Uttarakhand High Court
Gyanendra Tiwari vs State Of Uttarakhand And Others on 26 March, 2018
Equivalent citations: AIRONLINE 2018 UTR 387
Author: Rajiv Sharma
Bench: Rajiv Sharma, Lok Pal Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No. 157 of 2018
Gyanendra Tiwari .......Petitioner
Versus
State of Uttarakhand & others ....... Respondents
Mr. Dinesh Gahatori, Advocate present for the appellant.
Mr. R.S. Bisht, Brief Holder for the State of Uttarakhand/respondent nos.1 to 4.
Mr. Vipul Sharma, Advocate for the respondent no.10.
Dated: 26th March 2018.
Hon'ble Rajiv Sharma, J.
Hon'ble Lok Pal Singh, J.
The present appeal is preferred against the judgment dated 06.03.2018, rendered by learned Single Judge in WPMS No.311 of 2018. The core issue before this Court is construction of Para 8.02 of the U.P. L.R. Manual.
2. Para 8.02 prescribes that the District Magistrate shall circulate the information amongst the lawyers and invite the applications from such lawyers who are practicing in the District Court and who have at least five years standing as a lawyer. Thereafter, these names are sent to District Judge for approval and the panel of such lawyers is prepared to represent the State.
3. The information is to be displayed on notice boards of District Office, Nainital, District and Sessions Judge, Nainital, Commissioner Kumaon, Nainital etc.
4. According to respondents, the information was displayed on the notice boards.
5. However, the fact of the matter is that, the advertisement was never published in the English and Hindi newspapers having wider circulation in the area. In other districts, the advertisement has been issued whereby the applications were invited. The respondents should have given wider publicity in order to recruit the most meritorious candidates to be included in the panel.
26. In 1991 (1) SCC 212, in the case of "Kumari Shrilekha Vidharthi and others vs. State of U.P. & others", their Lordships of the Hon'ble Supreme Court have held that arbitrary state action against persons holding posts of public nature such as District Government Counsel is sufficient to attract power of judicial review for testing validity of the action on the anvil of Article 14 of the Constitution of India. Their Lordships have held as under:-
"20. Even apart from the premise that the 'office' or 'post' of DGCs has a public element which alone is sufficient to attract the power of judicial review for testing validity of the impugned circular on the anvil of Article 14, we are also clearly of the view that this power is available even without that element on the premise that after the initial appointment, the matter is purely contractual. Applicability of Article 14 to all executive actions of the State being settled and for the same reason its applicability at the threshold to the making of a contract in exercise of the executive power being beyond dispute, can it be said that the State can thereafter cast off its personality and exercise unbridled power unfettered by the requirements of Article 14 in the sphere of contractual matters and claim to be governed therein only by private law principles applicable to private individuals whose rights flow only from the terms of the contract without anything more? We have no hesitation in saying that the personality of the State, requiring regulation of its conduct in all spheres by requirements of Article 14, does not undergo such a radical change after the making of a contract merely because some contractual rights accrue to the other party in addition. It is not as if the requirements of Article 14 and contractual obligations are alien concepts, which cannot co-exist.
21. The Preamble of the Constitution of India resolves to secure to all its citizens Justice, social, economic and political; and Equality of status and opportunity. Every State action must be aimed at achieving this goal. Part IV of the Constitution contains 'Directives Principles of State Policy' which are fundamental in the governance of the country and are aimed at securing social and economic freedoms by appropriate State action which is complementary to individual fundamental rights guaranteed in Part III for protection against excesses of State action, to realise the vision in the Preamble. This being the philosophy of the Constitution, can it be said that it contemplates exclusion of Article 14 -- non-arbitrariness which is basic to rule of law -- from State actions in contractual field when all actions of the State are meant for public good and expected to be fair and just? We have no doubt that the Constitution does not envisage or permit unfairness or unreasonableness in State actions in any sphere of its activity contrary to the professed ideals in the Preamble. In our opinion, it would be alien to the constitutional scheme to accept the argument of exclusion of Article 14 in contractual matters. The scope and permissible grounds of judicial review in such matters and the relief which may be available are different matters but that does not justify the view of its total exclusion. This is more so when the modern trend is also to examine the unreasonableness of a term in such contracts where the bargaining power is unequal so that these are not negotiated contracts but standard form contracts between unequals.
22. There is an obvious difference in the contracts between private parties and contracts to which the State is a party. Private parties are concerned only with their personal interest whereas the State 3 while exercising its powers and discharging its functions, acts indubitably, as is expected of it, for public good and in public interest. The impact of every State action is also on public interest. This factor alone is sufficient to import at least the minimal requirements of public law obligations and impress with this character the contracts made by the State or its instrumentality. It is a different matter that the scope of judicial review in respect of disputes falling within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes. However, to the extent, challenge is made on the ground of violation of Article 14 by alleging that the impugned act is arbitrary, unfair or unreasonable, the fact that the dispute also falls within the domain of contractual obligations would not relieve the State of its obligation to comply with the basic requirements of Article 14. To this extent, the obligation is of a public character invariably in every case irrespective of there being any other right or obligation in addition thereto. An additional contractual obligation cannot divest the claimant of the guarantee under Article 14 of non- arbitrariness at the hands of the State in any of its actions.
24. The State cannot be attributed the split personality of Dr Jekyll and Mr Hyde in the contractual field so as to impress on it all the characteristics of the State at the threshold while making a contract requiring it to fulfil the obligation of Article 14 of the Constitution and thereafter permitting it to cast off its garb of State to adorn the new robe of a private body during the subsistence of the contract enabling it to act arbitrarily subject only to the contractual obligations and remedies flowing from it. It is really the nature of its personality as State which is significant and must characterize all its actions, in whatever field, and not the nature of function, contractual or otherwise, which is decisive of the nature of scrutiny permitted for examining the validity of its act. The requirement of Article 14 being the duty to act fairly, justly and reasonably, there is nothing which militates against the concept of requiring the State always to so act, even in contractual matters. There is a basic difference between the acts of the State which must invariably be in pubic interest and those of a private individual, engaged in similar activities, being primarily for personal gain, which may or may not promote public interest. Viewed in this manner, in which we find no conceptual difficulty or anachronism, we find no reason why the requirement of Article 14 should not extend even in the sphere of contractual matters for regulating the conduct of the State activity.
28. Even assuming that it is necessary to import the concept of presence of some public element in a State action to attract Article 14 and permit judicial review, we have no hesitation in saying that the ultimate impact of all actions of the State or a public body being undoubtedly on public interest, the requisite public element for this purpose is present also in contractual matters. We, therefore, find it difficult and unrealistic to exclude the State actions in contractual matters, after the contract has been made, from the purview of judicial review to test its validity on the anvil of Article 14.
29. It can no longer be doubted at this point of time that Article 14 of the Constitution of India applies also to matters of governmental policy and if the policy or any action of the government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional. (See Ramana Dayaram Shetty v. International Airport Authority of India9 and Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir10). In Col. A.S. Sangwan v. Union of India11 while the discretion to change the policy in exercise of the executive power, when not trammelled by the statute or rule, was held to be wide, it was emphasised as imperative and implicit in Article 14 of the Constitution that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior 4 criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone, irrespective of the field of activity of the State, has long been settled. Later decisions of this Court have reinforced the foundation of this tenet and it would be sufficient to refer only to two recent decisions of this Court for this purpose.
30. In Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay12 the matter was re-examined in relation to an instrumentality of the State for applicability of Article 14 to all its actions. Referring to the earlier decisions of this Court and examining the argument for applicability of Article 14, even in contractual matters, Sabyasachi Mukharji, J. (as the learned Chief Justice then was), speaking for himself and Kania, J., reiterated that: (SCC p. 304, para 22) "every action of the State or an instrumentality of the State, must be informed by reason. ....actions uninformed by reasons may be questioned as arbitrary in proceedings under Article 226 or Article 32 of the Constitution."
Ranganathan, J. did not express any opinion on this point but agreed with the conclusion of the other learned Judges on the facts of the case. It is obvious that the conclusion on the facts of the case could not be reached by Ranganathan, J. without examining them and this could be done only on the basis that it was permissible to make the judicial review. Thus, Ranganathan, J. also applied that principle without saying so. In view of the wide ranging and, in essence, all-pervading sphere of State activity in discharge of its welfare functions, the question assumes considerable importance and cannot be shelved. The basic requirement of Article 14 is fairness in action by the State and we find it difficult to accept that the State can be permitted to act otherwise in any field of its activity, irrespective of the nature of its functions when it has the uppermost duty to be governed by the rule of law. Non-arbitrariness, in substance, is only fair play in action. We have no doubt that this obvious requirement must be satisfied by every action of the State or its instrumentality in order to satisfy the test of validity.
7. Learned Single Judge has overlooked this important factor while dismissing the writ petition.
8. The mode of recruitment of every public employment is required to be non-arbitrary and to be justified on the touchstone of Articles 14 and 16 of the Constitution of India.
9. Accordingly, the special appeal is allowed. Impugned judgment dated 06.03.2018 rendered by learned Single Judge in WPMS No.311 of 208 is set-aside.
10. The District Magistrate, Nainital is directed to publish the advertisement atleast in two daily newspapers; one in English and one in vernacular having wider circulation in the area and prominently displaying the same at the notice boards within two weeks from today.
5Thereafter, the entire process shall be completed within six weeks.
11. Till then, the parties are directed to maintain status quo qua their appointments.
12. Pending application, if any, also stands disposed of accordingly.
(Lok Pal Singh, J.) (Rajiv Sharma, J.)
26.03.2018
Nishant