High Court cautions judges against judicial indiscipline

Source: The Hitavada      Date: 09 Apr 2018 10:45:19


Staff Reporter,

“Predictability and certainty are important hallmarks of judicial jurisprudence developed in this country in last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system,” Nagpur bench of Bombay High Court observed

Dealing with a very touchy and sensitive subject of growing trend of conflicting views taken by various division benches, Nagpur bench of Bombay High Court has cautioned the judges to follow “Judicial Discipline and respect for the Brother Judges” while noting “Discipline is sine qua non for effective and efficient functioning of the judicial system.”

“If the Courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law,” the High Court stated.

Dealing with case in hand about extending pay scale of untrained teachers and contrary view of previous division bench which was not in consonance with consistent view taken by Co-ordinate benches, the Nagpur bench quoted the Supreme Court verdict stating that “disrespect to constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation.”

“It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass root will not be able to decide as to which of the judgment lay down the correct law and which one should be followed.”

A division bench consisting of Justice Bhushan Gavai and Justice Murlidhar Giratkar while setting the record straight pointed out that the earlier division bench should have referred matter to larger bench, if it was not in agreement with the view taken by co-ordinate bench followed consistently over the years.

In the instant petition filed by Shital Chavan, she had sought a direction to Zilla Parishad Amravati and Education Officer to make applicable the pay scale of untrained teacher along with the applicable increments to the petitioners and pay arrears relying upon judgement given by a bench headed by Justice Abhay Oka way back on April 24, 2012 (Seema D/o Khandu Takale Vs. The State of Maharashtra). This judgement has been consistently followed by various benches.

However, subsequently, a Division Bench consisting of Justice B P Dharmadhikari and Justice P N Deshmukh in the case of Smita d/o Manohar Ramteke Vs State of Maharashtra and others took a different view on 16­10­2015.
When this petition came up before hearing on February 6, 2018 before a division bench consisting of Justice Bhushan Dharmadhikari and Justice Swapna Joshi, the High Court observed that in 2015 judgement a different view was taken, after recording inability of the State Government to put complete date on record. Further, the High Court had noted that earlier judgements were distinguished and directed registry to register the petition as PIL.

The High Court had further restrained authorities from releasing any pay scale to any untrained teacher.
In the latest order the bench headed by Justice Bhushan Gavai after discussing entire case law noted that various Division Benches at Nagpur and Aurangabad had held that such teachers, for the mentioned period, are entitled for the salary in the scale of untrained teachers as per Government communication dated April 24, 2007. While allowing the petition and extending benefit to untrained teachers the High Court directed Zilla Parishad to pay arrears of salary to the petitioners for the period between their three years of completion of service as Shikshan Sewak and the date on which they were paid salary as trained teachers .

The High Court expressed respectful disagreement with contrary view taken by bench headed by Justice Dharmadhikari and noted that, in view of conflicting judgments, a situation has arisen which has resulted in denying the equal treatment to equals. While supporting the right of the bench to take a contrary view, the High Court noted that only option was to refer the matter to the Chief Justice for referring it to the larger bench. Till such time the view is set-aside by Supreme Court or a definitive pronouncement is not made by larger bench, the view consistently followed.

The High Court made it clear that it was not entering into debate about correctness of view and but was concerned with the question of judicial propriety and discipline. In any case, in service matters the public interest litigations are not to be entertained, the High Court noted while recalling the order treating the present proceedings as PIL.
Adv P S Tiwari (petitioner), AGP Sushil M Ghodeswar (State), Adv S D Chopde (ZP) appeared in the matter.