Thursday, 18 January 2018

Rot in the Roster System of Judiciary








February 12, 2017 may go down in the history of Indian judiciary as a Black Day. In an unprecedented and shocking manner, on that eventful day, four senior most judges of the Supreme Court - next only to the Chief Justice in seniority – Kurian Joseph, J Chelameswar, Ranjan Gogoi (who may be the next the Chief Justice) and M.B. Lokur held a press conference and made public their joint letter, full of serious grievances, against the Chief Justice of India (CJI). They expressed their anguish that the age-old tradition of drawing of roster of judges, an acknowledged privilege of the CJ, “for an orderly transactions of business and appropriate arrangements to deal with case or class of cases”, was not being followed in a desirable manner. They pointed out that this shortcoming and the possibility of a judicial body arrogating to itself “the authority to deal with and pronounce upon matter which ought to be heard by appropriate Benches” would create “doubt in the body politic about the integrity of the institution”. Without giving specific instances, they pointed out “of late, the twin rules mentioned above have not been strictly adhered to.” (https://in.reuters.com/article/india-supremecourt/four-judges-criticise-indias-supreme-court-in-rare-public-spat-idINKBN1F207M)

Since then while attempts are being made to restore cordial relationship between the CJI and his colleagues, millions of words have been written on what could have prompted such an outburst by men who are supposed to be always composed and balanced in their views, utterances and judgements.

My purpose of writing this article is not to join those who have been expressing their opinion on the January 12 episode and subsequent developments but to share my own bitter experience with the roster system. I do not have any personal experience of how the system works in the Supreme Court but I have been a victim of how the system works in the Delhi High Court.

In late 2010 I filed a Writ Petition (Civil) in the Delhi High Court against a rule framed by the Department of Revenue, Government of India, which adversely affected my service conditions as a member of a national tribunal (Appellate Tribunal for Forfeited Property)[i] after I had joined. Thanks to the roster system and the defective manner of its implementation, five different Benches heard my case over a period of more than four years.

Look at the timeline of the case summarised in a tabular form for the ease of getting the picture.
Writ Petition (Civil) No. 8502 of 2010
Devendra Narain vs Union of India


Writ Petition (Civil) No. 8502 of 2010
Devendra Narain vs Union of India
S. No.
Date of Hearing and Judges on the  Bench
Progress/Order
(First Bench, with one replacement, to hear the WP)
1
21-12-2010

Justice Sanjay Kishan Kaul &Justice M. L. Mehta
Government counsel accepted the notice and was directed to file rejoinder within two weeks.

Next date 09-02-2011
2
09-02-2011

Justice Sanjay Kishan Kaul &Justice Rajiv Shakdher
Since the government failed to file the counter affidavit within the time granted, the court imposed cost of ₹ 3000/- on the government and allowed four more weeks. The petitioner was required to file rejoinder within two weeks thereafter. Next date 21-04-2011.
3
21-04-2011

Justice Sanjay Kishan Kaul &Justice Rajiv Shakdher
Since the government again failed to file the counter, the court imposed additional cost of ₹   7000/-with the condition that that if the amounts were not not paid within time, the counter affidavit would not be taken on record   and the matter would be disposed of on the basis of the petitioner’s pleadings.  
Next date of hearing: 01-06-2011
4
01-06-2011
Justice Sanjay Kishan Kaul &Justice Rajiv Shakdher
The government finally filed the counter. The petitioner was given six weeks to file rejoinder. The next date of hearing 07-9-2011 (but no hearing on 7-9-2011.)
5
22-12-2011

Justice Sanjay Kishan Kaul & Justice Rajiv Shakdher
The court granted the government request for adjournment on the condition that no further adjournment would be granted in the matter and gave 19-03-2012 as the next date. 
6
19-03-2012
 Justice Sanjay Kishan Kaul & Justice Rajiv Shakdher
On the day of hearing, the Bench realised that it had no jurisdiction over the case which was a service dispute between the petitioner and   the government and the pay scale entitlement of the petitioner and stated that in terms of the current roster and subject to the orders of the Hon’ble Acting Chief Justice it should be listed before “before the appropriate Bench on 23.3.2012 for directions.”
(Second Bench to hear the WP; the first Bench was not the appropriate one)
7
23-03-2012
Justice Badar Durrez Ahmed & Justice V.K. Jain
The Bench passed a simple order: “For directions”.
8
4-09-2012
Justice Badar Durrez Ahmed & Justice Siddharth Mridul
The court adjourned the case to February 8, 2013 on the ground that that no time was left on the day to hear the matter.
(Third Bench to hear the WP; change due to new roster)
9
08-02-2013
Justice Pradeep Nandrajog & Justice Veena Birbal
The court adjourned the case “for hearing” on March 14, 2013.
10
 14-03-2013

Justice Pradeep Nandrajog & Justice Pratibha Rani
The court observed that considering the importance of the issues raised, assistance of the Additional Solicitor Gen (ASG) was required and ordered the government counsel to ensure his presence after properly briefing him on May 24, 2013, the next date of hearing.
11
24-05-2013
Justice Pradeep Nandrajog & Justice V. V. Kameswar Rao
Case was adjourned to August 23, 2013.

(Though not mentioned in the court order order, the reason was that ASG was not present.)
12
23/8/2013
Justice Pradeep Nandrajog & Justice V. V. Kameswar Rao
The government counsel stated that the ASG was not available.  The case was adjourned to October 23, 2013. (ASG was busy in another case before other court.)
13
23-10-2013

Justice Pradeep Nandrajog & Justice V.V. Kameswar Rao
Adjourned to December 10, 2013.
 
(Though not mentioned in the order, ASG, who finally appeared asked for time to study the case. Obviously, even after more than seven months, the government counsel had not briefed the ASG.)
14
10-12-2013
Justice Pradeep Nandrajog & Justice
Rajiv Sahai Endlaw.
Adjourned to February 19, 2014. (ASG had not appeared.)
(Fourth Bench to hear the WP; change again due to new roster)
15
19/02/2014

Justice Reva Khetrapal & Justice Pratibha Rani
No hearing. Adjourned to May 19, 2015.
16
19-05-2014

Justice Reva Khetrapal & Justice Pratibha Rani
After hearing for a few minutes, the Bench stated that it had no jurisdiction over the case since “the matter pertains to a service dispute between the Petitioner and the Governments and the pay scale entitlement of the Petitioner. Accordingly, subject to orders of Hon'ble   Chief Justice, list before the appropriate Bench as per roster on 21st July, 2014.” (Though not mentioned in the order, the Judges said that their Bench was not meant for non-civil service cases.)
(Fifth Bench to hear the WP; the fourth Bench was not the appropriate one)
17
21-07-2014

Justice S. Ravindra Bhat & Justice Vipin Sanghi
There was no hearing. Only next date was given.
18
24-09-2014
Justice S. Ravindra Bhat & Justice Vipin Sanghi 
Arguments heard. Judgement reserved
19
06-01-2015
Judgement delivered. WP against the government allowed.


  The results of the analysis of the information presented above are quite revealing.

(1)   Out of five Benches, which heard the case, two were not “appropriate” Benches to hear civil service matters. One wonders, how the case was assigned to wrong Benches, not once but twice. In the process, a year-end half was wasted.

(2) Every judge has his/her own way of dealing with the case before him/her and every judge takes his/her own time to comprehend the case. (Not a shortcoming of the roster system.)

(3)  The first Bench, which was not the “appropriate one”, realised so when the case came up before it on the sixth occasion. Had any judges on the Bench read even the first page of the writ petition, it would have become clear that it was about a service matter. Obviously, none had come to the court prepared. May be, since it was not composed of the judges conversant with service matters, they took time to realise what was before them.

(4)  The third Bench wasted one year because it was not ready to hear the case without the presence of the ASG. (Again, not a reflection on the roster system per se.)

(5) Two Benches were not allowed to proceed with the case because the case was transferred to another Bench under a new roster. Every time a new roster is drawn, cases being heard by the previous Benches are transferred to new Benches. When a case comes before a Bench for the first time, it is a new case for that Bench and the parties have to repeat their arguments already heard by the previous Benches.

(6) In my case the fifth and the last Bench was the most appropriate one. The judges understood the case in only one hearing. (Devendra Narain vs Union Of India on 6 January, 2015 - Indian Kanoon; https://indiankanoon.org/doc/162094556)

As mentioned by the four Supreme Court Judges and as we all know, it is the Chief Justice’s prerogative to draw the roster. It must be quite a job. For example, presently the Delhi High Court has 38 judges including the Chief Justice. The latest roster drawn by the Chief Justice of the Delhi High Court and effective from January 2, 2018, has eight Division Benches comprising two judges each for 60 categories of cases. In addition, there are 22 Single Judge Benches for more than 90 categories of cases. These judges hear about 1000 (one thousand) cases on a working day. It is impossible for any Chief Justice to allot such a large number of cases to different Division and Single judge Benches. At the most, he/she can decide the cases that the Division Bench headed by him/him would hear and personally allot some important cases to the “appropriate” Benches. Most of the work is done by his/her office. Therefore, if my case was assigned to “inappropriate” Benches twice, it must have been done by the office of the Chief Justice.

My grouse is that there is no supervision to ensure that cases are not assigned to the “inappropriate” Benches. Had there been such a mechanism, the mistake would not have gone unnoticed for a long period and would not have been committed more than once. This is the primary “Rot in the roster system”.

My other grouse is that under the roster system, the cases are transferred from a Bench that have become familiar with the case to another Bench for fresh start. It is like ‘snake and ladder game’.

   The most damaging effect of the roster system, compounded by its faulty implementation, is the huge pendency in courts. All cases are not complicated and can be decided in two-three hearings but are heard, adjourned, heard again and again by new benches. The process goes on and on for years.

    The victims of these shortcomings are the litigants. I have written what I have experienced in one writ petition. I am sure, there must be large number of persons facing similar problems. Apart from delay in the Justice, a lot of money is wasted due to rot in the roster system. I had to work very hard to prepare counters to the false arguments given by the government and had to visit my lawyer frequently to explain the case to him.

Though my lawyer was not very costly, I paid ₹ 212,200/- to him to fight this particular case over a period of more than four years. Out of this amount, ₹ 174,100/- was wasted on hearings before “inappropriate” Benches and the Benches that were not allowed to proceed due to changes under the roster system. Had there been proper system, my expenditure would have been ₹ 38,100/- only.

Who will compensate me for delay in justice and wastage of money?

Perhaps, one will listen to what people like me suffer and the “rot in the roster system” will continue.

Devendra Narain
January 19, 2018






[i] The WP was part of a long legal battle that had started in 2000 when I was working as Member, ATFP. After joining the Tribunal I discovered that the appointment letter mentioned the pay scale which was lower than prescribed the under the rules. My representations were rejected and the government revised the service conditions to my disadvantage. The Central Administrative Tribunal (Principal Branch) ruled in my favour in May 2003. The government filed a WP in the High Court against the CAT order which was allowed in 2010 on technical grounds. Back to square one, I was constrained to start my battle afresh by filing a WP to challenge the illegal order of the government. The High Court verdict in my favour on January 6, 2015. Since then I have fighting another legal battle, through contempt petition, for the implementation of the High Court order. I have mentioned these developments only to give a background of the WP filed in 2010.