Rajendra Singh vs State Of U.P. Through Chief Secy. ...
2017 Latest Caselaw 19 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 

 
Case :- SERVICE BENCH No. - 1110 of 2014
 

 
Petitioner :- Rajendra Singh
 
Respondent :- State Of U.P. Through Chief Secy. Lko. & Ors.
 
Counsel for Petitioner :- Digvijay Nath Dubey
 
Counsel for Respondent :- C.S.C.,Gaurav Mehrotra
 

 
Hon'ble Shri Narayan Shukla, J.

Hon'ble Sheo Kumar Singh-I, J.

(Delivered by Sheo Kumar Singh-I, J.)

1. By means of this writ petition filed under Article 226 of the Constitution of India the petitioner has challenged the Government Order dated 02.07.2013 so far as it relates to date of implementation of the Government Order dated 11.12.2008 and prayed to issue a writ, order or direction in the nature of mandamus commanding the opposite parties to give the benefit of the Government Order dated 11.12.2008 to the petitioner with effect from 01.12.2008, the date the employees of the other departments of the State have been extended the benefit of the impugned Government Oder.

2. The issue involved in the present writ petition is that vide Government Order dated 11.12.2008 the benefit of the Voluntary Family Planning Programme was implemented to all the employees of the State Government to be effective from 01.12.2008. While giving similar benefit to the officers of the judicial department vide order dated 02.07.2013, it was extended to the judicial officers with the condition and using the word ''with immediate effect'. The executive or the State instrumentalities interpreted it to be effective from the date of issue of the Government Order i.e. 02.07.2013, which is said to be discriminatory, arbitrary and violative of Article 14 of the Constitution of India.

3. While submitting counter affidavit, the respondent State has submitted that some other pay and allowances are admissible to the officers of the judicial cadre and implementation of Voluntary Family Welfare Programme, which is applicable to all employees of the State of U.P., was extended to the officers of the judicial cadre with effect from the date of issue of the order i.e. 02.07.2013 and it is not discriminatory. It has further been submitted that in light of other pay and allowances, a discrimination can be made to the judicial officers and it is within the category of reasonable classification.

4. The Voluntary Family Planning initiative started by the Government involves giving of family planning incentive issued by the Government Order dated 23.02.1980 and the incentive which is given to all the Government employees is on the basis of provisions of Fundamental Rule 9 (23) (b) under Financial Handbook Volume II Parts 2 to 4 as personal pay. With respect to all Government Departments, the first report of the Pay Committee, 2008 had recommended giving of revised pay and family planning incentive as personal pay on the basis of grade pay admissible to U.P. Government Servants and the same was extended to the employees.

5. The contention of the learned counsel for the respondents that other pay and allowances are also admissible to the judicial officers in light of First National Judicial Pay Commission is not relevant to discuss because we are not concerned with other allowances which are admissible to the judicial officers. This special allowance is separate and based on the policy under Voluntary Family Welfare Programme which provides certain incentive to those Government employees who have only two children in their family and the concerned employee either husband or wife has adopted family planning and they have attained the minimum age (40 years) and have only two children in the family. In light of above facts discrimination on the ground of department relating to family welfare scheme is not justified. Further the Government had extended this benefit to the officers of the judicial department. Thus, it is not denial of the benefit extended to employees of the State or of judicial department. Since the pay and salary to all the officers/officials of the State are paid from the State Exchequer and the Governor/State is the appointing authority, the discrimination on the ground that same benefit will be applicable to one department employees from a particular date and for other departments employees from an another date is not a reasonable classification.

6. The necessity of issue of clarification of the Government Order was necessitated when in a seminar of the Judicial Service Association held on 3rd & 4th November, 2012, a demand was raised before Hon'ble the Chief Minister for extension of the benefit of family planning incentive and was assured and agreed as a matter of policy and was extended by the impugned Government order but the State instrumentalities while issuing the order used the word ''Tatkalik Prabhav' which discriminates the officers of the judicial department with the officers and employees of the State.

7. Bare perusal of the Government Order dated 11.12.2008 makes it clear that the benefit has been extended to all the employees in the State and there is no distinction regarding department. There is no denial that this Government order will not be applicable to the officers or employees of the judicial department. The policy of the Government was to extend the benefit to all the employees and distinction on the basis of interpretation by the executive or the State instrumentalities is not based on reasonable classification and it is purely arbitrary and unreasonable.

8. The officers of the judicial department moved several representations before the High Court and the Registrar General of the High Court of Judicature at Allahabad vide letter dated 24.09.2013 addressed the matter to the Principal Secretary (Appointment), Government of U.P., to reconsider the matter for providing the benefit of the revision of personal pay under Voluntary Family Planning Programme to the judicial officers of U.P. with effect from similar date from which it is applicable to other Government employees through Government Order dated 11.12.2008. Reminders were also issued but of no avail.

9. The question before the Court is not the permissibility of the scheme because the benefit of the scheme has already been extended to the judicial officers and the Government as its policy has accepted to extend this benefit. The only question before the Court is as to whether the benefit which has been extended to other employees can be denied to the officers of the judicial department only on the ground that they are working in the judicial department and as to whether the classification of cut off date by issuing the order by using the word ''Tatkalik Prabhav' is a reasonable classification. It was not intended by the policy maker nor the Government. It simply seems that it is interpretation of the State instrumentalities and while the matter was taken up by the Hon'ble the Chief Minister, he directed to implement the scheme immediately to the judicial officers also, the implementing authorities used the word '' with immediate effect' and denied the benefit of the family welfare scheme to the officers of the judicial department by making this restriction which is not a reasonable classification. The question is as to whether classification made by the State instrumentalities while using the word ''Tatkalik Prabhav' is reasonable.

10. It is settled law that when the action of the State instrumentality is not as per rules or regulations and not supported by the Government order, the Court must exercise its jurisdiction to declare such an act to be illegal and invalid.

11. In Sirsi Municipality Vs. Cecelia Kom Francis Tellis, AIR 1973 SC 855, the Supreme Court observed that "the ratio is that the rules or the regulations are binding on the authorities."

12. Similarly, a Constitution Bench of the Hon'ble Supreme Court in Sukhdev Singh & Ors. Vs. Bhagatram Sardar Singh Raghuvanshi & Anr., AIR 1975 SC 1331, has observed as under:-

"The statutory authorities cannot deviate from the conditions of service. Any deviation will be enforced by legal sanction of declaration by Courts to invalidate actions in violation of rules and regulations. The existence of rules and regulations under statute is to ensure regular conduct with a distinctive attitude to that conduct as a standard. The statutory regulations in the cases under consideration give the employees a statutory status and impose restrictions on the employer and the employee with no option to vary the conditions............In cases of statutory bodies there is no personal element whatsoever because of the impersonal character of statutory bodies..............the element of public employment or service and the support of statute require observance of rules and regulations. Failure to observe requirements by statutory bodies is enforced by courts by declaring (action) in violation of rules and regulations to be void. This Court has repeatedly observed that whenever a man's rights are affected by decision taken under statutory powers, the Court would presume the existence of a duty to observe the rules of natural justice and compliance with rules and regulations imposed by statute." (Emphasis added).

13. Similar view has been taken by the Supreme Court in Ambica Quarry Works etc. Vs. State of Gujarat & Ors., AIR 1987 SC 1073; and Commissioner of Police, Bombay Vs. Gordhandas Bhanji, AIR 1952 SC 16. In both the cases, the Apex Court relied upon the judgment of the House of Lord in Julius Vs. Lord Bishop of Oxford, (1880) 5 AC 214, wherein it was observed as under:-

"There may be something in the nature of thing empowered to be done, something in the object for which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so."

In Commissioner of Police (supra), the Apex Court observed as under:-

"Public authorities cannot play fast and loose with the powers vested in them, and persons to whose detriment orders are made are entitled to know with exactness and precision what they are expected to do or forbear from doing and exactly what authority is making the order.........An enabling power of this kind conferred for public reasons and for the public benefit is, in our opinion, coupled with a duty to exercise it when the circumstances so demand. It is a duty which cannot be shirked or shelved nor it be evaded, performance of it can be compelled."

In Dr. Meera Massey Vs. Dr. S.R. Mehrotra & Ors., AIR 1998 SC 1153, the Apex Court observed as under:-

"If the laws and principles are eroded by such institutions, it not only pollutes its functioning deteriorating its standard but also exhibits............wrong channel adopted..........If there is any erosion or descending by those who control the activities all expectations and hopes are destroyed. If the institutions perform dedicated and sincere service with the highest morality it would not only up-lift many but bring back even a limping society to its normalcy."

14. The Supreme Court has taken the same view in Ram Chand & Ors. Vs. Union of India & Ors., (1994) 1 SCC 44, and held that "the exercise of power should not be made against the spirit of the provisions of the basic policy, otherwise it would tend towards arbitrariness."

15. Therefore, it is evident from the aforesaid judgments of the Hon'ble Apex Court that whenever any action of the authority is in violation of the provisions of the statute or the action is constitutionally illegal, it cannot claim any sanctity in law, and there is no obligation on the part of the Court to sanctify such an illegal act. Wherever the statuary provision is ignored, the Court cannot become a silent spectator to such an illegal act, and it becomes the solemn duty of the Court to deal with the persons violating the law with heavy hands. (Vide Mrs. Dr. Chanchal Goyal Vs. State of Rajasthan, AIR 2003 SC 1713; M.D., U.P. Land Development Corporation & Anr. Vs. Amar Singh & Ors., AIR 2003 SC 2357; State of Haryana & Anr. Vs. Tilak Raj & Ors., AIR 2003 SC 2658; Haryana Tourism Corporation Ltd. Vs. Fakir Chand & Ors., AIR 2003 SC 4465; Sultan Sadik Vs. Sanjay Raj Subba & Ors., AIR 2004 SC 1377; and A. Umarani Vs. registrar, Co-operative Societies & Ors., 2004 AIR SCW 4462).

16. In Ramniklal N. Bhutta & anr. Vs. State of Maharashtra & ors., AIR 1997 SC 1236, the Hon'ble Apex Court observed as under:-

"The power under Art. 226 is discretionary. It will be exercised only in furtherance of justice and not merely on the making out of a legal point. ...... the interest of justice and public interest coalesce. They are very often one and the same. ...... The Courts have to weight the public interest vis-a-vis the private interest while exercising the power under Art. 226.... indeed any of their discretionary powers."

17. In view of the above, we are of the considered opinion that every statutory provision requires strict adherence, for the reason that the statute creates rights in favour of the citizens, and if any order is passed de hors the same, it cannot be held to be a valid order and cannot be enforced. As the statutory provision creates legal rights and obligations for individuals, the statutory authorities are under a legal obligation to give strict adherence to the same and cannot pass an order in contravention thereof, treating the same to be merely decoration pieces in his office.

18. So far as the challenge to the cut off date is concerned, it should not be forgotten that while fixing the cut off date, the Authority has to consider various aspects of the case and there is very limited scope of judicial interference in such matters. It is settled proposition of law that a cut off date can be introduced, but it is not permissible to do in such an artificial manner that it may discriminate the similarly situated persons. Cut off date may be introduced by creating a fiction but while doing so, the consequences must be examined thoroughly and the date must have some nexus to the object sought to be achieved.

19. If the State cannot bear the financial burden to meet a particular requirement, it may be a sufficient cause to fix a particular cut off date and even to make the law with retrospective effect. However, the basis must be shown to have a nexus with the object of classification as well as of legislative exercise. If the choice of fixing a particular date is shown to be wholly arbitrary and introduces discrimination, which violates the mandate of Article 14 of the Constitution, the classification can be struck down for the reason that a purpose of choice unrelated to the object sought to be achieved cannot be accepted as valid. If fixing of a cut off date is not devoid of rational consideration and wholly not whimsical and the Authorities had not acted malafide with a view to deprive a particular section of employees of such benefits and the cut off date has been fixed on the recommendation of the Expert Committee/Board or on proper consideration by the Authority concerned, it may meet the test of reasonableness and cannot be held arbitrary. While examining the cases like the instant, the Court has to be very conscious because judicial review is not permissible unless the Court is satisfied that the cut off date is "very wide off the reasonable mark or so capricious or whimsical as to permit judicial interference." In all such matters, the Government/ Authority has to fix a particular date for computing the eligibility and if the date so adopted meets the test of reasonableness, it cannot be invalidated merely on the ground that it may adversely affect some persons. In such a case the rational behind the Policy has to be examined as to whether it is beneficial to all or intended to be punitive to some or to discriminate on irrational grounds.

20. When the policy and order provide for a particular thing and benefit, the authority has to follow the same and cannot be permitted to act in contravention of the same. It has been hither to uncontroverted legal position that where a statute requires to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods or mode of performance are impliedly and necessarily forbidden. The aforesaid settled legal proposition is based on a legal maxim " Expressio unius est exclusio alterius", meaning thereby that if a statute provides for a thing to be done in a particular, then it has to be done in that manner and in no other manner and following other course is not permissible. (Vide Taylor Vs. Taylor, (1876) 1 Ch.D.426; Nazir Ahmed Vs. King Emperor ,AIR 1936 PC 253; Deep Chand Vs. State of Rajasthan, AIR 1961 SC 1527; Patna Imprevement Trust Vs. Smt. Lakshmi Devi, AIR 1963 SC 1077; State of Uttar Pradesh Vs. Singhara Singh & Ors., AIR 1964 SC 358; Chettiam Veettil Ammad Vs. Taluk Land Board & ors., AIR 1979 SC 1573; State of Bihar Vs. J.A.C. Saldanna, AIR 1980 SC 327; State of Mizoram Vs. Biakchhawna, (1995) 1 SCC 156; J.N.Ganatra Vs. Morvi Municipality Morvi, AIR 1996 SC 2520; Haresh Dayaram Thakur Vs. State of Maharashtra & ors., (2000) 6 SCC 179; Dhanajaya Reddy Vs. State of Karnataka etc. etc., (2001) 4 SCC 9; Commissioner of Income Tax, Mumbai Vs. Anjum M.H. Ghaswala & ors., (2002) 1 SCC 633; Prabha Shankar Dubey Vs. State of Madhya Pradesh, AIR 2004 SC 486; and Ram Phal Kundu Vs. Kamal Sharma, AIR 2004 SC 1657.

21. In M/S Erusian Equipment & Chemicals Ltd. Vs. State of West Bengal & Anr., AIR 1975 SC 266, the Supreme Court observed that where a Government activity involves public element, the "citizen has a right to claim equal treatment", and when "the State acts to the prejudice of a person, it has to be supported by legality." Functioning of a "democratic form of Government demands equality and absence of arbitrariness and discrimination".

22. Similarly, in Ramana Dayaram Shetty Vs. The International Airport Authority of India & ors., AIR 1979 SC 1628, the Apex Court observed that the activities of the government had a public element and if it framed a policy, it must do so fairly without discrimination and without unfair procedure. Whenever the government dealt with the public, whether by way of giving certain relaxation or special benefit, the government could not act arbitrarily at its sweet will but must act in conformity with standards or norms, without being arbitrary, irrational or irrelevant. If the government departed from such standard or norm in any particular case or cases its action was liable to be struck down unless it could be shown that the departure was not arbitrary but was based on some valid principle which was not irrational, unreasonable or discriminatory. The Court further held as under:-

"Every action of the executive Government must be in form of reason and should be free from arbitrariness. That is the very essence of rules of law and its bare minimum requirement."

23. Thus, a decision taken in an arbitrary manner contradicts the principle of legitimate expectation and the plea of legitimate expectation relates to procedural fairness in decision making and forms a part of the rule of non-arbitrariness, as denial of administrative fairness is Constitutional anethama. The basic requirement of Article 14 is fairness in action by the State. (Vide E.P. Royappa Vs. State of Tamil Nadu, AIR 1974 SC 555; Smt Maneka Gandhi Vs. Union of India & Anr. AIR 1978 SC 597; Kasturi Lal Lakshmi Reddy Vs. State of Jammu & Kashmir, AIR 1980 SC 1992; Dwarkadas Marfatia & Sons Vs. Board of Trustees of the Port of Bombay, AIR 1989 SC 1642; Mahabir Auto Stores Vs. Indian Oil Corporation, AIR 1990 SC 1031; Ku. Shrilekha Vidyarthi Vs. State of U.P. & ors., AIR 1991 SC 537; and Ghaziabad Development Authority Vs. Delhi Autho & General Finance Pvt. Ltd. & Ors., AIR 1994 SC 2263.

24. The rule of law prohibits arbitrary action and command the authority concerned to act in accordance with law. Every action of the State or its instrumentalities should not only be fair, legitimate and above-board but should be without any affection or aversion. It should neither be suggestive of discrimination nor even apparently give an impression of bias, favouritism and nepotism or negation of right accrued by the policy or order. (Vide Haji T.M. Hassan Rawther Vs. Kerala Financial Corporation, AIR 1988 SC 157).

25. In the State of Andhra Pradesh Vs. Nalla Raja Reddy & ors., AIR 1967 SC 1458, the Constitution Bench of the Apex Court observed as under:-

"official arbitrariness is more subversive of doctrine of equality than the statutory discrimination. In spite of statutory discrimination, one knows where he stands but the point of official arbitrariness can be waved in all directions indiscriminately."

26. Similarly, in S.G.Jaisinghani Vs. Union of India & ors., AIR 1967 SC 1427, the Constitution Bench of the Apex Court observed as under:-

"In the context it is important to emphasize that absence of arbitrary power is the first essence of the rule of law, upon which our whole Constitutional System is based. In a system governed by rule of law, discretion, when conferred upon Executive Authorities, must be confined within the clearly defined limits. Rule of law, from this point of view, means that the decision should be made by the application of known principle and rules and in general such decision should be predictable and the citizen should know where he is, if a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law."

27. In a case where as a result of a decision taken by the Government the other party is likely to be adversely affected, the State authorities have to exercise their powers bonafidely and not arbitrarily. (Vide Amarnath Ashram Trust Society Vs. Governor of U.P., AIR 1998 SC 477).

28. There is no manner of doubt that the public authorities and the Government are bound to act reasonably and fairly and each action of such authorities must pass the test of reasonableness and whenever action taken is found to be lacking bonafide and made in colourable exercise of the power, the Court should not hesitate to strike down such unfair and unjust proceedings. (Vide Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress & Ors., AIR 1991 SC 101; and Hansraj H. Jain Vs. State of Maharashtra & ors. (1993) 3 SCC 634). In essence, the action/order of the State or State instrumentality would stand vitiated if it lacks bona fides as it would only be a case of colourable exercise of power. The Rule of Law is the foundation of a democratic society.

29. Courts being custodians of law have a solemn duty to uphold the rule of law under all circumstances by directing the authorities concerned to act in accordance with law. If the rule of law is not enforced, it will surely become a casualty in the process, a costly consequence to be zealously averted by all, and at any rate, by the Court. (Vide Salkia Businessmen's Association & Ors. Vs. Howrah Municipal Corporation & Ors., (2001) 6 SCC 688).

30. Wherever arbitrariness or unreasonableness is found, there is a denial of Rule of Law. The Rule of Law means absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness, of prerogative or even of wide discretionary authority on the part of the State or its instrumentality. (Vide State of Madhya Pradesh & Anr. Vs. Thakur Bharat Singh, AIR 1967 SC 1170). A decision taken by the authority under the policy or Statute has to be made by the application of principles of rules, and, in general, such decision should be predictable and the citizen should know where he stands. If a decision is taken without any principle or without any rule, it is unpredictable and such a decision is the antithesis to a decision taken in the rule of law. The term Rule of Law connotes the undisputed supremacy of law and envisage a state of things in which every one respects the law and where law has to be followed by everyone collectively and individually by the citizens as well as by the State. The Rule of Law permeates the entire fabric of the Constitution and indeed forms one of its basic features. (Vide Bachan Singh Vs. State of Punjab, AIR 1982 SC 1325).

31. In I.R. Coelho (dead) by LRs Vs. State of Tamil Nadu, (2007) 2 SCC 1, the Apex Court held as under:-

"The State is to deny no one equality before the law........Economic growth and social equity are the two pillars of our Constitution which are linked to the right of an individual (right to equal opportunity), rather than in the abstract.......Equality, rule of law, judicial review and separation of powers form parts of the basic structure of the Constitution. Each of these concepts are intimately connected. There can be no rule of law, if there is no equality before the law. These would be meaningless if the violation was not subject to the judicial review."

32. Legitimate expectations arise in his favour for grant of such a benefit for which he was deprived by unreasonable and arbitrary order/clarification of the executive which is in derogation of Rule of Legitimate Expectation. The legal maxim "salus populi est suprema lex" (regard for public welfare is the highest law) comes to an aid. The doctrine can be pressed if a person satisfies the Court that he has been deprived of some benefit or advantage which earlier he had in the past been permitted by the decision-maker to enjoy or he has received the assurance from the decision-maker that such benefit shall not be withdrawn without giving him an opportunity of advancing reasons for contending that it should not be withdrawn. (Vide A. Mahudeswaran & Ors. Vs. Govt. of T.N. & Ors., (1996) 8 SCC 617; Mrs. Dr. Meera Massey & Ors. Vs. Dr. S.R. Mehrotra & Ors. (1998) 3 SCC 88; National Buildings Construction Corporation Vs. S. Raghunathan & Ors., (1998) 7 SCC 66; State of West Bengal & Ors. Vs. Niranjan Singha, (2001) 2 SCC 326; State of Bihar Vs. S.A. Hasan & Anr., (2002) 3 SCC 566; Dr. Chanchal Goyal (Mrs.) Vs. State of Rajasthan, (2003) 3 SCC 485; J.P. Bansal Vs. State of Rajasthan & Anr., (2003) 5 SCC 134; Hira Tikkoo Vs. Union Territory, Chandigarh, AIR 2004 SC 3649; Ram Pravesh Singh Vs. State of Bihar & Ors., (2006) 8 SCC 381; Confederation of Ex-Servicemen Association Vs. Union of India & Ors., AIR 2006 SC 2945; and Secy, State of Karnataka & Ors. Vs. Uma Devi & Ors., AIR 2006 SC 1806).

33. In Union of India & Ors. Vs. Hindustan Development Corporation & Ors, AIR 1994 SC 988 the Supreme Court held as follows:-

"On examination of some of these important decisions it is generally agreed that legitimate expectation gives the applicant sufficient locus standi for judicial review and that the doctrine of legitimate expectation is to be confined mostly to right of a fair hearing before a decision which results in negativing a promise or withdrawing of an undertaking is taken. The doctrine does not give scope to claim relief straight way from the administrative authorities as no crystallized right as such is involved. The protection of such legitimate expectation does not require the fulfilment of the expectation where an overriding public interest requires otherwise. In other words where a person's legitimate expectation is not fulfilled by taking a particular decision then decision-maker should justify the denial of such expectation by showing some overriding public interest." (Emphasis added).

34. In Punjab Communications Ltd Vs. Union of India & Ors., AIR 1999 SC 1801, the Supreme Court held as follows:-

"......the doctrine of legitimate expectation in the substantive sense has been accepted as part of our law and that the decision-maker can normally be compelled to give effect to his representation in regard to the expectation based on previous practice or past conduct unless some overriding public interest comes in the way............ reliance must have been placed on the said representation and the representee must have thereby suffered detriment..........The more important aspect, in our opinion, is whether the decision-maker can sustain the change in policy by resort to Wednesbury principles of rationality or whether the court can go into the question whether the decision-maker has properly balanced the legitimate expectation as against the need for a change. In the latter case the court would obviously be able to go into the proportionality of the change in the policy......The choice of the policy is for the decision-maker and not for the Court........The protection for substantive legitimate expectation was based on Wednesbury unreasonableness. In sum, this means that the judgment whether public interest overrides the substantive legitimate expectation of individuals will be for the decision-maker who has made the change in the policy and the courts will intervene in that decision only if they are satisfied that the decision is irrational or perverse."

35. While deciding the said case, reliance was placed by the Apex Court on its earlier judgments in M.P. Oil Extraction Vs. State of Madhya Pradesh, (1997) 7 SCC 592; and National Buildings Construction Corporation Vs. S.Raghunathan, (1998) 7 SCC 66.

36. The doctrine of legitimate expectation has a meaning that the statements of policy or intention of the Government or its Department in administering its affairs should be without abuse or discretion. The policy statement could not be disregarded unfairly or applied selectively for the reason that unfairness in the form of unreasonableness is akin of violation of natural justice. It means that said actions have to be in conformity of Article 14 of the Constitution, of which non arbitrariness is a second facet. Public Authority cannot claim to have unfettered discretion in public law as the authority is conferred with power only to use them for public good. Generally legitimate expectation has essentially procedural in character as it gives assurance of fair play in administrative action but it may in a given case be enforced as a substantive right. But a person claiming it has to satisfy the Court that his rights had been altered by enforcing a right in private law or he has been deprived of some benefit or advantage which he was having in the past and which he could legitimately expect to be permitted to continue unless it is withdrawn on some rational ground or he has received assurance from the decision making Authority which is not fulfilled, i.e. , the kind of promissory estoppel. Change of policy should not violate the substantive legitimate expectation and if it does so it must be as the change of policy which is necessary and such a change is not irrational or perverse. This doctrine being an aspect of Article 14 of the Constitution by itself does not give rise to enforceable right but it provides a reasonable test to determine as to whether action taken by the Government or authority is arbitrary or otherwise, rational and in accordance with law.

37. In Kuldeep Singh Vs. Government of NCT of Delhi, AIR 2006 SC 2652, the issue of legitimate was considered observing that the State actions must be fair and reasonable. Non-arbitrariness on its part is significant in the field of governance. The discretion should not be exercised by the State instrumentality whimsically or capriciously but a change in policy decision, if found to be valid in law, any action taken pursuant thereto or in furtherance thereof should not be invalidated.

38. Similarly in Ashok Smokeless Coal India (P) Ltd. & Ors. Vs. Union of India & Ors., (2007) 2 SCC 640, the Court held as under:-

"Principles of natural justice will apply in cases where there is some right which is likely to be affected by an act of administration. Good administration, however, demands observance of doctrine of reasonableness in other situations also where the citizens may legitimately expect to be treated fairly. Doctrine of legitimate expectation has been developed in the context of principles of natural justice."

39. It is also settled law that government having taken a decision in accordance with law should not be permitted to challenge the same solely with a view to resile from the consequences of its earlier decision or order. [Vide Commissioner of Police Vs. Govardhan Das, AIR 1952 SC 16; and State of Assam Vs. Raghava Gopalachari, (1972) SLR 44 (SC)].

40. It is also argued on behalf of the learned counsel for the petitioner that the rate of special allowance, which has been fixed in the Government Order, is not in accordance with the parity of the officers in the State Government and it should be enhanced but we do not think it appropriate to enter into the rate of allowance because it is a policy matter. However, we provide that in case there is any disparity regarding rate of special allowance admissible to other officers or employees in the cadre of the State then the petitioner or other similarly situated judicial officers are at liberty to move an application/representation before the Government for proper decision.

41. Considering the above submissions, we are of the view that Government order dated 11.12.2008 is equally applicable to all the employees of the State covered under the Government order including the judicial officers and the benefit which has been extended to the employees/officers of the State vide Government order dated 11.12.2008 is also admissible to the officers/employees of the judicial department with effect from the date as contained in the order dated 11.12.2008. The word ''Tatkalik Prabhav' as contained in the letter dated 02.07.2013 is unreasonable and unwarranted and requires to be quashed and we hereby quash the word ''Tatkalik Prabhav' and provide to extend the benefit of the Government order from the date applicable to all other employees as contained in the Government Order dated 11.12.2008, to the petitioner as well as all other similarly situated judicial officers in the State of U.P.

42. The writ petition stands allowed with cost of Rs.5,000/- payable to the petitioner.

 
Order Date :- 04.05.2017
 

 
(Sheo Kumar Singh-I, J.)    (Shri Narayan Shukla, J.)
 
A. Katiyar