Himachal Pradesh High Court
Asha Ram And Another vs State Of H.P. And Others on 20 July, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA.
CWP No. 2381 of 2015
.
Reserved on: 10.7.2015
Decided on: 20.7.2015
______________________________________________________
Asha Ram and another. ...Petitioners.
Versus
State of H.P. and others. ...Respondents.
of
______________________________________________________
Coram:
rt
Hon'ble Mr. Justice Rajiv Sharma, Judge.
Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? 1 Yes
For the Petitioners: Mr. Vivek Singh Thakur, Advocate.
For the Respondents: Mr. M.A. Khan, Addl. A.G. with
Mr. Ramesh Thakur, Asstt. Advocate
General.
______________________________________________________
Per Justice Rajiv Sharma, Judge:
Petitioner No. 1 is a social activist and has remained Zila Parishad Member from Ridi Kuthera-48 in Zila Parishad, Kangra during 2005-2010. He also remained Pradhan Gram Panchayat, Kesba Kotla for two terms during 1985-1990 and 1995-2000. Petitioner No. 2 is also 1 Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 18:36:31 :::HCHP 2 a social activist. He remained member of Zila Parishad, Kangra from Ridi Kuthera constituency during 2000-2005.
.
Kotla Behr falls in Tehsil Jaswan, District Kangra.
2. The State Government has conducted survey twice for opening of Degree College in the area. The Principal, Government Degree College, Dhaliara, District of Kangra vide letter dated 10.11.2003 has prepared the report. The State Government took a conscious decision to rt open new 8 Degree Colleges at Rewalsar, Nihri, Lad Bharol, Baldawara, Sarahan, Nankhari, Kasauli and Kotla Behr vide notifications dated 6.9.2012 and 20.12.2013. The respondent-State de-notified opening of 8 Government Degree Colleges vide notification dated 2.3.2013.
Notification dated 2.3.2013 was assailed by filing various writ petitions, including CWP No. 1526 of 2013, titled as Harbans Lal Kalia vs. State of Himachal Pradesh pertaining to de-notifying of Government Degree College Kotla Behr.
The writ petitions were dismissed on 18.6.2013 after making observations. In sequel to the observations made by the Division Bench of this Court in judgment dated 18.6.2013, new guidelines have been framed by the respondent-State governing opening of new Government ::: Downloaded on - 15/04/2017 18:36:31 :::HCHP 3 Degree Colleges throughout the State of Himachal Pradesh dated 2.1.2014. The State Government again took a .
conscious decision whereby 14 new Government Degree Colleges were opened vide notifications dated 15.1.2014 and 24.2.2014, Annexures P-6 and P-7, respectively, but College of Kotla Behr was not included in the new of notifications Annexures P-6 and P-7. It would be pertinent to state that 7 colleges out of 8 colleges, which were de-
rt notified, were included in the notifications dated 15.1.2014 and 24.2.2014, respectively.
3. Mr. Vivek Singh Thakur, learned counsel for the petitioners, has vehemently argued that respondent-State has arbitrarily de-notified the College of Kotla Behr on 2.3.2013. He then contended that new College of Kotla Behr was required to be established as per the report, Annexure P-1 submitted by the Principal, Government Degree College, Dhaliara and also on the basis of new guidelines framed on 2.1.2014. He lastly contended that respondent-State has opened new Degree College at Rewalsar in District Mandi, which was one of the eight de-
notified colleges. This college was also de-notified on the three grounds, i.e low enrolment of students, lack of ::: Downloaded on - 15/04/2017 18:36:31 :::HCHP 4 infrastructures and availability of other colleges in close proximity. In other words, his submission is that .
respondents have not followed uniform policy for opening of new Degree Colleges in the State of Himachal Pradesh.
4. Mr. M.A. Khan, learned Additional Advocate General and Mr. Ramesh Thakur, learned Assistant of Advocate General have strenuously argued that not to open Degree College at Kotla Behr is a "policy decision".
5. rt We have heard the learned counsel for the parties and have gone through the pleadings carefully.
6. It would be evident from the report furnished by the Principal, Government P.G. College, Dhaliara dated 10.11.2003 that 104 kanals of land was available for opening of the college. Kotla Behr, as per the report, was 42 KMs, 41 KMs and 45 KMs from Government Post Graduate College Dhaliara, Government College Amb and Government College, Dehri, respectively. The land was available for the purpose from allotable pool of the Gram Panchayat. The feeding area was thickly populated. The total population was about one lakh. A private college was also being run in the name of S.R.D.A.V. College, Kotla Behr having strength of 300 students. There were six ::: Downloaded on - 15/04/2017 18:36:31 :::HCHP 5 government run senior secondary schools. The college was to cater the educational need of five Vidhan Sabha .
constituencies i.e. Jaswan, Chintpurni, Gagret, Jwali and Dasuya of Punjab. The "no objection certificate" from the Principal Government Senior Secondary School Kotla Behr for the purpose of temporary accommodation was also of enclosed with the report. It would also be apt at this stage to take stock of notification dated 2.1.2014 issued by the rt state government pursuant to judgment rendered by this Court in CWP No. 1468 of 2013 and analogous matters dated 18.6.2013. There are 10 norms prescribed as per notification dated 2.1.2014. These read as under:
1. The distance of existing nearby college to proposed college shall not be usually less than 25 KM. The distance condition can be relaxed depending upon the need of the area/towns where the existing colleges are overcrowded and having the enrolment of students more than 300. 2 In thickly populated cities like Shimla, Mandi, Solan, Dharamshala, Una etc., where, there is huge rush of students and it is becoming increasingly difficult to run all the three streams in the presently available infrastructure, the matter to ::: Downloaded on - 15/04/2017 18:36:31 :::HCHP 6 shift some streams like Arts/Commerce, which don't require laboratory/etc. to out side the cities for quality education, .
instead of starting new college shall be considered.
3 For opening of new colleges, the availability of students in the feeder institutions also need to be kept in view. If of feeder institutions have sufficient enrolment in 10+2 class i.e. 400 or more preferably in the schools within 10-12 KM rtradius, the matter for opening of new college may be considered subject to meeting of other parameters and keeping in view the geographical conditions of the area.
4 For establishing of new Govt. Degree Colleges, normally land measuring 35 bighas is required. The requirement will be sufficient for providing Arts, Commerce, Science Blocks and Administrative Block as well as residential/hostels. But, since only Arts stream classes will be started in the beginning, this condition could be relaxed, keeping in view the local conditions. The total land requirement shall be earmarked as under:-
::: Downloaded on - 15/04/2017 18:36:31 :::HCHP 7a) 10 bighas for construction of Teaching Blocks (Administrative, Arts & Science Blocks) as detailed above.
.
b) 10 bighas for play ground and stadium etc. for sports and other open-air-co-curricular activities.
c) 5 bighas for constructing hostels for boys and girls.
of
d) 5 bighas for the construction of residential accommodation for the staff.
rte) 5 bighas for further expansion as per future requirements.
5 For opening of new government colleges, adequate budget provision for non- recurring and recurring expenditure shall be made. Initially the Government will start only Arts Stream in the first phase, thus, around rupees five crore in non-
recurring and one crore rupees for
recurring expenditure shall be made
available. Thereafter, while considering the matter of starting of Commerce and Science Stream, the additional budget will be made available. These budget estimates are on the basis of the present prices and will be suitable enhanced in due course of time. The new college may only be started after ensuring availability of sufficient ::: Downloaded on - 15/04/2017 18:36:31 :::HCHP 8 accommodation. The adequate budget provision of Hostels as per requirement and staff quarters shall also be separately .
made available in the following years.
6. In the beginning, new Colleges will be started with English, History, Pol. Science, Hindi, Sociology, Economics, Maths, Sanskrit, Computer Application and of Physical Education subjects. However, other subjects like Geography, Music, Pub. Administration, Philosophy, rt Psychology, Painting, Dance, J & MC, could be considered on demand basis from the students and keeping in view the availability of faculty/infrastructure. The Commerce stream in the college will be started after enrolment reaches around 400 students in all the three classes i.e. B.A. -1, II & III year, whereas starting of the science stream would be considered after the total enrolment of around 500 students. This will, however, be subject to meeting of the other parameters and keeping in view the availability of faculty/infrastructure.
7 It may not be possible to start all the
subjects in all the colleges in the
beginning. Therefore, it has been decided to start all the subjects, where the ::: Downloaded on - 15/04/2017 18:36:31 :::HCHP 9 students enrolment in Arts stream is more than 1000. However, the permission of starting of all the subjects will be granted .
by the Government after considering the detailed proposal from the Principal through Director of Higher Education, keeping in view the availability of infrastructure etc. of 8 The classes in new colleges shall be treated when at least once post of Principal, one post of Asstt. Professor in rt each subject, one librarian (College Cadre) and non-teaching i.e. one Superintendent Gr-II, one Sr. Asstt., two clerks, three peons and two chowkidars are created and filled up to look after the Administrative, Academic & other College developmental activities.
9 Preference shall be given to open at least one new college in every Revenue Sub-
Division subject to the fulfillment of all other requirements/conditions as repeated above.
10 The provisions contained above may be considered for relaxation by the State Govt. keeping in view the unique geographical social or demographic conditions in order to improve access, equity and excellence in higher education.
::: Downloaded on - 15/04/2017 18:36:31 :::HCHP 107. According to parameter-1, the distance of nearby college to proposed college should not be less than .
25 kms. However, the distance condition could be relaxed depending upon the need of the area/town where the existing colleges are over crowded and having the enrollment of students more than 3000. The nearest of college available to the students from Kotla Behr was Government College Dhaliara at a distance of 42 kms, rt Government College Amb at a distance of 41 Kms and Government College Dehri at a distance of 45 kms.
However, according to the reply, the government has notified a new government degree college at Dada Siba which is at a distance of 25 kms from Kotla Behr. Dada Siba College has been opened only on 8.4.2015. There are eight Government Senior Secondary Schools, namely, Dada Siba, Terrace, Kotla Behr, Bathu Tipri, Bathra, Kahanpur, Seul and Ghamror in tehsil Jaswan of District Kangra. The total strength of the students in these schools is more than 1000. This fact has also been highlighted in Annexure P-1 with the report which was submitted to the state government by the Principal Government P.G. College, ::: Downloaded on - 15/04/2017 18:36:31 :::HCHP 11 Dhaliara. The requirement of the land as per new norms is 35 bighas. It has come in the report Annexure P-1 that the .
land available for the purpose of opening of college was about 104 kanals, a plain area. The land was also available as per the report from the concerned Gram Panchayat and the no objection certificate was also issued by the Gram of Panchayat to this effect. This condition could also be relaxed, since fresh classes were to be started in the rt beginning keeping in view the local conditions. The Principal, Government Senior Secondary School, Kotla Behr has also issued "no objection certificate" for providing temporary accommodation for opening the college.
Guideline No. 9 of letter dated 2.1.2014 provides that preference shall be given to open at least 1 new college in every revenue sub-division, subject to the fulfillment of all other requirements. The degree college in Kotla Behr would cater to five legislative assemblies and there is no college in legislative assembly Jaswan, in which Kotla Behr is situated.
8. Mr. M.A. Khan, learned Additional Advocate Genera has argued that now after opening of new college at Dada Siba, Kotla Behr was not qualified. However, fact of ::: Downloaded on - 15/04/2017 18:36:32 :::HCHP 12 the matter is that the distance between two colleges from Nagrota Surian and Haripur is less than 12 kms. This .
aspect has been overlooked by the state government. The justification for the two colleges i.e. Nagrota Surian and Haripur within the radius of 12 kms is that in Jawali Revenue Sub-Division, there was no degree college and of thus there was justification to open two colleges in Nagrota Surian and Haripur. There has to be uniformity in decision rt making process by the state government. It has come in the reply that Government College Dada Siba has been opened for revenue sub division Kotla Behr. If the government college Dada Siba was to be opened on the same parameter, there is no justification why the college should not have been opened at Kotla Behr instead of Dada Siba. The State government has opened eight new degree colleges as per notification dated 6.9.2012 and 20.12.2013.
These were de-notified on 2.3.2013 on the following grounds:
(a) Low enrollment of students;
(b) Lack of infrastructures; and
(c) availability of other colleges in close proximity.::: Downloaded on - 15/04/2017 18:36:32 :::HCHP 13
9. We have already discussed that during the pendency of CWP No. 1468 of 2013 and analogous matters, .
the reply was filed by the state government that Government Degree College Rewalsar did not fulfill the norms, as discussed hereinabove. However, fact of the matter is that Hon'ble Chief Minister made announcement of for opening of Government Degree College, Rewalsar, though it was de-notified on 2.3.2013. All the Government respondents, rt Degree Colleges were de-notified since according to the they did not qualify the three norms prescribed i.e. a) low enrollment of students; b) lack of infrastructure and c) availability of other colleges in close proximity.
10. The respondent-State has re-opened the seven colleges except at Kotla Behar on the same terms and conditions. These colleges initially did not fulfill the norms as there was low enrollment of students, lack of infrastructures and availability of the colleges in close proximity. No justification has been given why seven colleges were re-opened on the same facts which were applicable to college at Kotla Behr. Thus, there is arbitrariness and unreasonableness in the decision making ::: Downloaded on - 15/04/2017 18:36:32 :::HCHP 14 process for opening of new college at Kotla Behr. All the colleges were similarly situated and were to be treated .
equally while taking a decision to reopen the colleges, which were de-notified on 2.3.2013.
11. Petitioners have also placed on record the strength of students in some colleges during 2014-15, of which reads as under:
i. Government College Kumarsain District Shimla 72 ii. Government College Kiarkoti District Shimla rt 38 iii. Government College Dharmpur, District Solan 20 iv Government College Nankhari District Shimla 16 v. Government College Diggal District Solan 32 vi. Govt. College Nagrota Surian District Shimla 117
12. The Court can take judicial notice of the fact that initially students' strength would be low but with the passage of time, the strength is bound to increase in Govt.
Colleges. There are 11 Government Senior Secondary Schools feeding Kotla Behr. The respondent-State has not taken into consideration the report furnished by the Principal, Government P.G. College, Dhaliara and comparing the same with the new guidelines laid down on 2.1.2014. The guidelines prescribed on 2.1.2014 are ::: Downloaded on - 15/04/2017 18:36:32 :::HCHP 15 fulfilled for opening degree college at Kotla Behr, more particularly when 14 new degree colleges are re-opened .
including seven colleges which were de-notified on 2.3.2013 on the same parameters.
13. Mr. M.A. Khan submits that Rs. 5 crores is required for opening a new degree college. This would apply of to all. When the government degree colleges can be opened with the strength, as notified hereinabove, for six colleges, rt there was justification for opening college at Kotla Behr as well.
14. Mr. M.A. Khan has also argued that it is a policy decision where the new degree college has to be opened. It is true that it is a policy decision but policy decision must also conform to Article 14 of the Constitution of India. In this case, the policy decision, which has led to issuance of new guidelines on 2.1.2014, is to be applied uniformly and not arbitrarily.
15. Their Lordships of the Hon'ble Supreme Court in Kumari Shrilekha Vidyarathi and others versus State of U.P. and others (1991) 1 SCC 212 have held that Article 14 applies also to matters of governmental policy and if the policy or any action of the Government, ::: Downloaded on - 15/04/2017 18:36:32 :::HCHP 16 even on contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional. Their .
Lordships have held as under:
"It can no longer be doubted at this point of time that Art. 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.
of (See Ramana Dayaram, Shetty v. The International Airport Authority of India (1979) 3 SCR 1014: (AIR 1979 SC 1628) and Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir (1980) 3 SCR 1338: (AIR 1980 SC 1992)). In Col. rt A. S. Sangwan v. Union of India, 1980 (Supp) SCC 559:
(AIR 1981 SC 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 Art. 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 Art. 14 and the requirement of every State action qualifying for its validity on this touch-stone, 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.
In Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay (1989) 3 SCC 293 : (AIR 1989 SC 1642), the matter was re-examined in relation to an instrumentality of the State for applicability of Art. 14 to all its actions. Referring to the earlier decisions of this Court and examining the argument for applicability of Art. 14, even in contractual matters, Sabyasachi Mukharji, J. (as the learned Chief Justice then was) ' speaking for himself and Kania, J., reiterated that every action of the ::: Downloaded on - 15/04/2017 18:36:32 :::HCHP 17 State or an instrumentality of the State must be informed by reason......... actions uninformed by reason may be questioned as arbitrary in proceedings under Art. 226 or .
Art. 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, of 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 rt importance and cannot be shelved. The basic requirement of Art. 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 function, 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."
16. Their Lordships of the Hon'ble Supreme Court in Union of India and others versus Dinesh Engineering Corporation and another, (2001) 8 SCC 491 have held that the Courts can scrutinize whether the policy in question is formulated keeping in mind all the relevant facts and whether the said policy can be held to be beyond the pale of discrimination or unreasonableness on the ::: Downloaded on - 15/04/2017 18:36:32 :::HCHP 18 basis of the material on record. Their Lordships have held as under:
.
"A perusal of the said letters shows that the Board adopted this policy keeping in mind the need to assure reliability and quality performance of the governors and its spare parts in the context of sophistication, complexity and high degree of precision associated with governors. It is in this background that in para (i) the letter states that the spares should be procured on of proprietary basis from EDC. This policy proceeds on the hypothesis that there is no other supplier in the country who is competent enough to supply the spares required for the governors used by the Indian Railways without rt taking into consideration the fact that the writ petitioner has been supplying these spare parts for the last over 17 years to various Divisions of the Indian Railways which fact has been established by the writ petitioner from the material produced with both before the High Court and this Court and which fact has been accepted by the High Court. This clearly establishes the fact that the decision of the Board as found in the letter dated 23-10-1992 suffers from the vice of non-application of mind. On behalf of the appellants, it has been very seriously contended before us that the decision vide letter dated 23-10-1992 being in the nature of a policy decision, it is not open to Courts to interfere since policies are normally formulated by experts on the subjects and the Courts not being in a position to step into the shoes of the experts, cannot interfere with such policy matters. There is no doubt that this Court has held in more than one case that where the decision of the authority is in regard to a policy matter, this Court will not ordinarily interfere since these policy matters are taken based on expert knowledge of the persons concerned and Courts are normally not equipped to question the correctness of a policy decision. But then this does not mean that the Courts have to abdicate their ::: Downloaded on - 15/04/2017 18:36:32 :::HCHP 19 right to scrutinise whether the policy in question is formulated keeping in mind all the relevant facts and the said policy can be held to be beyond the pale of .
discrimination or unreasonableness, bearing in mind the material on record. It is with this limited object if we scrutinise the policy reflected in the letter dated 23-10- 1992, it is seen that the Railways took the decision to create a monopoly on proprietary basis on EDC on the ground that the spares required by it for replacement in the governors used by the Railways required a high degree of of sophistication, complexity and precision, and in the background of the fact that there was no party other than EDC which could supply such spares. There can be no doubt that an equipment of the nature of a spare part of a rt governor which is used to control the speed in a diesel locomotive should be a quality product which can adhere to the strict scrutiny/standards of the Railways, but then the pertinent question is: has the Board taken into consideration the availability or non-availability of such characteristics in the spare parts supplied by the writ petitioner or, for that matter, was the Board alive to the fact that like EDC the writ petitioner was also supplying the spare parts as the replacement parts for the GE governors for the last over 17 years to the various Divisions of the Railways. A perusal of the letter dated 23- 10-1992 does not show that the Board was either aware of the existence of the writ petitioner or its capacity or otherwise to supply the spare parts required by the Railways for replacement in the governors used by it, an ignorance which is fatal to its policy decision. Any decision be it a simple administrative decision or a policy decision, if taken without considering the relevant facts, can only be termed as an arbitrary decision. If it is so then be it a policy decision or otherwise, it will be violative of the mandate of Article 14 of the Constitution."::: Downloaded on - 15/04/2017 18:36:32 :::HCHP 20
17. Their Lordships of the Hon'ble Supreme Court in Bannari Amman Sugars Limited versus Commercial .
Tax Officer and others, (2005) 1 SCC 625 have held that opportunity of hearing to affected persons is not necessary if a policy decision is changed, however, the same should be made fairly, non-arbitrarily and should disclose a of discernible principle which should satisfy the test of reasonableness. Their Lordships have held as under:
"While the discretion to change the policy in exercise of rt the executive power, when not trammelled by any statute or rule is wide enough, what is imperative and implicit in terms of Article 14 is 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 is an accepted tenet. The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play.
Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for discernible reasons, not whimsically for any ulterior purpose. The meaning" and true import and concept of arbitrariness is more easily visualised than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness.::: Downloaded on - 15/04/2017 18:36:32 :::HCHP 21
Where a particular mode is prescribed for doing an act and there is no impediment in adopting the procedure, the deviation to act in different manner which does not .
disclose any discernible principle which is reasonable itself shall be labelled as arbitrary. Every State action must be informed by reason and it follows that an act uninformed by reason is per se arbitrary."
18. Their Lordships of the Hon'ble Supreme Court of in Ganesh Bank of Kurundwad Limited and others versus Union of India and others, (2006) 10 SCC 645 have succinctly explained the grounds of judicial review as rt under:
"The scope of Judicial review in administrative matters has been the subject matter of consideration before this Court in several cases.
There should be judicial restraint while making judicial review in administrative matters. Where irrelevant aspects have been eschewed from consideration and no relevant aspect has been ignored and the administrative decisions have nexus with the facts on record, there is no scope for interference. The duty of the court is (a) to confine itself to the question of legality; (b) to decide whether the decision making authority exceeded its powers (c) committed an error of law (d) committed breach of the rules of natural justice and (e) reached a decision which no reasonable Tribunal would have reached or (f) abused its powers. Administrative action is subject to control by judicial review in the following manner:
(i) Illegality: This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.::: Downloaded on - 15/04/2017 18:36:32 :::HCHP 22
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) (iii) Procedural impropriety.
.
One of the points that falls for determination is the scope for judicial interference in matters of administrative decisions. Administrative action is stated to be referable to broad area of Governmental activities in which the repositories of power may exercise every class of statutory function of executive, quasi-legislative and quasi-
of judicial nature. It is trite law that exercise of power, whether legislative or administrative, will be set aside if there is manifest error in the exercise of such power or the exercise of the power is rt manifestly arbitrary (See State of U.P. and Ors. v. Renusagar Power Co. and Ors. (AIR 1988 SC 1737). At one time, the traditional view in England was that the executive was not answerable where its action was attributable to the exercise of prerogative power. Professor De Smith in his classical work "Judicial Review of Administrative Action" 4th Edition at pages 285-287 states the legal position in his own terse language that the relevant principles formulated by the Courts may be broadly summarized as follows. The authority in which discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under the dictates of another body or disable itself from exercising discretion in each individual case. In the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must it do what it has not been authorized to do. It must act in good faith, must have regard to all relevant ::: Downloaded on - 15/04/2017 18:36:32 :::HCHP 23 considerations and must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit .
of the legislation that gives it power to act, and must not act arbitrarily or capriciously. These several principles can conveniently be grouped in two main categories: (i) failure to exercise a discretion, and (ii) excess orabuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly of fettered because irrelevant considerations have been taken into account, and where an authority hands over its discretion to another body it acts ultra vires. administrative) is exercised on the basis rt of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated. (See commissioner of Income-tax v.
Mahindra and Mahindra Ltd. (AIR 1984 SC 1182) . The effect of several decisions on the question of jurisdiction has been summed up by Grahame Aldous and John Alder in their book "Applications for Judicial Review, Law and Practice" thus:
"There is a general presumption against ousting the jurisdiction of the courts, so that statutory provisions which purport to exclude judicial review are construed restrictively. There are, however, certain areas of governmental activity, national security being the paradig, which the courts regard themselves as incompetent to investigate, beyond an initial decision as to whether the government's claim is bona fide. In this kind of non-justiciable area judicial review is not entirely excluded, but very limited. It has also been said that powers conferred by the Royal Prerogative are inherently unreviewable but since the ::: Downloaded on - 15/04/2017 18:36:32 :::HCHP 24 speeches of the House of Lords in council of civil Service Unions v. Minister for the civil Service this is doubtful.Lords Diplock, .
Scaman and. Roskili appeared to agree that there is no general distinction between powers, based upon whether their source is statutory or prerogative but that judicial review can be limited by the subject matter of a particular power, in that case national security. May prerogative powers are in fact of concerned with sensitive, non-justiciable areas, for example, foreign affairs, but some are reviewable in principle, including the prerogatives relating to the civil service rt where national security is not involved.
Another non_justiciable power is the Attorney General's prerogative to decide whether to institute legal proceedings on behalf of the public interest."
(Also see Padfield v. Minister of Agriculture, Fisheries and Food (LR (1968) AC 997).
The court will be slow to interfere in such matters relating to administrative functions unless decision is tainted by any vulnerability enumerated above; like illegality, irrationality and procedural impropriety. Whether action falls within any of the categories has to be established. Mere assertion in that regard would not be sufficient.
The famous case commonly known as "The Wednesbury's case" is treated as the landmark so far as laying down various basic principles relating to judicial review of administrative or statutory direction.
Before summarizing the substance of the principles laid down therein we shall refer to the passage from the judgment of Lord Greene in Associated Provincial Picture ::: Downloaded on - 15/04/2017 18:36:32 :::HCHP 25 Houses Ltd. v. Wednesbury Corpn. (KB at p. 229: All ER p.
682). It reads as follows:
"It is true that discretion must be exercised .
reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a of discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which rt are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably' . Similarly, there may be something so absurd that no sensible person could even dream that it lay within the powers the authority. . . . In another, it is taking into consideration extraneous matters. It is unreasonable that it might almost be described as being done in bad faith; and in fact, all these things run into one another."
Lord Greene also observed (KB p.230: All ER p.683) "..it must be proved to be unreasonable in the sense that the court consider s it to be a decision that no reasonable body can come to. It is not what the court considers unreasonable The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another." (emphasis supplied) Therefore, to arrive at a decision on "reasonableness" the Court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four ::: Downloaded on - 15/04/2017 18:36:32 :::HCHP 26 corners of the law, and not one which no sensible person could have reasonably arrived at, having regard to the above principles, and must have been .
a bona fide one. The decision could be one of many choices open to the authority but it was for that authority to decide upon the choice and not for the Court to substitute its view.
The principles of judicial review of administrative action were further summarized in 1985 by Lord Diplock in CCSU case as illegality, of procedural impropriety and irrationality. He said more grounds could in future become available, including the doctrine of proportionality which was a principle followed by certain other members of rt the European Economic Community. Lord Diplock observed in that case as follows:
".Judicial review has I think, developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'. That is not to say that further development on a case_by_case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognized in the administrative law of several of our fellow members of the European Economic Community."
Lord Diplock explained "irrationality" as follows:
::: Downloaded on - 15/04/2017 18:36:32 :::HCHP 27"By 'irrationality' I mean what can by now be succinctly referred to as Wednesbury unreasonableness'. It applies to a decision .
which is to outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."
In other words, to characterize a decision of the administrator as "irrational"
of the Court has to hold, on material, that it is a decision "so outrageous" as to be in total defiance of logic or moral standards. Adoption of "proportionality" into rt administrative law was left for the future.
These principles have been noted in aforesaid terms in Union of India and Anr. v.
C. Ganayutham (1997 [7] SCC 463). In essence, the test is to see whether there is any infirmity in the decision making process and not in the decision itself. (See Indian Railwa ys Construction Co. Ltd. v. Ajay Kumar (2003 (4) SCC 579).
19. Their Lordships of the Hon'ble Supreme Court in Directorate of Film Festivals and others versus Gaurav Ashwin Jain and others, (2007) 4 SCC 737 have held that Courts do not and cannot act as Appellate Authorities examining the correctness, suitability and appropriateness of a policy, nor are courts advisors to the executive on matters of policy which the executive is entitled to formulate. Their Lordships have succinctly explained that ::: Downloaded on - 15/04/2017 18:36:32 :::HCHP 28 the scope of judicial review when examining a policy of the Government is to check whether it violates the .
fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary. Their Lordships have held as under:
of "The scope of judicial review of governmental policy is now well defined. Courts do not and cannot act as Appellate Authorities examining the rt correctness, suitability and appropriateness of a policy. Nor are courts Advisors to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining a policy of the government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available.
Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review [vide : Asif Hameed v. State of J&K - 1989 Supp (2) SCC 364; Shri Sitaram Sugar Co. Ltd., v. Union of India - 1990 (3) SCC 223; Khoday Distilleries v. State of Karnataka - 1996 (10) SCC 304, Balco Employees Union v. Union of India - 2002 (2) SCC 333), State of Orissa vs. Gopinath Dash - 2005 (13) SCC 495 and Akhil Bharat Goseva Sangh vs. State of Andhra Pradesh - 2006 (4) SCC 162]."::: Downloaded on - 15/04/2017 18:36:32 :::HCHP 29
20. Their Lordships of the Hon'ble Supreme Court in Delhi Development Authority and another versus .
Joint Action Committee, Allotment of SFS Flats and others, (2008) 2 SCC 672 have held that an executive order termed as a policy decision is not beyond the pale of judicial review. Their Lordships have further laid down four of tests to which a policy decision is subject to judicial review.
Their Lordships have held as under:
"An executive order termed as a policy decision is not rt beyond the pale of judicial review. Whereas the superior courts may not interfere with the nitty gritty of the policy, or substitute one by the other but it will not be correct to contend that the court shall like its judicial hands off, when a plea is raised that the impugned decision is a policy decision. Interference therewith on the part of the superior court would not be without jurisdiction as it is subject to judicial review. Broadly, a policy decision is subject to judicial review on the following grounds:
(a) if it is unconstitutional;
(b) if it is dehors the provisions of the Act and the Regulations;
(c) if the delegatee has acted beyond its power of delegation;
(d) (d) if the executive policy is contrary to the statutory or a larger policy."
21. Their Lordships of the Hon'ble Supreme Court in State of Uttar Pradesh and others versus Chaudhari ::: Downloaded on - 15/04/2017 18:36:32 :::HCHP 30 Ran Beer Singh and another, (2008) 5 SCC 550 have held that policy decision cannot be interfered so long the .
infringement of fundamental right is shown. Their Lordships have held as under:
"Cabinet's decision was taken nearly eight years back and appears to be operative. That being so there is no scope for directing reconsideration as was done in Ram Milan's of case, though learned counsel for the respondents prayed that such a direction should be given. As rightly contended by learned counsel for the State, in matters of policy decisions, the scope of interference is extremely rt limited. The policy decision must be left to the Government as it alone can decide which policy should be adopted after considering all relevant aspects from different angles. In matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental right is not shown, Courts will have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the government the Court cannot interfere even if a second view is possible from that of the Government."
22. In the instant case, the decision has been taken by the previous Government and the same has been reversed by the new Government in arbitrary manner.
23. This Court while disposing of CWP No. 1468/2013 and analogous matters has specifically held that authorities must be guided by the policy articulated by ::: Downloaded on - 15/04/2017 18:36:32 :::HCHP 31 the government and not resort to ad hoc decisions much less disregarding more acute requirement of other areas of .
the State. A holistic macro as well as micro level perspective plan for higher education for the entire state on need based basis must be prepared by the department at the earliest. The Division Bench has further held that it of must be remembered that setting up of a new degree college should be in conformity with the state's obligation rt to secure equitable distribution of resources and funds across the state and not create cluster of colleges in one district which would be antithesis to good governance and observance of Rule of law. The attempt of the succeeding government should not be to march over the decisions taken by the outgoing ruling party, but must be guided by sound policies and doctrine of good governance for the State. The vesting of executive power in the new government does not warrant reversal of all the decisions of the outgoing ruling party. Such act cannot be passed off in the name of Public Interest and policy decisions of the new government. The Principles of governance has to be tested on the touchstone of justice, equity and fair play. The decision may look legitimate, but as a matter of fact if the ::: Downloaded on - 15/04/2017 18:36:32 :::HCHP 32 reasons are not based on values, but to achieve popular accolade, that decision cannot be allowed to operate. A .
caveat was put by this Court while deciding the writ petitions that the state government should not resort to pick and choose.
24. Their Lordships of the Hon'ble Supreme Court of in State of Karnataka and another versus All India Manufacturers Organization and others, (2006) 4 SCC rt 683 have held that merely there was a change in the Government, there was no necessity for reviewing all decisions taken by the previous Government, which is what appears to have happened. Their Lordships have held as under:
"66. Taking an overall view of the matter, it appears that there could hardly be a dispute that the Project is a mega project which is in the larger public interest of the State of Karnataka and merely because there was a change in the Government, there was no necessity for reviewing all decisions taken by the previous Government, which is what appears to have happened. That such an action cannot be taken every time there is a change of Government has been clearly laid down in State of U.P. and Anr. v. Johri Mal and in State of Haryana v. State of Punjab and Anr. where this court observed thus:
"in the matter of governance of a State or in the matter of execution of a decision taken by a previous Government, on the basis of a consensus arrived at, which does not involve any political ::: Downloaded on - 15/04/2017 18:36:32 :::HCHP 33 philosophy, the succeeding Government must be held duty-bound to continue and carry on the unfinished job rather than putting a stop to the .
same."
25. Their Lordships of the Hon'ble Supreme Court in State of Tamil Nadu and others versus K. Shyam Sunder and others, (2011) 8 SCC 737 have held that the Government has to rise above the nexus of vested interests of and nepotism. Their Lordships have held as under:
"31. The Government has to rise above the nexus of rt vested interests and nepotism and eschew window- dressing.
"The principles of governance have to be tested on the touchstone of justice, equity, fair play and if a decision is not based on justice, equity and fair play and has taken into consideration other matters, though on the face of it, the decision may look legitimate but as a matter of fact, the reasons are not based on values but to achieve popular accolade, that decision cannot be allowed to operate". (Vide: Onkar Lal Bajaj etc. etc. v. Union of India & Anr. etc. etc., AIR 2003 SC 2562).
32. In State of Karnataka & Anr. v. All India Manufacturers Organisation & Ors., AIR 2006 SC 1846, this Court examined under what circumstances the government should revoke a decision taken by an earlier Government. The Court held that an instrumentality of the State cannot have a case to plead contrary from that of the State and the policy in respect of a particular project adopted by the State Government should not be changed with the change of the government. The Court further held as under:-::: Downloaded on - 15/04/2017 18:36:32 :::HCHP 34
"It is trite law that when one of the contracting parties is State within the meaning of Article 12 of the Constitution, it does not cease to enjoy the .
character of "State" and, therefore, it is subjected to all the obligations that "State" has under the Constitution. When the State's acts of omission or commission are tainted with extreme arbitrariness and with mala fides, it is certainly subject to interference by the Constitutional Courts."
(Emphasis added) of
35. Thus, it is clear from the above, that unless it is found that act done by the authority earlier in existence is either contrary to statutory provisions, is unreasonable, or is against public interest, the State rt should not change its stand merely because the other political party has come into power. Political agenda of an individual or a political party should not be subversive of rule of law."
26. Their Lordships of the Hon'ble Supreme Court in Andhra Pradesh Dairy Development Corporation Federation versus B. Narasimha Reddy and others, (2011) 9 SCC 286 have held that in the matter of Government of a State, the succeeding Government is duty bound to continue and carry on the unfinished job of the previous Government. Their Lordships have further held that unless the act done by the previous Government is found contrary to statutory provisions, unreasonable or against policy, State should not change its stand merely ::: Downloaded on - 15/04/2017 18:36:32 :::HCHP 35 because another political party has come into power. Their Lordships have held as under:
.
"40. In the matter of Government of a State, the succeeding Government is duty bound to continue and carry on the unfinished job of the previous Government, for the reason that the action is that of the "State", within the meaning of Article 12 of the Constitution, which continues to subsist and therefore, it is not required that the new Government can plead contrary from the State of action taken by the previous Government in respect of a particular subject. The State, being a continuing body can be stopped from changing its stand in a given case, but where after holding enquiry it came to the conclusion that rt action was not in conformity with law, the doctrine of estoppel would not apply. Thus, unless the act done by the previous Government is found to be contrary to the statutory provisions, unreasonable or against policy, the State should not change its stand merely because the other political party has come into power. "Political agenda of an individual or a political party should not be subversive of rule of law". The Government has to rise above the nexus of vested interest and nepotism etc. as the principles of governance have to be tested on the touchstone of justice, equity and fair play. The decision must be taken in good faith and must be legitimate. [Vide: Onkar Lal Bajaj etc. etc. v. Union of India & Anr. etc. etc. AIR 2003 SC 2562; State of Karnataka & Anr. v. All India Manufacturers Organization & Ors. AIR 2006 SC 1846; and State of Tamil Nadu & Ors. v. K. Shyam Sunder & Ors. (Supra)]."
27. The respondent-State has resorted to a pick and choose policy by opening new 14 Government Degree ::: Downloaded on - 15/04/2017 18:36:32 :::HCHP 36 Colleges, including seven degree colleges, which were de-
notified on 2.3.2013, but excluding Kotla Behr.
.
28. Accordingly, in view of the analysis and discussion made hereinabove, the writ petition is allowed.
The decision dated 2.3.2013 de-notifying degree college at Kotla Behr is quashed and set aside. The respondents are of directed to re-open government degree college Kotla Behr, as per notification dated 23.6.2012 and to make the college rt functional for the academic session 2015-16 not later than 15.8.2015. Pending application(s), if any, also stands disposed of. No costs.
(Justice Rajiv Sharma), Judge (Justice Sureshwar Thakur), Judge 20.7.2015 *awasthi* ::: Downloaded on - 15/04/2017 18:36:32 :::HCHP