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| HC stays abolishing of 38 courts created under 13th finance commission | | | Early Times Report
Jammu, Aug 25: A high court division bench of Chief Justice N Paul Vasanthakumar and Justice Hasnain Massodi today stayed the abolishing of the 38 courts created under 13th finance commission.
Today, when the came up for hearing, the bench observed that suo moto PIL taken up by this court noticing the fact that 38 additional/Special Mobile Magistrates and staff attached to the courts, which have been established under the 13th Finance Commission in lieu of creating morning and evening courts for improving justice delivery system, were not paid salary from March 2015. The courts were created by the government order No 929-LD (A) of February 27, 2012 and GO No 2011-LD (A) of June 20, 2012. The salary of the Presiding Officers as well as the staff attached to the Courts were not paid on the ground that Government of India has stopped funding after the expiry of period of 13th Finance Commission. The continuance of the courts from March 2015 was felt by the High Court with regard to the pendency of cases numbering more than 15,000 and the High Court submitted a proposal to continue the courts and pay the salary to the Presiding Officers as well as the staff on 06.06.2015. No action was taken and also the Judicial Officers as well as the staff attached to the Courts were not paid salary. Hence an interim direction was issued on 30.07.2015 to release a sum of Rs. 4.5 crores for payment of salary to 38 Presiding Officers of Additional/Special Mobile Magistrate Courts and the staff attached to these Courts on or before 03.08.2015 and the Court also ordered notices to the Chief Secretary, Jammu and Kashmir State, and Secretary to Government of J&K, Department of Law, Justice and Parliamentary Affairs.
The bench further observed that on August 3, 2015, response was filed by the State Government contending that a communication dated 06.06.2015 was received from the High Court and the matter was taken up by the Finance Department. The Department of Finance returned an endorsement seeking review of Cabinet decision dated 24.2.2012 and approval to the extent that the Cabinet has sanctioned the posts co-terminus with the Government of India funding and for fixed duration only and for taking over these liabilities as charge on State exchequer from the date Government of India funding has ceased for these posts. The Department of Law, Justice and Parliamentary Affairs accordingly placed a memorandum before the State Cabinet on 03.08.2015 for taking a decision. Since the cabinet meeting was not held, repeatedly time was sought for by the Advocate General which was also granted by this Court.
The bench observed that on August 20 last, the Advocate General produced two orders passed by the State Government bearing No 2414-LD(A) of 2015 dated 19.08.2015 and No 2417-LD(Acctts) of 2015 dated 19.08.2015. In the order No 2414-LD(A), it is stated that 36 Special/Additional Mobile Magistrates Courts, temporarily created to be co-terminus with the period of the Award of the 13th Finance Commission shall cease to exist after 31.08.2015 and the posts created on this account shall stand abolished. In the order No 2417-LD (Acctts), the government has accorded sanction to release of additional funds amounting to Rs 519.49 lacs under Detailed Head-001-'Salaries' below Major Head-2-14-Administration of Justice, in favour of HC Registrar General for clearance of pending liabilities on account of salaries of Judicial Officers and Staff of the Special/Additional Mobile Magistrates temporarily created under 13th Finance Commission Award up to 31.08.2015.
The bench observed: "We have noticed that about 15,000 cases are pending in these Courts as on 30.06.2015 as per the details furnished by the Registry." The period of 14th Finance Commission is from 01.04.2015 to 31.03.2020. The Central Government has tentatively decided to sanction a sum of Rs. 172.04 crore for a period of five years for setting up Fast Track Courts, Additional Courts, re-designing existing Courts to make them more litigant friendly, providing manpower, technical support and digitalization of case records to enhance ICT environment of Courts, Lok Adalats and capacity building activities under 14th Finance Commission. In the proposal of Department of Justice (Govt of India), a copy of which is addressed to this Court, it is stated that for J&K, a sum of Rs 25.33 crores is earmarked for Additional Courts and Rs. 48.35 Crores for Fast Track Courts is to be sanctioned and Rs.38.5 Crores for Re-designing the existing Courts. Thus it is clear that a sum of Rs. 112.18 crores is earmarked for five years by the Central Government for additional Courts/Fast Tract Courts & Re-designing Existing Courts. Continuance of 38 Courts which are in existence as on date is sought to be ceased from 31.08.2015. The amount required for continuing the Courts per year would be around Rs. 12.00 crores i.e. within the sanctioned amount of Rs. 63.83 crores for five years.
The bench observed that when the matter was heard on 20.08.2015 the advocate general prayed for time to get instructions with regard to continuance of these Courts in terms of the 14th Financial Commission and also stated that no amount has been released by the Central Government on the basis of the 14th Finance Commission proposal till date. The Secretary to Government, Ministry of Law and Justice, Government of India, was, therefore, impleaded as party-respondent and S A Makroo, Additional Solicitor General of India, was directed to take notice and get instructions.
The bench said that Makroo had got written instructions on 24.08.2015. Based on these instructions, he submitted that with the increased devolution of funds by the 14th Finance Commission to the States was already recommended and the same was communicated on 03.06.2015 to J&K and the High Court and, it is for the State Government to implement the recommendations relating to the justice sector contained in the report of the Commission.
He submitted that the net proceeds of Union Taxes and Duties for 2015-2016, insofar as J&K is concerned, comes to Rs 8087.88 crores and 1/14th of this amount is released every month. Till August 2015, Rs 2888.51 cr had been released. He also submitted that as per the accepted recommendations of the 14th Finance Commission, the share of the States has been fixed at 42% of the net proceeds of shareable Central Taxes i.e. income tax includes Securities Transaction Tax (STT). The contention of the Makroo is that the Central Government has already sanctioned the amount payable under the 14th Finance Commission to Justice Department upto August 2015.
In the affidavit filed by the Under Secretary to Government of India, Department of Law and Justice, New Delhi, it is stated that the Prime Minister of India on 23.04.2015 wrote to the Chief Minister of J&K State, urging upon the State Government to allocate the funds required for the activities recommended by the 14th Finance Commission in the State Budget 2015-16 onwards to improve the working of the judicial system and to provide speedy justice in the country. On 03.06.2015, a communication was sent to the Chief Minister of the State as well as to the Chief Justice of the High Court, by the Union Minister for Law and Justice, emphasizing that efforts need to be made to make full utilization of the funds allocated to the justice sector as per the recommendations of the 14th Finance Commission. A communication was earlier sent on 29.05.2015 from the Department of Law and Justice to the Secretary, Department of Law and Justice, J&K, along with copy of the memorandum submitted to the 14th Finance Commission, urging the State of J&K for allocation of funds in the annual budget for implementation of the recommendations of the 14th Finance Commission/ strengthening the justice sector.
The bench holds that in the light of the stand taken by the Central Government and the fact that a sum of Rs. 172.04 crore has been earmarked for the 14th Finance Commission to the State of Jammu and Kashmir for the judiciary, which is more than 34 crores per year and a sum of around Rs. 12.06 crore being earmarked per year on average basis for creation of new Courts and restructuring of the existing Courts, we are of the firm view that the decision taken by the State Government in Government Order No. 2414- LD (A) of 2015 dated 19.08.2015 appears to be without taking into consideration the funds provided by the Central Government under the 14th Finance Commission. Hence there will be a stay of Government Order No. 2414- LD(A) of 2015 dated 19.08.2015, so as to enable the 38 Courts to continue and dispose of the cases assigned to these Courts until further orders and the State of J&K is directed to release the salary of the Presiding Officers of these Courts, wherever the Presiding officers are available, and the staff attached to all the 38 Courts from September, 2015 onwards.
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