TaxTMI 
TaxTMI 
2009 (7) TMI 1348
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....09 Exhibit A. Writ Petition No. 3568 of 2009 had been filed at Aurangabad Bench of this High Court, while Writ Petition Lodging No. 63 of 2009 has been filed at the Principal Bench. Vide order dated 17th June, 2009, both these Petitions were ordered to be listed and heard together as common question of law is raised in these Petitions and somewhat common reliefs are sought. Thus, by this judgment, we will dispose of both the Petitions together. 3. The Petitioners in both these Petitions claim to be public spirited persons, one is a Journalist and Social Worker, while the other was Social Journalist in the past and is Lawyer at present and both of them, in the past, have taken up various issues of public importance by filing public interest litigations in the Courts. Shri Johny Joseph, the Chief Secretary of the State of Maharashtra is stated to have attained the age of 60 years on 29th May, 2009, his date of birth being 29th May, 1949. Upon attaining that age, he would superannuate from the service on 30th May, 2009. However, the Union of India upon recommendation of the State of Maharashtra through the Principal Secretary, General Administrative Department, Mantralaya, Mumbai, ....
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....l Government is unreasoned without basis and is made in undue haste. Relying upon the judgment of the Division Bench of this Court in R.R. Tripathi's case (supra), it is contended that the action of the State and the Union of India is discriminatory and arbitrarily. 6. The Respondents produced the original records in the Court being the file containing the noting and decisions resulting in the passing of extension order in favour of the private Respondent and argued that there is hardly any challenge to the Notification issued by the Central Government adding Third Proviso to Rule 16 as the Notification itself opens with the words "the Central Government, after consultation with the Government of the States concerned hereby makes the following rules to amend the All India Services (Death Cum Retirement Benefits) Rules, 1958. 7. Thus, the Notification is neither bad in law nor suffers from element of discrimination. According to the Respondents, there is full justification for and public interest is served by giving extension to the Chief Secretary. The decision being for valid reason and free of arbitrariness would fall beyond the scope of judicial review. There was, acco....
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....criteria and principles stated in the judgment while according to the Petitioners there is a glaring violation of the principles stated therein and extension granted to the Respondents is arbitrary and unfair. In that case, the Court was concerned with the grant of extension to Dr. P.S. Pasricha, Director General of Police, Maharashtra State, and Shri D.N. Jadhav, Commissioner of Police, Mumbai. The State Government had claimed that keeping in view their service profiles and for the purposes of setting up police establishment Board and State Security Commission, the services of those Respondents were necessary in public interest. Both those officers were to retire from service on 30th November, 2007 upon attaining the age of superannuation. The Home Department of the State of Maharashtra had sent a proposal to the Ministry of Home Affairs, New Delhi, for approval of the Central Government for extension of their service which was granted. These extensions were challenged on the ground that they were contrary to the Rule 16(1) of the said Rules as well as they were ex facie arbitrary and violative of Articles 14 and 16 of the Constitution of India. The Court in the facts of that case....
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....f the last day of the preceding month. Explanation. For the purpose of this Sub-rule, a member of the Service whose date of birth falls on the 1st day of May, 1998 and is on extension in service, shall retire from the service on the expiry of his extended period of service or on the expiry of any further extension granted by the Central Government in public interest, and that on such extension in service shall be granted beyond the age of sixty years.] (2) A member of the Service may, after giving at least three months previous notice in writing, to the State Government concerned, retire from service on the date on which such member completes thirty years of qualifying service on the date on which such member attains fifty years age or on any date thereafter to be specified in the notice; Provided that no member of the Service under suspension shall retire from service except with the specific approval of the State Government concerned. (2A) A member of the service may, after giving three months previous notice in writing to the State Government concerned, retire from service on he date on which he complete 20 years of qualifying service or any day thereafter to be spec....
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....igence Bureau, Secretary, Research and Analysis Wing and Director, Central Bureau of Investigation for such period as it may deem proper: Provided that the total term of the Cabinet Secretary who is granted such extensions of service shall not exceed three years; Provided further that the total term of the other Secretaries and Directors who are granted such extensions of service under these Rules shall not exceed two years. A. Section 3 of the All India Services Act, 1951 also empowers the Central Government to make rules for regulation of recruitment and conditions of service of persons appointed in service after consultation with the Government of the State concerned. Subsection (1A) further extends this power empowering the Government to give retrospective effect to the rules so framed from the date not earlier than the date of commencement of this Act. In exercise of the power vested by the Central Government under this provision, they had framed The All India Services (Conditions of Service Residuary Matters) Rules, 1960. Rule 3 of the Rules, vested power to relax the rules and regulations in certain cases. In this provision, the satisfaction to be recorded is that o....
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....ntral Government is satisfied that operation of any rule made or deemed to have been made in regulation causes undue hardship in any particular case, it may order to dispense with or relax the requirement of the rules or regulations to such an extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner. This rule on its plain reading is to receive a liberal construction. The rule has been worded so widely as to cover unspecified situations. It is a basic rule of service jurisprudence that no rule or provision may comprehend and contemplate all possible situations which may arise. 15. The Petitioners challenge is to the orders issued on 30th November, 2007 extending the period of superannuation for respondent Nos. 6 and 7 respectively. Rule 16 (1) was framed earlier but was amended for the first time on 13th May, 1998, then on 30th November,2005 and finally on 12th June, 2006. By virtue of these amendments, provisos were added and Rule 16 (1A) was inserted but misdescribed in the amended notification as 'substituted'. This Rule provides power to the Central Government to grant extension of serv....
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....there under. The residuary powers vested to meet extraordinary situations which have not been specifically provided for in the Rules cannot be circumvented or limited and it must be left to the authorities to exercise their powers objectively and in consonance with the spirit of the Rules. Besides the power to extend, power to relax the rule in its absolute term to a given case and to remove hardship or otherwise is clear indication of the powers of the rule framing authority and there should not be unnecessary embargoes upon the exercise of such powers. We may refer to the language of Rule 3 which clearly says that the Rule could be relaxed to such an extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner (emphasis supplied by us). The expression "just and equitable manner" is a well known expression in the Administrative law and within the domain of service jurisprudence. The decision will have to be left to the discretion of the authority concerned and the Court would not sit as an appellate authority to examine the extent and degree of justness and equitability. 18. The Supreme Court enunciat....
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.... is taken to be correct then all appointments to different posts ever since 1936 have to be held to be invalid inasmuch as no rules have been framed by the State Government in exercise of the power under Section 21 of the Act. While interpreting the provisions of Section 21 of the Act, the High Court has lost sight of the general principle of service jurisprudence that in the absence of any statutory rules governing the service conditions of the employees, the executive instructions and/or decisions taken administratively would operate in the field and appointments/promotions can be made in accordance with such executive instructions/administrative directions. In this view of the matter and concededly, no rules having been framed by the State Government in exercise of power under Section 21 of the Act, the Trust/Board was fully empowered to take administrative decisions in the matter of appointments and promotions to different posts including the posts requiring professional skill and consequently the resolution of the Board taken in accordance with Sub-section( 2) of Section 22 of the Act deciding to promote the employees to the post of Assistant Engineer cannot be said to be inva....
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....ound which would attract the scrutiny by courts. In the case of Hochtief Gammon v. State of Orissa (1975)IILLJ418SC , the Supreme Court held as under. The Executive have to reach their decision by taking into account relevant considerations. They should not refuse to consider relevant matter nor should they take into account wholly irrelevant or extraneous consideration. They should not misdirect themselves on a point of law. Only such a decision will be lawful. The courts have power to see that the Executive acts lawfully. It is no answer to the exercise of that power to say that the Executive acted bona fide not nor that they have bestowed painstaking consideration. They cannot avoid scrutiny by courts by failing to give reasons. If they give reasons and they are not good reasons, the Court can direct them to reconsider the matter in the light of relevant matters, though the propriety, adequacy or satisfactory character of these reasons may not be open to judicial scrutiny. Even if the Executive considers it inexpedient to exercise their powers they should state their reasons and there must be material to show that they have considered all the relevant facts. xx xx xx 31....
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.... a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at. xx xx xx 45. Proper analysis of the factual matrix of the case and the principles of law stated supra, would lead us to only one conclusion that the orders dated 30th November, 2007 are not reasoned, rational and are also not in larger public interest. They do not satisfy the basic ingredients of the relevant provisions and instructions issued by the Government itself for grant of extension to the members of the All India Service. The action of the Government thus, suffers from vice of arbitrariness. Resultantly, these orders are quashed. 12. The above stated reasonings and the principles provide the outline within the ambit of which the power of judicial review needs to be exercised by the Court. We are quite aware that we are not to examine the soundness of the decision taken by the Government but would have to see whether the decision making process is just, fair and in accordance with law. The fairness in administrative action and the scope of judicial review has been the subject....
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....discretion of the public authority which Parliament appointed to take the decision. Within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. If it passes those bounds, it acts ultra vires. The court must therefore resist the temptation to draw the bounds too tightly, merely according to its own opinion. It must strive to apply an objective standard which leaves to the deciding authority the full range of choices which legislature is presumed to have intended. The decisions which are extravagant or capricious cannot be legitimate. But if the decision is within the confines of reasonableness, it is no part of the court's function to look further into its merits. 'With the question whether a particular policy is wise or foolish the court is not concerned; it can only interfere if to pursue it is beyond the powers of the authority. But in the same book Prof. Wade has also said: The powers of public authorities are therefore essentially different from those of private persons. A man making his will may, subject to any rights of his dependents, dispose of his property just as he may wish. He may act out of malice or a ....
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....adding amended third proviso to Rule 16(1) complies with the requirements of Section 3 and the presumption in its favour has not been rebutted by the Petitioner. The onus to show that the Notification was issued without proper consultation was upon the Petitioners. Except making a bald statement in the Petition, no documents have been produced or even specific averments have been made in the Petition as to which of the States were not consulted. It is also the stand of the Respondents that there has been reasonable classification between the Officers of the IAS Cadre simplicitor on one hand and the group of Chief Secretaries of the States on the other. Being distinct classes they could have been treated differently by providing different criteria. 18. It is a settled principle of law that there is a presumption in favour of validity of a Legislation. However, the learned Advocate General appearing for the State has informed us that due consultation with all the concerned States was effected before issuing such a Notification. Third proviso to Rule 16 was inserted vide Notification dated 30th November 2005 and which all through this period has been implemented without any objecti....
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....ith the other rules. 22. It is also clear from the third proviso itself that it is applicable only to the persons in service who are holding the post of Chief Secretary of a State Government that too for a period not exceeding six months. It further provides a dual check before such an order can be made. The concerned State Government should have made such recommendations for extension; it has to be in public interest; and prior approval of the Central Government is the prerequisite for issuing the order of extension of service to an officer. Once these three conditions are satisfied, there would hardly be any scope for the Court to interfere. This provision thus provides sufficient check and balance and inbuilt guidelines to the authorities exercising their discretion while granting or declining extension to a officer in terms of third proviso of Rule 16(1). A bare reading of the provisions makes it clear that it does not vest the Government with arbitrary or unguided power. 23. Furthermore, a Division Bench of this Court in the case of R.R. Tripathi (supra) had clearly held that even under Rule 16(1) after reading the first two provisos together, the Government has the powe....
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....on of member of the service in service by way of limited extension is the 'need' of the State and is also 'in public interest'. 26. The expression "public interest" is well known connotation in service jurisprudence. The Business Dictionary * defines "public interest" as: welfare of the general public (in contrast to the selfish interest of a person, group, or firm) in which the whole society has a stake and which warrants recognition, promotion, and protection by the government and its agencies. Despite the vagueness of the term, public interest is claimed generally by governments in matters of state secrecy and confidentiality. It is approximated by comparing expected gains and potential costs or losses associated with a decision, policy, program, or project. 27. In common parlance, public interest means the general welfare of the public that warrants recognition and protection. It is a matter in which the public as a whole has the stake and interest. A Government Resolution must justify that besides its own job necessity, Government has formed a bona fide opinion that the extension is in public interest as well. 28. In the case of Onkar Lal Bajaj etc. v. ....
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....ential use. Public interest floats in a vast, deep ocean of ideas, and "imagined experiences". It would seem to us wise for the courts not to venture into this unchartered minefield. We are not exercising our will. We cannot impose our own values on society. Any such effort would mean to make value judgments. 68. The impugned judgment illustrates "the danger of judges wrongly though unconsciously substituting their own views for the views of the decision maker who alone is charged and authorised by law to exercise discretion". With respect, we find that the High Court virtually converted the judicial review proceedings into an inquisitorial one. The way proceedings went on before the High Court suggest as if the High Court was virtually making an inquiry into the conduct and affairs of MDA in a case where the Court was merely concerned with the decision making process of MDA in not accepting the offer/tender of AMS in respect of the disputed plot on the ground that the offer so made was less than that of the reserved price fixed by MDA. 30. The need is for balancing the public interest against the interest of an individual i.e. the member of the service to whom the extension ....
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.... need of the State which, according to the State, was full justification for getting approval of the Central Government for extension of service of private Respondent. Unlike the case of R.R.Tripathi (supra) where the entire record produced before the Court only reflected whim of the Chief Minister rather than reasons of the State in public interest, it would be evident from the letter sent by the State Government to the Central Government, to which the note giving details of those projects was attached that need of the State was discussed in some elaboration in the letter. The extract of the letter is as under: ... As the Chief Secretary of the State, Sri Joseph has been very closely involved in the formulation of these measures and the State Govt is of the considered opinion that, given his background of efficient handling of the subject of Disaster Management in the past, following the Latur Earthquake and his handson experience of dealing with the 26/11 crises, Sri Joseph's continued supervision, inputs, monitoring and coordination skills are indispensible for the timebound execution of these measures, enumerated in detail in the attached note. xxxxx xxxxx xxxxx Se....
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....he considered opinion that it is essential to continue the services of the present Chief Secretary, Sri Jonhy Joseph, IAS [MH: 1972], for six more months, beyond the date of his superannuation i.e. the 31st March 2009, as Sri Joseph .... 32. In pursuance of this proposal, the Competent Authority, vide letter dated 15th May, 2009, granted extension in service for a period of six months to the private Respondent, in furtherance to which the State Government passed the resolution on 30th May, 2009 granting six months' extension to the private Respondent with effect from 1st June, 2009. 33. From the detailed proposal and the letter written by the Chief Minister, it is unambiguously clear that in the wisdom of the State various projects, security measures and the then ensuing Budget Session could be better performed with further association of the private Respondent. We have already stated the principle that it is not the soundness of the decision which we are called upon to adjudicate or determine but it is the decision making process which is within the ambit of judicial scrutiny. It is not the case where there was no material substantiated by facts and figures on the basis ....
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....above Rules is that the Chief Minister being incharge of the concerned Department and in his capacity as Chief Minister was competent to make the proposal which, as already indicated, was a proposal in accordance with the requirements of Rule 16(1) and thus, in our view, no interference is called for on this count. 35. Lastly, we consider the question, whether the Public Interest Litigation raising such an issue would be maintainable before this Court. Firstly, keeping in view the fact that the post in question affects the entire administration of the State and, therefore, larger public interest, it will be difficult to hold that the present Writ Petition is not maintainable as a Public Interest Litigation. Furthermore, the question involved in this Public Interest Litigation is in relation to the highest post in State administration and this Petition, therefore, would be maintainable as the cause does not relate to the matters exclusively falling in the domain of a service jurisprudence but is related to matters of public importance. The very note on proposal forwarded by the State shows the various public projects concerning security of the State and involvement of the interes....