Asim Kumar Dutta vs State of Jharkhand and Others

Law Secretary, Mr. A.K. Gupta is present in Court with learned Advocate General. Learned counsel for the State submitted that Finance Department has raised objection on 13.06.2012 with respect to the proposed rule as recommended by the High Court for insertion as Rule 8(A) below Rule 8 of Jharkhand Superior Judicial Service (recruitment. Appointment and Conditions of Service) Rules, 2001.

The rule was proposed by the High Court as back as on 16.01.2012 providing that in computation of the total period of service qualifying for pension and other benefits, a period of ten years or actual practice of the Bar, subject the condition that the weightage of practice at the Bar will be given only if the direct recruit actually works for minimum ten years in the service before retiring. Since 27.01.2012, time was sought on several occasions and by order dated 15.05.2012, this Court directed that if no decisions is taken by the Government on the proposed amendment of the rule, the Law Secretary shall present in Court on 15th June, 2012, hence, the Law Secretary is present in Court.

The question is not that whether rule can be inserted or not. The question of importance is that whether the Government can sit over any matter and will not pass any order even if some amendment is proposed by the High Court.

For taking a decision. Government cannot, in each and every matter, take long time and particularly when the parties have approached the Court. The decision of the Finance Department of the Government of Jharkhand is dated 13.06.2012 i.e., on the day when the Court opened after the summer break and two days before matter was scheduled to be listed in Court. This clearly indicates that even from 15.05.2012 to 12.06.2012, nothing was done.

Be that as it may, the decision of the Finance Department nowhere states that whether they have considered any of such provisions prevailing in any other state and if such benefit is available to the members of the Bar who opted for the judicial service, then why such benefit is not available in the State of Jharkhand should also have been examined.

We are constrained to observe that for getting the better judicial officers, it is necessary that they should get some benefit of their practice also, otherwise, the fate will be that the competent persons will not compete in the examination for the Superior Judicial Service. We may take judicial notice of the fact that in some of the States when examinations were conducted for Superior Judicial Service, either no Advocate could succeed and in one or two States only two Advocates passed the examination. This ground realities should be kept in mind by the State because it is State''s duty to make provision for better justice and it is constitutional obligation upon each and every State so they should think over again and should not feel slaves of the rules when they are competent to frame the rules. Even if any benefit is not available in the rules, then also the Government should see that whether it is in the interest of the public to give benefit Jay amending or even by enacting the rules. The larger perspective should be in the mind of the Government when these facts are apparently known to everybody. If State Government wants a good and very good judiciary at subordinate judiciary level, they are supposed to act in accordance with the objective to be achieved by providing and by taking firm decisions and not awaiting for the decisions to be taken by other States and the State Government should not miss the opportunity to become leader in giving a best judiciary to the public of the State of Jharkhand.

The issue may be re-examined by the State Government and if objection has been raised by the Finance Department and if they want to take help of the decision taken by other States only, instead of their own decision, they may also look into the beneficial part of the decision taken by different Governments and should not rely upon the Governments which have not yet taken any decision.

Since decision has not been taken, therefore, Law Secretary was called and is present. Today also there is no decision of the Government but it is only an objection by Finance Department. However, he need not present on the next date of hearing.

The State Government will consider the issue and will take a decision by or before 16th July, 2012. If decision is not taken by the Government by the next date, appropriate orders will be passed by this Court directing the presence of other officers of the State Government.

Put up on 16th July, 2012. Let a copy of this order be given to the learned Advocate General.