Court No. - 40
Case :- SPECIAL APPEAL No. - 881 of 2011 Appellant :- District Judge Respondent :- Mukesh Kumar Sharma And Others Counsel for Appellant :- Rajiv Gupta Counsel for Respondent :- Veer Singh,Smt. Anita Tripathi
Hon'ble Amreshwar Pratap Sahi,J. Hon'ble Rajeev Misra,J.
Heard Sri Ashish Mishra, learned counsel for the appellant and Sri Tripathi B.G.Bhai, learned counsel for the respondents.
This appeal is confined only to the directions contained in paragraph no.27 of the judgment dated 24.02.2011 whereby a cost of Rs.25,000/- has been imposed on the learned District Judge.
When the matter was initially heard, in order to ensure that the direction of the learned Single Judge has been complied with, we had called upon the learned counsel for the appellant to file an appropriate affidavit informing the Court as to whether the directions of the High Court had been complied with or not in order to assess the mitigating circumstances for setting aside the order of imposition of cost. The following order was passed by us on 23.03.2018 :
"Heard Sri Mishra, learned counsel for the appellant/District Judge, Ghaziabad and Sri Tripathi B.G.Bhai, learned counsel for the respondents/petitioners.
This appeal is confined to the relief of or setting aside the imposition of exemplary cost on the appellant while allowing the writ petition. Thus the merits of the judgment have not been questioned in this appeal.
Sri Mishra, learned counsel for the appellant therefore submits that he is to proceed only to address the Court on the merits of the imposition of cost by the learned Single Judge.
Yesterday we had called upon Sri Mishra to study the case law on the subject, particularly keeping in view the observations made by the Apex Court in the case of Salem Advocate Bar Association, T.N. Vs. Union of India, (2005) 6 SCC, 344 paragraph nos. 35 and 36 in particular together with the editorial note appended thereto which refers to a large number of decisions of the Apex Court.
The imposition of cost as levied on the appellant in paragraph no.27 of the impugned judgment was stayed but in order to consider the correctness or otherwise the imposition of such cost, learned counsel for the appellant will have to also prima- faice satisfy the Court that the impugned judgment of the High Court has been in letter and spirit been complied with. It is the obligation of the learned counsel for the appellant therefore, to obtain an appropriate information and either produce the records relating to compliance or otherwise file an affidavit to the said effect before this Court. This is necessary in order to assess the plea raised in the appeal for coming to a conclusion as to whether there are mitigating circumstances for consideration of such plea or not. The Court's judgment should not be held in abeyance or even side lined while ensuring compliance in order to pray for any leniency vis-a-viz the imposition of cost. We therefore make it clear that the appellant will be under an obligation to disclose before us the correct and complete compliance of the impugned judgment dated 24.02.2011, other than the cost in order to avoid any further action which may extend to issuing notices for contempt in the matter. This order shall be despatched by fax immediately and the learned District Judge, Ghaziabad shall immediately comply with the same.
As prayed by Sri Mishra put up on 28.03.2018.
Copy of this order may be given to the learned counsel for the parties today."
Today an affidavit has been filed on behalf of the appellant by Sri Kamlesh Kumar, Additional District Judge, Ghaziabad stating on record that the judgment of the learned Single Judge keeping in view the direction and observations made in paragraph nos.24 and 25 of the judgment, the respondent nos.1 and 2 for whom the two vacancies were available, have been extended the said benefit. So far as respondent nos.3, 4 and 5 are concerned even though they were in the merit list, yet the vacancies being not available for them they could not have been extended the said benefit as the persons already working who had been made respondents in the writ petition no relief was claimed against them. Consequently the learned Single Judge in paragraph no.22 of the judgment observed that since no relief has been claimed against them, no orders could be passed in the absence of such relief prayed for.
We therefore in the above background find that so far as the judgment of the learned Single Judge is concerned that has already been complied with and the imposition of cost appears to have been saddled only on account of the observations made in paragraph no.22 of the writ petition. We do not find any quantification of the liability on the learned District Judges who may have defaulted in not observing the correct procedure and therefore in the absence of they having been made a party to the writ petition the imposition of cost against the District Judge by designation may not be appropriate.
We therefore without affecting the rights of respondent nos.3, 4 and 5 to claim any such right of promotion which may be available to them allow this appeal to the limited extent of the imposition of cost on the District Judge. The appeal is partly allowed. The imposition of cost of Rs.25,000/- as cost is set aside without prejudice to the rights of the respondent nos.3, 4 and 5 to stake their claim before the appropriate Forum.
Order Date :- 28.3.2018 R./