in the high court of judicature at bombay civil...

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IN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTION

PUBLIC INTEREST LITIGATION NO. 188 OF 2015WITH

CIVIL APPLICATION NO. 75 OF 2016CIVIL APPLLICATION NO. 42 OF 2018

Vihar Durve

Vs

The State of Maharashtra and others

Mr.Jalan Sandeep for the petitioners

Mr.A.B.Vagyani, G.P with Mr.P.G.Sawant, AGP for the

respondent No.1 in CAI/42/2018

Mr.Sanjay Udeshi with Mr.Netaji Gawade i/b

M/s.Sanjay Udeshi & Company for the respondent No.2

CORAM : A. S. OKA AND M. S. SONAK, JJ.

DATE : 27th SEPTEMBER 2018, 4th OCTOBER 2018and 11th OCTOBER 2018.

ORAL JUDGMENT: (PER A.S.OKA, J.)

OVERVIEW

The submissions of the learned Counsel

appearing for the parties were heard on the earlier

date. The petitioner who is a Chartered Accountant

by profession has raised several issues concerning

the infrastructure of the judiciary in the State.

2. Before we go to the details, we must

refer to the prayers. The first prayer is for

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Bar & Bench (www.barandbench.com)

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seeking a direction to establish additional 867

Courts in the State of Maharashtra. There is a

prayer for setting up 20 fast track Courts for

exclusively trying the cases of senior citizens,

differently abled persons and marginalised sections

of the society. In the petition, there are averments

regarding necessity of establishing adequate number

of Special Courts in the State for exclusively

trying the cases under the Prevention of Corruption

Act, 1988. Therefore, there is a prayer seeking a

direction to establish 48 Special Courts in the

State. The petitioner has contended that there is a

need to have more family Courts in the State.

Therefore, there is a prayer made that there should

be additional 17 posts of family Court judges in the

city of Mumbai, 5 in Pune and 5 at Nagpur. There is

a prayer for establishment of Courts of District

Judges and Senior Civil Judges at the specific

places in various Taluka places mentioned in prayer

clauses (e) to (i). There is also a prayer made for

establishing a District Court for the newly created

Nandurbar Revenue District. Another important prayer

in the petition is regarding furnishing a road map

for the establishment of Courts which are subject

matter of specific prayers in the petition. Pending

the petition, another issue was raised in this PIL

concerning pension payable to the judicial officers

in the State. It is pointed out that the Defined

Contributory Pension Scheme (DCPS) which was

introduced by a Government Resolution was applied to

the judicial officers who were appointed on or after



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1st November, 2005. It was pointed out that the new

pension scheme (DCPS) as compared to the old

pension scheme which was applicable to those who

were in judicial service as on 31st October 2005 is

not at all beneficial to the Judicial Officers and

in fact as a result of applying the new pension

scheme to the Judicial Officers appointed after 31st

October 2005, deduction of 10% of the salary was

being made as a contribution to DCPS. Accordingly,

prayers (m) and (n) were incorporated for

challenging the applicability of DCPS.

3. We may note here that as regards the

controversy regarding the applicability of the new

pension scheme (DCPS) to the judicial officers, the

issue is finally decided by this Court by the

Judgment and Order dated 11th August, 2017 by holding

that the judicial Officers appointed after 31st

October 2005 will be governed by the old Pension

scheme. Being aggrieved by the said judgment, the

State of Maharashtra preferred Special Leave

Petition (Civil) No. 3146 of 2017. By an order dated

1st December, 2017 passed in the said SLP, this PIL

was transferred to the Apex Court. However, by

further order dated 27th March, 2018 the Apex Court

disposed of the said SLP without disturbing the

order dated 11th August, 2017 and the present

petition was again ordered to be retransferred to

this Court. While retransferring the petition, the

Apex Court added a rider that this Court should not

deal with the issues which have been referred to the



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commission headed by Shri Justice Venkatarama Reddy

for resolution.

4. After the present PIL was retransferred to

this Court, consequential orders have been passed by

this Court for the implementation of the directions

issued in the Judgment and order dated 11th August,

2017.

5. Therefore, now, while finally deciding the

petition, we are not dealing the issue regarding

pensionary benefits to the judicial officers

appointed on or after 1st November, 2005 inasmuch as

the decision on the said issue has become final by

virtue of the disposal of SLP filed by the State of

Maharashtra against the Judgment and order dated 2nd

August, 2017.

6. The discussion made in this Judgment will

show that a very important issue was canvassed for

consideration of this Court. The issue is which

Authority is empowered in law to decide the number

of Judicial Officers of various categories required

in the State and the number of additional Courts of

various categories required in the State. The issue

is whether the views of the High Court

Administration on these aspects will have the

primacy and the State Government will be bound to

follow the views of this Court. This issue arose in

view of the submission made by the learned



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Government Pleader on behalf of the State Government

that on these aspects, the views of the Government

will prevail. In fact, we may note here that we had

also given an opportunity to the learned Government

Pleader by granting him time to take instructions on

the question whether the State Government was

willing to reconsider its stand on the subject. The

learned Government Pleader on instructions stated

that the State Government has unable to change the

stand.

AFFIDAVITS ON RECORD

7. Before we advert to the submissions made

across the bar, a brief reference to the affidavits

filed on record will be necessary. There is an

affidavit dated 19th July 2016 filed by Neeraj Pradip

Dhote, Joint Secretary, Law and Judiciary Department

which basically deals with pensionary benefits to

the Judicial Officers which issue has been already

concluded. Prior to that, an affidavit was filed on

16th June 2016 by the same Joint Secretary dealing

with the issue of pension.

8. There is an affidavit filed on 11th January

2017 by Shri Atul Madhukar Kurhekar, the learned

Registrar (Legal and Research) of this Court which

essentially deals with the prayers regarding

establishment of the new Courts/creation of posts.

He has stated that a proposal for creation of 867

additional posts of Judicial Officers was forwarded

initially to the State Government on 3rd September



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2012 which is followed by several letters issued

thereafter from time to time and the proposal is

still pending with the State Government. As regards

prayer (b) seeking a direction for establishing 20

Fast Track Courts exclusively for trying the cases

of differentlyabled persons, Senior Citizens and

Marginalised Sections of Society, Shri Kurhekar has

stated that the Committee appointed by this Court

approved the suggestion of establishing 20 Special

Fast Track Courts and accordingly, a proposal has

been sent to the State Government on 24th April 2015.

Shri Kurhekar while responding to the prayer for

establishing 48 Special Courts in 27 judicial

District to try the cases under the Prevention of

Corruption Act,1988 has stated that by a

notification dated 27th August 2014, the State

Government has conferred the power of the Special

Courts under the said Act of 1988 on all the Session

Judges, Additional Session Judges and Adhoc

Additional Sessions Judges. While dealing with the

prayer for establishing additional Family Courts in

Mumbai, Pune and Nagpur, it is pointed out that a

proposal has been submitted way back on 14th November

2014 for creating additional posts of Family Court

Judges and for making necessary budgetary provision.

About the prayers (e), (f) and (g) dealing with the

establishment of the Courts at the places stated

therein, Shri Kurhekar has referred to the proposals

forwarded to the State Government and the

correspondence made in that behalf. The same is the

case with the prayer clauses (h), (i) and (j).



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9. There is a further affidavit dated 3rd April

2017 filed by Shri Neeraj Pradip Dhote, Joint

Secretary, Law and Judiciary Department. As regards

the prayer (a) for sanction/creation of additional

867 posts, the reply is based on the Government

Resolution dated 6th January 2015. We must, however,

note here that the said GR deals with a completely

different aspect of creating 10% additional posts of

Judicial Officers in terms of the decision of the

Apex Court in the case of Brij Mohan Lal vs. Union

of India1. As regards the prayer clause (b)

regarding establishing 20 separate Special Courts,

it is merely mentioned that the said subject was

discussed in the meeting held on 1st April 2017

between the Hon'ble the Chief Justice and the

Hon'ble Chief Minister. As regards creating

additional posts of Family Court Judges, Shri Dhote

has taken a very peculiar stand. He has referred to

the proposal submitted by this Court and stated that

the information sought by the State Government has

been provided by the High Court. He has stated that

while determining the Judge strength pursuant to the

directions issued by the Apex Court in the case of

Imtiyaz Ahmad vs. State of Uttar Pradesh2, the High

Court may add the requisite number of Family Court

Judges. About creating posts of Judicial Officers

at Shrigonda, he has merely stated that the matter

is placed before the High Power Committee. The same

is the case made out by Shri Dhote as regards the

1 (2012) 6 SCC 5022 (20127) 3 SCC 658



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prayer regarding establishment of the Court at

Umred. As regards the establishment of the Court at

Rajur, District Ahmednagar, he claims that

information regarding the recurring and non

recurring expenditure of the said Court is

necessary. As regards the prayer regarding

establishment of the Court at Mehkar, District

Buldhana, it is contended that certain information

required by the Finance Department has been called

for. The same is the case made out as regards the

establishment of the Court at Malkapur, District

Buldana.

10. Though the subsequent factual narration

will show that in some cases, the State Government

has granted approval, we have referred to the

response of the State Government to each and every

proposal just to indicate the approach of the State

Government while dealing with the proposals for

establishment of new Courts. The stand taken in the

affidavit shows that even after a new Revenue

District at Nandurbar was created by the State

Government, when it came to creation of new Judicial

District by establishing a separate District and

Sessions Court, all sorts of queries were made by

the Finance Department for deciding the proposal for

establishing the District and Sessions Court for the

newly created Nandurbar District.

11. The Affidavit dated 5th October 2017 filed

by Shri Kurhekar throws some light on some progress



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made in the proposals pending with the State

Government. As regards establishing 20 Special

Courts, it is stated that the State Government took

a decision to establish the Special Courts where

there were one thousand or more cases pending. It

is stated that 11 Districts have been accordingly

identified and information has been furnished to the

State Government. As regards creating extra Family

Courts at 3 places, Shri Kurhekar has referred to

further correspondence made by the High Court

Administration in response to several queries raised

by the State Government from time to time. The last

of such letters is dated 19th June 2017. About the

issue of establishing a Court at Srigonda, again he

has referred to several letters addressed by the

High Court Administration. As regards the Court at

Umred, it is stated that by GR dated 21st June 2017,

the post of Civil Judge (S.D) at Umred, District

Nagpur has been created but budgetary provision has

not been yet made. About the proposal for the Court

at Rajur, Shri Kurhekar pointed that several letters

were addressed by the High Court Administration.

The Affidavit refers to establishment of the new

Courts at Kale Khriwade in District Kolhapur and

Hinganghat in District Wardha. It is stated in the

affidavit that a decision has been taken to

establish 14 Family Courts by utilising grant of

14th Finance Commission out of which Family Court at

Latur has started functioning. A statement is made

that 18 additional Courts of District Judges and

Civil Judge (S.D.) have been decided to be set up by



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utilising grant of 14th Finance Commission. One

important factual aspect pointed out by Shri

Kurhekar is that by GR dated 14th July 2017 112 posts

of Civil Judge (J.D.) have been upgraded to the

posts of Civil Judge (S.D.).

12. It will be also necessary to make a

reference to a note submitted regarding further

compliance. It is stated that the High Court

Administration by the letters dated 21st August 2017,

8th February 2018 and 13th March 2018 pointed out to

the State Government that 179 new posts created of

the Judges and 751 posts of supporting staff has

nothing to do with the proposal for creating for 867

Courts and the proposal for creation of 867 posts is

still pending. The chart produced indicates that

the Court of Civil Judge (S.D.) Umred was ultimately

established and has started functioning from 2nd

December 2017.

13. A chart has been tendered across the bar on

5th September 2018 which is signed by Shri

R.M.Lokhande, Section Officer of “A Civil” Branch of

this Court. It records that the sanctioned strength

of Judges in Maharashtra Judiciary in the year 2012

was 1780 and the working strength was 1628. It is

pointed out that on 5th September 2018, the

sanctioned strength is 2008 and the working strength

is 1871.



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JUDGE STRENGTH

14. Many factual submissions have been made as

regards the pendency of proposals for increasing the

Judge strength. As regards the Judge strength, in

fact a very little debate is required. We may note

here that the Apex Court by the Judgment and Order

dated 21st March 2002 in the case of All India Judges

Association (3) Vs. Union of India3 approved 120th

report of the Law Commission on manpower planning in

judiciary which suggested a formula for fixation of

Judge strength by adopting demographic approach.

The Law Commission noted that as of the year 1981,

though United States had one third of the

population of India, it had a judge to population

ratio of 107 judges per million whereas the said

ratio was 10.5 Judges per million population in

India which was grossly inadequate. Considering the

said report, in the aforesaid decision, a specific

direction was issued that the existing Judge

strength should be increased to 50 Judges per

million. This was to be implemented by filling up of

the posts in a phased manner to be determined and

directed by the Union Ministry of Law. However, it

was specifically mentioned that the Judge strength

should be increased to 50 Judges for 10 lakh people

within a period of five years. If the

recommendations of Law Commission were implemented,

by the year 2000, India would have achieved target

of 107 Judges per million population. Thus, there

would have been 1,36,794 Judges as on 31st December

3 (2002) 4 SCC 247



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2015. However, as on 31st December 2015, sanctioned

strength was only 21,607. The decision of the Apex

Court in the case of Imtiyaz Ahmad (supra) records

that earlier approach for determining the Judge

strength was demographic approach. The Judgment

refers to the Constitution of the National Court

Management Systems Committee (for short “NCMSC”).

It is noted that NCMSC worked on scientific method

of calculation of Judge strength and arrived at a

formula which is discussed in detail in the said

decision. The said formula was evolved on the basis

of interim report submitted by NCMSC. What is

material is the direction given in paragraph 43.1.

The directions contained in paragraphs 43.1 to 43.8

of the decision of the Apex Court read thus:

“43.1 Until NCMSC formulates a scientificmethod for determining the basis forcomputing the required Judge strength of theDistrict judiciary, the Judge strength shallbe computed for each State, in accordancewith the interim approach indicated in thenote submitted by the Chairperson,NCMSC;

43.2 NCMSC is requested to endeavour thesubmission of its final report by 31.12.2017;

43.3A copy of the interim report submittedby the Chairperson, NCMSC shall be forwardedby the Union Ministry of Law and Justice tothe Chief Justices of all the High Courts andChief Secretaries of all States within onemonth so as to enable them to take followupaction to determine the required Judgestrength of the District judiciary based onthe NCMSC interim report, subject to what hasbeen stated in this judgment;



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43.4 The State Governments shall take upwith the High Court concerned, the task ofimplementing the interim report of theChairperson, NCMSC (subject to what has beenobserved above) and take necessary decisionswithin a period of three months from todayfor enhancing the required Judge strength ofeach State judiciary accordingly;

43.5 The State Governments shallcooperate in all respects with the HighCourts in terms of the resolutions passed inthe joint conference of Chief Justices andChief Ministers in April 2016 with a view toensuring expeditious disbursal of funds tothe State judiciaries in terms of thedevolution made under the auspices of theFourteenth Finance Commission;

43.6 The High Courts shall take up theissue of creating additional infrastructurerequired for meeting the existing sanctionedstrength of their State Judiciaries and theenhanced strength in terms of the interimrecommendation of NCMSC;

43.7 The final report submitted by NCMSCmay be placed for consideration before theConference of Chief Justices. The directionsin para 43.1, above shall then be subject tothe ultimate decision that is taken onreceipt of the final report; and

43.8A Copy of this order shall be madeavailable to the Registrars General of eachHigh Court and to all Chief Secretaries ofthe States for appropriate action.”

(emphasis added)

15. We may note that though the case of Imtiyaz

Ahmad (supra) was finally disposed of by the Apex

Court, the aforesaid directions were not modified.

Thus, today there is a direction of the Apex Court



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that until NCMSC formulates scientific method for

determining the Judge strength, for each State, the

Judge strength shall be calculated as per the

interim approach incorporated in the note submitted

by NCMSC. In paragraph 43.3, the Apex Court

directed that interim report of the NCMSC shall be

forwarded by the Union Ministry of Law and Justice

to the Chief Justices of all the High Courts and the

Chief Secretaries of all States so as to enable them

to determine the required Judge strength of the

District Judiciary. Paragraph 43.4 clearly gives a

direction to the State Governments to implement the

interim report of NCMSC. Paragraph 43.6 also

proceeds on the footing that in each State, Judge

strength will be enhanced on the basis of the

recommendations of NCMSC. So long as the directions

issued in the aforesaid decision by the Apex Court

in the case of Imtiyaz Ahmad (supra) are not

modified, all the States including the State of

Maharashtra continue to bound by the same. We are

informed across the Bar that this Court on the

administrative side has accordingly worked out the

Judge strength and submitted a proposal for sanction

to the State Government. The State Government has no

choice but to implement the directions of the Apex

Court.

THE ISSUE OF PRIMACY

16. Now coming to the issue of primacy, when it

comes to deciding the number of Judicial Officers or



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number of judicial posts which should made

available, the learned Government Pleader invited

our attention to various provisions of the

Constitution including Articles 233 and 235. His

main contention was that the power of establishing

Courts will have to be exercised in consultation

with the High Court. However, the creation of posts

in judicial service as well as the creation of

cadres can be resorted to either by the Hon'ble

Governor in exercise of his Rule making power under

Article 309 or by an appropriate legislation. In

this behalf, he placed reliance on the decision of

the Apex Court in the case of State of Bihar and

another vs. Bal Mukund Sah4. He submitted that if

the High Court Administration is of the opinion that

a particular number of posts ought to be created in

judicial service, the same will be subject to

Article 309 of the Constitution in which case only

the Hon'ble Governor or the legislature of the

State will have an authority to do so after taking

into consideration various factors, budget etc. His

contention is that the question of exercising the

control under Article 235 arises only after the

posts are created by making rules or a legislation

under Article 309. He submitted that it is true that

whenever the High Court Administration comes to the

conclusion that a particular number of Judicial

posts are required to be created, it is done after

considerable thought. But ultimately it is for the

State to decide on the requirement of creation of

4 (2000) 4 SCC 640



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judicial posts in judicial service after taking into

consideration various factors such as expenditure

involved, availability of funds etc.

17. Before we deal with the submissions based

on various constitutional provisions such as

Articles 235 and 309, we must make a reference to

the decision of the Apex Court in the case of All

India Judges Association (3) (supra). In the said

decision after considering 120th report of the Law

Commission, a direction was issued by the Apex Court

to increase number of judicial posts in the entire

country so as to achieve Judge to population ratio

of 50 Judges for one million population. This was

to be done within a period of five years from the

date of decision of the Apex Court which is of 21st

March 2002. Going by the present position of the

Judge to population ratio, it is between 16 to 18

per million. Thus, the target laid down by the Apex

Court which was to be achieved by March 2007 is not

yet achieved. It is not even achieved to the extent

of 50%. As pointed out in the earlier paragraphs,

different methodology was adopted by the Apex Court

in the case of Imtiyaz Ahmad (supra) for the purpose

of calculating the Judge strength. That was based

on interim recommendations of the NCMSC. As

observed earlier, there is already a direction

issued by the Apex Court in the said decision to

make computation of the Judge strength as per the

formula laid down in the interim report of NCMSC.

This specific direction under 43.1 is already



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quoted. In the face of these two judicial

pronouncements, it is not open for the State to

argue that it has a primacy or prerogative to

determine how many Judicial Officers should be

appointed in the State. Irrespective of the issue

of primacy, what binds the State is the aforesaid

decision of the Apex Court in the case of Imtiaz

Ahmad (supra).

18. On this aspect, it will be necessary to

make a reference to the decision dated 5th May 2017

of this Court in the case of Mumbai Grahak Panchayat

Vs. State of Maharashtra and others in PIL No.156 of

2011 and other connected petitions. The said

decision has been accepted by the State Government

in the sense, there is no challenge to the same. As

far as Judge strength is concerned, the Division

Bench has referred to the directions issued by the

Apex Court in the case Imtiyaz Ahmad (supra). In

fact directions have been issued to the State

Government to comply with the directions issued by

the Apex Court. Clauses (a) to (g) of subparagraph

(A) of paragraph 191 reads thus:

“191. Hence, we pass the following order:

ORDER

A] We hold that:(a) It is the constitutional obligation ofthe State Government to provide lands and/oradequate premises for establishing adequatenumber of Courts;(b) It is an obligation of the StateGovernment to appoint sufficient number of



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Judicial officers consistent with pendencyand filing in the concerned Courts andTribunals. The cadre strength should be suchthat there will be no pendency of old cases;(c) It is the obligation of the StateGovernment to provide all necessaryinfrastructure to the newly established aswell as the existing Courts and Tribunals forthe benefit of the Judicial Officers,litigants, members of the staff as well asmembers of the Bar;(d) The infrastructure has to be provided insuch a manner that the Courts are able tofunction efficiently;(e) The infrastructure has to be consistentwith the concept of dignity of the Court;(f) Speedy disposal of cases in consonancewith the mandate of Article 39A of theConstitution of India cannot be achievedunless adequate number of Courts andTribunals are established and adequate andproper infrastructure is provided to all theCourt premises;(g) Financial constraints is no ground todeny permission for establishing new Courtsand denying essential infrastructure to allthe Courts, whether existing or new. Theseprinciples will apply to all Civil andCriminal Courts in the State, CooperativeCourts and Maharashtra State CooperativeAppellate Court, State Commission andDistrict Forum under the Consumer ProtectionAct, 1986, the Motor Accidents ClaimsTribunals under the Motor Vehicles Act,1988as well as Labour and Industrial Court;”

(emphasis added)

19. Thus, it is held that it is the

constitutional obligation of the State Government to

appoint sufficient number of Judicial Officers

consistent with the pendency and filing in the

concerned Courts and Tribunals. It is also held



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that the cadre strength should be such that there is

no pendency of old cases. In clause (f), it is

categorically laid down that speedy disposal of the

cases in consonance with Article 39A of the

Constitution cannot be achieved unless adequate

number of Courts and Tribunals are established and

adequate and proper infrastructure is provided to

all the Court premises. What is important is that

it is held in the said decision that financial

constraints is no ground for denying establishment

of new Courts and essential infrastructure to all

the Courts whether existing or new. The obligation

of the State to provide adequate infrastructure to

the judiciary will naturally include providing

adequate number of Judges. One of the submissions

made by the learned Government Pleader was that

that when the High Court Administration comes to the

conclusion that certain number of additional posts

of Judges are required to be created, it is

ultimately for the State to decide whether it is

possible to create additional posts considering the

availability of funds and financial constraints.

This submission hardly merits consideration in the

light of the aforesaid decision of this Court. The

nonavailability of funds is really no ground to

refuse the creation of new posts of Judges. At

highest, the appointments can be made in a phase

wise manner.

20. In fact, what is held in the aforesaid

decision in the case of Mumbai Grahak Panchayat



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(supra) that financial constraints is no ground to

deny establishment of new Courts is based on the law

laid down by the Apex Court in the case of Brij

Mohan Lal (supra). For the sake of clarity, we

reproduce paragraphs 136 and 137 of the aforesaid

decision in the case of Brij Mohan Lal (supra).

“136. However, as far as functioning ofthe courts i.e. dispensation of justice bythe courts is concerned, the Government hasno control whatsoever over the courts.Further, in relation to matters ofappointments to the judicial services of theStates and even to the higher judiciary inthe country, the Government has some say,however, the finances of the judiciary areentirely under the control of the State. Itis obvious that these controls should beminimised to maintain the independence ofthe judiciary. The courts should be able tofunction free of undesirable administrativeand financial restrictions in order toachieve the constitutional goal of providingsocial, economic and political justice andequality before law to its citizens.

137. Article 21 of the Constitution ofIndia takes in its sweep the right toexpeditious and fair trial. Even Article 39A of the Constitution recognises the rightof citizens to equal justice and free legalaid. To put it simply, it is theconstitutional duty of the Government toprovide the citizens of the country withsuch judicial infrastructure and means ofaccess to justice so that every person isable to receive an expeditious, inexpensiveand fair trial. The plea of financiallimitations or constraints can hardly bejustified as a valid excuse to avoidperformance of the constitutional duty ofthe Government, more particularly, when such



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rights are accepted as basic and fundamentalto the human rights of citizens.” (emphasis added)

21. Even in the case of Hussainara Khatoon and

others vs. Home Secretary, State of Bihar5, the Apex

Court has reiterated the same legal position by

supplying additional reasons. Paragraph 10 of the

decision in the case of Hussainara Khatoon and

others (supra) reads thus:

“10 We find from the counteraffidavit filedon behalf of the respondents that no reasonshave been given by the State Government asto why there has been such enormous delay inbringing the under trial prisoners to trial.Speedy trial is, as held by us in ourearlier judgment dated February 26, 1979, anessential ingredient of `reasonable, fairand just' procedure guaranteed by Article 21and it is the constitutional obligation ofthe State to device such a procedure aswould ensure speedy trial to the accused.The State cannot be permitted to deny theconstitutional right of speedy trial to theaccused on the ground that the State has noadequate financial resources to incur thenecessary expenditure needed for improvingthe administrative and judicial apparatuswith a view to ensuring speedy trial. TheState may have its financial constraints andits priorities in expenditure, but, aspointed out by the Court in Rhem v.Malcolm : “The law does not permit anygovernment to deprive its citizens ofconstitutional rights on a plea of poverty”.It is also interesting to notice whatJustice, then Judge, Blackmum said inJackson v. Bishop:

Humane considerations andconstitutional requirements are not, in thisday, to be measured by dollarconsiderations.

5 (1980) 1 SCC 98



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So also in Holt V. Saver, affirmed in 442 FSupp 362, the Court dealing with theobligation of the State to maintain aPenitentiary System which did not violatethe Eighth Amendment aptly and eloquentlysaid:

Let there be no mistake in the matter;the obligation of the respondents toeliminate existing unconstitutionalitiesdoes not depend upon what the legislaturemay do, or upon what the Governor may do,or, indeed upon what respondents mayactually be able to accomplish. If Arkansasis going to operate a Penitentiary System,it is going to have to be a system that iscountenanced by the Constitution of theUnited States.

The State cannot avoid its constitutionalobligation to provide speedy trial to theaccused by pleading financial oradministrative inability. The State isunder a constitutional mandate to ensurespeedy trial and whatever is necessary forthis purpose has to be done by the State.It is also the constitutional obligation ofthis Court, as the guardian of thefundamental rights of the people, assentinel on the qui vive, to enforce thefundamental right of the accused to speedytrial by issuing the necessary directions tothe State which may include taking ofpositive action, such as augmenting andstrengthening the investigative machinery,setting up new courts, building new courthouses, providing more staff and equipmentto the courts, appointment of additionaljudges and other measures calculated toensure speedy trial. We find that in factcourts in the United States have adoptedthis dynamic and constructive role so far asthe prison reform is concerned by utilisingthe activist magnitude of the EighthAmendment. The courts have ordered



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substantial improvements to be made in avariety of archaic prisons and jails throughdecisions such as Holt v. Sarver, Jones V.Wittenberg, Newman v. Alabama and Gates V.Collier. The Court in the last mentionedcase asserted that it “has the duty offashioning a decree that will requiredefendants to eliminate the conditions andpractices at Parchman herein above found tobe violative of the United State'sconstitution” and in discharge of this dutygave various directions for improvement ofthe conditions of those confined in theState Penitentiary. The powers of thisCourt in protection of the constitutionalrights are of the widest amplitude and we dono see why this Court should not adopt asimilar activist approach and issue to theState directions which may involve taking ofpositive action with a view to securingenforcement of the fundamental right tospeedy trial. But in order to enable theCourt to discharge this constitutionalobligation, it is necessary that the Courtshould have the requisite informationbearing on the problem. We, therefore,direct the State of Bihar to furnish to uswithin three weeks from today particulars asto the location of the courts of Magistratesand courts of sessions in the State of Bihartogether with the total number of casespending in each of these courts as onDecember 31, 1978 giving year wise breakupof such pending cases and also explainingwhy it has not been possible to dispose ofthose cases as have been pending for morethan six months. We would appreciate if theHigh Court of Patna also furnishes the aboveparticulars to us within three weeks fromtoday since the High Court on itsadministrative side must be having recordsfrom which these particulars can be easilygathered. We also direct the State of Biharto furnish to us within three weeks fromtoday particulars as to the number of caseswhere first information reports have been



24 pil188.doc

lodged and the cases are pendinginvestigation by the police in each subdivision of the State as on December 31,1978 and where such cases have been pendinginvestigation for more than six months, theState of Bihar will furnish broadly thereasons why there has been such delay in theinvestigative process. The writ petitionwill now come up for hearing and finaldisposal on April 4, 1979. We have alreadyissued notice to the Supreme Court BarAssociation to appear and make itssubmissions on the issues arising in thewrit petition since they are of greatimportance. We hope and trust that theSupreme Court Bar Association will respondto the notice and appear to assist the Courtat the hearing of the writ petition.” (emphasis added)

22. The Apex Court in the same decision

reiterated that the right to have a speedy trial is

an essential ingredient of the rights guaranteed by

Article 21 of the Constitution and therefore, it is

the constitutional obligation of the State to device

such a procedure which would ensure speedy trial of

the cases. It is in this context, the Apex Court

observed that it is the Constitutional obligation of

the State to take steps such as setting up new

Courts, provide staff, infrastructure etc to the

Court.

23. Coming back to the decision in the case of

Mumbai Grahak Panchayat (supra), it is held that it

is the obligation of the State to sanction requisite

number of posts of Judges as directed in the



25 pil188.doc

decision of the Apex Court in the case of Imtiyaz

Ahmad (supra). By relying upon findings in paragraph

191 of the said decision, there are consequential

directions issued in the operative part of the

Judgment for giving effect to the directions in the

case of Imtiyaz Ahmad (supra). The State is bound by

the said directions. Considering the aforesaid

legal position, the argument canvassed by the

learned Government Pleader is of very little

significance. Nevertheless, we are dealing with the

said argument.

24. Article 309 of the Constitution of India

reads thus:

“309. Recruitment and conditions of serviceof persons serving the Union or State –Subject to the provisions of thisConstitution, and conditions of service ofpersons appointed, to public services andposts in connection with the affairs of theUnion or of any State:

Provided that it shall be competent forthe President or such person as he may directin the case of services and posts inconnection with the affairs of the Union, andfor the Governor of a State or such person ashe may direct in the case of services andposts in connection with the affairs of theState, to make rules regulating therecruitment, and the conditions of service ofpersons appointed, to such services and postsuntil provision in that behalf is made by orunder an Act of the appropriate Legislatureunder this article, and any rules so madeshall have effect subject to the provisionsof any such Act.”



26 pil188.doc

25. Other two material Articles for the

purposes of deciding the controversy involved are

the Articles 233 and 235 which read thus:

“233 Appointment of District judges – (1)Appointments of persons to be, and theposting and promotion of, District judges inany State shall be made by the Governor ofthe State in consultation with the High Courtexercising jurisdiction in relation to suchState.(2) A person not already in the service ofthe Union or of the State shall only beeligible to be appointed a District judge ifhe has been for not less than seven years anadvocate or a pleader and is recommended bythe High Court for appointment.

233A. Validation of appointments of, andjudgments, etc., delivered by, certainDistrict judges. Notwithstanding anyjudgment, decree or order of any Court, (a) (I) no appointment of any person alreadyin the judicial service of a State or of anyperson who has been for not less than sevenyears an advocate or a pleader, to be aDistrict judge in that State, and (ii) no posting, promotion or transfer of anysuch person as a District judge, made at anytime before the commencement of theConstitution (Twentieth Amendment) Act,1966,otherwise than in accordance with theprovisions of article 233 or article 235shall be deemed to be illegal or void or everto have become illegal or void by reason onlyof the fact that such appointment, posting,promotion or transfer was not made inaccordance with the said provisions;(b) no jurisdiction exercised, no judgment,decree, sentence or order passed or made, andno other act or proceeding done or taken,before the commencement of the Constitution(Twentieth Amendment) Act,1966 by, or before,



27 pil188.doc

any person appointed, posted, promoted ortransferred as a District judge in any Stateotherwise than in accordance with theprovisions of article 233 or article 235shall be deemed to be illegal or invalid orever to have become illegal or invalid byreason only of the fact that suchappointment, posting, promotion or transferwas not made in accordance with the saidprovisions.

234 ..........

235. Control over subordinate Courts. Thecontrol over District Courts and Courtssubordinate thereto including the posting andpromotion of, and the grant of leave to,persons belonging to the judicial service ofa State and holding any post inferior to thepost of District judge shall be vested in theHigh Court, but nothing in this article shallbe construed as taking away from any suchperson any right of appeal which he may haveunder the law regulating the conditions ofhis service or as authorizing the High Courtto deal with him otherwise than in accordancewith the conditions of his service prescribedunder such law.”

26. The main thrust of the argument of the

State is on the basis of the Article 309. While we

deal with this argument, we must state that the same

will be tested on the basis of the well settled

proposition that the independence of judiciary and

separation of powers forms a part of the basic

structure of the Constitution. Argument canvassed

based on Article 309 is virtually answered by the

Apex Court in the case of All India Judges'

Association vs. Union of India6. Paragraphs 9 and

6 (1993) 4 SCC 288



28 pil188.doc

10 of the said decision in the Review Petition read

thus:

“9 So much for the contention of thereview petitioners that the directions givenby this Court would lead to the demand fromthe members of the other services forsimilar service conditions. It is high timethat all concerned appreciated that for thereasons pointed out above there cannot beany link between the service conditions ofthe Judges and those of the members of theother services. It is true that underArticle 309 of the Constitution, therecruitment and conditions of service of themembers of the subordinate judiciary are tobe regulated by the Acts of the appropriatelegislature and pending such legislation,the President and the Governor or theirnominees, as the case may be, are empoweredto make rules regulating their recruitmentand the conditions of service. It is alsotrue that after the Council of States makesthe necessary declaration under Article 312,it is the Parliament which is empowered tocreate an All India Judicial Service whichwill include posts not inferior to the postof District Judge as defined under Article236. However, this does not mean that whiledetermining the service conditions of themembers of the judiciary, a distinctionshould not be made between them and themembers of the other services or that theservice conditions of the members of all theservices should be the same. As it is, evenamong the other services, a distinction isdrawn in the matter of their serviceconditions. This Court has in the judgmentunder review, pointed out that the linkagebetween the service conditions of thejudiciary and that of the administrativeexecutive was an historical accident. Theerstwhile rulers constituted, only oneservice, viz., the Indian Civil Service forrecruiting candidates for the judicial as



29 pil188.doc

well as the administrative service and it isfrom among the successful candidates in theexamination held for such recruitment, thatsome were sent to the administrative serviceand it is from among the successfulcandidates in the examination held for suchrecruitment, that some were sent to theadministrative side while others to thejudicial side. Initially, there was also noclear demarcation between the judicial andexecutive services and the same officersused to perform judicial and executivefunctions. Since the then Government hadfailed to make the distinction between thetwo services right from the stage of therecruitment, its logical consequences interms of the service conditions could not beavoided. With the inauguration of theConstitution and the separation of the Statepower distributed among the three branches,the continuation of the linkage has becomeanachronistic and is inconsistent with theconstitutional provisions. As pointed outearlier, the parity in status is no longerbetween the judiciary and the administrativeexecutive but between the judiciary and thepolitical executive. Under the Constitution,the judiciary is above the administrativeexecutive and any attempt to place it on apar with the administrative executive has tobe discouraged. The failure to grasp thissimple truth is responsible for thecontention that the service conditions ofthe judiciary must be comparable to those ofthe administrative executive and anyamelioration in the service conditions ofthe former must necessarily lead to thecomparable improvement in the serviceconditions of the latter.

10 This leaves us with the contention ofthe review petitioners that by thedirections in question, this Court hasencroached upon the powers of the executiveand the legislature under Article 309 toprescribe the service conditions for the



30 pil188.doc

members of the Judicial Service. In view ofthe separation of the powers under theConstitution, and the need to maintain theindependence of the judiciary to protect andpromote democracy and the rule of law, itwould have been ideal if the most dominantpower of the executive and the legislatureover the judiciary, viz., that ofdetermining its service conditions had beensubjected to some desirable checks andbalances. This is so even if ultimately,the service conditions of the judiciary haveto be incorporated in and declared by thelegislative enactments. But the mere factthat Article 309 gives power to theexecutive and the legislature to prescribethe service conditions of the judiciary,does not mean that the judiciary should haveno say in the matter. It would be againstthe spirit of the Constitution to deny anyrole to the judiciary in that that behalffor theoretically it would not be impossiblefor the executive or the legislature toturn and twist the tail of the judiciary byusing the said power. Such a consequencewould be against one of the seminal mandatesof the Constitution, namely, to maintain theindependence of the judiciary.”

(emphasis added)

27. Therefore, while interpreting Article 309,

when it comes to making of the Rules regarding

service conditions of Judicial Officers, the concept

of independence of judiciary which forms a part of

the basic structure of the Constitution will have to

be borne in mind. In the same decision, in

paragraph 22, the Apex Court observed thus:

“22 To the above observations, we may addthat the separation of the judiciary fromthe executive, as ordained by Article 50 of



31 pil188.doc

the Constitution, also requires that eventhe judicial appointments at the lowestrung are made in consultation with the HighCourt. If the judicial stream is pollutedat its very inception, the independence ofjudiciary will remain in jeopardy, forever.”

28. If the argument that it is for the State to

ultimately decide how many judicial posts are

required to be created is accepted, it will

jeopardize the independence of the judiciary.

29. A Division Bench of this Court in the case

of Purshottam s/o Manohar Kamone vs. State of

Maharashtra7 dealt with the issue of establishment

of Motor Accident Claims Tribunals. In paragraph 6

of the said decision, the Division Bench of this

Court held thus:

“6. It is no longer debatable and ratherit is well settled that the speedy justiceis an ingredient of Article 21 of theConstitution of India and, therefore, eachlitigant has a fundamental right of aspeedy justice. That being so, it is thecorresponding obligation of the State toconstitute sufficient number of Courts,Tribunals and Forums so that a litigant,who has knocked the door of the Court orTribunal, is able to get justice speedly.Taking into consideration the huge pendencyof motor accident claim cases at Nagpur,expected future filing and slow disposal ofsuch cases, it is necessary for the StateGovernment to provide sufficient MotorAccident Claims Tribunals at Nagpur. Thisis essential to ensure the speedy disposal

7 (2001) All M.R.786



32 pil188.doc

of cases and in consonance with Article 39A of the Constitution of India, whichprovides that the State shall secure thatthe operation of the legal system promotesjustice. As observed by the Apex Court inS.C. AdvocatesonRecord v. Union of India,(1993) 4 SCC 441 : AIR 1994 SC 268, withreference to Article 216 of theConstitution of India, which deals with theconstitution of High Courts, “This isessential to ensure speedy disposal ofcases, to ‘secure that the operation of thelegal system promotes justice’ — adirective principle ‘fundamental in thegovernance of the country’ which, it is theduty of the State to observe in all itsactions; and to make meaningful theguarantee of fundamental rights in part IIIof the Constitution.” The Apex Courtfurther observed that the failure toperform this obligation, resulting innegation of the rule of law by the laws'delay must be justiciable, to compelperformance of that duty. Applying the sameprinciple, in our view, it” must be heldthat the constitution of Motor AccidentClaims Tribunal, as required by the Stateunder Section 165 of the Motor Vehicles Actis justiciable issue and if it is shownthat the existing Tribunal is inadequate toprovide speedy justice to the people, adirection can be issued to the StateGovernment to take appropriate steps indischarge of their duty, commensurate withthe need to fulfil the State obligation ofproviding speedy justice to the victims orthe dependents of the victims of motoraccident.” (emphasis added)

30. The learned counsel for the High Court

Administration relied upon the order dated 2nd August

2018 passed by the Apex Court in the case of All

India Judges' Association vs. Union of India. It is



33 pil188.doc

held that the responsibility for securing justice

rests upon judiciary which makes it imperative upon

the State to provide to the Judiciary the requisite

infrastructure which is the constitutional

obligation of the State. In paragraph 105 of its

decision in the case of Brij Mohal Lal (supra), the

Apex Court has summarized the law on point which

reads thus:

“105. The independence of the Indianjudiciary is one of the most significantfeatures of the Constitution. Any policy ordecision of the Government which wouldundermine or destroy the independence of thejudiciary would not only be opposed topublic policy but would also impinge uponthe basic structure of the Constitution. Ithas to be clearly understood that the Statepolicies should neither defeat nor causeimpediment in discharge of judicialfunctions. To preserve the doctrine ofseparation of powers, it is necessary thatthe provisions falling in the domain ofjudicial field are discharged by thejudiciary and that too, effectively.” (emphasis added)

31. In the case of Partur Bar Association vs.

State of Maharashtra8 wherein the issue of primacy

in decision making for establishing the new Courts

arose. A Division Bench of this Court examined the

Maharashtra Civil Courts Act,1869 as well as the

Code of Criminal Procedure,1973 and ultimately came

to the conclusion in paragraph 25 which reads thus:

“25 If the argument of the Petitioner isaccepted that the power under the Criminal

8 2016 (4) Mh.L.J. 498



34 pil188.doc

Procedure Code and powers under variousprovisions of the Civil Courts Act and inparticular sections 3,4, 12, 12A, 15, 19,21, 22, 22A and 23 has to be exclusivelyexercised by the State Government withoutconsultation of the High Court, it will becompletely contrary to the spirit of Article235 of the Constitution of India and it willbe contrary to the principle of separationof powers between the judiciary andexecutive adopted by the Constitution.Moreover, in a given case, it will create apeculiar situation. The State Governmentmay decide to establish a Court of DJ withina judicial District for one or more Talukaswithout consultation with the High Court.The High Court after finding that the Courtis not viable, will be justified in refusingto post a judicial officer to preside oversuch Court established by the StateGovernment as the said power is theexclusive domain of the High Court underArticle 235 of the Constitution. Hence,harmonious construction of the provisions ofthe Civil Courts Act and Criminal ProcedureCode with the Constitutional provisions isnecessary. The power of establishing Courtswherever conferred on the State Government,both under the Civil Courts Act and theCriminal Procedure Code will have to beexercised by the State Government afterconsultation with the High Court. In viewof the provisions of Article 235, the viewsof the High Court will have the primacy.This can be the only harmoniousinterpretation put to the relevantprovisions of the Civil Courts Act andCriminal Procedure Code to make itconsistent with the provisions of theConstitution. If any other interpretationis made, the relevant provisions of theCivil Courts Act and Criminal Procedure Codewill be exposed to vice ofunconstitutionality. In the case of NamitSharma vs. Union of Inda (2013) 1 SCC 745,the Apex Court in paragraph 51 held thus:



35 pil188.doc

“51 Another most significant canon ofdetermination of constitutionality isthat the Courts would be reluctant todeclare a law invalid or ultra vires onaccount of unconstitutionality. TheCourts would accept an interpretationwhich would be in favour of theconstitutionality, than an approach whichwould render the law unconstitutional.Declaring the law unconstitutional is oneof the last resorts taken by the Courts.The Courts would preferably put intoservice the principle of “reading down”or “reading into” the provision to makeit effective, workable and ensure theattainment of the object of the Act.These are the principles which clearlyemerge from the consistent view taken bythis Court in its various pronouncements”

(emphasis added)

32. This Court went to the extent of holding

that when the State Government is conferred with the

power to establish the Courts, the said power has to

be exercised after consultation with the High Court

and in the matter of such consultation, the views of

the High Court will have a primacy.

33. Thus, it is already held that in the matter

of establishing the new Courts, the views of the

High Court will have the primacy. Considering the

mandate of Article 21 and Article 39A, it is the

duty of the judicial system to take all such steps

so as to ensure that no citizen is deprived of his

fundamental rights guaranteed under Article 21 of

the Constitution of speedy trial. It is a settled



36 pil188.doc

position that it is the obligation of the State to

provide all possible infrastructure to the judiciary

to ensure that the mandate of Article 21 is

followed. If the argument of the State is accepted,

it would mean that in a given case, when the High

Court Administration is of the considered view that

at a particular place, it is necessary to create

certain number of additional posts of Judges,the

State will finally decide whether creation of

additional posts of the Judges is necessary at that

particular place. Therefore, it comes to it that the

State will decide how many Judges are required to

deal with the pendency of cases at a particular

place and for ensuring the speedy trial. If this

view is accepted, it will impinge upon the

independence of judiciary which is a part of the

basic structure of the Constitution of India.

34. Whenever the High Court Administration

comes to a conclusion that a particular number of

additional Courts/posts are required to be created,

there is always an indepth consideration made of

not only the pendency at a particular place but

several other important factors. More importantly,

the requirement of number of Judges cannot be

determined only on the basis of the statistics or

figures. Just by way of illustration, we may state

here that in the city of Mumbai, during the last 20

to 30 years, there were few criminal cases regarding

Bomb Blasts wherein the examination of hundreds of

witnesses was necessary. Therefore, necessity of



37 pil188.doc

appointing a particular number of Judges can be

properly understood only by the High Court

Administration. The number of cases pending and

figures of filing is not the only criteria. At a

particular station, there may be a huge pendency of

the cases under the Maharashtra Prohibition Act,

1949 whereas at some other stations, there may be a

pendency of large number of criminal cases involving

commercial transactions or involving cyber crimes.

As compared to the criminal cases involving cyber

crimes or commercial transactions, the disposal of

cases under the Maharashtra Prohibition Act does not

take much time. This is a practical reason which we

have given for holding that the argument of the

learned Government Pleader cannot be accepted.

35. The Apex Court has already explained in one

of the aforesaid decisions the relevance of Article

309. It is not necessary to reproduce the directions

issued by the Apex Court by which all the State

Governments were directed to provide the service

conditions to the Judicial Officers as laid down in

the reports of Shetty Commission and Padmanabhan

Commission. Considering the Constitutional Scheme

and the fact that the independence of the judiciary

is the basic structure of the Constitution, it is

impossible to read Article 309 as conferring the

exclusive power on the Government to finally decide

as to how many judicial posts should be created and

to hold that the Government is not bound by the

views of the High Court.



38 pil188.doc

36. The legal position which we have restated

earlier is that it is the Constitutional obligation

of the State to provide adequate infrastructure to

the judiciary with a view to ensure that fundamental

right of citizens under Article 21 of the

Constitution of right of speedy trial is not

violated. As observed earlier, adequate

infrastructure of the Courts will include adequate

number of Judges. If the State Government is serious

about its contention about the primacy, the State

will be doing breach of the Constitutional

obligation of providing adequate infrastructure to

the judiciary. In the circumstances, we are

constrained to reject the contention raised by the

State regarding its primacy when it comes to

deciding the number of Judicial Officers required by

the judiciary.

37. As far as the factual aspects are

concerned, we have dealt with most of the factual

aspects. In the context of the discussion which we

have made on number of judicial posts which are

required to be created, we must come back to the

controversy regarding the creating 867 additional

posts in Maharashtra. We have already observed that

the stand taken on this aspect by the State is quite

misleading in the sense that while dealing with the

said grievance, the State has tried to rely upon the

number of appointments made of the ad hoc Judges. We

have already clarified that creating posts of ad hoc



39 pil188.doc

Judges has nothing to do with the proposal of the

High Court Administration of creating 867 additional

permanent posts of various category of Judges.

38. Before we part with the Judgment, we will

have to deal with the manner in which the State has

dealt with the request made by the High Court

Administration for creating additional 867

Courts/posts. From the affidavits filed on record

by the Registrar (Legal) and some of the affidavits

filed by the State Government, it is crystal clear

that the proposal for creation of 867 Courts has

remained pending with the State from the year 2012.

What is material to note is the number of queries

made by the State Government with the High Court

Administration when it comes to creation of new

posts and establishment of new Courts. If some of

the queries made by the State are perused, it is

apparent that the said queries have been made in

ignorance of the constitutional obligation of the

State. In fact, enclosures to the affidavits will

indicate that no proposal moved by the High Court

Administration is approved by the State Government

without making large number of queries. For

example, we may deal with the proposal for

establishing 17 Family Courts at Mumbai, 4 Family

Courts at Pune and 5 Family Courts at Nagpur. By a

letter dated 30th March 2017, a very peculiar query

was made. The query itself records that as per the

Government Resolution dated 22nd December 2015,

recommendations of the Shetty Commission have been



40 pil188.doc

made applicable to the Family Courts. The Government

stated that the High Court Administration should

submit a statement of expenditure which is likely to

be incurred on the payment of salaries to the

additional Judges as proposed. The State Government

is aware about the pay of the Family Court Judges.

It was a matter of simple arithmetic calculation for

the State. However, queries were made to the High

Court Administration. Such approach on the part of

the State Government is completely contrary to its

constitutional obligations. In fact, the State

Government should be equally concerned as the High

Court Administration is concerned with the disposal

of the old cases and for ensuring that a speedy

trial is made available to the litigants. In fact,

when the High Court Administration submits a

proposal for creation of posts of additional Judges

or additional Courts for dealing with the pendency,

the State should cooperate by creating additional

posts of Judges instead of making large number of

queries. Whenever such a proposal is submitted to

the State, an adversarial stand is always taken by

raising several objections and queries. In the light

of the law laid down by the Apex Court and in this

Court, it is obvious that the State Government

requires to change its approach. We are constrained

to observe that it is a matter of record in the form

of various Judgments delivered by this Court that

repeatedly this Court on its judicial side was

required to issue directions to the State Government

only for ensuring establishment of adequate number



41 pil188.doc

of Courts and for ensuring that adequate

infrastructure is provided to the Courts. Ideally,

in terms of the constitutional mandate, there cannot

be any opposition by the State Government when High

Court Administration seeks creation of additional

Courts or posts and seeks to appoint additional

Judicial Officers.

CONCLUDING PORTION

39. Now, coming back to the conclusions, we

have already reiterated the constitutional

obligation of the State. We hold that when it comes

to deciding on the proposal for the appointment of

additional Judicial Officers or creating additional

Courts or creating additional posts, the views of

the High Court Administration will always have a

primacy and it is the constitutional obligation of

the State to ensure that additional Courts or

additional posts as suggested by the High Court

Administration are sanctioned as expeditiously as

possible in as much as if there is a delay on the

part of the State Government, it may amount to

violation of fundamental rights of the litigants

under Article 21 of the Constitution of India.

40. As far as the directions which are required

to be issued are concerned, as pointed out in the

discussion made earlier, some of the prayers have

been worked out. However, if the proposals of the

High Court Administration which are referred in the



42 pil188.doc

prayer clauses are still pending with the State,

it will have to take appropriate decision within a

period of three months from today. As far as the

wider prayers for appointing additional Judges are

concerned, we are not issuing specific directions as

in the case of Mumbai Grahak Panchayat (supra),

specific directions regarding the State Government

sanctioning the posts as per the directions in the

case of Imtiyaz Ahmad (supra) have been already

issued. The State Government is bound by the said

direction.

41. In the prayers made and especially prayer

clauses (d) to (j), there is a direction sought

regarding making budgetary provision for meeting the

expenditure for creating additional posts or Courts.

Once we hold that it is the obligation of the State

to provide adequate number of Courts and adequate

number of posts of Judicial Officers, the obligation

to make necessary budgetary provision for that

purpose is implicit.

42. There is a Civil Application filed by the

Pune Family Court Lawyers Association seeking a

direction regarding construction of Family Court

building at Pune. With the passage of time, the said

grievance is worked out in as much as new Family

Court building at Pune is already constructed and

the Family Courts have started functioning therein.



43 pil188.doc

43. Before we dispose of the petition, we must

record our appreciation for the role played by the

PIL petitioner by taking up cause of the legal

system and judiciary.

44. Accordingly, we dispose of the petition by

passing the following order:

(I) As observed earlier, as far as the issue

regarding pension is concerned, appropriate

final directions have been already issued

under the Judgment and Order dated 11th

August 2017;

(II) If the proposals for creation of posts

(including 867 posts) which are the subject

matter of this PIL are still pending, the

State Government shall take appropriate

decision thereon in the light of the law

laid down by the Apex Court and this Court

as expeditiously as possible and in any

event, within a period of three months from

the date on which this Judgment is uploaded;

(III) As stated earlier, we are not issuing any

specific directions as regards the prayer

for creating adequate number of posts of

Judges as the decision of this Court in the

case of Mumbai Grahak Panchayat (supra) and

the directions given therein are holding the

field;



44 pil188.doc

(IV) Place the PIL under the caption of

'Directions' for reporting compliance on 25th

January 2019 at 3.00 p.m.;

(V) Considering the nature of the directions

issued under this Judgment, it will be

appropriate if for considering compliance,

this petition is placed before the Bench of

which one of us is a party. The Registrar

(JudicialI) will seek appropriate

directions in that behalf from the Hon'ble

the Acting Chief Justice;

(VI) In view of disposal of petition, all pending

civil applications are also disposed of.

(M.S.SONAK,J.) (A.S.OKA,J.)



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