasted on the judicial side on such trivial
issues. We do not think that such state of affairs are prevailing
anywhere else in the country. The other State Governments are
Page 7 of 12
J.V.Salunke,PA
::: Uploaded on - 01/07/2016 ::: Downloaded on - 02/07/2016 14:04:15 :::
http://www.itatonline.org
Bombay High Court
903-WP.2069.2015.doc
responsive and they regard such request from the judiciary as an
urgent matter and take steps to comply with it promptly. That is
because there is a realisation that vital functions such as the
maintenance of law and order and equally the administration of
justice are sovereign and regal. They cannot be outsourced or
privatised. The judiciary should not be embroiled and engaged in
these problems and the administrative machinery should help it
in solving the same. If judges and judicial officers do not have the
minimum comfort and necessities, none should expect speedy
justice. If the judicial officers in the State continue to worry about
allotment of residential quarters and have to wait for months
together or sometimes till their retirement for such allotment,,
then, something is drastically wrong with the administration and
governance of the State and needs repairs. We do not think any
statements made by Mr. Sonpal and which we have recorded as
undertakings given to this court are going to improve the
situation. We hope that we do not have to say anything more.
The departments concerned have to simplify and streamline the
entire process. We have found in the affidavit of the General
Administration Department that their process lacks
transparency. The allotment of government residential quarters
appears to be a closely guarded and secret affair. The General
Administration Department should forthwith display on its website all the relevant information. They must indicate the
availability of Government accommodation and for allotment of
judicial officers and other senior administrative officers. They
must indicate on the website itself as to how many residential
quarters and from a common pool are earmarked for allotment to
the judiciary and particularly the senior judicial officers serving
the State. If any application is received for allotment, the date of
receipt of such application, the serial number allotted to it and
when was it considered and disposed of should be displayed on
the website. If there is a reason for delay and on exceptional
occasions, then, the reasons for the same ought to be also
indicated with clarity. We would expect the Government to
earmark certain tenements in Mumbai for allotment to judicial
officers and the officers in the rank of Class II, Class III and Class
IV serving in judicial and administrative wings of the judiciary.
These earmarked tenements, if few in number and inadequate,
then, steps be taken to increase it and what arrangements have
been made by the State. All this be now indicated on affidavit and
we expect Mr. Sonpal to file such a comprehensive affidavit from
both the Departments. We would expect the same deponents to
report to this court by filing further affidavits. 13) It is time that we inform and impress upon the
administration of the State that when this court is critical of their
conduct and examines it in such a manner on the judicial side, it
does not mean to look down upon anybody. It merely discharges
its duty and fulfills its responsibilities towards the public. As the
Hon'ble Supreme Court of India observes and holds, in the case of
Bigyan Kumar and Ors. vs. Union of India and Ors.
1
after
emphasising the role of the judiciary, and we quote the relevant
paragraph, which reads as under:-
“7. We would part with the matter by recording our
serious concern and disapproval of the growing conduct of
parties and public officers in particular of ignoring the
directions of the courts and the multiplying instances of
confrontation. The Court, including the apex one, is a part
of the State and is a built-in mechanism of the Constitution
to administer justice in accordance with law. For
discharging that duty, the court has got to adopt an
attitude of critical assessment of situations connected with
litigation brought before it for adjudication. The manner of
functioning of the court in accord with the Rule of Law has
to be dispassionate, objective and analytical. The Judges
who preside over these courts do not act with a sense of
superiority; nor do they look down upon others in the
community. In order that the system may efficiently work
and the purpose for which the courts are established is
duly served, it is necessary that everyone within the
framework of the Rule of Law must accept the system,
render due obedience to orders made and in the event of
failure of compliance, the rod of justice must descend down
to punish. We hope and trust that everyone within the
system realises this situation and does not unnecessarily
get into a confrontation.”
14) We say nothing more. We hope that the senior
administrative functionaries are aware of the constitutional
1 AIR 1988 SC 1025 status and position of the judiciary. It is expected to be
impartial and independent. No direct or indirect interference
with the functioning and working of the Judges at all levels is
tolerated by the Constitution. That is the only corrective
mechanism available to the citizens against the illegalities
committed by State officials and which result in their legal rights
being jeopardised. In the adversarial system of justice that we
have, the State is proving to be the single largest adversary. It is
responsible on most occasions in creating and generating
litigation. The statistics have proved this fact. Such attitude and
approach of the State results in setting up more courts of justice
and judicial tribunals. That requires trained, efficient and
equipped manpower, staff and infrastructure. That is hopelessly
lacking in the State of Maharashtra and especially in Mumbai. In
the prevailing set up, the State and its residents would never be
able to fulfill and honour the constitutional mandate of cheap,
inexpensive, quick and firm justice.
15) We place this matter on 9th August, 2016 in the fond
hope that on that date we may not have to be still harsh and
critical. We would expect the vacancy in the post of judicial
member as also in the post of administrative member to be filled
in and the tribunal then functions to its capacity. 16) We are not making these observations by restricting
the case only to the Sales Tax Tribunal. We would expect these
directions and observations to hold good equally for other courts
and tribunals functional in the State. Let therefore a copy of this
order be forwarded to the Chief Secretary of the State. He should
invite the attention of all concerned to the above observations.
17) We would request Mr. Surte and Mr. Joshi to place on
record of this petition the requirement of staff by the registry of
the Maharashtra Sales Tax Tribunal. If the President has
forwarded any request and for filling up vacant posts or sanction
of additional posts, then, that data also should be placed before us
duly authenticated by the authorised official and thereafter this
court would look into that aspect as well.
(DR. SHALINI PHANSALKAR-JOSHI, J.) (S.C.DHARMADHIKARI, J.)
Page 12 of 12
J.V.Salunke,PA
::: Uploaded on - 01/07/2016 ::: Downloaded on - 02/07/2016 14:04:15 :::
http://www.itatonline.org
No comments:
Post a Comment