Central Administrative Tribunal - Ernakulam
Nafeesa.T.P vs State Of on 18 February, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A No.657/2009
Friday, this the 18th day of February, 2011.
CORAM
HON'BLE Ms. K.NOORJEHAN, ADMINISTRATIVE MEMBER
HON'BLE DR K.B.SURESH, JUDICIAL MEMBER
Nafeesa.T.P.
Thekkuputhiya Illam,
Agathi Island, U.T of Lakshadweep. ....Applicant
(By Advocate Mr Muhammed Shafi M )
v.
1. The Administrator,
UT of Lakshadweep,
Kavarathi, UT of Lakshadweep.
2. The Director,
Department of Industries,
UT of Lakshadweep,
Kavarathi. ....Respondents
(By Advocate Mr S Radhakrishnan)
This application having been finally heard on 10.2.2011, the Tribunal on
18.02.2011 delivered the following:
O R D E R
HON'BLE DR K.B.SURESH, JUDICIAL MEMBER The applicant was appointed as a Casual Labourer in the Coir Production Centre at Agatti with effect from 1.11.1995 onwards. A certificate issued by the competent authority is produced as Annexure A-1 (2) which indicate that the applicant had worked from 1995 to 2008 almost continuously on all days. Going by the chart given in the said certificate which is given below:
Year Total days attendance
(Including PH & Leave)
1995 (1.11.95 to 31.12.95 51 days
1996 351 "
1997 334 = "
1998 298 "
1999 357 "
2000 327 "
2001 365 "
2002 365 "
2003 327 "
2004 327 "
2005 266 "
2006 365
2007 365
2008 354
she had passed a course conducted in Coir Craft conducted by Coir Board and thereafter as a departmental candidate she had attended a course and successfully completed it with apparent good proficiency in spinning of Coir Yarn on Motorised Ratt. Going through the appointment orders also other than a professing nomenclature of her employment, it does not have any ingredient of a contractual or limited by time employment. The casualness of the employment appears to be in the nomenclature alone but in all other respects it appears to be as if a person is appointed regularly. She claims regularisation and promotion. This is clarified by the respondents vide their affidavit filed on 5.2.2011 wherein vide order dated 11.1.2011 we had directed them to file an affidavit carrying the following points:
i) The manner of engagement of casual labourers;
ii) Whether it was done through Employment Exchange or on the basis of local notification;
iii) Produce the necessary documents regarding second point.
iv) The authority who fixes the daily wages which will be applicable for the payment of casual labourers working anywhere under the U.T of Lakshadweep Administration.
The concerned authority submitted through affidavit that the administration had decided to expand the Coir Production Unit as approved by the Ministry in various Islands in Lakshadweep. Therefore, the Department of Industries requested the District Employment Exchange to sponsor the list of suitable candidates for filling up the vacancies of casual labourer in the Coil Production Centres at Agatti by letter No.F.8/3/90-Ind dated 08.02.1993. Following the proposal of the Employment Exchange an Interview Board was constituted and the persons including applicant was selected through interview and they were engaged as unskilled casual labourers in the Coir Production Centre in the then existing daily wages at the rate of Rs.30/- subject to revision. It is also submitted that there is a Wage Board which is constituted who fixes the daily wages. Therefore, it would appear that the appointment was made after undergoing a regular selection process and after a proposal was initiated by the District Employment office at Kavarathi. It is to be noted in this connection that at this time the applicant had also done a course which qualified person Coir Instructor as declared by the Coir Board of India. In this connection, the decision of the Constitution Bench in Roshan Lal Tandon v. Union of India [AIR 1967 SC 1889] is of some significance. The relevant portion is extracted below:
".... It is 'true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is more one of status than of contract.
The hall-mark of status is the attachment to a legal relationship of rights and duties imposed by the public 'law and not by mere agreement of the parties. The emolument of the Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee. It is true that Art. 311 imposes constitutional restrictions upon the power of removal granted to the President and the Governor under Art. 310. But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are 'fixed by the law and in the enforcement of these duties society has an interest. In the language of jurisprudence status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned. The matter is clearly stated by Salmond and Williams on Contracts as follows:
"So we may find both contractual and status obligations produced by the same transaction. The one transaction may result in the creation not only of obligations defined by the parties and so pertaining to the sphere of contract but also and concurrently of obligations defined by the law,itself, and so pertaining to the sphere of status. A contract of service between employer and employee, while for the most part pertaining exclusively to the sphere of contract, pertains also to that of status so far as the law itself has seen fit to attach to this relation compulsory incidents, such as liability to pay compensation for accidents. The extent to Which the law is content to leave matters within the domain of contract to be determined by the exercise of the autonomous authority of the parties themselves, or thinks fit to bring the matter within the sphere of status by mining for itself the contents of the relationship, is a matter depending on considerations of public policy.
In such contracts as those of service the tendency in modem times is to withdraw the matter more and more from the domain of contract into that of status." . (Salmond and Williams on Contracts, 2nd edition p. 12). Thus the mention of the word `casual' in their designation necessarily do not impart a casualness especially in view of the fact that all these while the applicant had worked on almost all days from 1995 till date.
2. The applicant is aggrieved that the Annexure A-8 notification is in violation of fundamental rights of the applicant as Annexure A-8 is for direct recruitment to the post of Coir Instructors whereas she now find herself as over aged for the same, according to the respondents. She would say that malpractices and malafides permeated the earlier selection in which also she was considered and not found suitable for appointment as Coir Instructor. In answer to this, the respondents have produced the results of the examination as Annexure R1(c). Even though the applicant's name appear to be the first, they would say that she could get only 60 marks in the written test. But the selected candidates did better than her in the written examination and therefore, were selected. It mentions that a weight age was given as experience but the yardstick for measuring weightage seems to be missing and also the word `experience' was written in. This the applicant would allege to have significant over tones. But we are not proposing to look into it at this point of time. Respondents have also produced Annexure R1(e) which is the recruitment rules for various posts. Even though direct recruits, a notable feature is the relaxation for Government servants and other special categories of persons who falls within the instruction/ orders issued by the Government of India from time to time, for the post of Coir Instructor which is a General Central Service Group'C' post as it is determined as a non-selection post wherein also relaxation for Government servant is provided for. Hence if she is considered as a Government servant, she is entitled to such relaxation.
3. Learned counsel for the respondents draws our attention to judgments of the Hon'ble Apex Court in Indian Drugs & Pharmaceuticals Ltd v. Workmen, Indian Drugs & Pharmaceuticals Ltd [(2007) 1 SCC 408] on the basis of specific reasons as enshrined in the judgment. This judgment of the Hon'ble Apex Court had canvassed a view that it is impermissible to testing matters on the basis of sympathy or compassion and all such functions are in the domain of the executive or legislature and it is highly improper for judges to step into this power except in rare and exceptional cases. It held that the Court cannot create a post nor issue directions to absorb or regularise temporary workers nor continue them in service, nor pay them salaries of regular employees. It canvassed a situation of state instrumentalities employing of a person on temporary or daily wage basis without following the required procedure and thus held that it will not be conferred of such employees a right to regular wages. The Hon'ble Apex Court had gone deep into the cause and held that economic realities also have to be seen. The reason is clear for all to see as IDPL was a failed company wherein the Court found that the number of sanctioned posts were only 1049 but there were already 1299 existing employees and over and above this the respondents in that case were claiming appointment and regularisation. The accumulated loss of the company has reached an astonishing figure of 624 crores and Apex Court held that the High Court had failed to appreciate that when the company is still under BIFR and where the Government is making an effort to present a proposal for revival, there was no justification to saddle appellant with the additional liabilities on the basis of compassion and without legal right existing in favour of the respondents concerned. Thus this is a special case wherein the basic fulcrum of a decision was not only the rights of labourers but basically the right of the institution to exist and the court had rightly found that additional saddling of the company may benefit a few then it will negatively affect all those regular employees and therefore the prejudice caused to them would also have to be taken into account. The learned counsel for the respondents invited our attention to another case decided by Hon'ble Apex Court in National Fertilizers Ltd and others v. Somvir Singh [ (2006) 5 SCC 493] wherein the Apex court had canvassed a view whether regularisation of appointment made without following rules is permissible or not and what is the distinction between irregular and illegal appointments. The court held that the recruitment rules not having been followed and their appointments being in violation of recruitment ban that had been in place and there being other irregularities also in their appointment, the Apex Court held that they may not have any legal right to continue in service and that even if they were working for a long time it was not a ground for directing respondents for regularisation of their services. Thus the fulcrum of decision is that irregularity or illegality in the selection process of the employees. Here in this case, the Hon'ble Apex Court had held that the recruitment itself was illegal but on entire conspectus of the matter the Apex Court held that "their cases may be considered for future appointments and the age bar could be relaxed."
Hon'ble Apex Court in Union Public Service Commission v. Girish Jayanti Lal Vaghela and others [(2006) 2 SCC 482 ] where a person appointed to a post under the Administration of U.T on contract basis for a short period (in this case for six months) dehors the statutory rules and without following Article 16 was held not to be a Government servant. Therefore, it was held that he is not entitled to relaxation under the statutory provision for relaxation of age limit for Government service. But it also held that employment under the Government although initially acquired by contract is a matter of status and that it is not contractual after discussing the effect of Articles 16 and 311. Thus, the fulcrum of decision in this case appears to be illegality of the selection process for a person to be considered as a Government servant. The learned counsel for applicant submitted that in view of the principles laid down in State of Assam v. Kanak Chandra Dutta [ AIR 1967 SC 884 ] the applicant could be considered as a Government servant which is also followed in State of Gujarat v. Raman Lal Keshav Lal Soni [AIR 1984 SC 161]. It is seen followed in Superintendent of Post Offices v. P.K.Rajamma [1977 (3) SCC 94]. The crux of the decision seem to be that regular selection process would make a person a Government servant and entitle him to hold a civil post and to be entitled to the protection of Article 311 of the Constitution of India.
4. Learned counsel for respondents submitted that Casual Labourers (Grant of Temporary Status and Regularisation) Scheme 1993 is a one time measure and such benefits are not available to the applicant following Apex Court decision as she was appointed only in 1995. But the learned counsel for the applicant counter it by saying that the applicant would even then come under the protection clause in Uma Devi's judgment [(2006) 4 SCC 44]. Here regular tenure without any interruption, her qualifications and satisfactory service would entitle her to be considered on a yardstick other than those of a casual labourer. He would invite our attention to the decision of Calcutta High Court in T.Rajakili v. Union of India [W.P(CT) NO.86/1999 (Cal) (DB) ] which held that clause 7 must be read in a manner which will not render it unconstitutional. The entire object of 1993 scheme must be to regularize all casual workers. It is submitted that even the issue of temporary status arose out of judicial intervention and for preventing exploitation of human labour following several judgments of the Hon'ble Apex Court. A new terminology was invented on grant of a temporary status to an employee who had put in a reasonable amount of service with an employer. It is to be noted in this connection that the grant of temporary status was not dependent on even limited selection process or other connected matters. It was intended as a palliative measure to enable dignified human labour and to take away from it any process of exploitation or human bondage. Otherwise the word `temporary status' did not imply any special significance. Therefore, notwithstanding the view that concurrence of temporary status was limited in the time and the argument that such cannot be held to be a right of an employee who had put in dedicated work for a decade and a half can only be held as violative of principles of natural justice, if not of any statutory formation.
5. So, therefore, what is the mandate of the Constitution of India, then, for this, we have to examine the features of the preamble of the Constitution, which provided for; constituting India into a sovereign, democratic republic. The nomenclature, thus, attained would indicate, prima facie, that the sovereignty of India is based on socialistic, secularist and democratic principles of republicanism. We have further integrated this idea by delineating the importance of justice, social, economic and political as well. Assuring the dignity of the individual through fraternity, equality of opportunities by providing equitable status is one of the basic features of the Constitution of India. As their Lordships has held in P.A. Inamdar & others v. State of Maharasthra & others, reported in (2005) 6 SCC 537 that it is well accepted by the thinkers, philosophers and academicians that if justice, liberty, equality and fraternity, which will necessarily include, social, economic and political justice, are considered as the golden goals, which as set out in the Preamble of the Constitution of India are to be achieved, the said achievement by degree-by-degree enhance the excellence of Indian polity to the nadir of expectations.
6. A Constitution is not to be construed as a mere law but as the machinery by which laws are made. A Constitution is the living organic thing, which of all instruments, has the greatest claim to be construed broadly and liberally, as has been held by the Hon'ble Apex Court in M/s. Goodyear India Ltd. v. State of Haryana & another, reported in (1990) 2 SCC 71. Therefore, their Lordships have permitted the golden ideals achieved by hard work of the framers of the Constitution to become the corner stone of Indian Polity.
7. Therefore, these are the some of the basic structures of the Constitution of India as explained and as held by the Hon'ble Apex Court as in His Holiness Kesavananda Bharati Sripadgalvaru & others v. State of Kerala & another, reported in (1973) 4 SCC 225, Indira Nehru Gandhi v. Raj Narain, reported in AIR 1975 (Suppl.) SCC 1, Minerva Mills Ltd. & others v. Union of India & others, reported in (1980) 3 SCC 625, State of Bihar & another v. Bal Mukund Sah & others, reported in (2000) 4 SCC 640. The Apex Court has held that the separation of powers between the Legislature, Executive and Judiciary, which is a canvassed matrix of the Directive Principles of State Policy to be the basic structure of the Constitution of India and, of course, the very heart of the Constitution and its scheme. The Hon'ble Apex Court in Mrs. Valsamma Paul v. Cochin University & others, reported in (1996) 3 SCC 545 has interpreted the Articles 14 & 16 of the Constitution, as having been intended to remove the social and economic inequality to make available equal opportunities and as a methodology of enforcement in the light of social and economic justice envisaged in the Preamble and clearly explained in the fundamental rights and Directive Principles of State Policy. Therefore, it enthuses that to understand the Constitution of India, we must reach the Preamble, the fundamental rights as well as the Directive Principles of State Policy, together in the same matrix. Then what is the effect of right of livelihood and dignified existence?
8. Thus, the Constitution operates as a fundamental law. The Government, the law and its organs trace their origin and existence to the Constitution and derives their authority from and discharges their responsibilities within the frame work of the Constitution. It is not the Union Parliament or the State legislature, which are the sole expression of sovereignty. But the constitutional process, therefore, what is sovereignty and how is sovereignty to be expressed by the State action is to be pondered. Accordingly, we have to further examine what are the ideals of constitutionalism espoused in the Indian Constitution to be the binding factor of social engineering in India and its regulation thereof. Shamshul Islam Etc. v. Union of India & others, reported in (1981) 1 SCC 166, State of Kerala & another v. N M Thomsas & others, reported in (1976) 2 SCC 310, Waman Rao & others etc. v. Union of India & others, etc. reported in (1981) 2 SCC 362, the idealism behind the word `socialist' was read into the Articles 14 & 16 of the Constitution and, thus, it enables the Court to work out a fundamental right of `equal pay for equal work' and thus, enables the Court to also strike out the legislative formations, which failed to achieve the said goal to the fullest extent. The decisions of the Hon'ble Apex Court in Excel Wear v. Union of India & others, reported in (1978) 4 SCC 224, Atam Prakash v. State of Haryana & others, reported in (1986) 2 SCC 249, Nakara v. Union of India, reported in (1983) 1 SCC 305, Dharwad Distt. P.W.D. Literate Daily Wages Employees Association & others, Etc v. State of Karnataka & others, etc., (1990) 2 SCC 396 are of significant interest in this regard. The cumulative effect of these pronouncements can be examined as we go on. This, it would appear, is the corner stone of why and how the constitutional matrix must be interpreted.
9. In the case of Kesavananda Bharati Sripadgalvaru (supra), the effective use of Preamble and the principles was made by the Apex Court by determining the instinctive relation between the Preamble and the fundamental rights and of the Directive Principles of State Policy and in fact it had been succinctly interpreted in Chandra Bhavan vs. State of Mysore, reported in (1969) 3 SCC 84. Therefore, the doctrine of parens patriae can be invoked for the expression of sovereignty and the Hon'ble Apex Court in Charan Lal Sahu v. Union of India, reported in (1990) 1 SCC 613 has explained it in detail. Thus, the importance of Preamble and the way in which the fundamental rights shall be understood is clearly established that it shall be through the prism of Directive Principles of State Policy. Thus where we understand State action and sovereignty, it must be within the said parameters. Industrial capacity enhancement and appointments made for this purpose must thus come squarely within this matrix.
10. The principles of social justice enable the Courts to not only uphold but invite legislations to remove economic inequality, to provide a decent standard to the life of the people and to protect the interest of the weaker sections of the society, as is explained by the Hon'ble Apex Court in Lingappa Pochanna Appealwar v. State of Maharasthra & another, reported in (1985) 1 SCC 479. Thus a duty is cast upon the judicial process to be a proactive participant in the nation formation. It is thus to be noted that all along judiciary has acted as a catalyst for many a social engineering process as a structural foundation and source of the mores and morals of the Constitution of India are the factors that emerged from the intermingling of the Preamble, fundamental right and Directive Principles of State Policy. In fact, the framers of the Constitution of India had strived to enhance and preserve the democratic values, which again is a direct result of the effect of the freedom struggle. Therefore, the words `Union of India' have much more significance than what is ordinary apparent. It is not concerned, not only with the unity of the nation but also it seeks a melding and welding of the Indian polity and populace. Therefore essential justice based on human values being the essence how are we to interpret the rights of the applicant but balancing it with the duties of Administration?
11. As an exposition of human values it contains, Article 23 which was incorporated into the Constitution of India as a right against exploitation. Needless to say, we need to find out the soul and source of the line of thinking, which went into the enunciation of this right and, therefore, as a matter of policy and requirement, we need to travel beyond the parameters of exact wordings to find out what is meant by the right against exploitation. We, therefore, necessarily have to look back into the history to find out what must have been the exploitation and which is the thought process of the framers of the Constitution of India had encompassed while framing these ideals? The slavery, which persisted in different parts of the world, the system of landlord and peasantry in India, the zamindari system, the untouchability and other social inequities, all these form a backdrop scenario for the thought process, which would have emanated in the minds of the framers of the Constitution and which made them to think to enact and to give ourselves this particular piece of life and its expectations. Yes truly, the right against exploitation is life itself. And thus fundamental to constitutional policy of India. Thus, is the applicant and those with par exploited ?
12. In Bandhua Mukti Morcha etc. v. Union of India & ors., reported in (1997) 10 SCC 549, the Hon'ble Apex Court went into the finer reasons for a fight against exploitation, which is a dynamic constitutional structure of India. The scope of this article prevents beggar and other similar forms of labour and also exploitation and human bondage in its multifarious exceptions. Thus the Apex Court had given full ploy to the expectation of the people in Article 23.
13. To understand these phenomena further, we must look into the Article 41 of the Constitution, which forms part of the Directive Principles of State Policy. It stipulates that State, within the limits of its economic capacity and development is enjoined to make an effective provision for securing a right to work, to education and to public assistance in cases of unemployment, old age sickness and disablement and in other cases of undeserved want. Therefore, if the State were to functionalize a scheme whereby unemployment, disablement and undeserved want can be brought into being by explicit terms or implicit in it, then the State would have violated the policy, thus, enunciated in the Constitutional matrix. Thus the State cannot have a policy which will enhance exploitation. In Puthuparambil & others v. Kerala Water Authority & others, reported in (1991) 1 SCC 28, the Hon'ble Apex Court had conclusively held that a legislative process should be so interpreted by the judicial authority so as to advance Article 41. Therefore, if by Executive processes, such a scheme is being brought forward, which is against it, it falls within the indictive and vindictive processes of Article 41 and cannot survive.
14. Article 43 of the Constitution of India canvasses living wage, etc., for workers. It stipulates that the State shall endeavour to secure by suitable legislation or economic organics or in any other way ensure, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure, social and cultural opportunities and, in particular, the State shall endeavour the cottage industry and of an individual in rural areas. An appropriate exposition of this principle would mean that the State shall permit and espouse opportunities of work for workmen, a living wage, so that they survive, which is again an expression to right to life and livelihood, conditions of work ensuring a decent standard of life, which is actually a measurement yardstick of the implementation of Article 14 of the Constitution of India, full enjoyment of leisure, social and cultural opportunities, which is also a reflective of constitution ethos and then the endeavour of the State to permit cottage industries or in other words, enhancement of the opportunities for the small man to at least live and survive. This, them, is the crux of the matter. Is not the small man to survive? Hence, what becomes of the applicant then ?
15. We have to look into the testimonials and ambit of Article 46, which stipulates that the State shall permit with special care the educational and economic interest of the weaker section of the society and, in particular, all the Scheduled Casts and Scheduled Tribes and shall protect them from social injustice and all forms of exploitation. The crucial aspect of the said article in the conspectus of the present matrix is that the State shall permit the economic interest of the weaker section of the society and protect them from social injustice and all forms of exploitations. In fact the Hon'ble Supreme Court in M/s Shantistar Builders v. Narayan Khimalal Totame & others, reported in (1990) 1 SCC 520, has held that the Government is duty bound to lay down an appropriate guideline for delineating the weaker section of the society and held a measurement yardstick upon the Executive functionary to permit the State policy and enshrined under the constitutional process to pervade and permeate in full measure into Executive decisions. Thus, in this context how shall we understand the development of Coir industry in Lakshadweep.
16. Of the same genies, Article 47, by which the State is enjoined to raise the standard of living of the people, doubtlessly cannot be achieved without ensuring that the citizens live. In short, it all comes down to one aspect that the poor shall also be allowed to survive and the state is bound to desire policies, which will promote it.
17. Therefore, we have to examine what will be the role of the judiciary in ensuring social justice and preventing inequity in the process of social engineering. So taken in that context, what are the judicial policy options? In matters of judicial control, the court exercises discretion both in terms of substantive law and including the determination on justifiability and in the choice of procedural remedy. One view is that the Judges by their training, education, background, attitudes, values and identity of views tend to identity with their establishment and in consequence, they cannot act sufficiently proactively between the Executive and the citizens in their perception of the protection to the public interest. To the services such as education, health care, social welfare, environment and cultural facilities, housing, land use regulation, etc. has been marked by democratic elitism, which restricts the actual public in participatory process leaving it to a choice between competing political elite thereby denuding the actual democratic polity a role in policy planning and thereon on empowerment or even survival of the common man. Can this serious lacunae be addressed by the judicial process is a question to ponder. So then, what is to be the role of Judiciary? Helpless spectator? Or a proactive Prodder?
18. Where action has been approved by the Parliament and where the decision making is responsible to Parliament, especially in terms of concepts like national security, etc., would determine and justify enthusiasm for a mere participatory model of democracy. It may also be that other values may include or exclude, based on the professional expertise to administer the limited exercise of recognition of individual rights. In other words, it is possible for people to rely on perceptions than facts and thus accede to principles whereby democracy values may be eroded but in such circumstances, what is to be the role of the judiciary and to what degree can it act as a sentinel of public welfare. Can it feel the lacunae in legislative expertise and administrative sincerity? This criticisms of the role of the judiciary are values with regard to the performance by the Judges in the Indian sub-continent wherein Indian judiciary have adopted a more robust approach examining the legality, acceptability and functionality in terms of constitutional matrix of an Executive action or inaction and, therefore, what are the jurisdictional and constitutional principles, which would be available to us for the resolution of the present issue?
19. In India, the Directive Principles of State Policy require the State to secure a social order of promoting the welfare of the people, participation of workers, promotion of education in weaker sections, raising the standards of living, separation of judiciary and the Executive and other similar golden ideals. These are corroborated fundamental rights and more explained by the Preamble of the Constitution. By reading these three together, justice delivery system is enabled to do the negative corrections to the Government operations not only as normal operation of judicial control but to be a catalyst in promotion of prospective policies on occasions affecting vital issues concerning the affairs of the nation as a whole. Thus, the Hon'ble Supreme Court in Sachidanand v. State of West Bengal, AIR, 1987 SC 1109 has held that the Court is competent to give directions for restoration of ecological balance and in short, implementation of Article 48-A of the Constitution. In Grih Kalayan Kendrer Workers' Union v. Union of India, AIR 1991 SC 1173, the Hon'ble Apex Court ensured the implementation of Article 39-D, which provides for `equal pay for work'. The Apex Court in FCI, Union v. Food Corporational India, AIR 1993 SC 2178 exhorted the view that a fundamental right is implicit in the constitutional process, even though it may not be specifically mentioned as such. It held that the fundamental rights are to be interpreted having regard to the Preamble of the Constitution of India, which proclaims commitments to justice, liberty, equality and fraternity encompassed by the Directive Principles of State Policy. It held that these provisions are supplementary and complimentary to each other. In short, morality rather than expediency shall be the deciding factor.
20. Viewed in this context, what are the parameters of power of expression of Executive policy and how far can judiciary sit in the judgment over Executive policy? Executive discretion is a term blessed by the constitutional process and the Administrator must have effective freedom of operation within the parameters allowed to it exclusively. The word `discretion' in itself means possibility of choices and even subjective decision and even though objectivity in approach is functionally desirable, rationality in method and fundamental sincerity must mark the decision of any decision maker. This also must be in harmony with the constitutional ideals. Thus, how to assess the responsibility of judicial review ?
21. Therefore, any decision which out weighs or out rides constitutional fundamental would, thus, become unacceptable and extinct and, subject to judicial interdiction. But what if the decisions are of a different colour and pale than is sought by constitutional process? But since the containment of the social endeavour within the dynamics of the constitutional mandate is the object of the due process method and proportionality principles, apparently, judicial interdiction in the way of negative corrections and positive exhortion is thus called for. Thus, judicial review is not an expression of power but an exhortation of responsibility.
22. In the matter of expressing wednesbury principle of reasonableness, the Lord Green, as Master of the Rolls, specified the grounds for such a challenge. These principles were later buttressed by the proportionality principles. The American Courts has evolved the usage of "arbitrary and capricious" rule. In addition to this, we may have to examine the process evolved by this discussion in the light of the emerging human rights concerned, of which India is an active participant. Thus, even in legislative formations, the process of judicial review must take the human rights dimension also in their account. When its justifiability is justified, the European Courts are thus increasingly taking a view that the decision maker was not entitled to reach a decision which would preempt basic human rights. That risk of interfering with the fundamental, human rights in the absence of coupling justification, as held by the Lord Wools, Master of the Rolls, as reported in 1994 (4) AE Reporter 801 (HL) at page 72 "when a fundamental right such as a right to life is engaged, the options available to the reasonable decision maker are curtailed. They are curtailed because it is unreasonable to reach a decision, which contravenes or could contravene human rights unless there are significantly sufficient countervailing considerations. In other words, it is not for the decision maker to risk interfering with fundamental rights in the absence of compelling justification". It also held more specifically that in the context of violation of human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable. Thus, the test of wednesbury irrationality is likely to be affected by considerations of human rights that might be prejudiced by the impute action.
23. The principle of proportionality, as developed by the European Courts of rights, evolves two tests (a) the balance interest and (b) the necessity test. Thus, it requires a balancing of the aims and objective and the latter requires that where a particular objective can be achieved by more than one available option. In addition the suitability test may also be applied. This requires the authority to employ itself methods which are appropriate to accomplish of a given legal position thus mandated. This principle intrudes the review with a higher intensity of scrutiny than the wednesbury test involving the examination of a merit of decision and not only the decision making process. Thus, when administrative actions or inaction is thus tainted, it is the responsibility of judicial organ of State to awake from their slumber.
24. Therefore, what is discretion and how is it amenable to judicial review. What are the extent and parameters of discretion and how to resolve conflicts? But untrammeled discretion, which is not guided by legal patterns and rules principles of policy are all liable to be struck down as infringing the rights emanating from Article 19. But in fact, the Hon'ble Apex Court has placed reliance on considering in great detail of latitude to administrative actions that are called for in the interest of general public. Thus, in Cooverjee B. Bharucha v. Excise Commissioner and the Chief Commissioner, Ajmer & others, [AIR 1954 SC 220], the Hon'ble Apex Court held that the authorities appear to issue mere licence on payment of such fees for such period, subject to such restrictions on certain conditions in such form as he might direct either generally or in particular cases. The Court had held this grant of discretion, as in their view the licence was designed to regulate business dangerous to the community. Therefore, the crystal factor, which evolves out of this resolution is that Executive discretion for public good is acceptable and acknowledgeable even though it had on occasions intruded in the sphere of legislature as well. The proper way of understanding this decision is that it turned open the requirement of public interest. The Hon'ble Apex Court has followed this track of reasoning wherein the question of public safety, ecological balance, rights of workmen, rights of women and even rights of under trial prisoners are to be looked into. The overriding public interest seems to be the fulcrum of the decision in all these matters. sensitive approach would thus appear to be harmonized with constitutional principles. Therefore, we have to examine how to approach the present issue with sensitivity and constitutional harmony.
25. Yet another constitutional bulwark against uncontrolled or unfettered decision in India is Article 14 of the Constitution, which provides that the principles of equality before law and in addition, the equal protection of the laws. This is supported by the Articles 15 and 16 of the Constitution. Thus, it has been held that discretion exercised without any salutary principle and without the benefit of legal provisions is contrary to Article 14. Legal provisions in this context are not the subordinate legislation but the statutory formations proclaimed by legislators of the land. The Hon'ble Apex Court following in this reasoning held that in case of unchallenged arbitrary discretion, as it is writ large on the face of it. Such discretion patently violates the doctrine of equality and rests solely on the arbitrary action of the Executive. Thus, discussion shows that the Court would inquire whether a statute contains any policy or principle for guiding the exercise, the discretion by the Executive and if it does not, the statute is liable to be inferred as having unfettered discretion explicit or implicit or on discrimination between the persons or things similarly situated. Therefore, any exercise of unfettered discretion without the guiding principles permitted by the constitutional mandate is likely to fail. Thus what is the scheme of Industrial enforcement and consequent employment of this administration?
26. To quote justice Bhagwati in Raman Dayaram Shetty v. International Airport Authority of India, [AIR 1979 SC 1628], it is well settled rule of administrative law that an Executive authority must be held to the standards by which this action is to be adjudged and it must scrupulously absorb those standards. To explain this further,the Executive action must be expressed in terms of reasonable principles flowing effortless from the constitutional mandate without vitiating factors. Thus, the linkage of the protection of the fundamental right to judicial control, as the consequence of enabling the Courts to act on the proportionality principles and in some cases substituting their own decisions for those of that administrative authorities is held to be proper and justified. To explain it further, where a bank employee made a false statement about his past criminal conviction and thereupon lost his job, the Hon'ble Apex Court in Regional Manager, Bank of Baroda v. Presiding Officer, GCIT, reported in AIR 1999 SC 912 held that it was not such a grave misconduct to warrant a dismissal and ordered his reinstatement. On the other hand, where a teacher forged the signatures of the authorities on his service book to get his revised pay regularized, he was held to be guilty of serious misconduct and in Nand Keshwar Prasad v. M/s. Indian Farmers Fertilizers Cooperative Ltd. & others, AIR 1999 SC 578, the Apex Court declined to interfere in his dismissal. Thus, the proportionality principle was brought into fore tore by the Hon'ble Apex Court.Thus, it has become an acceptable part of jurisprudence of India and the world. Thus, proportionality is a different principle from the wednesbury rationality and reasonableness, as it enabled the Court to review the merits of a decision going beyond the legality of it. Thus, not only the manner of a decision making but also a matter of decision is being reviewed. Similarly, in Smt. Shalini Soni v. Union of India & others, AIR 1981 SC 431 the Hon'ble Apex Court has held that "it is in written rule of law, constitutional and administrative that whenever a decision making function is entrusted to the subjective standard of a statutory functionary, there is implicit application to apply proportionality.
27. In Barium Chemicals v. A.J. Rana, AIR 1972 SC 591 the Apex Court considered it necessary to limit the scope of discretion of an Executive authority in reference to the objective of the statute. The Court found that the orders served on the private parties concerned had specified a number of documents, some of which did not have even the remote connection appearing for matters covered by the Act, the Court construed it necessary or expedient to mean that the authorities must have considered the necessity of obtaining and examining the documents. Therefore, the whole scenario of decision making, including the decision unless harmonious to constitutional mandate, is subject to negative corrections as well as positive interpolations, as is required by the role of law and constitutional mandate.
28. So, therefore, what are the subjective ingredients of Executive discretion and is motive forming a plank on which the discretion can be based and is reviewed for an effective control of administrative discretion. It requires that a distinction could be drawn between the motives and purpose. The motives are that consideration, which permit the Administrator to take an action while purposes are the object sought to be achieved by the actions taken. The purposes are very often acknowledged by the Administrator and their validity can be tested when the reference to purposes sanctioned by the statute are looked into. Therefore, it can be established expressly whether the purpose of the Administrator is in conformity with that of the statute. Basically, because of their transparency in public knowledge and capability of universal ascertainment but in contrast, the motives are considerations for law deeper in the minds of the Administrator, which being subjective and hidden in his mind is not open to the gaze of the law. In such situations, it is the considered function of effective judicial control to develop tools and techniques to lay those hidden motives permitting the Administrator to take an action to see whether they are pertinent to the authorized persons and its reasons. This is especially so when the motives are not relevant to the purpose of a statute and the action can be said to be based on bad faith, mala fide and malicious or constituting an abuse of power or even lacking in sincerity in application. Therefore, what is to be looked into is whether a thing was authorized by law or what is done is ostensibly authorized by law. It may also be the circumstances wherein the Administrator, acting in his enthusiasm, might take actions honestly believing them to be conducive to public benefit but then considerations on which he bases his judgment may not be pertinent or relating to the authorized purpose or may be otherwise contrary to law. To highlight, in S. Partap Singh v. State of Punjab, AIR 1964 SC 72, the Apex Court held that the power to take penal action against a government servant would lie within the power of the authorities but once it was found to have been used to take vengeance by the Chief Minister on the said public servant, it was quashed. Similarly in State of Gujarat v. Suryakant Chunilal Shah, reported in (1999) 1 SCC 529, the pre-mature retirement of a public employee for collateral purpose was held to be colourable exercise of power. Thus, not only the power but nature of exercise of power is also a determining factor.
29. Therefore, what are the methodologies which are to be used while exercising judicial review? The Hon'ble Apex Court while examining the scope of Article 32 of the Constitution had held that usually discrimination and the recourse for it could be had to the ordinary trial, process to resolve the dispute at the question of fact level. Therefore, the expressed exercise of processes and procedurals in judicial review has to be deemed and found as a test for securing the truth of a matter and this thus to be considered as a requirement of justice. Truth, therefore, must prevail over technicalities.
30. Taken in this context, while dealing with the subjective effect of decision making, Judges should be guarded against subjective notions personal to them as well whether it be the issues on laws or on issues on policy. The notion of opinions about the policy should not influence the Judges. While it is true that at least some common law principles may ultimately rest the judicial ideals of policy, bias and partiality if they are defined to mean total absence of steps in the minds of the Judge, then no one had a fair trial and no one ever will if taken to that extent. The human mind even at infancy is not blank piece of paper. We are born with pre- depositions and the processes of education, formally and informally, create attitudes in all men. Therefore, by definition, it can be termed as prejudice also but bias in the sense of conviction in ethical values is not only not unfavourble but also desirable. In short, a Judge must, in fact, possess certain conception on his social desirables or at least things acceptable on such occasions. In this sense, the Judges are and must be biased. It is a simple fact that a man, who has a standard of merely values, which approximated broadly to the accepted opinions of the day, who had only beliefs as to what is harmful to the society and what is beneficial, had no bias in favour of honesty as against the deceit, in faith of truthfulness as against lying, in favour of constitutional governance is more desirable than anarchy cannot be tolerated as a Judge. It is sine qua non of good governance and good administration when it believes in rightness and the less worthiness of the wrong. Thus, the principles of right or wrong must prevail in all administrative and Executive decisions as a basic factor. This sense of right and wrong is what natural justice is all about.
31. But what about the consequence of the distinction between propriety and governance. The discussion of the development of the law and the constitutional mandate is against various consequences and one of them is that the immunity of the State and its sovereignty was left intact in the field of statutory duties. This is particularly significant in republican India, which is a socialist State. Thus, we cannot have starvation deaths.
32. The State has promised to secure a social order in which justice social, economic and political shall inform all institutions of national comity. Thus, the citizens have a right of adequate means of livelihood, the operation of the economic system does not result in the deprivation to worth and means. There is equal pay for equal work, i.e., the wealth and health of workers are protected against exploitation and material abandonment of the right to work protection in disablement and undeserved want, just and human conditions of work, promotion of an economic interest of backward sections of the society, which then necessarily includes the power to do so. Therefore, the statutory powers are immune from liability only when these salutary principles are taken into account in the determination of the parameters of such exercises. Therefore, what is the extent of sovereignty and immunity of the State in contradiction to its responsibilities in its exercise of powers? Therefore, what is an act of the State and can sovereignty be rightfully exercised by a State untrammeled of these principles? This is especially since the act of the State acting within powers recognized through its sovereignty is the maximum extent of powers of the State, expressed or implied. Therefore, the question will be the effect of the basic structure of the Constitution on even the exercise of sovereign power by an act of the State and methodologies, thus, lawfully available to the State to bring these theories into practice. This is the constitutional responsibility of the State.
33. There are several broad exceptions to the general immunity of the state. The first exception is that the transgression of statutory formulations thus where the Government in exercise of state action transgress any of the laws and the rules of the land, it is to be interdicted. The second exception is when in relation to the citizens a contractual arrangement had benefited the Government. There are several such exceptions but the declaration of the Hon'ble Apex Court in Kesavananda Bharti v. State of Kerala, AIR 1962 SC 933 wherein their lordships held that we have, by our constitution, especially a republican form of the Government and one of the objects is to establish a socialistic State and that it is secular and in other activities, in principle, or in public interest, that the State should not be held liable for vicarious act of its servant is not found in favour. Thus, the constitutional mandate had interdicted many of the sovereignty immunity, which was earlier available under English Laws. Thus the absolute power of State, as conceived earlier, is in a diminished spectrum.
34. In Dr. Preeti Srivastava & another v. State of M.P. & others, (1999) 7 SCC 1203, the Apex Court held that in a matter of a person killed by the policeman in breach of Article 21, the doctrine of sovereign immunity did not apply. In Nilabati Behera v. State of Orissa, AIR 1993 SC 1960, the Court held that the doctrine of sovereign immunity have no application. Thus, judicial review would permit and pervade the expression of sovereignty in the State. Thus, dehors such absolutions, power of State action is controlled by sound principles and golden principles of constitutionalism.
35. But then, what about oppressive legislation? How shall we determine what are the operative values in the society and act as guardian of those values? How shall we validate any legislation or legal process, which violates the statement of the fundamental rights and their expressions, which transform to the judicial level and a judicial decision making processes? Which are policy issues, which may suffer from under estimation and over estimation on the role of the Judges? But as an instrument of social control, the justice delivery system as a whole is intended to act as guidance mechanism of values while expounding the principles of law. The mere word `values' in this context is to be found in the basic values and structures of the Constitution. Then the question would arise as to whether the Judges must only administer negative corrections or shall only promote policies. While active judicial interpretation in the sphere of social liberty is proper, normally the Court should not impose to seek their policy on economic and social issues, as basically these are the spheres of the legislature to act upon. But can the Court actively promote a legislative process is a question. The Hon'ble Apex Court has held that it may not be proper function to initiate a legislative process. But expressed and implied processes are different. When a Court strikes down a legal stipulation, even though expressly it will not be exhorted but impliedly, a correctional measure is promoted by bringing into the fore the correct proposition of law, which ought to have been permitted and formualted by the legislature in the first place.
36. But then, can judiciary legislate? If not, what will be then the fulcrum f decision? As we have already seen that judicial decisions tend to positivity, then, what are its limitations? What is the difference between a pious hope and the dynamics of law making? If it is to be enhancement of principles of mores to answer to this laws in the inter-connection between the executive, legislature and judiciary which though meant to be separate but tend to be inter-dependent also and each gaining from inter-action with the other. This positive assurance, therefore, shall be guiding line in the expression of judiciary and which may prompt legislative expertise and executive expressions.
37. Having found that the Constitution of India militate against slavery of any kind, let us examine what is the actual situation of the applicant and then who worked along with her. They are paid daily wage of Rs.115/-. Lakshadweep wherein she works and Kerala follow the same social pattern in the standard of living and the wages available for a day labour in Kerala are far different from the wages now offered. Because of their extreme poverty and for reasons of security of finding employment in their geographical area would force many to take up employment even though it is a kind of slavery. Cumulatively we have to consider the fact that during the second selection process for Coir Instructor no weightage seems to be allowed for the desirable qualification of experience. The Hon'ble Apex Court had time and again held that desirable qualification rather than the essential qualifications must carry a differential weightage and it had to be on a methodology which ensure specific amount of mark to be awarded to each year of qualified experience so that the work of such shall not be made in vaacum. Experience which workers gather during the years would benefit the institution and therefore, it was not proper for the administration not to have granted appropriate weightage on a pre-determined and transparent manner in the selection process. Especially in view of the fact that for the promotional posts also the same essential qualification holds way. Since the results of the written examination are not under challenge, there is no point in dwelling on it. But a person who had been working for 15 years and thereby conversant practical matters may not be in a position of competing with a fresh hand directly from school. The academic knowledge thus decide their fate in the written examination of this kind and will clearly elude a person who had been working a quite number of years even though his specific skills will be correspondingly higher. But at the same time the respondents would aver that they must have some sort of yardstick to measure merit and this is one among them. It appears to be correct. But at the same time if a degree yardstick could have been provided for measurement of experience also and in any case it would have been more focused for the post in question, the rationale and logical sequence and events could have been achieved. But the respondents would lament that it is a recruitment rule prompting and therefore they had to rely on what is available in the recruitment rule. But we find from the documents produced by the respondents that some measure of recognition seem to be given to experience even though yardstick seems to be adopted is either unclear or non-existing. However, we would like to treat such matters as water flown under the bridge, but then in the conspectus of earlier discussion, what is to be the resolution? What are then, the factual ingredients?
i) The applicant was selected through a regular competitive selecltion process.
ii) She appears to be holding the essential qualification for holding the post at least two rungs higher than the post she is now holding.
Iii) She is working continuously for the last 15 years.
iv) Apparently, she had delivered satisfactory service.
38. But the respondents would aver that:
i) She cannot be given a temporary status as it is limited by nexus in time.
ii) There is no challenge of the Recruitment Rules.
Iii) Enhancement of wages are in the consideration of the Wage Board constituted for the purpose.
39. Therefore, what is the methodology of the resolution of this issue in the light of the factual position and the constitutional matrix unfolded before us? There is no doubt that the applicant is a regular appointee even though styled as a casual labourer. After hearing all concerned, we are of the view that the casualness of appointment is significantly absent. The Government had taken a conscious decision to expand coir manufacturing unit and in consequence with it held a regular selection process through competition and applicant was appointed. Therefore, what we see described as having temporary status or not is not applicable for all practical purposes as she can never be treated as a irregularly appointed, going by the various rulings of Hon'ble Apex Court. We have held and found that self improvement is not only part and parcel of human destiny and a constitutional mandate which follows a salutatory policy of a principle of development of each citizen even though in a minute way would be the catalyst of national development taken in that conspectus each step in improvement of a person must have societal blessings on such steps and in consequence with principles of public welfare. Therefore, we make the following findings/declarations:
i) The applicant is entitled to be considered as regularly appointed to the post now she is holding.
ii) The respondents are bound to fix a rationale for selection to the post as canvassed in Annexure A-8 so as to include experience as a criteria for selection.
Iii) The applicant is entitled for age relaxation in view of the continuous service put in by her and as held by the Hon'ble Apex Court.
iv) Respondents are bound to create a feeder category for promotion from coir workers to Instructors post with sufficient criteria.
40. Therefore, Annexure A-8 requires suitable amendment and re- positioning. It is, therefore, quashed. The matter is therefore remitted back to the respondents to take appropriate decision in accordance with what is stated above. O.A is allowed to the extent indicated above. No costs.
DR K.B.SURESH K.NOORJEHAN JUDICIAL MEMBER ADMINISTRATIVE MEMBER