Gujarat High Court
Dhudhabhai Nathabhai Moga vs Secretary Agriculture Co-Operation ... on 3 August, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/6382/2002 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6382 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? YES
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or
NO
any order made thereunder ?
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DHUDHABHAI NATHABHAI MOGA....Petitioner(s)
Versus
SECRETARY AGRICULTURE CO-OPERATION AND RURAL
DEVELOPMENT & 2....Respondent(s)
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Appearance:
MR ASHISH M DAGLI, ADVOCATE for the Petitioner(s) No. 1
MR DEEPAK V PATEL, ADVOCATE for the Respondent(s) No. 3
MR DG CHAUHAN, ADVOCATE for the Respondent(s) No. 1 - 2
MR KRUTIK PARIKH,AGP for the Respondent
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 03/08/2016
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ORAL JUDGMENT
1 By this writ application under Article 226 of the Constitution of India, the writ applicant, a former Campus Director of the Agricultural University, has prayed for the following reliefs:
"6A) Admit this Special Civil Application
B) Allow this Special Civil Application by issuing an appropriate writ
of mandamus or any other appropriate writ in the nature of mandamus, order or direction giving direction to the respondent no.1 to clear the arrears of salary of petitioner as per Annex. D and further be pleased to direct the respondent to comply the same by awarding interest at the rate of 18%.
6(BB) This Honourable Court may be pleased to allow this petition by quashing and setting aside the resolution dated 6.7.2001 at Ann.: G in so far as grant of effect of 5th Pay benefit from 1.1.2001 as the same is unjust, improper and in violation of principles of natural justice and therefore, also liable to be quashed and set aside.
(C) Allow this SCA by holding that the action on the part of respondent authority is unjust, impartial, unfair and further be please to hold that the discriminatory treatment is given to the petitioner.
(D) Pending admission and till final disposal of this Special Civil Application this Hon'ble Court may be pleased to direct respondent University to deposit the amount with interest forthwith in the interest of justice.
E) Grant such other and further relief(s) as deemed just and proper in the interest of justice."
2 The case of the writ applicant may be summarized as under:
2.1 The writ applicant joined the services of the Dantiwada Agricultural University as a 'Campus Director' on 15th May 1997. His appointment was for a period of three years. The appointment order is at page - 12 (Annexure : "A") to this petition.
2.2 At the time of his appointment in the year 1997, a fixed
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remuneration of Rs.6,000/ per month was being paid to him. On 20th January 2001, the State Government issued a resolution declaring that the fixed emolument of Rs.6,000/ per month, which was being paid to the Campus Director, shall be enhanced to Rs.16,000/ and the said benefit be given with effect from 1st January 1996.
2.3 It appears that the period of service of the writ applicant came to an end on 15th May 2000.
2.4 Before the actual benefits could be given to the writ applicant, not only his services came to an end, but the Government issued another Resolution clarifying or rather modifying the date from which the benefits were to be extended. The earlier decision to extend the benefits from 1st January 1996 was altered to 1st January 2001. Thus, with the issue of the Government Resolution dated 6th July 2001, which is at page
- 21 (Annexure : "G") to this petition, the right of the writ applicant to receive the benefits from 15th May 1997 came to be defeated.
2.5 Hence, this writ application.
3 Mr. Apurva Jani, the learned counsel appearing for the writ applicant vehemently submitted that although it is within the power of the State Government as a policy decision to fix a cutoff date for a particular benefit, yet if it is found to be capricious or whimsical, then such decision should be set at naught by the Court. Mr. Jani submits that each and every employee of the Agricultural Universities in the State of Gujarat were given the benefits with effect from 1st January 1996. It is only in the case of the four Campus Directors that an absurd decision was taken to extend the benefits of the enhanced salary with effect from 1st January 2001. According to Mr. Jani, the financial implication would Page 3 of 15 HC-NIC Page 3 of 15 Created On Sat Aug 06 03:11:17 IST 2016 C/SCA/6382/2002 JUDGMENT also not have been so severe on the State Government.
4 Mr. Jani has placed reliance on the decision of the Supreme Court in the case of Chairman, Railway Board and others v. C.R. Rangadhamaiah and others [AIR 1997 SC 3828], wherein the Supreme Court has observed relying upon the decision of the Constitution Bench decision in the case of Triloki Nath Khosa [AIR 1974 SC 1] as under:
"20. It can, therefore, be said that a rule which operates in futuro so as to govern future rights of those already in service cannot be assailed on the ground of retrospectivity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date a benefit which has been granted or availed, e.g., promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively.
21. In B. S. Yadav v. State of Punjab, (1981) 1 SCR 1024 : (AIR 1981 SC
561), a Constitution Bench of this Court, while holding that the power exercised by the Governor under the Proviso to Article 309 partakes the characteristics of the legislative, not executive, power and it is open to him to give retrospective operation to the rules made under that provision, has said that when the retrospective effect extends over a long period, the date from which the rules are made to operate must be shown to bear, either from the face of the rules or by extrinsic evidence, reasonable nexus with the provisions contained in the rules (p. 1068 of SCR) : (at pp. 585 and 586 of AIR).
22. In State of Gujarat v. Raman Lal Keshav Lal Soni, (1983) 2 SCR 287 :
(AIR 1984 SC 161), decided by a Constitution Bench of the Court, the question was whether the status of exministerial employees who had been allocated to the Panchayat service as Secretaries, Officers and servants of Gram and Nagar Panchayats under the Gujarat Panchayat Act, 1961 as Government servants could be extinguished by making retrospective amendment of the said Act in 1978. Striking down the said amendment on the ground that it offended Articles 311 and 14 of the Constitution, this Court said : "The legislature is undoubtedly competent to legislate with retrospective effect to take away or impair any vested right acquired under existing laws but since the laws are made under a written Constitution, and have to conform to the do's and don'ts of the Constitution neither prospective nor retrospective laws can be made so as to contravene Fundamental Rights. The law must Page 4 of 15 HC-NIC Page 4 of 15 Created On Sat Aug 06 03:11:17 IST 2016 C/SCA/6382/2002 JUDGMENT satisfy the requirements of the Constitution today taking into account the accrued or acquired rights of the parties today. The law cannot say, twenty years ago the parties had no rights, therefore, the requirements of the Constitution will be satisfied if the law is dated back by twenty years. We are concerned with today's rights and not yesterday's. The legislature cannot legislate today with reference to a situation that obtained twenty years ago and ignore the march of events and the constitutional rights accrued in the course of the twenty years. That would be most arbitrary, unreasonable and a negation of history." (pp. 319320) (of SCR) :
(at p. 177 of AIR)."
23. The said decision in Raman Lal Keshav Lal Soni, AIR 1984 SC 161 (supra) of the Constitution Bench of this Court has been followed by various Division Benches of this Court. (See : Ex.Capt. K. C. Arora v.
State of Haryana, (1984) 3 SCR 623 : (AIR 1987 SC 1858); T. R. Kapur v. State of Haryana, (1987) 1 SCR 584 : (AIR 1987 SC 415); P. D. Aggarwal v. State of U. P., (1987) 3 SCR 427: (AIR 1987 SC 1676); K. Narayanan v. State of Karnataka, 1994 Supp (1) SCC 44 : (1993 AIR SCW 3106); Union of India v. Tushar Ranjan Mohanty, (1994) 5 SCC 450; and K. Ravindranath Pai v. State of Karnataka, 1995 Supp (2) SCC 246 : (1995 AIR SCW 3093)).
24. In many of these decisions the expressions "vested rights" or "accrued rights" have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc. of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. We are unable to hold that these decisions are not in consonance with the decisions in Roshan Lal Tandon (AIR 1967 SC 1889) (supra); B. S. Yadav (AIR 1981 SC 561) (supra) and Raman Lal Keshav Lal Soni (AIR 1984 SC 161) (supra)."
5 In such circumstances referred to above, the learned counsel prays that there being merit in this writ application, the same may be allowed and the reliefs prayed for be granted.
6 On the other hand, this writ application has been vehemently
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opposed by Mr. Krutik Parikh, the learned Assistant Government Pleader appearing for the State of Gujarat and Mr. D.G. Chauhan, the learned counsel appearing for the University. According to the learned Assistant Government Pleader, a policy decision was taken by the State Government to alter the date from 1st January 1996 to 1st January 2001 and such policy decision may not be disturbed by this Court in exercise of its extraordinary powers under Article 226 of the Constitution of India. The learned Assistant Government Pleader has placed reliance on the decision of this Court dated 4th December 2015 rendered in the Special Civil Application No.4239 of 2012 and allied petitions. He seeks to rely on the observations made in paras 17 to 29 as under:
"17 It is well settled principle of law that the recommendations of the Pay Commission are subject to the acceptance/rejection with modifications of the appropriate Government. It is also well settled principle of law that a policy decision of the Government can be reviewed/altered/modified by the executive instructions. It is in these circumstances that a policy decision cannot be challenged on the ground of estoppel.
(See : K.S. Krishnaswamy vs. Union of India and another, [AIR 2007 SC (Sup) 1756) 18 In the case of M Raja vs. Ceeri Educational Society Pilani [2006(12) SCC 636], the appellant had joined the services in the respondent School on 30.04.1997. The Fifth Central Pay Commission revised the scale of pay with effect from 01.01.1996 pursuant whereto the appellant claimed that he was entitled to the scale of pay Rs.55009000, whereas he was put in the pay scale of Rs.50008000. The recommendations of the Fifty Central Pay Commission, however, were applied by the respondent with effect from 01.07.1999. The appellant moved the Rajasthan NonGovernment Educational Institutions Tribunal, Jaipur, on the premise that the respondents were bound to protect his scale of pay as promised by the respondents. The Tribunal allowed the said application in part holding the appellant to be entitled to pay as per the recommendations of the Fifth Central Pay Commission with effect from the date of appointment and directing the respondents to calculate the amount of difference and pay the same to him within three months. A writ petition filed by the respondents thereagainst was dismissed by a learned Single Judge of the High Court. The respondents preferred an intracourt appeal and the Division Bench allowed the same. In such circumstances, the appellant had to move the Supreme Court.
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18.1 In the aforesaid background, the Supreme Court made the following observations in para 14:
It may be true that even the respondents expected that the recommendations of the Pay Commission would be implemented from April, 1997, but if for one reason or the other, the same was given effect to from 1.07.1999, a promise cannot be said to have been made out that irrespective of the implementation of the report of the Pay Commission, the appellant would be given the benefit thereof.
19 It is equally well settled that the financial and economic implications are very relevant and germane for any policy decision touching the administration of the Government, at the Centre or at the State level.
20 In Union of India vs. P.N. Menon and others [1994 (4) SCC
68)], while implementing the recommendations of the Third Pay Commission with regard to the dearness pay linked to the average index level 272, which was to be counted as emoluments for pension and gratuity under the Central Civil Services (Pension) Rules, 1972, the Central Government had fixed a certain cutoff date and directed that only those officers retiring on or after the specified date were entitled to the benefits of the dearness pay being counted for the purpose of retirement benefits. This was challenged as arbitrary and violative of Article 14 of the Constitution. The Supreme Court turned down the challenge and observed:
while implementing the recommendations of the Third Pay Commission with regard to dearness pay linked to average index level 272, which was to be counted as emoluments for pension and gratuity under Central Civil Services (Pension) Rules, 1972, the Central Government had fixed a certain cutoff date and directed that only officers retiring on or after the specified date were entitled to the benefits of the dearness pay being counted for the purpose of retirement benefits. This was challenged as arbitrary and violative of Article 14 of the Constitution. The Supreme Court turned down the challenge and observed:
"Not only in matters of revising the pensionary benefits, but even in respect of revision of scales of pay, a cutoff date on some rational or reasonable basis, has to be fixed for extending the benefits. This can be illustrated. The Government decides to revise the pay scale of its employees and fixes the 1st day of January of the next year for implementing the same or the 1st day of January of the last year. In either case, a big section of its employees are bound to miss the said revision of the scale of pay, having superannuated before that date. An employee, who has retired on 31st December of the year in question, will miss that pay scale only by a way, which may affect his pensionary benefits throughout his life. No scheme can be held to be foolproof, so as to cover and keep in view all persons who Page 7 of 15 HC-NIC Page 7 of 15 Created On Sat Aug 06 03:11:17 IST 2016 C/SCA/6382/2002 JUDGMENT were at one time in active service. As such the concern of the court should only be, while examining any such grievance, to see, as to whether a particular date for extending a particular benefit or scheme, has been fixed, on objective and rational considerations."
21 In Action Committee South Eastern Railway Pensioners v. Union of India, [1991 Supp (2) SCC 544], it was held that, on merger of a part of dearness allowance as dearness pay on average price index level at 272 with reference to different pay ranges, fixing a cutoff date in such a manner was not arbitrary and the principle enunciated in D.S. Nakara vs. Union of India [(1983) 1 SCC 305] was not applicable. In this connection, the ratios in Krishena Kumar v. Union of India, [(1990) 4 SCC 207], Indian ExServices League v. Union of India, [[(1991) 2 SCC 104], State Government Pensioners' Association v. State of A.P., [(1986) 3 SCC 501], and All India Reserve Bank Retired Officers' Association v. Union of India [(1992) Supp (1) SCC 664] are apt. In all these cases, the prescription of a cutoff date for implementation of such benefits was held not to be arbitrary, irrational or violative of Article 14 of the Constitution.
22 The importance of considering financial implications, while providing benefits for employees, has been noted by the Supreme Court in numerous judgments. In State of Rajasthan and Anr. v. Amritlal Gandhi and Ors., [AIR 1997 SC 782], the Supreme Court went so as far as to note that:
"...Financial impact of making the Regulations retrospective can be the sole consideration while fixing a cutoff date. In our opinion, it cannot be said that this cutoff date was fixed arbitrarily or without any reason. The High Court was clearly in error in allowing the writ petitions and substituting the date of 111986 for 111990".
23 More recently, in T.N. Electricity Board v. R. Veerasamy and others [(1999) 3 SCC 414], the Supreme Court observed that, financial constraints could be a valid ground for introducing a cutoff date while implementing a pension scheme on a revised basis. In that case, the pension scheme applied differently to persons who had retired from service before 171986, and those who were in employment on the said date. It was held that they could not be treated alike as they did not belong to one class and they formed separate classes.
24 In State of Punjab and Ors. v. Boota Singh and Anr.,[(2000) 3 SCC 733], (Boota Singh"), after considering several judgments of the Supreme Court in D.S. Nakara (supra) to K.L. Rathee v. Union of India, [(1997) 6 SCC 7], it was held that D.S. Nakara (supra) should not be interpreted to mean that the emoluments of persons who retired after a notified date holding the same status, must be treated to be the Page 8 of 15 HC-NIC Page 8 of 15 Created On Sat Aug 06 03:11:17 IST 2016 C/SCA/6382/2002 JUDGMENT same.
25 In State of Punjab and Another v. J.L. Gupta and Others, [(2000) 3 SCC 736], the views expressed in Boota Singh (supra) were reiterated, and it was held that for the grant of additional benefit, which had financial implications, the prescription of a specific future date for conferment of additional benefit, could not be considered arbitrary.
26 In Ramrao and Ors. v. All India Backward Class Bank Employees Welfare Association and Ors. [(2004) 2 SCC 76], a Division Bench of the Supreme Court said, even for the purpose of effecting promotion, the fixing of a cutoff date was neither arbitrary, unreasonable nor did it offend Article 14 of the Constitution. Moreover, the Supreme Court held that possible hardship to be endured by a person as a result did not make cutoff dates violative of Article 14.
27 In State of Bihar and others vs. Bihar Pensioners Samaj [AIR 2006 SC 2100], the Supreme Court observed in para 17 as under:
A supplementary affidavit filed on behalf of the State Government by Mukesh Nandan Prasad dated 992002 brings out in paragraph 8 that the total amount of financial burden, which would arise as a result of making effective the payments from 11 1986 would be about 2,038.34 crores. In other words, the State Government declined to pay the arrears from 111986 on the ground of financial consideration, which, undoubtedly, is a very material consideration for any administration. In State of Punjab and others v. Amar Nath Goyal and others (2005) 6 SCC 754 this Court had occasion to consider the very same issue. After referring to a number of other authorities, it was held that financial constraints could be a valid ground for introducing a cutoff date while introducing a pension scheme on revised basis. Thus, refusal to make payments of arrears from 111986 to 2821989 on the ground of financial burden cannot be held to be an arbitrary ground or irrational consideration. Hence the argument based on Article 14 of the Constitution must fail.
28 In view of the above, it is not really necessary for me to go into the question as to whether the doctrine of Promissory Estoppel or legitimate expectation would apply in the facts of this case.
29 Having regard to the report of the specially constituted Committee, I find it difficult to dub the cutoff date fixed by the State Government for extending the benefits of the Sixth Pay Commission Recommendations to the petitioners, who are the employees of the Corporation as arbitrary. There is no mathematical or logical way of fixing a cutoff date precisely and the decision of the State Government must be accepted unless it can be said to be absolutely unreasonable. Even if no particular reason is Page 9 of 15 HC-NIC Page 9 of 15 Created On Sat Aug 06 03:11:17 IST 2016 C/SCA/6382/2002 JUDGMENT forthcoming for the choice of a particular date, it should not be dubbed as arbitrary unless it is shown to be capricious or whimsical in the circumstances."
7 Mr. Chauhan, the learned counsel appearing for the University has placed reliance on the following averments made in the affidavitin reply:
"3(ii) The petitioner has no legal right as claimed the pay revision since he has worked with the Gujarat Agricultural University - Respondent No.3 as Campus Director from 15.05.1997 to 15.05.2000. The petitioner's claim is not maintainable since the pay revision as claimed by the petitioner is not sanctioned by the Government of Gujarat i.e. Respondent No.2 vide G.R. dated 06.07.2001, annexed as AnnexureG to the petition on page 21, which says that the earlier G.R. issued by the State Government dated 20.01.2001 is treated as cancelled and further Rs.16000/ fixed emolument per month is fixed by the Government with condition that no arrears will be paid towards the salary difference.
(iii) The petitioner has no legal right to claim the pay revision, which is effected after his completion of the duration of service, which he has rendered to the University i.e. Respondent No.3.
I deny that the petitioner is discriminated by not paying difference of salary as per 5th Pay Commission. I submit that no officer has been paid arrears of salary as claimed by the petitioner. Therefore, no discriminatory treatment has been adopted by the respondent No.3 and as per G.R. dated 96.07.2001, the petitioner has been paid his salary regularly in the past.
I say and submit that the petitioner is not entitled as per pay revision fixed by the University i.e. Rs.22000/. The Government has after deliberation and negotiation reduced it to Rs.16000/ and sanctioned the same by resolution marked as Annexure "G" on page 21.
In view of the above facts and circumstances, there is no substance in the petition and hence, the petition deserves to be dismissed in limine.
4 The University is governed by rules and regulation. The respondent No.3 - University is an autonomous body and 100% aided by the State Government. The Government has taken a policy decision and issued a G.R. dated 06.07.2001, wherein the honorary salary of Campus Director is fixed by the Government. The petitioner has been paid Rs.6000/ during his tenure as Director of Campus, Dantiwada. Therefore, it is in accordance with both the circulars. Therefore, the petitioner is not entitled for any pay revision / arrears since the G.R. is effected after the services of Page 10 of 15 HC-NIC Page 10 of 15 Created On Sat Aug 06 03:11:17 IST 2016 C/SCA/6382/2002 JUDGMENT the petitioner came to be an end and according to G.R., he has been paid every month regularly."
8 According to Mr. Chauhan, the salary which was being paid to the Campus Director, was in the form of an honorarium. When the writ applicant was appointed, he was being paid Rs.6,000/ per month. Later on, the Government decided to enhance it to Rs.16,000/ per month and it also took a decision to give such benefits with effect from 1st January 1996. However, before such benefits could be extended, the services of the writ applicant came to an end in terms of the original conditions of his appointment. Later on, the Government issued one another Government Resolution prescribing the cutoff date as 1st January 2001.
9 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the writ applicant is entitled to the reliefs prayed for in this writ application.
10 There is no affidavitinreply at the end of the State Government. The State Government could have explained as to how the decision was taken and what necessitated the issue of the Government Resolution dated 6th July 2001. In the absence of any reply, the learned Assistant Government Pleader produced certain files containing few noting as regards the issue of the Government Resolution dated 6th July 2001. It appears that at the relevant point of time, the concerned Minister felt that before the issue of the Government Resolution dated 20 th January 2001, he should have been taken in confidence. Since he was not taken in confidence, the concerned Minister thought fit to take a decision to issue the Government Resolution dated 6th July 2001, by which the date of 1st January 1996 came to be changed to that of 1st January 2001. What weighed with the State Government in taking such decision is not Page 11 of 15 HC-NIC Page 11 of 15 Created On Sat Aug 06 03:11:17 IST 2016 C/SCA/6382/2002 JUDGMENT made clear from any of the noting in the files. Prima facie, it appears that a very arbitrary decision was taken without any proper justification and only because the concerned Minister was not consulted and taken in confidence. The State Government should have justified even otherwise why such decision was taken depriving the right which had already accrued in favour of the writ applicant when he was in service.
11 In Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay [A.I.R. 1989 SC 1642], the matter was reexamined 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 arguments for applicability of Article 14, even in contractual matters, Sabyasachi Mukherji, J. (as the learned Chief Justice then was), speaking for himself and Kania, J., reiterated that every action of the State or an instrumentality of the State must be informed by reason......actions uninformed by reason may be questioned as arbitrary in proceedings under Article 226 or Article 32 of the Constitution.
12 In Kumari Shrilekha Vidyarthi etc. etc. v. State of U.P. and Ors. [A.I.R. 1991 S.C. 537], a two Judges Bench of the Supreme Court made an extensive and in depth analysis of the scope of equality clause and laid down the following propositions: "It can no longer be doubted at this point of time that Act. 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. The International Airport Authority of India, A.I.R. 1979 S.C. 1628 and Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir, A.I.R. 1980 S.C. 1982. In Col. A.S. Sangwan v. Union of India, A.I.R. 1981 S.C. 1545, 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 Page 12 of 15 HC-NIC Page 12 of 15 Created On Sat Aug 06 03:11:17 IST 2016 C/SCA/6382/2002 JUDGMENT 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 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.
It is now too sell settled that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux* of Article 14 of the Constitution and basic to the rule of law, the system which governs us. Arbitrariness is the very negation of the rule of law. Satisfaction of this basic test in every State action is sine qua non to its validity and in this respect, the State cannot claim comparison with a private individual even in the field of contract."
13 The meaning and true import of arbitrariness is more easily visualized than precisely stated or defined. The question, whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that be you ever so high, the laws are above you.
14 In S.G. Jaisinghani v. Union of India, [A.I.R. 1967 S.C. 1427 at p. 1434], the Court indicated the test of arbitrariness and the pitfalls to Page 13 of 15 HC-NIC Page 13 of 15 Created On Sat Aug 06 03:11:17 IST 2016 C/SCA/6382/2002 JUDGMENT be avoided in all State actions to prevent that vice, in a passage as under: "In this context it is important to emphasize that the absence of arbitrary power is the first essential 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 clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizens 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 the antithesis of a decision taken in accordance with the rule of law. (See Dicey "Law of the Constitution" Tenth Edn., Introduction ex). "Law has reached its finest moments", stated Douglas, J. in United States v. Wunderlick, (1951 342 US 98 : 96 Law Ed 113),"When it has freed man from the unlimited discretion of some ruler .....where discretion is absolute, man has always suffered". It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion, as Lord Mansfield stated it in classic terms in the case of John Wilkes (177098 E.R. 327), "means should discretion guided by law. It must be governed by rule, not humour: it must not be arbitrary, vague and fanciful."
15 In Dwarkadas Marfatia's case (supra), Sabyasachi Mukharji, J. (as he then was), indicated the extent of the power of judicial review by observing as under: "......Where there is arbitrariness in State action, Article 14 springs in and judicial review strikes such an action down. Every action of the executive authority must be subject to rule of law and must be informed by reason. So, whatever, be the activity of the public authority, it should meet the test of Article 14......"
16 I take notice of the fact that there are only four campus of the Agricultural University in the State of Gujarat. That means, there are only four persons holding the posts of the Campus Director. If the benefits from 1st January 1996 would have been granted, then probably the financial implication would have not been so severe.
17 In the peculiar facts and circumstances of the case, I have reached
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to the conclusion that the choice of the date i.e. 1st January 2001, as contained in the Government Resolution dated 6th July 2001, can be dubbed arbitrarily as it appears to be quite capricious and whimsical in the circumstances.
18 As a result of the aforesaid discussion, this writ application is allowed. The Government Resolution dated 6th July 2001 is hereby ordered to be quashed. The respondents are directed to extend the benefits of the Government Resolution dated 20th January 2001 to the writ applicant. The requisite amount shall be calculated and paid to the writ applicant within a period of three months from the date of the receipt of this order. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(J.B.PARDIWALA, J.) chandresh Page 15 of 15 HC-NIC Page 15 of 15 Created On Sat Aug 06 03:11:17 IST 2016