Document Fragment View

Matching Fragments

"24. From the aforementioned cases, it is evident that the Government is bound by executive orders/policies. The guidelines are made to follow it and not to breach it without any justifiable reasons. Whenever the Government deviates from its policies/guidelines/ executive instructions, there must be cogent and strong reasons to justify the order; when transfer order is challenged by way of representation, there must be material on record to establish that the decision was in public interest and it does not violate any statutory provision, otherwise the order may be struck down as being arbitrary and violative of Article 14 of the Constitution. The authorities cannot justify their orders that breach of executive orders do not give legally enforceable right to aggrieved person. As observed by Justice Frankfurter "An executive agency must be rigorously held to the standards by which it professes its action to be judged".

In the case of Dr. Amarjit Singh Ahluwalia v. The State of Punjab and others, (1975) 3 SCC 503 the Supreme Court applied the principle enunciated by Mr. Justice Frankfurter in William Vincent Vitarelli v. Fred A. Seaton, Secretary of Interior, et al., 359 U.S. 535 (1959): Manu/USSC/0176/1959 where the learned Judge said:

"An executive agency must be rigorously held to the standards by which it professes its action to be judged. See Securities & Exchange Commission v. Chenery Corp., 318 U.S. 80, 318 U.S. 87-88. Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. See Service v. Dulles, 354 U. S. 363. This judicially evolved rule of administrative law is now firmly established, and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword. "

In Dr. Amarjit Singh Ahluwalia (supra) the Supreme Court preferred the view taken by U.S. Supreme Court while interpretating the administrative instructions. The British Courts take rather conservative view on the administrative orders. The following discussion and conclusion are apt and relevant for our purposes:

"8. ...Now, it is true that clause (2) (ii) of the memorandum dated 25th October, 1965 was in the nature of administrative instruction, not having the force of law, but the State Government could not at its own sweet will depart from it without rational justification and fix an artificial date for commencing the length of continuous service in the case of some individual officers only for the purpose of giving them seniority in contravention of that clause. That would be clearly violative of Articles 14 and 16 of the Constitution. The sweep of Articles 14 and 16 is wide and pervasive. These two articles embody the principle of rationality and they are intended to strike against arbitrary and discriminatory action taken by the, 'State' Where the State Government departs from a principle of seniority laid down by it, albeit by administrative instructions, and the departure is without reason and arbitrary, it would directly infringe the guarantee of equality under articles 14 and 16. It is interesting to notice that in the United States it is now well settled that an executive agency must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. vide the judgment of Mr. Justice Frankfurter in Vitaralli v. Seaton, 359 US 535, 546-547 : 3 L Ed. 2nd 1012. This view is of course not based on the equality clause of the United State Constitution and it is evolved as a rule of administrative law. But the principle is the same, namely, that arbitrariness should be eliminated in State action."