Tripura High Court
Smt. Nibedita Roy vs The State Of Tripura on 1 April, 2019
Author: Arindam Lodh
Bench: Arindam Lodh
Page - 1 of 27
HIGH COURT OF TRIPURA
AGARTALA
WP(C) 1103 OF 2018
Smt. Nibedita Roy,
D/o Chandi Das Roy,
Resident of North Banamalipur,
New Bodhjung Road, Youngs Corner Club,
Agartala, West Tripura, PIN-799001.
---- Petitioner(s).
Versus
1. The State of Tripura, to be represented by the
Secretary, Health & Family Welfare Department,
Govt. of Tripura, New Secretariat Complex,
Kunjaban, Agartala, West Tripura, PIN-799010.
2. The Principal Secretary, GA (P & T) Department,
Government of Tripura, New Secretariat Complex,
Kunjaban, Agartala, PIN-799010
3. The Director of Health Services,
Govt. of Tripura, Gorkhabasti,
Agartala, West Tripura, PIN-799006.
4. Tripura Public Service Commission,
(To be represented by the Secretary, Tripura Public Service
Commission, Akhaura Road, Agartala, Tripura, PIN-799001.
---Respondent(s).
For Petitioner(s) : Mr. P. Roy Barman, Advocate.
Mr. Samarjeet Bhattacharjee, Advocate.
Mr. K. Nath, Advocate.
For Respondent(s) : Mr. M. Debbarma, Addl. G.A. Mr. P. Datta, Advocate.
Mr. T. Debbarma, Advocate.
Date of hearing and
delivery of judgment : 01.04.2019
and order
Whether fit for
reporting : Yes
HON'BLE MR JUSTICE ARINDAM LODH
Judgment & Order (Oral)
Heard Mr. P. Roy Barman, learned counsel appearing for the petitioner as well as Mr. M. Debbarma, learned Addl. G.A. appearing for the State-respondents and Mr. P. Datta and Mr. T. Debbarma, Page - 2 of 27 learned counsels appearing for the Tripura Public Service Commission (for short, TPSC).
2. By means of this writ petition under Article 226 of the Constitution of India, the petitioner has raised her grievance stating, inter alia, that in response to an advertisement issued by the TPSC, she submitted application against the post of Technical Assistant (Pharmacy) and she was selected in due process. The respondent Nos. 2 and 3 issued offer of appointment in her favour on the recommendation of the TPSC. The petitioner also accepted the offer of appointment within the stipulated period after resigning from the post of Pharmacovigilance Associate and she was engaged in AGMC & GBP Hospital, Agartala. But till today, the petitioner was not issued with formal appointment letter. So, she has prayed for invoking the extraordinary jurisdiction of this Court and direct the respondents i.e. the respondent Nos. 1, 2 and 3 to issue appointment letter in favour of her.
Before adverting to the legitimacy of the claim of the petitioner, the relevant facts necessary to be elucidated are as follows:
TPSC vide advertisement No.12/2016, in Item No.04, invited applications in prescribed form from bonafide citizens of India for selection of candidates for two (UR 1, ST 1) posts of Technical Assistant (Pharmacy), Group B, Non-Gazetted, under the Health and Family Welfare Department, Govt. of Tripura, in the scale of pay Rs. 10,230/- -- Rs.34,800/-, PB 3 with grade pay of Rs.4600/-. As per the advertisement, the essential qualification is Page - 3 of 27 Bachelor in Pharmacy from any recognized Board or University and two years Laboratory experience in a recognized Pharmaceutical Institution as desired in the advertisement (Annexure 1 to the writ petition).
The petitioner obtained Degree in Bachelor in Pharmacy from Tripura University in Septermber,1998. Thereafter, the Petitioner obtained degree of M. Pharma from SRM University, Kanceepuram, Tamil Nadu, India. The petitioner has been the teaching staff of the PH College of Pharmacy, Mard-e-Meherban Campus of Health Sciences in the capacity of Asstt. Professor Pharmacognosy from 21.01.2011 to 01.03.2014. Experience certificate to that effect has been issued by the Director, M-E-M Institute of Health Sciences, Jammu. The Petitioner also served as patient safety Pharmacovigilance Associates in Adverse Drug Reaction Monitoring Centre, Department of Pharmacology, Agartala Govt. Medical College in GBP Hospital, Agartala under Pharmacovigilance of India (PvPI) w.e.f. 04.12.2014 till 08.02.2018.
3. Having all the requisite qualifications the petitioner applied for the post of Technical Assistant (Pharmacy) and the respondent No.4, i.e. the Tripura Public Service Commission after being screened the required documents and essential qualifications, asked the petitioner to participate in the selection process by way of appearing in written test as well as oral test. Accordingly, the petitioner appeared in the written test as well as in the oral interview. The Controller of Examination, TPSC, vide communication dated 03.01.2018, informed the petitioner that her Page - 4 of 27 name was recommended by TPSC for the post of Technical Assistant (Pharmacy), Group B, Non-Gazetted, under the Health and Family Welfare Department, Govt. of Tripura (Annexure-4 to the petition). Thereafter, by Memo dated 08.03.2018, the Additional Secretary and Director of Health Services, Govt. of Tripura issued offer of appointment in favour of the petitioner for the post of Technical Assistant (Pharmacy) on temporary basis stipulating some terms and conditions. In that offer of appointment, the petitioner was asked to communicate her acceptance in conformity with the terms of the offer dated 08.03.3018. She was further asked to produce all the relevant documents as mentioned in the said offer along with the attestation form duly filled in by 31.03.2018 to the office of the Ex Officio, Additional Secretary and Director of Health Services, Govt. of Tripura, Agartala. It was further mentioned in the said offer that if no reply is received from the candidate, i.e. the petitioner by the prescribed date, the offer will be treated as cancelled.
4. On receipt of the offer of appointment dated 08.03.2018, the petitioner communicated her acceptance on 26th March, 2018 (Annexure-6 to the writ petition) following the terms and conditions as stipulated in the offer of appointment dated 08.03.2018, in the following manner:
"To The Director of Health Services (DHS), Govt. of Tripura, Gurkhabasti, Agartala, West Tripura.
Dated, Agartala the 26th March, 2018 Subject: Acceptance of offer for the post of Technical Assistant (Pharmacy).
Page - 5 of 27 Respected Sir, With response to your memorandum, File No.F.2(1-
280)-MS/ESTT/2018, dated 8th March, 2018, I have the honour to inform you that I am pleased to accept the offer for the post of Technical Assistant (Pharmacy) under the Director of Health Services, Govt. of Tripura. It shall be matter of great pride and honor for me to join under the Director of Health Services. I am enclosing the attested copies of all testimonials along with this attestation form.
Thanking you, Yours sincerely, Sd/-
(Nibedita Roy) 26.03.2018 D/o Chandidas Roy, North Banamalipur, P.O. Agartala, Dist.
Tripura (West), PIN 799001 Mob.No.8118972360.
List of enclosures:
1. Marksheets of Madhyamik/H.S. (+2 stage)/D.Pharm/B.Pharm/M.Pharm (attested copy).
2. Certificates of Madhyamik/H.S.(+2 stage)/B.Pharm/M.Pharm (attested copy)
3. Madhyamik ADMIT card (attested copy).
4. Citizenship/PRTC (attested copy)
5. Family income certificate (in original)
6. Employment exchange card (in original)
7. Ration Card (attested copy)
8. Pharmacy registration certificate (attested copy)
9. Experience certificates (attested copy)
10.Relieving letter (attested copy)
11.Affidavit certificate (attested copy).
Before communicating her acceptance, the petitioner had to resign from her previous organization and she was also relieved from her duties w.e.f. 08.02.2018. (Annexure-7 to the writ petition).
5. The petitioner was legitimately expecting the issuance of formal appointment letter in favour of her but even after the expiry of three months from the date of her acceptance, the petitioner was not issued with the formal appointment letter. That Page - 6 of 27 led her to submit representation on 27.07.2018 along with another selectee (Annexure-8 to the writ petition).
6. Having received no response, the petitioner submitted further representations on 30.10.2018 and lastly, on 15.11.2018, but, nothing yielded any result.
7. Under compelling circumstances, having found no other alternative, the petitioner has approached this Court with the following prayer:
(i) Issue Rule upon the respondents to show cause as to why a writ in the nature of mandamus and/or order/orders and/or direction/directions of like nature shall not be issued whereby directing the Respondents to issue appointment order in favour of the petitioner in the post of Technical Assisstant (Pharmacy) under Director of Health Services, Govt. of Tripura, in pursuance to the acceptance of offer of appointment given by the Respondents to the Petitioner for the post of Technical Assistant (Pharmacy) vide Memo, dated 08.03.2018, issued by the Addl.
Secretary & Director of Health Services, Govt. of Tripura.
(ii) Make the rules absolute.
(iii) Call for records.
(iv) Pass any further Order/Orders as this Hon'ble
High Court considered fit and proper."
8. The State-respondents have filed counter affidavit admitting the contentions of the petitioner. However, they have submitted that after the change of the previous Government, the new Government assumed the charge and the new State Council of Ministers has decided that the offer of appointment issued in favour Page - 7 of 27 of the petitioner to be kept in abeyance. Mr. Debbarma, learned Addl. G.A. has contended that it is a policy decision of the newly formed Govt. and it has every right to formulate its own policy. Further, Mr. Debbarma, has candidly submitted that the Court should be reluctant to interfere with the policy decision of the Govt. The State-respondents only implemented the policy decision of the Govt. and there is no arbitrariness in the said policy.
9. The TPSC also submitted counter affidavit. Mr. P. Dutta and Mr. T. Debbarma, learned counsels appearing for the TPSC have submitted that on being requisitioned from the State- respondents they issued advertisement inviting applications from the eligible candidates to fill up 2(two) posts of Technical Assistant (Pharmacy). Accordingly, many candidates appeared in the written test as well as oral interview and after considering the merits of the candidates, they found two persons including the petitioner as most meritorious and accordingly, the TPSC had recommended their names to the Principal Secretary, Govt. of Tripura, Health and Family Welfare Department, Agartala (Annexure-A to the counter affidavit of respondent No.4, TPSC).
10. Having due regard to the submissions and the materials before this Court, I find that there is no such allegation that there was any irregularity in the selection process of the TPSC or the selection suffers from any vices so that it would make the selection bad in law. There is no procedural infirmity and being satisfied the competent officer on behalf of State-respondents issued offer of appointment in favour of the petitioner. In compliance of the terms laid down in the offer of appointment the petitioner also submitted Page - 8 of 27 her acceptance within the prescribed period of time. The State- respondents have enclosed some documents with their counter affidavit as Annexure-R/1. Annexure-R/1 is the Note No.26, which is reproduced here-in-below, in verbatim, for convenience:
"Note No-26 In response to observation of the GA (P&T) Department recorded at Note No.17 ante, necessary clarification has been given by the DHS vide Note 24 ante. All these have been further discussed at Note No.25 ante.
2. In view of the above, GA (P&T) Deptt. may kindly consider to give clearance/concurrence so that DHS may issue appointment letters to those 2(two) persons in the vacant posts of Technical Assistant (Pharmacy) immediately.
Sd/-
(Samarjit Bhowmik) Secretary to the Government of Tripura."
It is crystal clear from the above note that the State- respondent Nos. 1 & 2 i.e. Department of Health and Family Welfare had no manner of reservation to appoint the selected candidates including the petitioner in the posts of Technical Assistant (Pharmacy).
11. All on a sudden, the Deputy Secretary, GA (P&T) Department i.e. respondent No.2 generated a Note which may be reproduced here-in-below in extenso:
"F.2(1-280)-MS/Estt/2018 Health & Family Welfare Department Note No.27 Ref:- Note No.26 ante.
Proposal of the Administrative Department for issuing appointment order in respect of (i) Smt. Nibedita Roy (UR) and (ii) Smt. Kuheli Debbarma (ST) Page - 9 of 27 to the post of Technical Assistant (Pharmacy) has been examined.
2. It is to mention that all existing recruitment process initiated by the administrative departments and TPSC has been cancelled by the Government vide this Department's memo No.F.20(1)-GA(P&T)/18 dated 20.08.2018. As such these two cases may also be treated as cancelled.
3. However, the Health & Family Welfare Department may approach Council of Ministers for special consideration for these cases if they have adequate justification.
Sd/-
Deputy Secretary GA (P&T) Department."
The aforesaid note is enough to manifest that the selection of the petitioner followed by issuance of offer of appointment, the acceptance of which was being duly communicated were all cancelled.
12. After receipt of the said communication vide Note No.27, the Health and Family Welfare Department initiated a Note No.28 requesting the Council of Ministers to consider the proposal for issuance of appointment order in favour of the petitioner along with another as recommended by the TPSC in the following manner:
"Note No.28 Proposal for issue of appointment orders in respect of 2(Two) persons in the vacant posts of Technical Assistant (Pharmacy) (Non-Gazetted) in the scale of pay of Pay band-3 of Rs.10,230-34,800 under the Health & Family Welfare Department as per recommendation of Tripura Public Service Commission.
2. TPSC conducted screening test on 08-12-2017 & selected Smti. Nibedita Roy and Smti Kuheli Debbarma on the basis of Marks obtained in the test and recommended for appointment to the posts of Technical Assistant (Pharmacy).
Page - 10 of 27
3. As per recommendation of TPSC and with the concurrence of the Hon'ble Health Minister, offer has already been issued in favour of these two candidates vide order No.F.2(1-280)-MS/ESTT/2018 dated 08-03- 2018.
4. The matter was communicated to the GA (P&T) Department for necessary concurrence & the GA (P&T) Department opined under their UO No.407/GA (P&T)/19 dated 25-01-2019 to obtain approval of the Council of Ministers.
5. Smti. Nibedita Roy and Smti kuheli Debbarma who were given offer to the post of Technical Assistant (Pharmacy) has filed two writ petitions being no.WP(C) 1102/2018 & WP(C) 1103/2018 seeking direction from the Hon'ble High Court to issue appointment order in favour of them.
6. The appointment will be on fixed pay basis and monthly remuneration in the Pay Matrix Level-12 (pre- revised scale PB-3, Rs.10,230-34,800/- with the grade Pay Rs.4600/-) plus additional allowances that may be increased by the Government from time to time.
In view of the above position, the Council of Ministers may kindly consider the proposal for issue of appointment order in favour of Smti. Nibedita Roy and Smti. Kuheli Debbarma as recommended by the TPSC. A draft Memorandum for the Council of Minister's at Flag-A is typed and placed in the file for consideration."
13. The draft Memorandum was prepared vide Note No.30 which is also annexed with the counter affidavit filed by the State- respondents.
I also take notice of Note No.31 which says - "Draft combined Memo placed in the file for kind consideration as per procedure."
14. The matter was also taken up to the Minister concerned and on perusal of the Note, it is revealed that Minister has given the Note in the following manner:
"Since the matter is still pending before the Hon'ble High Court, we can wait for the outcome."
Page - 11 of 27 This Note has been approved by the Chief Minister, the Secretary (Health) and Director of Health Services.
From the above notes, it may infer that Council of Ministers i.e. government is waiting for the outcome of the order of this Court for its next course of action.
15. Mr. Debbarma, learned Addl. G.A. appearing for the State-respondents has drawn my attention to the Memorandum prepared to be placed before the Council of Ministers (Annexure- R/2 to the counter affidavit filed by the State-respondents) wherein, it dealt with the matters related to the petitioner as well as the other selected persons. At Para 6 of the said Memorandum it is decided as under:
"6. The GA (P&T) Department vide their memo dated 14-03-2018 has stated that the recruitment process of the Government shall be reviewed and pending such review, all the ongoing recruitment/selection processes in Department/autonomous bodies etc. under the Government, shall be kept in abeyance with immediate effect. But, recruitment process initiated on the directions of Hon'ble Supreme Court/High Court or any other court within the State shall not be stopped without obtaining specific orders from the concerned court. The clarification of GA (P&T) has already been clarified by the DHS vide note no.24. On perusal of note no.24 & 25 of the Secretary (Health) (Copy enclosed vide Annexure-I), the GA (P&T) Department has examined & advised to cancel the appointment in respect of 2(two) persons namely Smt. Nibedita Roy and Smt. Kuheli Debbarma or to place the matter before the Council of Ministers for special consideration into the matter (Copy enclosed vide Annexure-II)."
16. At Para 10 of the said Memorandum, it was further decided that--
Page - 12 of 27 "10. The Council of Ministers may kindly consider the proposal on special case for issue of appointment orders in favour of Smt. Nibedita Roy and Smt. Kuheli Debbarma as recommended by the TPSC." At Para 11 of the said Memorandum, it is stated that--
"11. The Hon'ble Chief Minister, Tripura has kindly approved placing of this matter before the Council of Ministers for special consideration."
17. The facts as encapsulated here-in-above, clearly reveal that there was no infirmity or any kinds of irregularity committed by the TPSC. The State-respondents while in urgent need to fill up the said two posts of Technical Assistant (Pharmacy), they made requisition to the TPSC, respondent No.4 to select two persons suitable for the said two posts through established procedure of public employment. After due process, the two persons were selected and recommended by the TPSC. The State-respondents were issued offer of appointment in favour of 2(two) selected candidates including the petitioner. The petitioner accepted the offer of appointment.
18. Now, the question arises when the petitioner accepted the offer of appointment, whether the State-respondents can deny the issuance of formal appointment letter in favour of the petitioner.
19. If this fact is considered in the common law parlance of contract, then, in my considered view, when the offer made by the Offeror was communicated to the Offeree, it creates a legal character and the offer becomes binding on the Offeror. The law is further settled in this regard that the moment the acceptance of Page - 13 of 27 offer reaches to the Offeror, the contract is concluded. Thereafter, the revocation is absolutely a violation of the contract. Further, when the contract is concluded and legal character is developed between the Offeror and Offeree, it is the bounden duty of the Offeror to perform his part of legal obligation i.e. his part of contract and other consequential steps is a mere formality.
20. Section 2(a) of the Contract Act stipulates that the person who makes the offer "is known as the promisor or Offeror and the person to whom an offer is made is known as the promisee or Offeree". Keeping in view the aforesaid established principle, in the context of the present case, it is aptly be inferred that the State-respondents being the Offeror(s) or promisor(s) issued the offer of appointment. As soon as it was communicated to the petitioner, the petitioner has received the said offer, so, the part of such Offeror(s) is complete. Now the moment the Offeree or promisee i.e. the petitioner herein who accepted the offer and communicated the same to the Offeror(s) or promisor(s) i.e. the State-respondents herein reaches and with their acknowledgment of the said receipt of acceptance, the contract for the purpose the offer was made is concluded. Any revocation thereafter without assigning any just, fair and reasonable cause would suffer from the vices of the arbitrariness and hit the provisions of Article 14 and 16 of the Constitution of India.
21. Taking the queue from the legal principle drawn here- in-above, the matter can be looked into from another angle. In the case at hand, it is seen that the petitioner was serving under another organization as Pharmacovigilance Associate. She Page - 14 of 27 resigned from the said post as soon as she received the offer of appointment. She accepted it which was acknowledged by the respondent Nos. 1 & 3. Now, the respondents-employer cannot backtrack from their promise which they promised by way of issuance of the offer of appointment which was accepted by her and communicated the same to the respondents-employer. Further, by way of resigning from her earlier service and communicating her acceptance for the post of Technical Assistant (Pharmacy), she being altered her position was legitimately expecting to be set in her new position and, now the departure will attract the doctrine of promissory estoppel. The scope and application of doctrine of promissory estoppel has vivaciously been dealt in Manuelsons Hotels (P) Ltd. Vrs. State of Kerala & Ors. (2016) 6 SCC 766 where the Apex Court has observed thus: [SCC P.782, Para 19 and 20]:
"19.In fact, we must never forget that the doctrine of promissory estoppel is a doctrine whose foundation is that an unconscionable departure by one party from the subject matter of an assumption which may be of fact or law, present or future, and which has been adopted by the other party as the basis of some course of conduct, act or omission, should not be allowed to pass muster. And the relief to be given in cases involving the doctrine of promissory estoppels contains a degree of flexibility which would ultimately render justice to the aggrieved party. The entire basis of this doctrine has been well put in a judgment of the Australian High Court reported in The Commonwealth of Australia v. Verwayen, (1990) 170 C.L.R. 394(Aust), by Deane,J. in the following words:
1. While the ordinary operation of estoppel by conduct is between parties to litigation, it is a doctrine of substantive law the factual ingredients of which fall to be pleaded and resolved like other factual issues in a case. The persons who may be bound by or who may take the benefit of such an estoppel extend beyond the immediate parties to it, to their privies, whether by blood, by estate or by contract. That being so, an estoppel by conduct can be the origin of primary rights of property and of contract.
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2. The central principle of the doctrine is that the law will not permit an unconscionable - or, more accurately, unconscientious - departure by one party from the subject matter of an assumption which has been adopted by the other party as the basis of some relationship, course of conduct, act or omission which would operate to that other party's detriment if the assumption be not adhered to for the purposes of the litigation.
3. Since an estoppel will not arise unless the party claiming the benefit of it has adopted the assumption as the basis of action or inaction and thereby placed himself in a position of significant disadvantage if departure from the assumption be permitted, the resolution of an issue of estoppel by conduct will involve an examination of the relevant belief, actions and position of that party.
4. The question whether such a departure would be unconscionable relates to the conduct of the allegedly estopped party in all the circumstances. That party must have played such a part in the adoption of, or persistence in, the assumption that he would be guilty of unjust and oppressive conduct if he were now to depart from it. The cases indicate four main, but not exhaustive, categories in which an affirmative answer to that question may be justified, namely, where that party:
(a) has induced the assumption by express or implied representation;
(b) has entered into contractual or other material relations with the other party on the conventional basis of the assumption;
(c) has exercised against the other party rights which would exist only if the assumption were correct;
(d) knew that the other party laboured under the assumption and refrained from correcting him when it was his duty in conscience to do so.
Ultimately, however, the question whether departure from the assumption would be unconscionable must be resolved not by reference to some preconceived formula framed to serve as a universal yardstick but by reference to all the circumstances of the case, including the reasonableness of the conduct of the other party in acting upon the assumption and the nature and extent of the detriment which he would sustain by acting upon the assumption if departure from the assumed state of affairs were permitted. In cases falling within category (a), a critical consideration will commonly be that the allegedly estopped party knew or intended or clearly ought to have known that the other party would be induced by his conduct to adopt, and act on the basis of, the assumption. Particularly in cases falling within category (b), actual belief in the correctness of the fact or state of affairs assumed may not Page - 16 of 27 be necessary. Obviously, the facts of a particular case may be such that it falls within more than one of the above categories.
5. The assumption may be of fact or law, present or future. That is to say it may be about the present or future existence of a fact or state of affairs (including the state of the law or the existence of a legal right, interest or relationship or the content of future conduct).
6. The doctrine should be seen as a unified one which operates consistently in both law and equity. In that regard, "equitable estoppel" should not be seen as a separate or distinct doctrine which operates only in equity or as restricted to certain defined categories (e.g. acquiescence, encouragement, promissory estoppel or proprietary estoppel).
7. Estoppel by conduct does not of itself constitute an independent cause of action. The assumed fact or state of affairs (which one party is estopped from denying) may be relied upon defensively or it may be used aggressively as the factual foundation of an action arising under ordinary principles with the entitlement to ultimate relief being determined on the basis of the existence of that fact or state of affairs. In some cases, the estoppel may operate to fashion an assumed state of affairs which will found relief (under ordinary principles) which gives effect to the assumption itself (e.g. where the defendant in an action for a declaration of trust is estopped from denying the existence of the trust).
8. The recognition of estoppel by conduct as a doctrine operating consistently in law and equity and the prevalence of equity in a Judicature Act system combine to give the whole doctrine a degree of flexibility which it might lack if it were an exclusively common law doctrine. In particular, the prima facie entitlement to relief based upon the assumed state of affairs will be qualified in a case where such relief would exceed what could be justified by the requirements of good conscience and would be unjust to the estopped party. In such a case, relief framed on the basis of the assumed state of affairs represents the outer limits within which the relief appropriate to do justice between the parties should be framed." (emphasis supplied)
20. The above statement, based on various earlier English authorities, correctly encapsulates the law of promissory estoppel with one difference - under our law, as has been seen hereinabove, promissory estoppel can be the basis of an independent cause of action in which detriment does not need to be proved. It is enough that a party has acted upon the representation made. The importance of the Australian case is only to reiterate two fundamental concepts relating to the doctrine of promissory estoppel - one, that the central principle of the doctrine is that the Page - 17 of 27 law will not permit an unconscionable departure by one party from the subject matter of an assumption which has been adopted by the other party as the basis of a course of conduct which would affect the other party if the assumption be not adhered to. The assumption may be of fact or law, present or future. And two, that the relief that may be given on the facts of a given case is flexible enough to remedy injustice wherever it is found. And this would include the relief of acting on the basis that a future assumption either as to fact or law will be deemed to have taken place so as to afford relief to the wronged party."
22. In the instant case, the crux of the stand taken by the State-respondents is that after the formation of the new Government, the new Council of Ministers has taken a decision that all recruitment process initiated by the previous Government as well as the TPSC (the respondent No.4), shall be kept in abeyance.
23. From Note No.27 as reproduced here-in-above, it is revealed that the selection and offer of appointment issued in favour of the petitioner is treated to be cancelled in view of the decision of the GA(P&T) Department which was taken in the month of March,2018. Before the decision of cancellation, the State Health and Family Welfare Department, i.e. the respondent Nos. 1, 2 and 3 had persuaded the Government to consider the appointment of the petitioner in the post of Technical Assistant (Pharmacy) as she was recommended by the TPSC.
24. This Court in course of hearing of the matter has put a definite question to the learned counsel appearing for the State- respondents that what was the object the Government wanted to achieve from its decision to keep all selection of the eligible candidates in abeyance.
Page - 18 of 27
25. Mr. Debbarma, learned Addl. G.A. only answered that it is the decision of the new Government. On repeated inquiry, Mr. Debbarma, learned Addl. G.A. could not reply satisfactorily about the object of such decision.
26. At this juncture, the question arises whether the recruitment process and the selection thereof, if any, recommended by a constitutional body like Public Service Commission can be rejected with the formation of any new Government in absence of any just, fair and reasonable cause. It is now well 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 a 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.
27. It is true, the question whether an impugned action is arbitrary or not, is ultimately to be answered on the facts and 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.
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28. 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 one ever so high, the laws are above all. This is what men in power must remember, always. Almost a quarter century back, the Apex Court in S.G. Jaisinghani v. Union of India and Ors., [1967] 2 SCR 703, at p.7 18-19, [AIR 1967 SC 1427] held that absence of arbitrary power is the first essential of the rule of law upon which rests our constitutional system. The Apex Court ruled that in a system governed by rule of law, any discretion conferred upon the executive authorities must be confined within clearly defined limits. The Apex Court made this observation with approval of the observations of Douglas, J. in United States v. Wunderlich [1951 SCC OnLine US SC 93, Para 9] as under:
"9. Law has reached its finest moments when it has freed man from the unlimited discretion of some ruler....... Where discretion is absolute, man has always suffered."
29. The Apex Court in State of Punjab and another Vrs. Brijeshwar Singh Chahal & Anr.[(2016) 6 SCC 1] while placing reliance on the enunciated principle in S.G. Jaisinghani (supra) at Para 20 has made the following observations: [SCC p.22, Para 21 to 32]
21. A similar sentiment was expressed by this Court in E P Royappa v. State of Tamil Nadu and Anr. (1974) 4 SCC 3 wherein this Court declared that Article 14 is the genus while Article 16 is a specie and the basic principle which informs both these Articles is equality and Page - 20 of 27 inhibition against discrimination. Equality, declared this Court, was antithetic to arbitrariness. The Court described equality and arbitrariness as sworn enemies, one belonging to the rule of law in a republic and the other to the whims and caprice of an absolute monarch. Resultantly if an act is found to be arbitrary, it is implicit that it is unequal both according to political logic and constitutional law, hence violative of Article 14 and if it affects any matter of public employment it is also violative of Article 16. This Court reiterated that Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and inequality of treatment.
22. Then came the decision of this Court in Maneka Gandhi v. Union of India (1978) 2 SCR 621, wherein this Court held that the principle of reasonableness both legally and philosophically is an essential element of equality and that non-arbitrariness pervades Article 14 with brooding omnipresence. This implies that wherever there is arbitrariness in State action, whether it be legislative or executive, Article 14 would spring into action and strike the same down. This Court held, that the concept of reasonableness and non- arbitrariness pervades the constitutional scheme and is a golden thread, which runs through the entire Constitution.
23. In Ramana Shetty v. International Airport Authority of India, AIR 1979 (SC) 1628, this Court relying upon the pronouncements of E.P. Royappa and Maneka Gandhi (supra) once again declared that state action must not be guided by extraneous or irrelevant considerations because that would be denial of equality. This Court recognized that principles of reasonableness and rationality are legally as well as philosophically essential elements of equality and non-arbitrariness as projected by Article 14, whether it be authority of law or exercise of executive power without the making of a law. This Court held that State cannot act arbitrarily in the matter of entering into relationships be it contractual or otherwise with a third party and its action must conform to some standard or norm, which is in itself rational and non-discriminatory.
24. In D.S. Nakra v. Union of India ,(1983) 1 SCC 305, this Court reviewed the earlier pronouncements and while affirming and explaining the same held that it must now be taken to be settled that what Article 14 strikes at is arbitrariness and that any action that is arbitrary must necessarily involve negation of equality.
25. In Dwarkadas Marfatia v. Board of Trustees of the port of Bombay, (1989) 3 SCC 293, this Court had an Page - 21 of 27 occasion to examine whether Article 14 had any application to contractual matters. This court declared that every action of the state or an instrumentality of the State must be informed by reason and actions that are not so informed can be questioned under Articles 226 and 32 of the Constitution.
26. Subsequent decisions of this Court in Som Raj & Ors. v. State of Haryana & Ors. (1990) 2 SCC 653, Neelima Misra v. Harinder Kaur Paintal & Ors. (1990) 2 SCC 746 and Sharma Transport v.
Government of A.P & Ors. (2002) 2 SCC 188 have simply followed, reiterated and applied the principles settled by the pronouncements in the earlier mentioned cases.
27. We have thus far referred to decisions that are not subject specific and settle the legal position in the context of varied fact situations. The case at hand attracts the application of the principles that are authoritatively settled by the decisions to which we have referred above. Application of those principles, apart from the question, is whether appointment of lawyers by the State Government simply signifies professional engagement of those appointed or has any public element also and if such appointments have a public element, whether the making of the same can itself be the subject matter of judicial review. The extent and nature of such review is an incidental question that would fall for determination in the facts of the case before us. We shall presently advert to those questions but before we do so we must state that we are not on virgin ground. A few decisions to which we shall presently refer have examined at considerable length, the very same questions and answered them with considerable aplomb. We may gainfully refer to some of those pronouncements if not all.
25. In Shrilekha Vidyarthi v. State of U.P. (1991) 1 SCC 212, which happens to be the first of these decisions, this Court had an occasion to examine whether Government Counsel in the districts are holders of an 'office or post' or such appointments are no more than professional engagements like the one between a private client and his lawyer. That case arose out of a challenge mounted by Government Counsel who were engaged throughout the State of Uttar Pradesh to handle civil, revenue or criminal cases and whose services were en masse terminated by the State only to be replaced by fresh appointments on the basis of a new panel prepared for that purpose and communicated to the District Magistrates concerned. On behalf of the State, it was argued that the engagement of Page - 22 of 27 Government Counsel was nothing but a professional engagement between a client and his lawyer with no public element attached to it.
29. Rejecting that contention, this Court held that the appointment of the District Government Counsel by the State Government was not merely a professional engagement but had a public element attached to it. This Court noted that Government Counsel were paid remuneration out of the public exchequer and that having regard to Sections 24, 25 and 321 of the Code of Criminal Procedure, the public prosecutors were entrusted the responsibility of acting only in the interest of administration of justice. In the case of Public Prosecutors, declared this Court, the additional public element flowing from the statutory provisions in the Code of Criminal Procedure, clothed the public prosecutors with the attribute of the holders of a public office which cannot be whittled down by the assertion that their engagement is purely professional between a client and his lawyer with no public element attached to it. This was according to this Court, sufficient to attract Article 14 and bring the question of validity of the impugned circular within the scope of judicial review.
30. The decision in Shrilekha's case (supra) is noteworthy for the additional reason that the same held judicial review of State action permissible even when the engagement of the Government counsel may be contractual in nature. This Court observed :
"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 public interest and those of a private individual, engaged in similar activities, being Page - 23 of 27 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."
31. Relying upon the decisions of this Court in Ramana Dayaram Shetty v. International Airport Authority of India (1979) 3 SCC 489; Kasturi Lal Lakshmi Reddy v.
State of Jammu and Kashmir(1980) 4 SCC 1; Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay (1989) 3 SCC 293 and Mahabir Auto Stores and Others v. Indian Oil Corporation and others (1990) 3 SCC 752, this Court held that the power of judicial review and the sweep of Article 14 was wide enough to take within its fold the impugned circular issued by the State in exercise of its executive powers irrespective of the precise nature of appointment of the Government Counsel in the districts or the rights, contractual or statutory, which the appointees may have. This Court reiterated the well settled principle that State action can survive only if it does not suffer from the vice of arbitrariness which is the very essence of Article 14 of the Constitution and Rule of law. This Court observed : [(Shrilekha (supra) SCC p.243 para 35] "35. It is now too well-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. This distinction between the State and a private individual in the field of contract has to be borne in the mind."
32. Applying the above principle to the circular under challenge, this Court held that arbitrariness was writ large on the same as it gave an impression as if the State action was taken under a mistaken belief of applicability of "spoils system" under our constitution. This Court held that even though in the case of State, public interest should be the guiding consideration while considering the suitability of the appointees yet the impugned State action appeared to have been taken with the sole object of terminating all existing appointments irrespective of the subsistence or expiry Page - 24 of 27 of the tenure or the suitability of the incumbents. The following passage from the judgment sums up the trend of the judicial pronouncements which increasingly favour State activity even in contractual matter being brought within the purview of judicial review:[ (Shrilekha (supra), SCC p.248, para 48].
"48. In our view, bringing the State activity in contractual matters also within the purview of judicial review is inevitable and is a logical corollary to the stage already reached in the decisions of this Court so far. Having fortunately reached this point, we should not now turn back or take a turn in a different direction or merely stop there. In our opinion, two recent decisions in M/s Dwarkadas Marfatia and Sons, (supra) and Mahabir Auto Stores & Ors.,(supra) also lead in the same direction without saying so in clear terms. This appears to be also the trend of the recent English decisions. It is in consonance with our commitment to openness which implies scrutiny of every State action to provide an effective check against arbitrariness and abuse of power. We would much rather be wrong in saying so rather than be wrong in not saying so. Non-arbitrariness, being a necessary concomitant of the rule of law, it is imperative that all actions of every public functionary, in whatever sphere, must be guided by reason and not humour, whim, caprice or personal predilections of the persons entrusted with the task on behalf of the State and exercise of all power must be for public good instead of being an abuse of the power." (emphasis supplied)
30. Another significant aspect also is required to be noticed and dwelled upon in brief that the Public Service Commission of the Union and States established under Article 315 of the Constitution of India have been regarded as the charter of premier recruiting agencies. Article 315 to Article 323 govern the powers and functions of the Public Service Commissions, though, by this time this Court has witnessed that its role has already been eroded to a great extent, still the people of India and the States keep faith in the process of recruitment of suitable and eligible candidates in Govt. employment. In this particular case, there is no allegation Page - 25 of 27 against the selection process undertaken by the State Public Service Commission, i.e. the TPSC. From the perusal of the notes of the respondents it appears that the Council of Ministers never expressed any doubt over the role and power exercised by the TPSC in making the recommendation of the petitioner for the post of Technical Assistant (Pharmacy) under the respondent Nos. 1, 2 and 3.
31. In my considered view, when the selection was made in a fair manner and in compliance with the established procedure of public employment, there should not be any reason to discard or cancel offer of appointment issued in favour of the petitioner, particularly, when it was accepted by the petitioner and acknowledged by the respondent Nos. 1, 2 and 3.
32. The change of government is only an ideological change of a political party in a democratic set up. At last, it is the government and only the government, and its largesse that should lead it to run. The government being the master of good governance will have to establish the 'Rule of Law' and should not segregate its citizens and adapt any such policy to dislodge the doctrine of fairness in public employment. Further, it being a benevolent State authority has the solemn and divine duty to uphold the 'Rule of Law' and to earn the faith of its citizens qua not to be benign the morale of the people.
33. The Apex Court in the long line of decisions beginning from the case of R.D.Shetty Vrs. International Airport Authority, (1979), 3 SCC 497 has categorically held that--
Page - 26 of 27 "The Government is not and should not be as free as an individual in selecting the recipients for its largesse. Whatever its activity, the Government is still the Government and will be subject to restraints, in herein in its position in a democratic society. A democratic Government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal".
34. In the present case also, there is unconscionable departure by the respondents-employer from issuing the formal appointment letter as a consequential effect of the acceptance of offer of appointment. The State-respondents are duty bound to issue formal appointment letter immediately to rectify the wrong, they already committed by this time.
35. Keeping in mind the aforesaid dictum of law followed by many of the decisions later on till Powai Panchsheel Co-OP. Hsg. Society and Ors. Vs. Maharashtra Housing Area Development Authority (MHADA) and Ors.,(2019) 2 SCC 294, in the context of the present case, the decision of the Council of Ministers to annul the "regular and fair" recruitment process in the post of Technical Assistant (Pharmacy) appears to be vitiated as being unreasonable, arbitrary and contrary to the spirit of Article 14 of the Constitution of India and in furtherance thereof, the Government is totally silent what object they actually wanted to achieve before taking such decision. For the reasons, the State authority should not be allowed to scuttle the indefeasible accrued right of person(s), like the petitioner herein. As such, the grounds assigned by the State- respondents in their reply are not tenable/sustainable and the decision not to appoint the petitioner is accordingly set aside.
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36. In the backdrop of the aforesaid discussion, on facts and legal position, I may summarize the case in the manner that the petitioner is entitled to have issued with the formal appointment letter in the post of Technical Assistant(Pharmacy) since the contract between her being the promisee and her employer, the respondents No. 1, 2 and 3 herein, being the promisor is concluded, that apart, the decision of the Council of Ministers is held to be irrational and unwarranted and violative of Article 14 and 16 of the Constitution of India.
37. In the result, the instant writ petition is allowed. The respondent Nos. 1 & 3 are directed to issue the formal appointment letter in favour of the petitioner, irrespective of the stand taken by the Council of Ministers stated in the Counter Affidavit for the reasons and grounds portrayed above, within a period of 30 (thirty) days from the date of receipt of the copy of the judgment.
38. With these observations and directions, the instant writ petition stands disposed.
JUDGE