Kerala High Court
The Cochin College vs Sri.Ajith Kumar K on 18 May, 2010
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
&
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
TUESDAY,THE 23RD DAY OF SEPTEMBER 2014/1ST ASWINA, 1936
WA.No. 1645 of 2010 ( )
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(AGAINST THE JUDGMENT IN OP.NO. 21638/2000 DATED 18-05-2010)
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APPELLANT/FOURTH RESPONDENT:
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THE COCHIN COLLEGE,
REPRESENTED BY ITS MANAGER,
COCHIN-2.
BY ADVS.SRI.MANU GOVIND
SRI.A.JAYASANKAR
RESPONDENT(S)/PETITIONER & RESPONDENTS 1-3 IN OP:
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1. SRI.AJITH KUMAR K., ASHA BHAVAN,
CHOOZHAMPALA, MUKOLAKKAL P.O.,
KUDAPPANAKKUNNU,TRIVANDRUM-14.
2. THE STATE OF KERALA,
REPRESENTED THE CHIEF SECRETARY TO GOVERNMENT,
GOVERNMENT SECRETARIAT,TRIVANDRUM-1.
3. THE SECRETARY TO GOVERNMENT,
HIGHER EDUCATION (C) DEPARTMENT,
TRIVANDRUM-1.
4. THE DIRECTOR OF COLLEGIATE EDUCATION,
TRIVANDRUM-1.
R1 BY ADV. SRI.T.V.AJAYAKUMAR
R2 TO R4 BY SR GOVERNMENT PLEADER SRI.VIJU THOMAS
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD
ON 08-08-2014, ALONG WITH WA.NO. 1866/2010, THE COURT
ON 23-09-2014 DELIVERED THE FOLLOWING:
sts
Antony Dominic & Dama Seshadri Naidu, JJ.
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W.A.Nos.1645 and 1866 of 2010
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Dated this the 23rd day of September, 2014
COMMON JUDGMENT
Dama Seshadri Naidu, J.
BACKGROUND:
Assailing the judgment dated 18.05.2010, both the parties to the lis filed intra-court appeals. The respondent college challenged the substantial relief granted to the petitioner-employee; the petitioner-employee, in turn, challenged the supposed inadequacy of the relief granted to him. Since both the appeals involve substantially the same issues between the same parties, we propose to dispose of both writ appeals through a common judgment. For ease of reference and felicity of appreciation, the facts as pleaded in W.A.No.1645/2010 are taken as the basis for discussion of the issues.WA1645 & 1866/10 2
BRIEF FACTS (AS PLEADED IN O.P.NO.2138/2000):
2. The first respondent, a Ph.D. holder in Hindi, was initially appointed as a Lecturer in the appellant college, an aided college affiliated to Mahatma Gandhi University, through Ext.P1 dated 15.09.1993. The appointment is said to be in a short term leave vacancy, during the period from 15.09.1993 to 31.01.1994. Later, he was regularly appointed as Lecturer by Ext.P2 order dated 09.06.1995. Soon thereafter, while the first respondent was under probation, Sree Sankaracharya University of Sanskrit, Kalady, (`the University' for brevity) appointed him as a Lecturer in Hindi through Ext.P3 order dated 01.09.1995. The appointment of the first respondent in the said University is said to be in response to the application made by him before securing employment in the appellant college.
3. As a matter of better career prospects, the first respondent submitted Ext.P4 application dated 20.09.1995 requesting the appellant Manager to grant leave without WA1645 & 1866/10 3 allowances for a period of two years with effect from 20.09.1995 so as to enable him to join duty in the University. Before he could get any response from the appellant, the first respondent, however, joined the University. As it turned out, the appellant, through Ext.P5 dated 25.09.1995, declined to sanction the leave applied for by the first respondent.
4. On receipt of Ext.P5 memorandum, the first respondent once again submitted Ext.P6 application dated 04.10.1995 to the fourth respondent, reiterating his request for leave without allowances for a period of two years with a view to take up foreign assignment, i.e., his new employment in the University, in accordance with the provisions of the Kerala Service Rules (KSR). The appellant, however, again, through Ext.P7 dated 16.10.1995, informed the first respondent that his request could not be accommodated in terms of the provisions of KSR. In the light of the ultimatum served through Ext.P7 that he should WA1645 & 1866/10 4 join duty within three days, lest it should be treated as unauthorised absence, the first respondent sent Ext.P8 letter dated 18.10.1995 to the appellant requesting to treat that letter as his letter of resignation from the post of Lecturer with effect from 20.09.1995, if it is difficult for the appellant to sanction leave without allowances as had been applied for. The first respondent also requested for payment of salary and other benefits for the service rendered by him in the appellant college. The appellant accepted the resignation of the first respondent through Ext.P9 memorandum dated 20.10.1995. In Ext.P9, the appellant made it clear that the first respondent would not have any preferential claim for appointment in the college, in future.
5. In the meanwhile, all the appointments, including that of the first respondent, in the University were embroiled in litigation. By judgement dated 12.04.1996 in O.P.No.16586/1994 and connected cases, a learned Single Judge of this Court set aside all the appointments in the WA1645 & 1866/10 5 University on the ground that the selection committee had not been properly constituted. When the matters were taken up in intra-court appeals, viz W.A.No.826/1996 and batch, a Division Bench of this Court, through judgement dated 18.07.1996, as reported in Sree Sankaracharya University of Sanskrit v. State (1996 (2) KLT 378), dismissed all the appeals.
6. Resultantly, when all the Lecturers, whose selection and appointment were set aside by this Court, were relieved from service with effect from 28.02.1997 by the University, some of them moved the Government to have their cases considered sympathetically, so that they could be restored in their previous posts, quitting which they came to the University. Having considered the request as a special case, Government issued Ext.P11 order dated 17.03.1997 permitting those Lecturers, who had been working in Government/aided colleges before their appointment in the University, to rejoin duty in their parent WA1645 & 1866/10 6 colleges, if there are vacancies.
7. In the light of the above developments, the Registrar of the University sent Ext.P10 letter dated 21.03.1997 to the first respondent, informing him that his services had been terminated and that, if he wish to avail himself of the benefit of Ext.P11 Government Order, he must submit an application for onward transmission to the parent college, the appellant, by way of repatriation. At this juncture, the first respondent is stated to have addressed a letter on 17.04.1997 to the appellant enquiring about the vacancy position in the Department of Hindi, but he did not get any reply. The University, however, through Ext.P12 dated 05.09.1997, terminated the first respondent's services with effect from 08.09.1997.
8. Stranded in the procedural wrangles, the first respondent sent Ext.P13 letter dated 11.09.1997 to the appellant, referring to his earlier letter dated 17.04.1997 and Ext.P11 Government order dated 17.03.1997, WA1645 & 1866/10 7 requesting for permission to rejoin duty in the parent college, at the earliest. The appellant did not respond.
9. As it could be seen, on the strength of Ext.P11 Government Order, though many Lecturers secured re-
appointment in their parent-colleges, some could not succeed. As few of such Lecturers could not secure re- appointment, they submitted representation dated 19.08.1997 to the Government, setting out their grievances. The Government, in turn, having called for the remarks of the Director of Collegiate Education, came to realise that those persons could not be re-accommodated for want of vacancies. Remedially, acting on the recommendations of the Director of Collegiate Education, Government issued Ext.P14 order dated 04.02.1998, according sanction for creation of supernumerary posts to absorb the teachers named in the said Government Order. Since the first respondent is one of the persons included in the list, he submitted representations in Ext.P15 and Ext.P16 dated WA1645 & 1866/10 8 10.02.1998 and 24.02.1998 respectively to the appellant imploring him to act on Ext.P14. Once again, the appellant, it appears, did not respond.
10. While matters stood thus, Government issued Ext.P17 order dated 17.05.1999, according sanction for treating the period of service rendered by the teachers of Government/aided colleges in Sree Sankaracharya University of Sanskrit, on deputation. The petitioner thereupon submitted Ext.P18 representation dated 27.05.1999, duly referring to Exts.P14 and P17, to the appellant with a renewed request to permit him to join duty. When there had been no response from the appellant, the first respondent submitted Ext.P19 representation dated 15.09.1999 to the Director of Collegiate Education, requesting to issue necessary directions to the appellant to permit him to rejoin in the parent college. It remains that neither the appellant nor the Director of Collegiate Education acted on the representations of the first WA1645 & 1866/10 9 respondent.
11. With the stalemate continuing, Government issued Ext.P21 order dated 10.03.2000, according sanction for treating the period between the date of discharge of the teachers from the University and the date on which they rejoined their parent institutions as being on duty for all purposes, except for pay and allowances.
12. As far as first respondent is concerned, since there was no response either from the appellant or from the authorities concerned to his various requests, he filed Complaint No.152/1999 before the Kerala Lok Ayukta, which, however, held that the complaint was not maintainable. Under those circumstances, the first respondent filed O.P.No.21638/2000 on 31.07.2000, assailing the inaction of the appellant in implementing the binding directives of the Government, namely, Exts.P11 and P14.
WA1645 & 1866/10 10 LIS PENDENS DEVELOPMENT:
13. Pending disposal of the OP, this Court, a learned single Judge, issued an interim direction on 13.12.2005 to the appellant to consider the representations of the 1st respondent in Exts.P15, P16 and P18 and pass appropriate orders thereon after affording him an opportunity of being heard. In compliance thereof, the appellant passed Ext.P24 order dated 02.01.2007, rejecting the claim of the 1st respondent.
14. By amending the pleadings, the 1st respondent has also laid challenge against Ext.P24 rejection order. THE IMPUGNED JUDGMENT:
15. The learned single Judge has, on appreciation of the rival contentions, held that since the appellant, the fourth respondent therein, did not choose to challenge Exts.P11, P14 and other related Government Orders, he is bound to implement them. When the Government, the paymaster, have permitted the management to have a WA1645 & 1866/10 11 supernumerary post to accommodate the first respondent, it cannot be heard contending otherwise. The learned single Judge has poignantly observed that the first respondent had been thrown out from service on 08.09.1997 and that, he had been pursuing with the appellant management for reinstatement, but without success.
16. Thus, the learned single Judge directed the appellant to re-appoint the first respondent as Lecturer in Hindi. The interregnum period from the date of the first respondent's termination from the University till the date of his re-appointment in the appellant college shall, however, be reckoned for the purpose of seniority and pay fixation, etc., but without pay and allowances for the said period. WRIT APPEALS:
17. The appellant, being the fourth respondent in the OP, filed W.A.No.1645/2010, assailing the direction of the first respondent's re-appointment; whereas, the first respondent, being the petitioner in the said OP, filed W.A. WA1645 & 1866/10 12 No.1866/2010, calling in question the deprivation of pay and allowance for the period he had been kept out of service after cessation of his employment in the University. ORAL SUBMISSIONS:
FOR THE APPELLANT:
18. Mr.Manu Govind, the learned counsel for the appellant has, to begin with, submitted that Exts.P14, P17 and P21 orders have granted to the appellant college only a privilege or liberty to re-appoint the 1st respondent. As such, the proceedings being permissive in nature, it is not incumbent on the appellant to comply with the said proceedings, inasmuch as there is no peremptory direction of binding nature. When a statute mandates a particular thing to be done in a particular manner, or not at all, the authorities cannot give a short shrift to the said statutory mandate. In elaboration of his submissions, the learned counsel for the appellant has submitted that Section 59(1A) of the M.G.University Act stipulates that appointment of WA1645 & 1866/10 13 teachers to private colleges ought to be made by the educational agency by direct recruitment on merits and there shall be no executive orders in the manner of Exts.P14, P17 and P21 compelling an appointment at variance with the established procedure. In this regard, the learned counsel has placed reliance on P. Bhaskaran v. Addl. Secretary & Ors. (1987 KLJ 1461 (FB)). As to the procedural parameters to be followed in the matters of recruitment, the learned counsel has placed reliance on the following decisions: Janardhanan v. Joint Registrar (1990 (1) KLT 530), Ganga Pratap Singh v. Allahabad Bank Ltd. (AIR 1958 SC 293), Bharathidasan University v. All- India Council for Technical Education ((2001) 8 SCC
676), Nawabkhan Abbaskhan v. State of Gujarat ((1974) 2 SCC 121), Union of India v. Arulmozhi Iniarasu ((2011) 7 SCC 397), Usman v. State of Kerala (2003 (1) KLT 2) and Mamleshwar Prasad v. Kanhaiya Lal (AIR 1975 SC 907) and also the commentaries of Craig WA1645 & 1866/10 14 and de Smith on Administrative Law.
19. According to learned counsel for the appellant, since Exts.P14, PP21 are in violation of the recruitment procedure established by law, the appellant college has rightly ignored them. It is the specific and repeated contention of the learned counsel that challenge against an executive order made by an authority bereft of power can be made directly or collaterally.
20. The learned counsel has further contended that the learned single Judge has accepted the proposition in paragraphs 26 and 27 of the impugned judgment that there can be a collateral attack, even without a formal challenge directly. Having thus accepted the proposition, the learned single Judge, contends the learned counsel, ought not have proceeded further by issuing a mandamus for re- appointment of the 1st respondent.
21. The learned counsel for the appellant has also laid emphasis on the fact that 1st respondent has voluntarily WA1645 & 1866/10 15 tendered resignation. Once there is cessation of the relationship of employer and employee, the question of re- appointment does not arise. The re-induction of the 1st respondent, according to the learned counsel, whatever name it is to be called with, shall amount to a fresh recruitment, for which the appellant is required to follow the statutory procedure.
22. Referring to the judgment rendered by another learned single Judge of this Court in Narayanan v. Manager, S. D. College (2001 (3) KLT 592), the learned counsel has stated that though it was at the behest of persons similarly placed like the 1st respondent, the decision is per incuriam, apart from being sub silentio on the question of vires. The learned counsel has also pointed out that Narayanan was allowed on the premise that Government have the plenary powers to do justice. According to the learned counsel, unlike in the USA, police power is not available to the executive in India and that, WA1645 & 1866/10 16 plenary powers rest with the court, but not with the Government. In this regard, the learned counsel has placed reliance on State of W.B. v. Subodh Gopal Bose (AIR 1954 SC 92). On the question of binding nature of what is said to be a per incuriam decision, the learned counsel has placed reliance on the celebrated commentary, Salmond on Jurisprudence (Para 2, page 153, 12th edition).
23. The learned counsel has also submitted that the 1st respondent has an efficacious alternative remedy against the refusal of the appellant to re-appoint him, inasmuch as the order of refusal is appealable under Section 59(9) of the M.G.University Act. According to the learned counsel, the power to appoint also encompasses the power to reject. Summing up his submissions, the learned counsel for the appellant college has urged before this Court to allow the writ appeal, thereby setting aside the judgment of the learned single Judge in its entirety.
WA1645 & 1866/10 17 FOR THE 1ST RESPONDENT:
24. Per contra, the learned counsel for the 1st respondent has submitted that, all through, the appellant has exhibited a grossly nonchalant attitude towards rule of law, including judicial directives of this Court. In elaboration of his submissions, the learned counsel has submitted that beginning from 1997 till 2000, when 1st respondent filed the original petition, he went on making representations to the appellant, some of them being Exts.P13, P15, P16 and P18. The appellant, however, has not chosen to respond, at least by placing on record the reasons for its persistent refusal to follow the Government Orders. The learned counsel has drawn our attention to the fact that present writ appeal came to be filed only belatedly when 1st respondent filed a contempt petition against the appellant for not complying with the judgment of the learned single Judge.
25. Placing reliance on Mohinder Singh Gill v. Chief Election Commissioner (AIR 1978 SC 851), the WA1645 & 1866/10 18 learned counsel for the 1st respondent has further contended that since the appellant has not provided any reasons for not obeying Exts.P11 and P14 either to the 1st respondent or to the Government at the earliest point of time, it cannot be allowed to supply reasons through counter affidavits before this Court. In this regard, the learned counsel has also drawn our attention to Ext.P24, which was passed by the appellant in compliance with an interim direction of this Court in the original petition. According to learned counsel, even the said exhibit does not contain any reasons worth the name to justify what is said to be the recalcitrant attitude of the appellant management.
26. The learned counsel for the 1st respondent has also strenuously contended that there is no illegality or arbitrariness in the action of the Government in directing the appellant to re-employ the 1st respondent. The Government, having duly taken into account the peculiar circumstances, have exercised its plenary powers by WA1645 & 1866/10 19 creating supernumerary posts, apart from undertaking to bear the financial burden, to rehabilitate those persons who lost employment for no fault of theirs. The learned counsel has also referred to Sections 62, 72, 77, 100 and 101 of the M.G.University Act to drive home the point that Government have the necessary power in this regard. In support thereof, he has placed reliance on Patel Vaneers (P) Ltd., v. Regional P.P. Commissioner (1988 (1) KLT 843).
27. The learned counsel for the 1st respondent has summoned all his forensic skills to repel the contention of the appellant that Exts.P11 and P14 are orders void ab initio and that they can be challenged even collaterally, as and when their implementation falls for consideration before any judicial forum. As a matter of alternative submission, without conceding on the aspect of voidness, the learned counsel has further contended that even when a Government Order is void or avoidable, it binds, unless the same is quashed or set aside through duly constituted legal WA1645 & 1866/10 20 proceedings. According to him, there cannot be any collateral challenge to any Governmental directive. On this issue, to countervail the judicial precedents cited by the appellant, learned counsel for the 1st respondent has placed reliance on the following decisions: Jose.T.A. and Company v. State of Kerala (2009 (3) KLT 62), State of Punjab v. Gurdev Singh ((1991) 4 SCC 1), Gopalakrishnan Nair N. K. v. State of Kerala (ILR 1992 (3) Kerala 739), Ashok Kumar Yadav v. State of Haryana (AIR 1987 SC 454), Pune Municipal Corpn., v. State of Maharashtra ((2007) 5 SCC 211), Krishnadevi Malchand Kamathia v. Bombay Environmental Action Group ((2011) 3 SCC 363), Pavithran v. State of Kerala (2009 (4) KLT 20 (FB)) and MCD v. Qimat Rai Gupta ((2007) 7 SCC 309).
28. The learned counsel has submitted that 1st respondent began his efforts in 1997 to secure re- employment in his parent college, the appellant, on the WA1645 & 1866/10 21 strength of the binding directives of the Government, the paymaster and went on waging the legal battle for nearly a decade and half. Presently, pending the writ appeal, 1st respondent attained the age of superannuation in March 2014 and deemed to have retired from service.
29. The learned counsel for the 1st respondent has also sought to sustain Exts.P11, P14, P17 and P21 with statutory support under Sections 56, 62(2)(b), 77, 100 and 101 of the M.G.University Act. These provisions shall be referred to and discussed at a later stage of our adjudication.
30. Eventually, the learned counsel for the 1st respondent has assailed, what is in his view, the inadequacy of the judgment under challenge. According to the learned counsel, having held that the appellant college had not been justified in refusing to implement the Government Orders, the learned single Judge, contends the learned counsel, ought not to have stopped short of providing full relief, WA1645 & 1866/10 22 including the pay and allowance for the interregnum, to the 1st respondent. In this regard, the learned counsel has placed reliance on the following dewcisions:
Commissioner, Karnataka Housing Board v. Muddaiah ((2007) 7 SCC 689), State of U.P. v. Dayanand Chakrawarty ((2013) 7 SCC 595), Shiv Nandan Mahto v.
State of Bihar ((2013) 11 SCC 626) and State of Kerala v.
Arun George & Ors. (2009 (4) KHC 477).
31. Adverting to the residuary powers of the executive, the learned counsel for the 1st respondent has submitted that the action of the Government in directing re- instatement or re-appointment of the 1st respondent is by way of exercise of its incidental powers. In this regard, the learned counsel has placed reliance on Khargram Panchayat Samiti v. State of W.B. ((1987) 3 SCC 82).
32. The learned counsel has referred to Section 20 of T.C. Interpretation & General Clauses Act, to stress the point that respondent authorities have ample powers to take WA1645 & 1866/10 23 remedial steps regarding employment in the Government and aided educational institutions. Accordingly, learned counsel has submitted that the judgment impugned suffers from no legal infirmities and therefore, does not call for any interference.
REPLY SUBMISSIONS OF THE APPELLANT:
33. In reply, the learned counsel for the appellant, after recapitulating his earlier submissions, has further contended that once an order is found to be illegal, no mandamus can be issued in its support, otherwise, it would amount to giving judicial imprimatur to an illegality. He has further contended that granting the relief of mandamus can always be resisted by the respondent notwithstanding the ways and means available to the 1st respondent to call in question the very orders, which formed the basis for the mandamus sought. In support of the said submission, the learned counsel for the appellant has placed reliance on the following decisions: State of U.P. v. Desh Raj ((2007) 1 WA1645 & 1866/10 24 SCC 257), State of Rajasthan v. D.R.Laxmi ((1996) 6 SCC
445), Govt. of A.P. v. K.Brahmanandam ((2008) 5 SCC
241) and State of Orissa v. Prasana Kumar Sahoo ((2007) 15 SCC 129). The learned counsel has also referred to certain portions of the celebrated commentary on the Administrative Law by Wade & Forsyth.
THE ISSUES:
7Whether Exts.P11, P17 and P21 orders are permissive in nature, granting privilege or liberty to the appellant to re-
appoint the 1st respondent?
7Whether Exts.P11and P14 and also the consequential orders in Exts.P17 and P21, are ultra vires of the powers of the Government authorities whoissued them?
7Whether a statutory authority or agency can ignore or refuse to honour the Government Orders on an assumed premise that they are void?
7Whether a Government Order of perceived voidness or voidability can be assailed collaterally?WA1645 & 1866/10 25
7If Exts.P11 and P14 as well as Exts.P17 and P21, are held to be enforceable at the behest of the 1st respondent, whether the first respondent is entitled to pay and other service benefits for the interregnum period from the date of his ceasing to be an employee of the University till the date of his actual re-employment in his parent college, the appellant?
The Scope of Precedents:
34. Before we proceed further to appreciate the dictum laid down in the plethora of precedents cited at the Bar by both the learned counsel, it is well to bear in mind the adjuration in Union of India v. Arulmozhi Iniarasu ((2011) 7 SCC 397), on the application of precedents. The well-settled principle of law in the matter of applying precedents is that the Court should not place reliance on the decisions without discussing as to how the fact situation of the case before it fits in with the fact situation of the decision on which reliance is placed. The observations of the WA1645 & 1866/10 26 courts are neither to be read as Euclid's theorems nor as the provisions of the Statute and that too taken out of their context. Disposal of cases by blindly placing reliance on a decision is not proper because one additional or different fact may make a world of difference between conclusions in two cases.
The Previous Judicial Proceedings:
35. Is it pertinent to observe that the very same proceedings that have been challenged presently were the subject matter of some other earlier writ petitions. In one particular instance, namely in Narayanan v. Manager, S.D. College (2001 (3) KLT 592), a learned single Judge of this Court has upheld the validity of Exts.P11 and P14. It appears that learned counsel for the appellant has cited this judgment pre-emptively to distinguish it on facts.
36. Though the petitioner in the above case and the 1st respondent in the present instance are similarly placed in substantial terms, there is one marked difference. When his WA1645 & 1866/10 27 employer refused leave, the first respondent resigned from the post and joined the University; in Narayanan, the petitioner went on deputation. In that context, a learned single Judge of this Court has observed thus:
"[I]t was for the Government to ameliorate their difficulties and redress their grievances especially when it was not pursuant to any resignation that the teachers left their parent institutions and joined the University. The persons for whose benefit the said Government Orders were passed form a class by themselves. There is no arbitrary discrimination shown to them."
It is the contention of the learned counsel for the appellant that, since first respondent resigned, the case on Narayanan does not have any application. He has further contended that Narayanan, by implication, made it clear that the benefit of Exts.P11 and P14 cannot be extended to an employee who resigned from the post.
37. True, the binding nature of a decision turns upon its facts and a decision is a precedent on what it actually decides. In the same breath, it is to be stated that in WA1645 & 1866/10 28 Narayanan the adjudication does not take into fold the case of a resigned employee. In our considered view, the reference to the instance of supposed non-applicability of the proceedings of the Government to an employee who resigned from the parent institution is, at best, only an obiter. As such, it can safely be held that the issue of applicability of Government Orders to a resigned employee remains an unexplored arena.
38. Though, neither party to the present proceedings is affected by the judicial pronouncement in Narayanan to the extent stated above, there is another issue which stood decided. As has been contended by the learned counsel for the appellant, in Narayanan too, the respondents raised an objection that the Government have absolutely no right to intervene in administrative matters of private colleges. Repelling the said contention, it was held in Narayanan that under the subsisting system, as evidenced by Ext.P16 Government Order therein, Government have the WA1645 & 1866/10 29 responsibility to pay for those teachers and as such Government have control over sanction of posts in the matter of prescribing the method of appointment of teachers and in the matter of promotions. Such general powers will certainly include the power to intervene in administering justice to the persons who were on deputation to the University when the deputation has ceased to be effective. Indeed, this observation, on all force, applies to the appellant institution as well.
In re, Issue No.1:
39. The primary contention of the learned counsel for the appellant is that Exts.P11, P17 and P21 orders are permissive in nature, granting privilege or liberty to the appellant to re-appoint the 1st respondent.
40. Ext.P11, G.O.(Rt.)No.302/1997/H.Edn. dated 17.03.1997, is the first order issued by the Government extending the particular benefit as a matter of policy decision to a group of persons, who have been displaced or WA1645 & 1866/10 30 retrenched from their previous employment, thereby treating them as separate class. Rest of the orders, such as Exts.P17 and P21, are consequential in nature. To appreciate whether Ext.P11 is only a privilege granted to the appellant college to re-appoint the 1st respondent, it is appropriate to examine the tone and tenor of the said exhibit. The concluding paragraphs 3 and 4 of Ext.P11 are as follows:
"3. Government have examined the case in detail. Since the appointments in the Sanskrit University were quashed by the honourable court not for the fault of the employees, they have a right to come back to the parent deportment.
4. In the circumstances, Government are pleased to order that those teachers who were working in Government/aided colleges before their appointment in the Sanskrit University and whose appointments in the Sanskrit University were quashed by the honourable court are permitted to join duty in the parent college, if there are vacancies, as a special case."
41. Going by the above comment order, if any liberty is given or privilege is extended, it is to the displaced WA1645 & 1866/10 31 employees, including the 1st respondent, but not to the colleges in which they earlier worked. Since Government made re-employment of the displaced teachers contingent on the existence of vacancies, Government later issued Ext.P14 order creating supernumerary posts. The consequential orders, Exts.P17 and P2, do not differ much in the scope and ambit to conclude that they are in any way permissive in nature. We, therefore, are inclined to hold that Exts.P11, P17 and P21 are peremptory and binding, subject to their validity, which aspect is discussed hereinbelow. In re: Issue No.2:
Statutory Schema:
42. As can be seen, the appellant college, an aided private college affiliated to Mahathma Gandhi Univeristy (M.G. University), is primarily governed by the provisions of the M.G.University Act, especially Sections 59(1) and (1A) of the Act. Since, the appellant has raised the issue of ultra vires, it is profitable to extract Sections 59(1) and (1A), WA1645 & 1866/10 32 which are as follows:
"Appointment of teachers in private Colleges.
-- ["(1) Appointments to the posts eligible to receive salary from the Government shall be made only against posts sanctioned by the Government or by such officers as may be authorized by the Government."] ["(1 A) Appointments to the lowest grade of teacher in each department of a private college shall be made by the educational agency by direct recruitment on the basis of merit.]
43. Before discussing the statutory impact on the issue on hand, we may have to examine a few more provisions of the Act. Indeed, the administrator of a private college is the Manager, whose powers and obligations are dealt with under Section 76 of the Act. A perusal of the said section makes it amply clear that sub-section (7) thereof mandates that the Manager shall abide by the instructions issued by the Government or the University, lest he should be subjected to disciplinary proceedings. We, therefore, are required to proceed further with our discussion on this statutory foundation that appellant is bound to honour and WA1645 & 1866/10 33 abide by the administrative directions, leaving aside the statutory stipulations of the Government.
44. It is further relevant to refer to Sections 77, 100 and 101 of the Act. Government can exercise its powers under Section 100 to make first Statutes and Ordinances. Once those first Statutes and Ordinances are kept in place, according to learned counsel for the appellant, Government renders itself `functus officio' and as such, cannot exercise any control either over the University or affiliated colleges. Attractive as the submission appears, on deeper scrutiny, it is to be held that the power under Section 100 of the Act is legislative in character. Ipso facto, it does not mean that Government ceases to have any administrative control on the institutions, albeit to the extent statutorily permissible, a case in point being Section 56 of the Act.
45. Though, learned counsel for the 1st respondent has placed reliance on the rule making power of the Government under Section 100 of the Act, we are afraid, it WA1645 & 1866/10 34 may not come to his rescue, as exercise of the said power is circumscribed by legislative approval and essentially, exercise of the said rule making power ought to be legislative, rather than administrative in character. In any event, here the issue is whether Exts.P11, P14, P17 and P21 issued by the Government have come in conflict with any legislative mandate rendering themselves void, travelling beyond the realm of mere illegality.
46. The provision relied on by the learned counsel for the 1st respondent is Section 101 of the Act. This clause is a legislative device available to the executive to exercise its delegated rule making power to tide over the unforeseen contingencies that may arise in enforcing the parent enactment. In Administrative Law parlance, it is called Henry VIII Clause. Given its potential, at times, to be abused, it is associated with executive autocracy, as has been symbolised by 16th Century King of England, Henry VIII.
WA1645 & 1866/10 35
47. Section 101, as is well established, enables the Government to remove the difficulties in implementation of the parent enactment, the pre-condition being that the purported act of removal shall not be inconsistent with the provisions of the parent Act. Be that as it may, in the manner stated above, Section 101 is only a legislative devise, but not a carte blanche for overcoming the day-to- day administrative exigencies.
48. At any rate, Section 62(2)(b) of the Act, relied on by the learned counsel for the 1st respondent, has some bearing on the issue, though it may not be squarely applicable to the present case. It is profitable to extract the said provision, which is as follows:
"62(2)(b) - a teacher relieved from a private college on or after the 14th day of March, 1974 due to the abolition of a course of study in that private college or the cessation of the period for which he was appointed or for any other reason except disciplinary action against him shall be given preference in the matter of future appointments in the private college or, as the case may be, any of the private colleges under the management of the educational agency within the University WA1645 & 1866/10 36 area."
49. Keeping Section 62(2)(b) of the Act in juxtaposition with Section 59(1) and (1A) of the Act, we may see that it is the prerogative of the Government to sanction posts in private Government colleges. In this case, under peculiar circumstances, Government have created supernumerary posts. True, regular appointment in the usual course ought to be by way of direct recruitment on the basis of merit. If we examine Section 62 of the Act, it begins with a non-obstante clause of an expansive nature. If a teacher has been relieved from a private college for any other reason than disciplinary action against him, he shall be given preference in the matter of future appointments in the private college.
50. In the present instance, Government have created supernumerary posts and it being a college covered by Direct Payment Agreement, have agreed to pay the salary, without putting any financial burden on the appellant WA1645 & 1866/10 37 college. It has asked, nay directed, in terms of Section 56(7) of the Act, the appellant to re-employ its former employee, who has been made a victim of a collateral damage caused by certain judicial proceedings, in which he had essentially no say. In other words, Government have, as a matter of public policy, desired to mitigate the deprivation of livelihood suffered by a group of people, who formed distinct class deserving the indulgence of the State.
51. It is fallacious to contend that always recourse shall be taken to regular recruitment from open market under all circumstances. There can be exceptions, as has been demonstrated statutorily in Section 62(2)(b). The public employment, after all, is the sovereign prerogative of the State exercised through its Executive branch.
52. The upshot of the above discussion is that, among other provisions, as per Section 56(7) of the Act, Government can bind the appellant college with its directions and directives. As per Section 59 of the Act, it can WA1645 & 1866/10 38 create posts and as per Section 62(2)(b) of the Act, there can be exceptions to regular open recruitment. Inherent and Incidental Powers:
53. To begin with, Articles 73 and 162 of the Constitution of India are constitutional recognition of the inherent powers of the Executive. It is, indeed, in consonance with the constitutional concept of welfare state. It has attained the status of a truism to state that the extent and scope of general administrative power of modern Government cannot be defined precisely. The power is amorphous, unstructured, broad and undefined. Government can carry on general administration so long as it does not infringe a constitutional or legal provision or does not infringe on legal right of any person.
54. Formulation of policy and its implementation is pre-eminently a function of the Executive and the task of the Executive is facilitated by the Parliamentary system of Government which operates both at the Centre and the WA1645 & 1866/10 39 States in India. An important point to note with respect to functioning of the administrative organ is that it does not always need a statutory authorisation to act and execute a policy. Many a time, the administration can implement policies without any statutory sanction. Government are not confined to discharge only such functions as specifically conferred on it by the legislation or the Constitution. The executive power is not, however, free from ultimate legislative control (see MP Jain & SN Jain's Principles of Administrative Law, Vol.1, 7th Edn.).
55. It pays to remind oneself of the subtlety between powers which are inherent and those which are incidental. Incidental powers are the necessary concomitants to the substantive power, which have its origin in some statute or another. Inherent power is the power that is de hors the statutory sanction, but, at any rate, not in conflict with it either. An incidental power is too inherent in its true nature, likened to species and genus classification. WA1645 & 1866/10 40
56. In this regard, we may observe that when challenge was laid on the ground that appointments were made without making statutory rules, a Constitution Bench of the Supreme Court in B. N. Nagarajan v. State of Mysore (AIR 1966 SC 1942) has held that nothing in the terms of Article 309 of the Constitution that abridges the power of the executive to act under Article 162 of the Constitution without law. It is hardly necessary to mention that if there is a statutory rule or an act on the matter, the executive must abide by that act or rule and it cannot in exercise of the executive power under Article 162 of the Constitution ignore or act contrary to that rule or act.
57. In Panchayat Samiti v. State of W.B., ((1987) 3 SCC 82), the Supreme Court has judicially acknowledged the incidental powers enjoyed by the administrative authorities. In fact, their Lordships have quoted with approval the comment of the learned author de Smith in his celebrated work Judicial Review of Administrative Action, WA1645 & 1866/10 41 4th Edn. at p. 95, which is as follows:
"The House of Lords has laid down the principle that whatever may fairly be regarded as incidental to, or consequent upon, those things which the legislature has authorised, ought not (unless expressly prohibited) to be held, by judicial construction, to be ultra vires."
This principle was enunciated by Lord Selborne in Attorney-General v. Great Eastern Railway (LR (1880) 5 AC 473) in these words:
"The doctrine of ultra vires ought to be reasonably, and not unreasonably, understood and applied and whatever may be fairly regarded as incidental to, or consequential upon, those things which the legislature has authorised ought not (unless expressly prohibited) to be held, by judicial construction, to be ultra vires."
Is it a Police Power?
58. According to learned counsel for the appellant, Government issued Exts.P11 and P14 orders exercising the police powers of the State and that under Indian Constitution the Executive does not have the police powers. WA1645 & 1866/10 42
59. With clear demarcation of legislative fields under Artticles 245 and 246 of the Constitution, read with Schedule VII and with residuary powers remaining with the Union, India has never had the need of adopting the vague and indefinite doctrine of police powers, first propounded by Chief Justice John Marshall in Brown v. Maryland [25 U.S. 419 (1827)]. In Lochner v. New York (198 U.S. 45 (1905), Justice Peckham, delivering the majority opinion, has himself stated that 'police powers' is vaguely termed and its exact description and limitation has not been attempted by the Courts.
60. In Charanjit Lal Chowdhuri v. Union of India (AIR 1951 SC 41), a Constitution Bench of the Supreme Court has observed that in interpreting the provisions of our Constitution, we should go by the plain words used by the Constitution-makers and the imparting expression like 'police power', which is a term of variable and indefinite connotation in American law, can only make the task of WA1645 & 1866/10 43 interpretation more difficult. It has subsequently been affirmed by other Constitution Benches of the Supreme Court. It was declared to be antithetical to Indian Constitutional scheme in State of West Bengal v. Subodh Gopal Bose. The fact, however, remains that, on occasions, the doctrine of police powers has been employed by the Courts in India in the context of res extra commercium.
61. In fact, in common law terms, police powers is not confined to regulating law and order but are matters of policy, thus `policy power'. Etymologically, police and policy have common origin. Outside the issues trade privileges in noxious substances, this doctrine has not survived in India. It cannot be stated that exercise of every inherent or even incidental executive power ought to be traced to a non- available constitutional source, namely 'police powers'.
62. Accordingly, we do not hesitate to hold that action of the Government in issuing Exts.P11, P14, P17 and P21 is not ultra vires, their administrative power under the WA1645 & 1866/10 44 Act are in terms of the residuary constitutional provision, namely Artticle 162 of the Constitution.
63. Before proceeding further, we are required to answer the contention of the 1st respondent that under Section 20 of T.C.Interpretation & General Clauses Act, 1125, Government have the plenary power to add, to amend, vary or rescind orders, rules or bye-laws. They have all been, as per Section 20, subsumed in 'the power to make'. Be that as it may, the very section, as is indicated by its body, speaks of the legislative power of the executive as a delegate of the legislature. It does not concern itself with the power of the executive to discharge its day-to-day functions, which are mostly non-statutory. This aspect does not, in our view, require any further adjudication. In re: Issue Nos.3 & 4:
64. The issue at the core of the matter is determination of sustainability of collateral challenge to an executive measure of the State vis-`-vis one of its instrumentalities, WA1645 & 1866/10 45 which, in fact, has chosen to defend its action, rather inaction, by laying a collateral challenge to the supposed invalidity of the said executive measure, in its defence to a charge in a judicial review. The learned counsel for the appellant college has placed strong reliance on various pronouncements of the English Courts, as have been reflected in the noted commentaries on English Administrative Law. As such, it is essential to note the jurisprudential divergence, if any, between the English Law and the Indian Law, confining the discussion only to the aspect of collateral challenge, though.
Continental Contours of Administrative Law:
65. It is to be seen that copious references have been made by the learned counsel for the appellant to various commentaries on this issue by the redoubtable English Authors. In due deference to their wisdom, it is still to be stated that the English jurisprudential fidelity to the principle of Wednesbury is too steadfast, for too long a time, WA1645 & 1866/10 46 to the comfort of the cross currents of the droit administratif demands from the Continental France or to the American administrative advances from across the Atlantic. In the meanwhile, Indian Administrative Jurisprudence took a leap - a leap of liberality - to temper the tentative and nascent field of administrative law with the fortifying factor of Article 14 of the Constitution, to suggest one aspect of its growth.
66. Even otherwise, on a comparative scale, in the formative years of the branch of Administrative Law, which is still nebulous and amorphous, England had the shackles of the Diceyan Rule of Law; the USA, the doctrinaire dilemma of the Separation of Powers; and India, none.
67. The issue of collateral challenge is a procedural remedy against the orders which are manifestly void. Contextually, it can be stated that an administrative order can be void on two counts: audi alteram partem and ultra vires. Since Exts.P11, P14, P17 and P21 are not quasi- WA1645 & 1866/10 47 judical in nature, ever so thin the distinction has been, we are not concerned with the aspect of principles of natural justice. The remaining aspect is the issue of ultra vires. It needs no reiteration that an order which is ultra vires is void. Now, the question is whether the aspect of voidness admits all degrees or it is absolute, as etymologically the expression suggests. If an order is void with or without its shades of grey, what is the remedial measure to be taken against it. Thus, voidness is the substantial problem and collateral challenge is one of its remedies.
68. Jurisprudentially, English Courts have all along conceptual concerns regarding the desirability of admitting the degrees of voidness and also the jural distinction between a void act and a voidable one. Indian jurisprudence has, all along, steered clear of this controversy. This, in fact, prompted the learned authors MP Jain and SN Jain to observe apropos the principle of audi alterem partem that the judicial dicta in Britain is inconsistent and confusing WA1645 & 1866/10 48 (see Principles of Administrative Law, page 655, vol. 1, 7th Edn.). Further, despite the decision in Anisminic Ltd. v. Foreign Compensation Commission (1969 AC 147), we still maintain, in the matters of judicial review, a clear distinction between errors of jurisdiction and errors in exercise of jurisdiction. Evidently, errors of jurisdiction are matters of inherent lack of jurisdiction and only those orders suffering from such errors of jurisdiction alone can be termed as void. Thus, essentially, the English Commentaries on the issue cited at the Bar by the learned counsel for the appellant have to be appreciated only in the light of the law laid down by the Hon'ble Supreme Court.
69. Be that as it may, on factual front, it could be observed that first respondent and many other persons like him, looking out for greener pastures and better career prospects, chose to join Sree Sanaracharya Universty, having been duly selected pursuant to an employment notification. Some institutions were accommodative in WA1645 & 1866/10 49 sending the selectees to the University on deputation basis; some insisted that the employee could leave the parent institution at his own peril, by resigning. In fact, the first respondent, on his failure to secure leave, did resign from the appellant college to join the University. Later, selection of the first respondent and his batch gave rise to certain litigation. Eventually, this Court through judgment in Sree Sankaracharya University of Sanskrit v. State (1996 (2) KLT 378) declared that the teachers thus recruited had to be repatriated.
70. When first respondent and his batch were caught in the web of litigation and were eventually ousted from their newly secured employment, they looked upon the Government as their saviour. Under those circumstances, it felt to the Government to ameliorate their difficulties and redress their grievances.
COLLATERAL CHALLENGE:
71. 'Collateral Challenge', variably referred to as WA1645 & 1866/10 50 'Collateral Attack' as defined in Black's Law Dictionary, is as follows:
"An attack on a judgment in a proceeding other than a direct appeal; esp., an attempt to undermine a judgment through a judicial proceeding in which the ground of the proceeding (or a defense in the proceeding) is that the judgment is ineffective. Typically a collateral attack is made against a point of procedure or another matter not necessarily apparent in the record, as opposed to a direct attack on the merits exclusively. A petition for a writ of habeas corpus is one type of collateral attack. -- Also termed indirect attack. Cf. DIRECT ATTACK (1). [Cases:
Criminal Law 1407; Habeas Corpus 203;
Judgment 470-523.]"
72. On the scope and content of collateral challenge or attack, the Australian High Court (the Apex Court) in Ousley v. The Queen, has thus to say:
"A collateral attack on an act or decision occurs when the act or decision is challenged in proceedings whose primary object is not the setting aside or modification of that act or decision [Davy v Spelthorne Borough Council, (1984) AC 262]. In In re Preston, [1985] AC 835], however, Lord Scarman used the term "collateral challenge" to include any process challenging a decision - including an application for judicial review - other than a proceeding by way of appeal. This use of the term is readily intelligible. However, with the WA1645 & 1866/10 51 widespread availability of judicial review procedures, it conduces to clarity of thought, in my opinion, if the term "collateral challenge" is confined to challenges that occur in proceedings where the validity of the administrative act is merely an incident in determining other issues."
73. As a matter of established judicial convention, collateral challenge of governmental actions have been restricted to cases in which Governmental act under challenge is alleged to be ultra vires or in excess of jurisdiction and is consequencially void. This approach, however, is not without challenge. Its application to criminal proceedings is too well established to be cavilled about, that no person shall be made to lose his liberty on the basis of a provision, which remained in the statute books, but for lack of judicial challenge to its vires. In Director of Public Prosecutions v. Head [(1959) AC 83], Lord Somervell of Harrow has put it thus at P.104:
"Is a man to be sent to prison on the basis that an order is a good order when the court knows it would be set aside if proper proceedings were taken? I doubt it."WA1645 & 1866/10 52
74. Further, a court established under a statute, in contra-distinction to constitutional courts, do not enjoy much adjudicatory discretion, since they function on the premise of ubi jus ibi remedium, subject to the statutory mandate, though. On the other hand, judicial review in itself is a collateral challenge against the State in terms of Article 12 and against the Government or other authorities in terms of Article 226 of the Constitution. They are discretionary and can be refused, despite the suitor meeting all the requirements, under well established principles governing the prerogative writs. The issue of laches and equity may also weigh with the courts. By laying a collateral challenge, the 1st respondent, who ought to have approached the court for a positive relief, may as well use this shield to circumvent those limitations.
75. Neil Parpworth, in his Constitutional and Administrative Law (p.263, 7th Edn., Oxford), accepting existence of the general principle that public law decisions WA1645 & 1866/10 53 ought to be challenged by way of judicial review, opines that it raises a related issue - Whether such a principle prevents a person from challenging the validity of a public law decision in proceedings brought against him? In short, can a public law matter be used as a shield or as a sword, or does the principle require that in those circumstances, an application for judicial review should be made? He underlines the importance of the answer to those questions by saying that the issue is clearly important from a practical stand point. It also has wider ramifications in terms of justice and fairness. Is it right that an individual should be denied defense in a proceedings brought against him merely because he could have instituted proceedings himselve? Should a person be convicted under a law that would have been held to be invalid on the ground that it had been challenged in judicial review proceedings? The unfairness may be greater in the event of a criminal prosecution, but injustice would still exist in civil proceedings. WA1645 & 1866/10 54
76. Early in 1984, in Wandsworth London Borough Council v. Winder ((1984) 3 All ER 976), the House of Lords decided the issue in the affirmative. But, as recently as in 2000, in Wandsworth London Borough Council v. A - ((2000) 1 WLR 1246), though following Winder, the Court acknowledged that there were some practical difficulties in that conclusion. The Court has, indeed, further acknowledged that such a development was not to be welcomed.
77. If we examine further, in Bugg v. DPP ((1993) 2 All ER 815), the Law Lords have sought to maintain the distinction between substantive and procedural invalidity. It was thus held that in criminal proceedings for contravention of a bye-law, the court had the jurisdiction to determine the issue of substantive invalidity, but did not have the jurisdiction to determine whether or not the bye-law was procedurally invalid. But, in R v. Wicks ((1997) 2 All ER
801), Bugg was doubted. Eventually, in Boddington v. WA1645 & 1866/10 55 British Transport Police ((1998) 2 All ER 203), Bugg was over ruled. Notwithstanding the doubts expressed in Wandsworth London Borough Council v. A.Boddington it has ever since been constantly followed by the English Courts. In R (W) v Director of Public Prosecutions (2005 EWCA Civ 1333), proceedings for the breach of Antisocial Behaviour Order (ASBO) were issued pursuant to the Crime and Disorder Act 1998. In that context, the Court has held that it was permissible for the defence to rely on the alleged invalidity of the order in answer to the charge. However, Brooke LJ sought to limit application of the principle as follows:
"I would stress that anything I say in this case must be understood as referring only to an order as plainly invalid as one which contains a restraint to preventing the defendant from committing any criminal offence. There's great force, in my judgement, in the submission... That there will be a danger of opening floodgates if challenges to [ASBOs] could be made in breach proceedings, but in all these cases there are exceptions which are as plain as the exception this case.
(as quoted in Neil Parpworth, P.267) WA1645 & 1866/10 56
78. Fluctuating as the judicial dicta have been, Chief Justice Bray of the Supreme Court of South Australia [the federal apex court of Australia paradoxically being the High Court] in Hinton Demolitions Pty. Ltd., v. Lower (No.2) ((1971) 1 S.A.S.R 512), has observed as follows:
"[The] authorities are in such a state of flux and confusion that it is hardly likely that this Court will be able to construct an enduring causeway through the flood. The task of imposing order on this chaos must, I think, be reserved for the High Court, the Privy Council and the House of Lords. It seems to me that is hardly possible to disentangle any general principle which will not be opposed to some decision which is binding on us or would be if it stood alone."
The celebrated Administrative Law experts, de Smith, Woolf & Jowells, in their Principles of Judicial Review (Sweet & Maxwell, 1999) at page 129, has summarized the position in relation to collateral attack as follows:
"1. Except possibly for a decision which is clearly invalid on its face, all official decisions are presumed to be valid until impugned by a court of competent jurisdiction.WA1645 & 1866/10 57
2. An individual should in principle be able to rely on, as a defence in collateral proceedings before an appellate body, any invalidity, whether or not the source of invalidity is alleged to arise out of a jurisdictional or non- jurisdictional error (or whether the decision or instrument is `'void'' or `' viodable'').
3. To avoid `'cumbrous duplicity of proceedings'', that challenge should where possible take place in forum in which it is made, without adjournment to enable an application to be made for judicial review.
4. In some situations collateral challenge may not be permitted on the ground that the particular proceedings are inappropriate to decide the matter in question (for example, where evidence is needed to substantiate the claim, or where the decision-maker is not a party to the proceedings, or where the claimant has not suffered any direct prejudice a s a result of the alleged invalidity. "
79. In Judicial Review in Public Law, (p.206, 1st Edn. South India, 2011), Clive lewis Q.C, has observed as follows:
"Situations where the court will refuse to intervene:
5-012 Even if invalidity could potentially be established there are circumstances where the court will not intervene to quash the act. Rules governing standing, and the time-limits for bringing applications for judicial review, may prevent a particular individual form establishing the invalidity of act. In addition, in judicial review proceedings the courts have WA1645 & 1866/10 58 a wide discretion to refuse a remedy. The courts have recognized that the consequences of retrospective nullity, with its requirement that the invalid act be treated as it never existed, are no occasions too draconian. Administrative decisions may, for example, have been relied upon by third parties. In the field of financial regulation, third parties may have relied upon the decision of the regulatory authorities when dealing I eh shares of the company concerned. Given the need for ceretainty ad speed in the financial markets and given the interests of third parties, retrospective nullification may be practically impossible or contrary to the wider public interest. In the education field, a decision to close a school may have been taken. Arrangements may have been made for children and staff to be transferred to other establishments. Considerable disruption and cost may occur if that decision is set aside at a late stage in the implementation of the closure plans.
Challenges to measures of general application may also have a wide impact on a wide range of interest and persons.
Retrospective quashing may create difficulties and unfairness for individuals and administrators who have relied upon the measure: unravelling the consequences of invalid acts may impose a heavy burden on the administration and divert resources towards re-opening decisions taken on the basis of the invalid regulations."
80. In Administrative Law Text and Materials (p.106, Oxford, 3rd Edn.), Mark Elliott speaks of the limits of WA1645 & 1866/10 59 collateral challenge in the following manner:
"3.4.3. The Limits of Collateral Challenge:
In spite of the importance attached to collateral challenge in Boddington, that case did not vouchsafe its universal availability: while their Lordships cast off the restrictive approach adopted in earlier cases, they recognized that there will be circumstances in which administrative action cannot be challenged collaterally."
Collateral Challenge - the Indian View:
81. The Courts have mostly approached the issue on the premise of ultra vires and voidness and have consistently held that anything ultra vires and void ab inito can be challenged collaterally. For this reason, precedentially direct reference to collateral challenge as a weapon of offence to a defendant are not too numerous.
82. In Pankaj Bhargava v. Mohinder Nath ((1991) 1 SCC 556), the Supreme Court has addressed the issue as follows: (See:568) "20. [S]uffice it to say that in a collateral challenge the exercise is not the invalidation of a decision, but only to ascertain whether the decision "exists" in law at all and to rely WA1645 & 1866/10 60 upon incidents and effect of its "non-
existence". The authority of decided cases is to the effect that the permission granted must be presumed to be valid till set aside.
Doctrine of collateral challenge will not apply to a decision which is valid ex-hypothesi and which has some presumptive existence, validity and effect in law. Such a decision can be invalidated by the right person in right proceedings brought at the right time. It is only a nullity stemming from lack of inherent jurisdiction or a proceeding that wears the brand of invalidity on its forehead that might afford a defence even against enforcement..."
83. The problem of the penumbral patterns of collateral challenge has been felicitously stated in London & Clydeside Estates Ltd. v. Aberdeen D.C. ((1973) 3 All. E.R. 876) (as quoted in Pankaj Bhargava v. Mohinder Nath ((1991) 1 SCC 556): (All ER p. 883) "In this appeal we are in the field of the rapidly developing jurisprudence of administrative law, and we are considering the effect of non-compliance by a statutory authority with the statutory requirements affecting the discharge of one of its functions...."
"When Parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed WA1645 & 1866/10 61 down to the minutest detail. But what the courts have to decide in a particular case is the legal consequence of non-compliance on the rights of the subject viewed in the light of a concrete state of facts and a continuing chain of events. It may be that what the courts are faced with is not so much a stark choice of alternatives but a spectrum of possibilities in which one compartment or description fades gradually into another. At one end of this spectrum there may be cases in which a fundamental obligation may have been so outrageously and flagrantly ignored or defied that the subject may safely ignore what has been done and treat it as having no legal consequences upon himself. In such a case if the defaulting authority seeks to rely on its action it may be that the subject is entitled to use the defect in procedure simply as a shield or defence without having taken any positive action of his own.... But in a very great number of cases, it may be in a majority of them, it may be necessary for a subject, in order to safeguard himself, to go to the court for declaration of his rights...."
(emphasis original)
84. Continuing in the same vein, we can state that a collateral challenge or attack is clearly permissible against orders or judgments obtained by playing fraud and such other vitiating factors, as can be seen, for instance, in WA1645 & 1866/10 62 matrimonial proceedings.
85. In Nawabkhan Abbaskhan v. State of Gujarat ((1974) 2 SCC 121), it is prefatorily stated on the issue to be decided that the appeal raises a thorny issue of some importance which may be epigramatically expressed as when has the citizen the discretion to disobey an order? When is a determination not a determination? This riddle has to be solved in the foggy legal light of conflicting decisions and academic opinions, Indian and Anglo- American.
86. In that case, the appellant violated an externment order passed under the Bombay Police Act, 1951, but was acquitted of the charge in the trial that ensued. The High Court of Bombay, on appeal, convicted the appellant. In the meanwhile, during the pendency of the criminal trial, the very externment order was quashed in a parallel proceeding under Article 226 of Constitution of India. The fact, however, remains that quashing took place one year after WA1645 & 1866/10 63 the violation. Under these circumstances, what fell for consideration was the freedom of movement guaranteed under Article 19(1)(b) of the Constitution, as could be seen from the observation of the Supreme Court: The vital freedom guaranteed under Article 19 of the Constitution becomes a fleeting fragrance if a police or magisterial officer can whisk you away by a more-executive-than judicial fiat. The observation of the Supreme Court in this regard bears reproduction, and is as follows:
"6. The constitutional perspective must be clear in unlocking the mystique of "void" and "voidable" vis-a-vis orders under the Act. The Act is a constraint on a fundamental right and so the scheme of Article 19 must be vividly brought before our minds if extraordinary controls over human rights statutorily vested in administrative tribunals are to be held in constitutional leash. Freedom of movement, of association, of profession and property, are founding commitments and severe restraints thereon must be strictly construed, not in the name of natural justice -- an elusive phrase
-- nor in literal loyalty to Section 59 but in plenary allegiance to the paramount law. The restriction on the fundamental right must be reasonable and the harsher the restriction WA1645 & 1866/10 64 the heavier the onus to prove reasonableness."
87. Since the order violated the audi alterm partem principle, thereby affecting the fundamental rights of a person, the Supreme Court has held that the order of externment is void ab initio. Once it is void ab initio, its invalidity is retroactive, as if it were non-existent. Ipso facto, quashing of the order one year after its violation is of no consequence. It is stated that it can be disregarded and impeached in any proceedings, before any court or tribunal and whenever it is relied upon; in other words, it is subject to 'collateral attack'.
88. Placing reliance on Ridge v. Baldwin (1964 AC
40), Rubinstein (Discretion to Disobey), etc., the Supreme Court took note of the adjudicatory difficulties faced by the Courts in demarcating the boundaries of the orders which are void and which are voidable. Yet again, it is worth quoting the inimitable expressions of the centenarian, V. R. Krishna Iyyer, J:
WA1645 & 1866/10 65
"18. The test of ex facie illegality or bad on its face or in Lord Radcliffe's words "it bears no brand of invalidity on its forehead", is also unworkable in the work-a-day world of law.
Error of jurisdiction and error within jurisdiction, have been suggested as a means to cut the Gordian Knot. Many great writers have dealt with the subject but few have offered a fair answer to the question, is a determination a determination at all when made without a statutory hearing and when is it void and to what extent? Decisions are legion where the conditions for the exercise of power have been contravened and the order treated as void. And when there is excess or error of jurisdiction the end product is a semblance, not an actual order, although where the error is within jurisdiction it is good, particularly when a finality clause exists. The order becomes "infallible in error", a peculiar legal phenomenon like the hybrid beast of voidable voidness for which, according to a learned author, Lord Denning is largely responsible.
The legal chaos in this branch of jurisprudence should be avoided by evolving simpler concepts which work in practice in Indian conditions. Legislation, rather than judicial law-making will meet the needs more adequately. The only safe course, until simple and sure light is shed from a legislative source, is to treat as void and ineffectual to bind parties, from the beginning, any order made without hearing the party affected if WA1645 & 1866/10 66 the injury is to a constitutionally guaranteed right. In other cases, the order in violation of natural justice is void in the limited sense of being liable to be avoided by Court with retroactive force."
(emphasis in italics original)
89. Substantially, this is the difficulty that presents itself in the present case too. In any event, the issue in the above case arises in criminal proceedings, in which the collateral challenge has its place cemented. Further, voidness is on the ground of violation of audi alterm partem, regarding which no shades of opinion exists.
90. It is of interest to observe that in M.Rukmani Devi v. The Chief Educational Officer (1996 (2) CTC
577), a Division Bench of the High Court of Madras has dealt with somewhat a similar issue as we have on hand now.
91. In this case, after placing a teacher under suspension and subjecting her to departmental enquiry, the management of the school recommends the Government to remove her from service. The educational authorities in the WA1645 & 1866/10 67 Government, apart from rejecting the recommendation of the school management, directed reinstatement of the teacher. The school management has persistently refused to reinstate the teacher in compliance with the direction of the competent authority. The aggrieved teacher approached the court.
92. Before the court, the management has contended that the Educational Officer has no authority to pass such an order of reinstatement. It has also contended that the very order was passed without giving an opportunity to it. In that context, the Division Bench has observed as follows:
"11. That apart, though the order declining approval was passed by the competent authority as early as 21.4.1994, so far the 3rd respondent management has not chosen to take any steps to challenge the same in a manner known to law either before the statutory authorities stipulated under the Act or before this Court under Article 226 of the Constitution of India. While that be the position, it is not permissible for the 3rd respondent to collaterally attempt to attack the order while opposing the claim of the appellant in this case under of the Artticle 226 of Constitution."WA1645 & 1866/10 68
Analysis of the Authorities cited at the Bar:
93. In State of Rajasthan v. D.R. Laxmi ((1996) 6 SCC 445), the question is whether absence of publication of the substance of the notification under Section 4(1) of the Land Acquisition Act in the locality renders the entire proceedings void?
94. In that context, the Hon'ble Supreme Court has held that, the order or action, if ultra vires the power, becomes void and it does not confer any right. Their Lordships, however, proceeded further to observe that the action need not necessarily be set at naught in all events. Though the order may be void, if the party does not approach the Court within reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the Court has to be exercised in a reasonable manner. When the discretion has been conferred on the Court, the Court may, in appropriate case, decline to grant the relief, even if it holds that the WA1645 & 1866/10 69 order was void. The net result is that extraordinary jurisdiction of the Court may not be exercised in such circumstances.
95. We are afraid that the first limb of the ratio cannot be read in isolation; once the whole pronouncement is taken into account, it goes against the grain of argument advanced by the learned counsel for the appellant.
96. In State of Orissa v. Prasana Kumar Sahoo ((2007) 15 SCC 129), the Hon'ble Supreme Court has held that even a policy decision taken by the State in exercise of its jurisdiction under Article 162 of the Constitution of India would be subservient to the recruitment rules framed by the State either in terms of a legislative Act or the proviso appended to Article 309 of the Constitution of India. It is further observed that a purported policy decision issued by way of an executive instruction cannot override the statute or statutory rules far less the constitutional provisions. As such, what is required to be seen is whether Exts.P11 and WA1645 & 1866/10 70 P14 are in violation of any specific statutory stipulations.
97. State of U.P. v. Desh Raj ((2007) 1 SCC 257) and Govt. of A.P. v. K. Brahmanandam ((2008) 5 SCC
241) reiterated the judicial dictum enunciated in State of Karnataka v. Umadevi (3), that an appointment which is illegal, being in violation of constitutional scheme of equality as enshrined under Articles 14 and 16 of the Constitution of Inida, is void ab initio.
98. In Union of India v. Arulmozhi Iniarasu ((2011) 7 SCC 397), the Hon'ble Supreme Court has observed that a writ of mandamus can be issued by the High Court only when there exists a legal right in the writ petitioner and corresponding legal obligation on the State. Only because an illegality has been committed, the same cannot be directed to be perpetuated. It is trite law that there cannot be equality in illegality.
99. In P. Bhaskaran v. Addl. Secretary & Ors. (1987 KLJ 1461), a Full Bench of this Court has examined WA1645 & 1866/10 71 Rule 200 of the Kerala Co-operative Societies Rules. What actually fell for consideration was the meaning and purport of the expression "any right or privilege of emoluments". It was in the context of an employee's right or privilege to emoluments, which he is entitled to in terms of any contract or agreement or conditions of service subsisting between such person and a Co-operative Society. In that backdrop, the Full Bench has made copious reference to various statutes, lexicons and standard legal commentaries, such as Corpus Juris Secundum, Salmond, G. W. Paton, Dias, Hohfeld.
100. Eventually, their Lordships have held that where there is a right, there is a duty. Where it is only a privilege, it is only liberty without any corresponding duty. Privilege provides an opportunity to choose among alternatives. Privilege can be the dispensation of a bounty, a conferment of a personal benefit or advantage, a sanction of immunity or the grant of an exemption. Privilege is thus essentially WA1645 & 1866/10 72 discretionary. It may or may not be granted. Privilege has thus no compulsive element and is thus not judicially enforceable. When there is no duty to enforce a privilege, there can be sanction for its breach. Privilege cannot be equated with right and failure to grant a privilege does not attract any sanction. Privilege is essentially personal while right is generally universal. Privilege is permissive, right is prerogative. Right has a larger content. Privilege is in a narrow compass. But, both right and privilege can be regulated by the Statute and are subject to constitutional limitations.
101. In A.K. Janardhanan v. Joint Registrar of Co- operative Societies and Ors. (1990 (1) KLJ 477), the court, repeating judicial dictum of vintage value, beginning with Taylor v. Taylor (1876 (1) Ch D 426), having found its way to Inida in Nazir Ahmad v. King Emperor (AIR 1936 PC 253), emphasised to the effect that it is also well established that where a power is given to do a certain thing WA1645 & 1866/10 73 in a certain way, the thing must be done in that way or not at all. Even if there be no negative words, that shall not be done in any other way. Other modes of performance are necessarily forbidden.
102. In Janardhanan v. Joint Registrar (1990 2 KLT 530), the fact of the matter is that permissive sanction was accorded by the Joint Registrar to amend the bye-laws of the Respondent-society, enabling it to enhance the authorised share capital. In that context, a learned single Judge of this Court has held that where a power or authority is conferred with a direction that certain regulation formalities or conditions shall be complied with, it is neither unjust nor incorrect to extract a rigorous observance of them as essential to the acquisition of the right or authority conferred. It is further held that the power or authority must be exercised according to the mode provided and contemplated by the statutory provision. WA1645 & 1866/10 74
103. It is well to remember that the very sanction granted by the Joint Registrar is permissive in nature. Further, the nature of object sought to be achieved is legislative in character, for the bye-laws of a society partake the legislative character. As such, the observations made by the learned Single Judge in that context cannot be telescoped into the present factual context.
104. In Ganga Pratap Singh v. Allahabad Bank Ltd. (AIR 1958 SC 293), the respondent, a scheduled bank, sued the appellant in the court of the Civil Judge, Sitapore in Uttar Pradesh, for recovery of money due under an instrument of mortgage. The appellant, claiming to the statutory benefit of debt relief, contended that definition of 'debt' offended Article 14 of the Constitution. This defence, therefore, raised a question as to the validity of a provision in the Act. So, the appellant made an application to the Civil Judge, under the proviso to Section 113 of the Code of Civil Procedure seeking reference for the opinion of the High WA1645 & 1866/10 75 Court of Allahabad on the issue. The unsuccessful appellant initially approached the High Court of Allahabad and later the Supreme Court. In that backdrop, the Hon'ble Supreme Court has held that appellant's case comes within the proviso to Section 113 of the Code as also Article 228 of the Constitution. It can be seen that the question contemplated by the proviso to Section 113 of the Code is as to the validity of an Act or of a provision in it, while Article 228 of the Constitution has, in view, a question as to the interpretation of the Constitution. Neither of those contingences is obtained here.
105. In Mamleshwar Prasad v. Kanhaiya Lal (AIR 1975 SC 907), the facts are that through a common judgment a Division Bench of the Delhi High Court disposed of four appeals, the points covered by all being admittedly identical. Though four appeals came to be filed, the appellants moved the Supreme Court to dispose of one of the four appeals in the first instance and to apply the same WA1645 & 1866/10 76 judgment to the rest of the appeals. Accordingly, having heard one appeal, the Supreme Court has decided against the appellants. At that juncture, one of the appellants in the three remaining appeals has contended that earlier adjudication by the Court amounted to a judgment per incuriam and did not bind him or the Court. He was thus free to argue on merits. In that context, holding that a prior decision of the Court on identical facts and law binds the Court on the same points in a later case, the Hon'ble Supreme Court has observed as follows:
"5. A litigant cannot play fast and loose with the Court. His word to the Court is as good as his bond and we must, without more ado, negative the present shift in stand by an astute discovery of a plea that the earlier judgment was rendered per incuriam.
...
7. Certainty of the law, consistency of rulings and comity of courts- all flowering from the same principle-coverage to the conclusion that a decision once rendered must later bind like cases. We do not intend to detract from the rule that, in exceptional instances, where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running WA1645 & 1866/10 77 counter to the reasoning and result reached, it may not have the sway of binding precedents. It should be a glaring case, an obtrusive omission. No such situation presents itself here and we do not embark on the principle of judgment per incuriam."
106. In State of Kerala v. Arun George & Ors. (2009 (4) KHC 477)), a Division Bench of this Court has taken a view that even if Government have granted sanction to start new courses on condition that they will have no additional financial commitments, the said condition will be against the provisions of the University Statutes and the Direct Payment Agreement and the workload that is available as per the sanctioned new courses will have to be reckoned for payment of salary and other benefits. We fail to see any factual parity or applicability of the ratio to the present case.
107. In State of W.B. v. Subodh Gopal Bose (AIR 1954 SC 92), a Constitution Bench of the Supreme Court, by placing reliance on another Constitution Bench in Charanjit Lal Chowdhury v. Union of India, has held that the WA1645 & 1866/10 78 American doctrine of police power as a distinct and specific legislative power is not recognised in our Constitution and it is, therefore, contrary to the scheme of the Constitution.
108. The learned counsel for the appellant has laid heavy stress on Bharathidasan University v. All-India Council for Technical Education ((2001) 8 SCC 676). The important question of law that has arisen for consideration in that case is whether the University created under the Bharathidasan University Act, 1981 should seek prior approval of AICTE to start a department for imparting a course or programme in technical education or a technical institution as an adjunct to the University itself to conduct technical courses of its choice and selection.
109. The contention of the University in that case is that it is not a 'technical institution' in terms of Section 2(h) of the AICTE Act and therefore, it stood outside the purview of Section 10(1)(k) of the said Act. Consequently, it is not obliged to seek and obtain prior approval of the AICTE for WA1645 & 1866/10 79 starting a department or introducing new courses or programmes.
110. In response thereto, the Supreme Court has held that a careful scanning through all the provisions of the AICTE Act and the provisions of the UGC Act in juxtaposition, will show that the role of AICTE, vis-a-vis, the Universities are only advisory, recommendatory and a guiding factor for the purpose of maintaining appropriate standards. It is held that the Regulations insofar as they compel the Universities to seek and obtain prior approval to start any new course are directly opposed to and inconsistent with the provisions of Section 10(1)(k) of the Act and consequently void and unenforceable.
111. In that context, their Lordships held that the Regulations may have the force and the law does not confer any more sanctity or immunity as though they are statutory provisions themselves. Consequently, when the power to make Regulations are confined to certain limits, those are WA1645 & 1866/10 80 actually made to show and found to be not made within those confines, but outside them, the Courts are bound to ignore them when the question of their enforcement arises. The mere fact that there was no specific relief sought to strike down or declare them as ultra vires, particularly when the party in sufferance is a respondent to the lis or proceedings, it cannot confer any further sanctity or authority and validity which it is shown and found to obviously and patently lack.
112. In Usman v. State of Kerala (2003 (1) KLT 2), a single Judge of this Court has held that even the validity of an Act or Rule or Statutory Order can be raised by way of defence in a criminal trial. The accused need not move any separate application for judicial review. In that context, this Court quoted the learned Author H.W.R. Wade, who, in his Administrative Law, 8th Edition, dealt with this aspect in the following manner:
WA1645 & 1866/10 81
"Defensive and collateral pleas:
An important question was whether issues of public law might be raised by way of defence, or as collateral issues, in proceedings of any kind. On a rigorous interpretation of O 'Reilly v. Mackman it was argued that a defendant who wished to attack the validity of some official act or order should do so by separate proceedings for judicial review, and apply for an adjournment' of the main proceedings meanwhile. But the House of Lords, once again refraining from the extreme course, held that it would be wrong to deprive a defendant of the opportunity to raise any available defence as a matter of right... The House held that it could not be an abuse of the process of the court to raise the familiar defence of ultra vires, which can normally be pleaded as a collateral issue, when the defendant was not able to select the procedure adopted. 'In any event', Lord Fraser said, 'the arguments for protecting public authorities against unmeritorious or dilatory challenges to their decisions have to be set against the arguments for preserving the ordinary rights of private citizens to defend themselves against unfounded claims'. A defendant is entitled to make his defence as a matter of right, whereas judicial review proceedings are subject to the discretion of the court.
(emphasis added) WA1645 & 1866/10 82
113. As could be seen from the above extract, Lord Fraser did acknowledge the dichotomy of the issue; protecting the public authorities against unmeritorious or dilatory challenges to their decisions on one hand; and preserving the ordinary rights of private citizens to defend themselves against the unfounded claims of the authorities. In this case, can we say that the appellant, an institution, though suing in the name of its manager, is facing the official oppression as an ordinary citizen? For all practical purposes, it is an instrumentality, discharging public function, getting funded by the State and being under the all pervasive control of the Government. Government and the appellant are not the rivals in arms, but two agencies requiring administrative co-ordination between themselves.
114. In this context, it is appropriate to quote Justice William O. Douglas, who said: "The Constitution is not neutral. It was designed to take the government off the backs of the people." (The Court Years 1939-1975: The WA1645 & 1866/10 83 Autobiography of William O. Douglas, (New York: Random House, 1980), p. 8)
115. Thus, while applying the legal principles settle though they are, it is essential to see who seeks the benefit of those principles. A legal principle is not inert in its effect so that it can be applied across the board, unmindful of the fact that who the beneficiary is. A common man can claim the benefit of prescriptive rights, say perfection of title by adverse possession; but, can we say that a Government, too, a juristic person though, can claim the same right? In fact, the Supreme Court in State of Haryana v. Mukesh Kumar ((2011) 4 SCC 404), deprecated such an attempt by the Government.
116. It is further pertinent to observe that such course has been limited, as held in R (W) v. Director of Public Prosecutions (2005 EWCA Civ 1333), to cases where the defence is raised against a criminal charge. WA1645 & 1866/10 84
117. In Usman it has been observed in paragraph 9 of the judgment that invalidity of a legislation can be set up as a defence in civil proceedings. It has further observed, placing reliance on Bharathidasan that, in writ proceedings, if a subordinate legislation is sought to be enforced, the respondents can resist the same pleading that said Regulation is invalid. He need not seek separate and independent prerogative remedy to challenge the same.
118. It may be appreciated that, all through, the challenge is with regard to subordinate legislation, but not an administrative order. In any event, we have already discussed the impact of Bharathidasan on the present issue at length. Further, State of Kerala v. Arun George (2009 (4) KLT 972) and U.Sharafali, Deputy Commandant v. State Of Kerala an unreported judgment rendered on 17.06.2010 by one of us (Antony Dominic, J), are two other judgments which are based on the findings on the ratio laid down in Bharathidasan. It is pertinent to state that in WA1645 & 1866/10 85 U.Sharafali, the issue has already attained finality, having been dealt with in another writ petition, to which Government is a party. As such, it is held that even in the absence of a formal challenge against the validity of the order, the court can justifiably ignore the order, particularly when the party in sufferance is the respondent to the proceedings.
Collateral Challenge & Rule of Law:
119. Constitution is a matter of limitation of powers, while statutes are regulatory in nature. For a common man, Court of law is the last resort and as such, to preserve his rights and to negate the State's excessive interference, if any, in his affairs, his resistance takes myriad forms; it can be active or passive. He can lay a direct challenge or collaterally question the acts of Government, which, in his view, are not in consonance with the law of the land. On the other hand, the Executive is not a motionless monolithic; it is, in fact, a fine tuned administrative machine. Every WA1645 & 1866/10 86 official is a cog in the machine required to function as per the role assigned to him or her. Any malfunctioning of a cog in the machine, however small it is, throws the whole machine out of gear and renders it malfunctioning.
120. Sustaining the above simili, it can be stated that the official of the State does not have the same luxury as a common man has in questioning, much less disobeying, the directives emanating at higher echelons collaterally. He cannot sit in judgment over the administrative orders, which he is supposed, nay mandated, to follow and implement. In a country governed by rule of law, if an official of the state is given the liberty to judge for himself the validity or the legality of the orders of his superiors and remain impervious to them until the issue comes before a Court of law, where he can always collaterally challenge the order or directive and justify his disobedience, it is a sure prescription for administrative chaos, if not collapse.WA1645 & 1866/10 87
121. In the present sentence, as has statutorily demonstrated above, the appellant is under the all pervasive control of the State and its manager is an official in terms of Article 12, as well as Article 226 of the Constitution of India.
Ipso facto, he cannot be allowed to ignore even void orders, without laying a proper challenge against them and justify his inaction and disobedience to binding administrative directives in the name of collateral challenge, by pre- judging the purative voidness of the directive. Void Orders - Degrees of Voidness:
122. Concise Oxford Dictionary defines the term 'void' as something not valid or legally binding; (of speech or action) ineffectual; useless. Merriam-Webster defines the term in legal parlance as of no legal force or effect: null.
Black's Law Dictionary (9th Edn.) defines the term 'void' as (1) of no legal effect; null. It further states that the distinction between void and voidable is often of great practical importance. Whenever technical accuracy is WA1645 & 1866/10 88 required, void can be properly applied only to those provisions that are of no effect whatsoever - those that an absolute nullity.
123. Most of the English case law on the concept of 'void', including Ridge v. Baldwin (1964 AC 40), concern themselves with the denial of fair hearing or the negation of principles of natural justice. In this case, we are concerned with orders of the Government on the principle that they are ultra vires of the powers of the authorities. Thus, it is voidness borne out of being ulta vires. Criticising Durayappah v. Fernando ((1967) 2 AC 337), the learned Author, Wades, says that although action which is ultra vires is properly described as void or a nullity, this voidness necessarily depends upon the right remedy being sought successfully by the right person. Citing an example, the learned author says that if a person is dismissed without being heard, his dismissal may be held as void if he challenges it. But, if he has not challenged it, other people WA1645 & 1866/10 89 have to accept it also, for, as against 3rd parties, whose rights are not infringed, a void act may well be valid, if they have no legal title to challenge it. In that context, he concludes thus:
"Void' is therefore meaningless in any absolute sense. It's meaning is relative depending upon the court's willingness to grant relief any particular situation. If this principle of legal relativity is borne in mind, confusion over void voidable can be avoided... So long as the ultra vires doctrine reminds the basis of a twisted to law, the correct epithet must be `void'."
124. Echoing the same view, another learned author, de Smith, comments thus:
"Is it correct to say that `there are no degrees of nullity? If so, does it follow that ex nihilo nihil fit - out of nothing comes nothing? Because the answers to these questions or in the negative, the differences between void and voidable acts or less than one might suppose."
125. Eventually, the learned author opines that what is null and void for one purpose may be valid for another, and voidness itself is a relative concept. WA1645 & 1866/10 90
126. It is pertinent to observe that in F. Hoffman-La Roche & Co. A.G. v. Secretary of State for Trade and Industry ((1975) AC 295), the House of Lords, per Lord Diplock, observes that orders would be presumed to be valid unless the presumption is reported in competent legal proceedings by a party and take pursue.
127. In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth (AIR 1996 SC 906), the Supreme Court has held as follows:
"The word "void" has a relative rather than an absolute meaning. It only conveys the idea that the order is invalid or illegal. It can be avoided. There are degrees of invalidity, depending upon the gravity or the infirmity, as to whether it is, fundamental or otherwise."
Void Orders v. Collateral Challenge: Judicial Perspective:
128. In State of Punjab v. Gurdev Singh ((1991) 4 SCC 1), the issue is one concerning limitation governing the suit for declaration by a dismissed employee that he continues to be in service since his dismissal was void and WA1645 & 1866/10 91 inoperative. The High Court has observed that if the dismissal of the employee is illegal, void or inoperative being in contravention of the mandatory provisions of any rules or conditions of service, there is no limitation to bring a suit for declaration that the employee continues to be in service. Reversing the above findings, the Hon'ble Supreme Court has held that the impugned dismissal order has at least be a de facto operation unless and until it is declared to be void and null by a competent body or court. In this regard, the Supreme Court has relied on the oft-quoted remark of the House of Lords in Smith v. East Elloe Rural District Council, wherein Lord Radcliffe observed: (All ER p. 871) "An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders."
WA1645 & 1866/10 92
129. Further, the Supreme Court also quotes with approval the observations of Prof. Wade:
"The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the `void' order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another; and that it may be void against one person but valid against another."
(emphasis added)
130. Following Gurdev Singh, a Division Bench of this Court in Gopalakrishnan Nair v. State of Kerala (ILR 1992 (2) 739), has held that unless a Court of law either set aside or declares an administrative instruction, direction or order as invalid and inoperative, it will be presumed to be valid and operative.
WA1645 & 1866/10 93
131. In Pune Municipal Corpn. v. State of Maharashtra ((2007) 5 SCC 211), the Supreme Court has observed that no order can be ignored altogether unless a finding is recorded that it was illegal, void or not in consonance with law. Krishnadevi Malchand Kamathia v. Bombay Environmental Action Group ((2011) 3 SCC
363), and M. Meenakshi and Ors. v. Metadin Agarwal (dead) by L.Rs. and Ors. ((2006) 7 SCC 470), affirm the same view.
132. In MCD v. Qimat Rai Gupta ((2007) 7 SCC
309), it is observed that there exists a presumption that the official act is presumed to have been done in regular course of business. There also exists a presumption that a statutory functionary would act honestly and bona fidely.
133. In Pavithran v. State of Kerala (2009 (4) KLT 20 (F.B)), a Full Bench of this Court has held that whenever an adverse order is passed against a person, unless the same is challenged before the appropriate forum, within the WA1645 & 1866/10 94 prescribed time limit, the said order will become final and the person, affected by it, will also be bound by it. It is a well settled principle in Administrative Law that, there are no void orders in absolute sense, in administrative matters. There are only voidable orders. Unless a person aggrieved takes recourse to the proper remedy at the appropriate time, even an illegal order will be treated as valid and binding.
134. In Jose. T.A. & Company v. State of Kerala (ILR 2009 (3) 62), one of us (Antony Dominic, J), sitting single, has dealt with the issue of the nature of orders which are supposed to be void and the remedial measures to be taken in that regard. After comprehensively surveying the precedential precincts in that regard, it is held that an irregular or illegal order can be avoided only if it is set aside in appropriate proceedings before a competent forum. WA1645 & 1866/10 95 WA No.1645 of 2000:
In re: Issue No.5:
Denial of Pay & Allowance for the Interregnum:
135. While allowing the O.P., the learned Single Judge has directed the respondents therein to reckon the interregnum period from the date of the first respondent's termination from the University till the date of the his re- appointment in the college for the purpose of seniority and pay fixation, etc., but without pay and allowances for the said period. Contending that denial of pay and allowance, after the learned Single Judge holding that the action of the respondent college is illegal, is totally unsustainable. In support of his submissions, the learned counsel has relied on the following decisions: Commissioner, Karnataka Housing Board v. C. Muddaiah ((2007) 7 SCC 689), State of U.P. v. Dayanand Chakrawarty ((2013) 7 SCC
595) and Shiv Nandan Mahto v. State of Bihar ((2013) 11 SCC 626). Despite the unquestionable efficacy of the WA1645 & 1866/10 96 judicial dicta of the above judgments of the Apex Court, the issue is whether the ratio laid down therein applies to the present factual situation.
136. In this case, it is the Government, which is the paymaster. All along it has been directing the management to re-employ the 1st respondent, but it is the appellant management that has proved recalcitrant. Under these circumstances, directing payment of back wages puts an unjustifiable burden on the Government, which has never been at fault. It cannot be made to pay for the mistakes of the appellant college. The fact further remains that the 1st respondent attained the age of superannuation and deemed to have been retired from service in April, 2014.
137. Under these peculiar circumstances, in our considered view, it subserves the interest of justice if a direction is given to the Government to pay the accumulated back wages to the 1st respondent from the date of the judgment in OP., i.e., from 18.05.2010, when his entitlement WA1645 & 1866/10 97 got the judicial imprimatur till the date of his deemed retirement on attaining the age of superannuation, i.e., April, 2014.
138. As a matter of restitution, Government is at liberty to recover the said amount of back wages being paid to the 1st respondent from the appellant either by way of direct recovery, by taking recourse to the recovery mechanism such as Revenue Recovery Act or to exercise the power of set off from and out of the funds to be disbursed to the appellant college.
In the result, W.A.No.1645/2010 is dismissed. W.A. No.1866/2010 is allowed to the extent indicated above. No costs.
Sd/-
Antony Dominic, Judge Sd/-
Dama Seshadri Naidu, Judge tkv