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Judgment
Sonia Gokani, J.—The petitioner herein Shri D.M. Patel has preferred this petition seeking issuance of writ of mandamus or any such other
writ of a nature against respondents for directing them to comply with the order passed by this Court dated 25-6-2003 in Special Civil Application
No. 6554 of 1997. Following factual background will be necessary to appreciate the issue involved in this petition:--
1.1 The petitioner joined the police force as a Sub-Inspector on 1-7-1963. After a period of training of 18 months, he was posted as Police Sub-
Inspector from 5-7-1965 and his confirmation on the post of Police Sub-Inspector (PSI) came on 6-2-1966.
He was promoted on the post of Police Inspector from 5-10-1974 and he served on such post for about a year and 11 months. Due to some
alleged false cases lodged against him by some interested persons, certain complaints were also made against present petitioner before Anti-
Corruption Bureau and a chargesheet, eventually, was filed which resulted into his suspension on 3-8-1976. He challenged the same and during
such suspension, he was reverted to the post of Police Sub-Inspector. However, later on, he was exonerated from all the charges and was
reinstated on the reverted post of PSI. Challenge made to such reversion before this Court in Special Civil Application No. 1115 of 1980, which
resulted into dismissal of such petition vide order dated 21-6-1991.
2.1 In February, 1984 however he was once again promoted as Police Inspector and the petitioner retired from service on 31-7-1996.
In the aforementioned background of his service record, the petitioner when was posted as Circle Police Inspector at Jamkhambhaliya,
Jamnagar in the year 1988, having jurisdiction over four police stations. He received information about landing of smuggled gold on 9-10-1989.
Such information was passed on to the then DSP, Mr. P.P. Pandey by a lightening call as direct dialing facility in those days was not available. He
also sought permission of DSP to carry out search and seizure of smuggled goods and on having received such permission over the telephone, he
proceeded with other police staff including PSI and searched sea coast as well as deep sea continuously for 36 hours. He hired a boat and near
village Beh of Jamkhambhaliya taluka, raiding party traced the gold in a bag marked as Basmati rice. Approximately 3,400 tolas of gold (340 kgs)
thus was seized under the seizure panchnama in presence of Panchas.
3.1 This case was later on handled by Customs Department and complaint was also filed by the authorities and panchnama was drawn on 11-11-
1989.
It is the say of the petitioner that to provide incentive to the officers and to prevent anti-national and unlawful activities like smuggling etc.
Government of India, Ministry of Finance has laid down the policy for grant of rewards to the informants and Government servants for any seizures
made or evasion of duty detection under any of the provisions of the Customs Act, 1962, Central Excise, and Salt Act, 1944 and Gold (Control)
Act, 1968, (now repealed as Foreign Exchange Regulation Act, 1963), considering the risk involved and also keeping in mind the preparedness
required in dealing with the anti-social elements, the policy was laid down on 30-3-1985.
4.1 Those who are found to have performing their duties showing extraordinary valor were to be rewarded 20% of the value of the contraband
article detected by the officer.
Such price money was to be given by following certain procedure under the policy. District Superintendent of Police Mr. P.P. Pandey
recommended the name of the present petitioner as the total value of the price money was to the tune of Rs. 60 lakhs. Such recommendation was
made on 11-10-1989 and was forwarded to the Collector of Customs by the then DSP.
It appears that in the earlier round of litigation when the Customs Department denied the benefit of price from the Union of India to the
petitioner, he approached this Court by preferring writ petition being Special Civil Application No. 6554 of 1997. It was contended therein that
though his name was forwarded by Deputy Superintendent of Police in 1994 for reward of Rs. 20 lakhs, and though it was stated in the affidavit-
in-reply by the respondent therein that his name was considered by Reward Committee and petitioner was found ineligible, the Court when called
for the original record, it was noticed that his name was never considered, and therefore, his petition was allowed directing the respondents to
consider the case of the present petitioner and decide afresh his case within a stipulated time period.
6.1 It would be profitable to reproduce the entire order of this Court passed on 25-6-2003:--
#. The grievance of the petitioner is that though he was entitled for the reward as per the policy laid down for the purpose, in connection with the
seizure of 3400 gold biscuits that took place on 1040-1989, the petitioner has not been given the reward despite his leading the police party which
had seized the biscuits. During the course of the final hearing of this petition we found that it was absolutely necessary to see the entire record of
the proceedings by which, the question of awarding the rewards in connection with the said seizure was considered and deeded and therefore,
specific directions were given by our earlier order on 19-6-2003, directing he respondents to produce the entire record pertaining to the seizure
and the rewards as per the policy, for perusal of this Court on 25th June 2003 at 11 00 a.m., through the responsible officers. Today, we are
pointed out by he learned Standing Counsel for the Department, the minutes under which he decision to give rewards was taken, and admittedly, in
this minutes, the name of the petitioner does not figure. The learned Standing Counsel has very fairly stated that from the minutes and the record, it
appears that the name of the petitioner Mr. D.M. Patel was not considered or the reward and that, therefore, the Committee will consider the
name of the petitioner as per the policy in connection with the said seizure. We would have expected the respondents to have been very careful in
filing of the affidavit-in-reply, became, in para-4 of the affidavit-in-reply of the respondent No. 2, there is a statement which reads:
At the outset, I say and submit that the case of the petitioner has been considered by the Reward Committee and the competent authority............
The petitioner is not entitled to any reward......
Now since the learned Standing Counsel for the respondents himself has pointed out that the name of the petitioner was not in fact, considered by
the Reward Committee, we take no action on the incorrect statement contained in para 4 of the affidavit-in-reply of the respondent No. 2 since
according to the learned Standing Counsel, it has been made through oversight and on the basis of the previous minutes.
#. The learned Standing Counsel for the respondents states that in view of he procedure involved, the case of the petitioner will be considered and
deeded within three months from today. In view of this statement, the learned counsel for the petitioner states that the petitioner seeks permission
to withdraw this petition at this stage, without prejudice to the rights and contentions of the petitioner. The petition stands disposed of as
withdrawn. Rule is discharged with no order as to costs.
It is the say of the petitioner that the petitioner received communication dated 12-5-2005 from the office of the Additional Commissioner of
Customs Authorities.
Grievances are made with regard to the communication dated 20-6-2005, where he has asked to contact his advocate and to obtain necessary
information from his advocate. According to the petitioner there is nothing that could be communicated through the advocate and eventually on
realizing that his case has not been considered for the purpose of reward, he has moved this petition seeking following prayers:--
(A) Your Lordships may be pleased to issue a writ of Mandamus or writ in nature of Mandamus or any other appropriate Writ/s, Order/s and/or
Direction/s directing the respondents to comply with the orders passed by this Hon''ble Court dated June 25, 2003 in Special Civil Application
No. 6554 of 1997.
(B) Pending admission, hearing and final disposal of this petition. Your Lordships may be pleased to direct the respondents to consider the case of
the petitioner as per the order passed in Special Civil Application No. 6554 of 1997 dated June 25, 2003.
(C) Grant such other and further relief/s which Your Lordship deems fit, just and proper may be granted in the interest of justice.
On issuance of notice to the respondents No. 1 to 3, affidavit-in-reply has been filed inter alia contending that petition is not maintainable. It is
also urged that those who were entitled to receive the reward have been already granted the same. It is also further contended that the then DSP,
Jamnagar Mr. P.K. Jhala had forwarded the reward proposal on 8-2-1994 under which the amount of Rs. 20 lakh had been proposed for the
purpose of reward to the present petitioner. Superintendent of Police, Jamnagar Mr. S.C. Verma, in his affidavit-in-reply (Annexure-I), has
contended that the reward is being granted as per the policy laid down by the Government of India, Ministry of Finance. However, mere
recommendation cannot result into grant of reward. It is also contended that the Police Sub-Inspector Mr. A.S. Jhala and Kanubhai Lalubhai Jhala
were prosecuted for having framed up false information. Departmental Inquiry also was initiated against Mr. Jhala. This is not since a fundamental
right, no writ can be issued.
Deputy Commissioner of Customs filed his affidavit-in-reply (Annexure-J) seriously objecting to the grant of this petition. It is contended that the
financial reward has already been sanctioned by Reward Committee which has given Rs. 80,000/- to Mr. P.P. Pandey, the then DSP and Rs.
90,000/- to Mr. K.P. Rathod, Head Constable. This being an ex gratia payment, subject to guidelines issued by the Ministry, no right can be
claimed availing the reward amount. He has specified the details as to how the grant of reward is processed. It is the say of the respondent that the
petitioner is not entitled to any relief as the reward cannot be claimed as the matter of right and respondents have already processed his case.
Minutes of Committee is also placed on record.
Learned advocate Mr. Jeet Bhatt appearing for the petitioner has strenuously urged that though the award is not a matter of right and it is an ex
gratia payment to be awarded subject to the guidelines, time to time issued by the Government, writ of mandamus can still be issued as the
Committee, which is required to discharge the statutory obligation of observing the mandate of Article 14 of the Constitution, since, has violated
the same and has failed to exercise its public duty. He further urged that this Court in an earlier petition preferred by the present petitioner had
directed the Committee to consider the case of the petitioner afresh within a stipulated period. It was inherent in such direction for the Committee
to act in accordance with the guidelines, which is in force. He further urged that those members of the team, who have been granted award and
were similarly situated and yet, when they have been given the rewards disregarding the case of the petitioner it is a denial not based on intelligent
differentia and therefore, for such violation of Article 14 the Court may issue the writ of mandamus as requested for. He further urged that name of
the petitioner when was recommended by his superiors and when there is no challenge to the order of this Court by the respondent before the
higher forum, the respondents were duty bound to consider the case of the aggrieved person, who has been deprived of his right to be considered
at par with other officers.
10.1 Learned counsel Mr. Bhatt has sought to rely upon following authorities in support of his submissions:
Union of India (UOI) Vs. K.P. Joseph and Others,
Hochtief Gammon Vs. State of Orissa and Others,
Comptroller and Auditor-general of India, Gian Prakash, New Delhi and Another Vs. K.S. Jagannathan and Another,
LIC of India and Another Vs. Consumer Education and Research center and Others,
Union of India (UOI) Vs. R. Padmanabhan,
Union of India (UOI) and Others Vs. C. Krishna Reddy,
Per contra, learned Counsel Dr. Amee Yagnik appearing for the respondent No. 5 has strongly objected to the entertaining of present petition.
According to her, no right has accrued to the petitioner till the award is decided in terms of guidelines and policy. She further urged that only when
there is legal right under the statute or a legal duty imposed by the statute, for enforcing such performance, the writ of mandamus can be granted.
According to her, absence of any statutory duty imposed upon the officers or the committee to fulfil any legal right of the petitioner, no writ of
mandamus can be sought and particularly when directions of Court are duly complied with and case of the petitioner is already considered. She
relied upon the decision of the Apex Court rendered in the case of Union of India (UOI) and Others Vs. C. Krishna Reddy,
Before adverting to the submissions of both the sides on the facts of the instant case, it will be appropriate to take stock of the legal law points
on the subject and also to appreciate the policy formulated by the Government of India in respect of grant of reward under such policy.
The Apex Court in the case of Union of India v. K.P. Joseph and Others, held thus:--
Generally speaking, an administrative Order confers no justifiable right, but this rule, like all other general rules, is subject to exceptions. This
Court has held in Sant Ram Sharma v. State of Rajasthan and Another, that although Government cannot supersede statutory rules by
administrative instructions, yet, if the rules framed under Article 309 of the Constitution are silent on any particular point, the Government can fill up
gaps and supplement the rules and issue instructions not inconsistent with the rules already framed and these instructions will govern the conditions
of service.
In Union of India (UOI) and Others Vs. Indo-Afghan Agencies Ltd., this Court, in considering the nature of the Import Trade Policy said:
Granting that is executive in character, this Court has held that Courts have the power in appropriate cases to compel performance of the
obligations imposed by the Schemes upon the departmental authorities.
To say that an administrative order can never confer any right would be too wide a proposition. There are administrative orders which confer rights
and impose duties. It is because an administrative order can abridge or take away rights that we have imported the principle of natural justice of
audi alteram partem into this area. A very perceptive writer has written:
Let us take one of Mr. Harrison''s instances, a regulation from the British War Office that no recruit shall be enlisted who is not five feet six inches
high. Suppose a recruiting officer musters in a man who is five feet five inches only in height, and pays him the King''s shilling; afterwards the officer
is sued by the Government for being short in his accounts; among other items he claims to be allowed the shilling paid to the undersized recruit. The
Court has to consider and apply this regulation and, whatever its effect may be, that effect will be given to it by the Court exactly as effect will be
given to a statute providing that murderers shall be hanged, or that last wills must have two witnesses."" (John Chipman Gray on ""The Nature and
Sources of the Law"").
We should not be understood as laying down any general proposition on this question. But we think that the order in question conferred upon
the first respondent the right to have his pay fixed in the manner specified in the order and that was part of the conditions of his service. We see no
reason why the Court should not enforce that right.
Of course, in this matter, the respondent had the right to have his pay fixed in the manner specified in the order and that was the part of the
condition of his service. Therefore, the Apex Court held that there is no reason why Court should not enforce such right.
In the case of M/s. Hochtief Gammon v. State of Orissa and Others (supra) Apex Court was considering the scope of judicial review of the
administrative order. The Court also examined the scope of the issuance of the writ of mandamus in cases where the Government had refused to
consider relevant materials and misdirected itself on point of law in omitting to take into account relevant consideration, same was held to be
unlawful. The Apex Court directed the Government to reconsider the matter by holding thus:--
The above are not the only powers of the Courts in relation to the orders of the Government or an officer of the Government who has been
conferred any power under any statute, which apparently confer on them absolute discretionary powers, in this country as well as in England. In
England in earlier days the Courts usually refused to interfere where the Government or the concerned officer passed what was called a non-
speaking order, that is, an order which on the face of it did not specify the reasons for the order. Where a speaking order was passed the Courts
proceeded to consider whether the reasons given for the order or decision were relevant reasons or considerations. Where there was a non-
speaking order they used to say that it was like the face of the Sphinx in the sense that it was inscrutable and therefore hold that they could not
consider the question of the validity of the order. Even in England the Courts have travelled very far since those days. They no longer find the face
of the Sphinx inscrutable. Needless to say that Courts in India, which function under a written Constitution which confers fundamental rights on
citizens, have exercised, far greater powers than those exercised by Courts in England where there is no written constitution and there are no
fundamental rights. Therefore the decisions of courts in England as regards powers of the Courts, ""surveillance"", as Lord Pearce calls it, or the
control which the judiciary have over the Executive, as Lord Upjohn put it, indicate at least the minimum limit to which Courts in this country would
be prepared to go in considering the validity of orders of the Government of its officers. In that sense the decision of the House of Lords in
Padfield v. Minister of Agriculture Fisheries and Food (1968 AC 997) is a landmark in the history of the exercise by Courts of their power of
surveillance.
xxx xxx xxx
The principles deducible from the decisions of this Court and the above decision of the House of Lords which, though not binding on us,
appeals to us on principle may be set out as follows.
The Executive have to reach their decisions 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 the 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 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 those 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.
In the case of Comptroller and Auditor-General of India Gian Prakash New Delhi and Another v. K.S. Jagannathan and Another (supra) the
Apex Court was considering the scope of Article 226 of the Constitution of India and held thus:--
The first contention urged by learned Counsel for the Appellants was that the Division Bench of the High Court could not issue a writ of
mandamus to direct a public authority to exercise its discretion in a particular manner. There is a basic fallacy underlying this submission - both with
respect to the order of the Division Bench and the purpose and scope of the writ of mandamus. The High Court had no, issued a writ of
mandamus. A writ of mandamus was the relief prayed for by the Respondents in their writ petition. What the Division Bench did was to issue
directions the Appellants in the exercise of its jurisdictions under Article 226 of the Constitution. Under Article 226 of the Constitution, every High
Court has the power to issue to any person or authority, including in appropriate cases, any Government, throughout the territories in relation to
which it exercises jurisdiction, directions, orders, or writs including writs in the nature of habeas corpus, mandamus, quo warranto and certiorari, or
any of them, for the enforcement of the Fundamental Rights conferred by Part III of the Constitution or for any other purpose. In Dwarka Nath
Vs. Income Tax Officer, Special Circle D-ward, Kanpur and Another, this Court pointed out that Article 226 is designedly couched in a wide
language in order not to confine the power conferred by it only to the power to issue prerogative writs as understood in England, such wide
language being used to enable the High Courts ""to reach injustice wherever it is found and ""to mould the reliefs to meet the peculiar and
complicated requirements of this country."" In Hochtief Gammon Vs. State of Orissa and Others, this Court held that the powers of the courts in
England as regards the control which the judiciary has over the Executive indicate the minimum limit to which the courts in this country would be
prepared to go in considering the validity of orders passed by the Government or its officers.
Even had the Division Bench issued a writ of mandamus giving the directions which it did, if circumstances of the case justified such directions,
the High Court would have been entitled in law to do so for even the courts in England could have issued a writ of mandamus giving such
directions. Almost a hundred and thirty years ago. Martin, B., in Mayor of Rochester v. Regina 1858 E B and E 1024, 1032, 1034 said:
But, were there no authority upon the subject, we should be prepared upon principle to affirm the judgment of the Court of Queen''s Bench. That
Court has power, by the prerogative writ of mandamus, to amend all errors which tend to the oppression of the subject or other misgovernment,
and ought to be used when the law has provided no specific remedy, and justice and good government require that there ought to be one for the
execution of the common law or the provisions of a statute : Comyn''s Digest, Mandamus (A)......... Instead of being astute to discover reasons for
not applying this great constitutional remedy for error and misgovernment, we think it our duty to be vigilant to apply it in every case to which, by
any reasonable construction, it can be made applicable.
The principle enunciated in the above case was approved and followed in The King v. Revising Barrister for the Borough of Hartley (1912) 3 KB
518, 528-9, 531. In Hochtief Gammon Vs. State of Orissa and Others, this Court pointed out (at page 675) that the powers of the Courts in
relation to the orders of the Government or an officer of the Government who has been conferred any power under any statute, which apparently
confers on them absolute discretionary powers, are not confined to cases where such power is exercised or refused to be exercised on irrelevant
considerations or on erroneous ground or mala fide, and in such a case a party would be entitled to move the High Court for a writ of mandamus.
In Padfield v. Minister of Agriculture, Fisheries and Food 1968 AC 997 the House of Lords held that where Parliament had conferred a discretion
on the Minister of Agriculture, Fisheries and Food, to appoint a committee of investigation so that it could be used to promote the policy and
objects of the Agricultural Marketing Act, 1958, which were to be determined by the construction of the Act which was a matter of law for the
court and though there might be reasons which would Justify the Minister in refusing to refer a complaint to a committee of investigation, the
Minister''s discretion was not unlimited and if it appeared that the effect of his refusal to appoint a committee of investigation was to frustrate the
policy of the Act, the court was entitled to interfere by an order of mandamus. In Halsbury''s Laws of England, Fourth Edition, Volume I,
paragraph 89, it is stated that the purpose of an order of mandamus ""is to remedy defects of justice; and accordingly it will issue, to the end that
justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases
where, although there is an alternative legal remedy, yet that mode of redress is less convenient beneficial and effectual.
In the case of LIC of India and another v. Consumer Education & Research Centre and Others, the Apex Court was scrutinizing the action of
public authority and held that when executive powers are being exercised by the State, it enters into contractual relation with the individual and
Article 14 would be applicable to the exercise of such powers and the action of the State or its instrumentality can be checked under Article 14.
Their action must be subject to rule of law. The Apex Court held thus:--
In Mahabir Auto Stores and others Vs. Indian Oil Corporation and others, , it was held that the State when acting in its executive power,
enters into contractual relations with the individual. Article 14 would be applicable to the exercise of the power. The action of the State or its
instrumentality can be checked under Article 14. Their action must be subject to rule of law. If the governmental action even in the matter of
entering or not entering into contracts, fails to satisfy the test of reasonableness, the same would be unreasonable. Rule of reason and rule against
arbitrariness and discrimination, rules of fair play, natural justice are part of the rule of law applicable in situation or action by State/instrumentality
in dealing with citizens. Even though the rights of the citizens, therefore, are in the nature of contractual rights, the manner, the method and motive of
a decision of entering or not entering into a contract, are subject to judicial review on the touchstone of relevance and reasonableness, fair play and
natural justice, equality and non-discrimination. It is well settled that there can be ""malice in law"". It was also further held that whatever be the act
of the public authority in such monopoly or semi-monopoly, it must be subject to rule of law and must be supported by reasons and it should meet
the test of Article 14.
This Court has rejected the contention of an instrumentality or the State that its action is in the private law field and would be immune from
satisfying the test laid under Article 14. The dichotomy between public law and private law rights and remedies, though may not be obliterated by
any straight jacket formula, it would depend upon the factual matrix. The adjudication of the dispute arising out of a contract would, therefore,
depend upon facts and circumstances in a given case. The distinction between public law remedy and private law field cannot be demarcated with
precision. Each case will be examined on its facts and circumstances to find out the nature of the activity, scope and nature of the controversy. The
distinction between public law and private law remedy has now become too thin and practicably obliterated.
In the sphere of contractual relations the State, its instrumentality, public authorities or those whose acts bear insignia of public element, action
to public duty or obligation are enjoined to act in a manner i.e. fair, just and equitable, after taking objectively all the relevant options into
consideration and in a manner that is reasonable, relevant and germane to effectuate the purpose for public good and in general public interest and
it must not take any irrelevant or irrational factors into consideration or arbitrary in its decision. Duty to act fairly is part of fair procedure envisages
under Articles 14 and 21. Every activity of the public authority or those under public duty or obligation must be informed by reason and guided by
the public interest.
In Union of India v. R. Padmanabhan (supra), it was a case of scheme of reward to informants and Government servants in case of seizure.
Notification dated 30-3-1985 and amendment Notification dated 13-4-1989 were under consideration. The Court held that this being an ex gratia
claim, no right accrues to claim any sum unless the same is determined and awarded. The Apex Court held thus:--
The decision of the Division Bench rendered in affirmance of the one rendered by the Single Bench suffer from a serious infirmity in not adverting
properly to the basics and fundamentals of the Scheme for Rewards and in assuming to the contra that when an informer could be given liberally,
the Government servant also, must be shown the same consideration, whereas a careful scanning through may go to show that an informant is
placed on a different pedestal than a Government servant. The rewards are also to be and can be ""up to 20%"" or as the case may be and not that
invariably it must be as a rule 20% of the estimated market value. Reward is purely an ex gratia payment, subject to the Guidelines on the
discretion of the competent authority, though it cannot arbitrarily be denied or refused at whim or fancy and it should specifically conform to and
must be shown to fall or claimed within the four corners of the Scheme and not by any deviation or modulation of the Scheme, as the Courts think
it should be and if it cannot come strictly within the four corners of it, such claim may have to be dealt with only under the residuary powers
enabling the grant of reward. That apart, being ex gratia, no right accrues to any sum as such till it is determined and awarded and, in such cases,
normally it should not only be in terms of the Guidelines and Policy, in force, as on the date of consideration and actual grant but has to be
necessarily with reference to any indications contained in this regard in the Scheme itself. The line of decisions in relation to vested rights accrued
being protected from any subsequent amendments may not be relevant for such a situation and it would be apposite to advert to the decision of this
Court reported in State of Tamil Nadu Vs. Hind Stone and Others, That was a case wherein this Court had to consider the claims of lessees for
renewal of their leases or for grant of fresh leases under the Tamil Nadu Miner Mineral Concession Rules, 1959. The High Court was of the view
that it was not open to the State Government to keep the applications filed for lease or renewal for a long time and then dispose them of on the
basis of a rule which had come into force later. This Court, while reversing such view taken by the High Court, held that in the absence of any
vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the
application, despite the delay, if any, involved although, it is desirable to dispose of the applications, expeditiously. Therefore, the reward could not
have been allowed in this case completely ignoring the amendments, which came into force in April, 1989, merely because the seizure was in
February, 1989. That apart under the Scheme final reward is postulated only on adjudication of the case resulting in confiscation of the goods as
found stated in Clause 6 of the Guidelines and that should, therefore, be crucial and relevant date for consideration of award and, therefore, the
Guidelines, as are in force on that date, will be really applicable and would relevant. Consequently, the exclusion of the amendment, which was
made in April, 1989, from consideration in this case, may not be proper, and the conclusion to the contrary by the High Court, cannot be
sustained.
(Emphasis supplied)
In the case of Union of India v. C. Krishna Reddy (supra), the Apex Court has held that writ of mandamus can be granted only where there is
a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. Chief
function of writ is to compel performance of public duties prescribed by statute and keep subordinate tribunals, officers exercising public functions
within the limit of their jurisdiction. Therefore, in order that the mandamus may be issued to compel the authorities to do something, it must be
shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. Here
also the Court considered the guidelines issued by the Government of India on 30-3-1985 regarding the policy, procedures and orders in respect
of grant of rewards to informers and Government servants in case of seizures made and the evasion of duty etc. detected under the provision of
Customs, Central Excises and Salt Act, Gold (Control) Act and Foreign Exchange Regulation Act and held thus:--
The scheme or the policy of the Government of India dated 30-3-1985 shows that the authority competent to grant the reward, while taking a
decision regarding the entitlement of the person concerned has to keep many factors in his mind like specificity and accuracy of the information, the
risk and trouble undertaken, the extent and nature of the help rendered by the informer, whether information gives clues of the persons involved in
smuggling or their associates, the difficulty in securing the information, the risk involved for the Government servants in working out the case and
whether apart from seizure of contraband goods, the owners/organisers/financiers/racketeers have been apprehended. The scheme further
mentions that reward is an ex gratia payment and subject to the guidelines and may be granted on the absolute discretion of the authority
competent and further that no one can claim the reward as a matter of right. The High Court in writ jurisdiction cannot examine or weigh the
various factors which have to be taken into consideration while deciding a claim regarding grant of reward. These are matters exclusively within the
domain of the authorities of the Department as they alone can weigh and examine the usefulness or otherwise of the information given by the
informer. In the writ petition filed by the respondent, no details had been given on the relevant issues. If the grant of reward cannot be claimed as a
matter of right it is not understandable as to how a writ of mandamus can be issued commanding the Government to give a particular amount by
way of reward. Though this specific plea was taken in paras 18 and 21 of the counter-affidavit, yet neither the learned single Judge nor the Division
Bench adverted to this aspect of the matter.
It is well settled by a catena of decisions of this Court that a writ of mandamus can be granted only in a case where there is a statutory duty
imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of the
writ is to compel performance of public duties prescribed by statute and to keep subordinate Tribunals and officers exercising public functions
within the limit of their jurisdiction. Therefore, in order that a mandamus may issue to compel the authorities to do something, it must be shown that
there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. (See The Bihar
Eastern Gangetic Fishermen Co-operative Society Ltd. Vs. Sipahi Singh and Others, Lekhraj Satramdas, Lalvani Vs. Deputy Custodian-cum-
managing Officer and Others, and Dr. Umakant Saran Vs. State of Bihar and Others,
(Emphasis supplied)
It can be thus deduced that the High Court can exercise the writ jurisdiction under Article 226 and writ of mandamus can be issued giving
directions to the public authority or the Government which either fails to discharge statutory obligation or wrongfully exercises the public duties
conferred upon it under the statute or even when such discretion is exercised mala fide or on irrelevant consideration or ignoring the relevant
consideration, such writ can be exercised for compelling the performance of a lawful duty in a lawful manner. Therefore, the moot question that has
arisen for consideration of this Court in this petition is as to whether there exists any legal right or statutory obligation which is enforceable and
whether in the instant case, such exercise of powers is necessary when the petitioner is claiming violation of Article 14 of the Constitution of India
at the hands of the Committee constituted under the policy laid down by the Government of India for grant of reward.
Instead of separately examining various clauses of this policy guidelines issued for the purpose of awarding reward money, it would be apt to
reproduce relevant portion of the Notification of the dated 30-3-1985 laying down the guidelines from the judgment of Union of India v. R.
Padmanabhan (supra):--
6..........
The Government have reviewed the existing policy, procedure and orders in respect of grant of rewards to informers and Government servants in
case of seizures made, infringement or evasion on duty, etc., detected under the provisions of the following Acts:--
(i) The Customs Act, 1962.
(ii) The Central Excises and Salt Act, 1944,
(iii) The Gold (Control) Act, 1968.
(iv) The Foreign Exchange Regulation Act, 1973.
As a result, the revised guidelines are laid down in the succeeding paras. All provisions/guidelines issued on the subject may be deemed to be
modified to the extent indicated therein.
1.1 QUANTUM OF REWARDS
Seizures of contraband under the Customs Act.
3.1.1 Informers and Government servants will be eligible for rewards up to 20% of the estimated market value of the contraband goods seized. In
respect of gold, silver, opium and other narcotic drugs etc., the overall ceilings for rewards (based on broadly 20% of the value of these items, as
reckoned by the Government for the present) are shown in the Annex. These would be subject to periodical revision in the light of price
fluctuations about which timely intimations should be sent to DCRI every quarter to enable him to recommend appropriate revision as and when
warranted, to the Ministry.
3.2 xxx xxx xxx
3.2.1 Informers and Government servants will be eligible for reward up to 20% of the duty, if any, sought to be evaded plus 20% of the fine and
penalty levied/imposed and realized, provided the amount does not exceed 20% of the market value of the goods involved.
3.3 Seizures made; evasion of duty and other infringement detected under the Central Excises and Salt Act.
3.3.1 xxx xxx xxx
3.4 Seizures under the Gold (Control) Act and cases of other violations detected under the Gold (Control) Act.
3.4.1 In case of seizures of gold bullion, the overall ceiling for rewards to informers and Government servants will be as indicated in Serial No. 1 of
the Annex.
3.4.2 In other cases, whether of seizure of articles of gold/ornaments, or of detection of ""shortages"", informers and Government servants will be
eligible for reward up to 20% of the redemption fined and/or penalty imposed and realized, provided the amount does not exceed 20% of the
market price of the goods involved.
3.5 Cases of seizures/violations detected under FERA
3.5.1 xxx xxx xxx
Reward should not be granted as a matter of routine.
4.1 Reward is purely an ex gratia payment which, subject to guidelines, may be granted on the absolute discretion of the authority competent to
grant rewards and cannot be claimed by anyone as a matter of right. In determining the rewards which may be granted, the authority competent to
grant reward will keep specificity and accuracy of the information, the risk and trouble undertaken, the extent and nature of the help rendered by
the informer, whether information gives clues to persons involved in smuggling, or their association, etc.; the risk involved for the Government
servants in working out the case, the difficulty in accruing the information, the extent to which the vigilance on the staff led to the seizures, special
initiative, efforts and ingenuity displayed, etc. and whether, besides the seizure of contraband goods, the owners/organizers/financiers/racketeers as
well as the carriers have been apprehended or not.
4.2 To Government servants, rewards may ordinarily be paid up to 10% of the estimated market value of the goods involved (half of the maximum
rewards indicated in respect of gold, opium and other narcotic drugs, etc. in the Annex.). Rewards in excess of this limit, but not exceeding 20%
(or as in Annex., in respect of gold, silver, narcotics, etc.) of the said value, may be considered in cases where the Government servant has
exposed himself to a great personal hazard or displayed exemplary courage, commendable initiative, ingenuity or his personal efforts have been
mainly responsible for the detection of the goods.
Stage of payment of reward Payment of advance rewards.
5.1 Advance reward may be paid to informers and Government servants up to 50% of the expected final reward immediately on seizure in respect
of the following categories of goods, namely:--
(a) gold/silver bullion and goods, which are notified or specified under the Customs Act, 1982;
(b) arms and ammunition, explosives;
(c) opium and other narcotic drugs;
(d) goods not declared which are seized in the Customs area or Customs waters; and
(e) freely convertible foreign exchange in the form of currency notes.
5.2 In other (""Smuggling"") cases of seizures of contraband goods, advance reward up to 25% of the expected final reward may be paid
immediately after seizure, if the authority competent to sanction reward is satisfied that the goods seized are reasonably expected to be confiscated
on adjudication and the order is likely to be sustained in appeal/revision proceedings.
5.3 In all other cases, whether of seizure or evasion/infringement detected on the basis of documents, 25% of the expected final reward may be
paid after the issue of a show cause notice provided the authority competent to sanction reward is satisfied that there is reasonable chance of
confusability/infringement/evasion, as the case may be, being established in adjudication and sustained in appeal/revisionary proceedings:
5.4 In exceptional cases, the Heads of Departments may, having regard to the value of the seizures effected and magnitude of the evasion or
infringement detected and magnitude of the evasion or infringement detected and special efforts or ingenuity displayed by the officers concerned,
sanction and announce the grant of suitable rewards on the spot to be adjusted against the advance reward that may be sanctioned.
Final rewards will be paid after adjusting the advance rewards, if any, paid in the mentioned/indicated in preceding paras.
6.2 In respect of the goods described in para 5 1 the remaining 50% of the reward will be sanctioned both to the informers and Government
servants on adjudication of the case resulting in confiscation of the goods. If, however, the party concerned delays adjudication proceedings by
contesting the imposition of penalty only but the confiscation of the goods, the final reward may be sanctioned even prior to the conclusion of the
adjudication proceedings.
6.3 In all other cases, 25% of the expected final reward may be paid after adjudication resulting in confiscation and/or confirmation of the demand,
infringement and the remaining 50% may be paid after the conclusion of the appeal/revision proceedings by the appropriate authorities (such as
Tribunal, FERA Board, etc.) resulting in the upholding of confiscation, demand, fine, penalties, etc. imposed under the respective Acts.
To whom reward may be paid
7.1 Ordinarily, informers and Government servants (up to the level of Group ''A'' Superintendents/Assistant Collectors of Customs and Central
Excise/Assistant Directors will be eligible for reward depending on the contribution made by them as a team as well as individually with regard to
the collection of intelligence, surveillance, effecting of seizure etc. Due credit should be given to the staff employed on investigation.
7.2 Group ''A'' officers above the level of Assistant Collector/Assistant Director will not be eligible for reward on the basis of value of the seizures,
etc. However, in appropriate cases, Government may consider, in consultation with CCA/DGRI Director, Anti Evasion, the grant of lump sum
payment/advance increments and/or recognition-ions in any other manner of the services rendered by them for which purpose the Heads of
Department should forward their recommendation to the aforementioned officers with a copy to the Ministry.
8.1.2 xxx xxx xxx
8.1.3 All case of grant of reward to Government servants in excess of the limits specified above should be examined and approved by a
Committee consisting of the following
Amount of reward for constitution of the
Committee government servants
It is not in controversy that an amendment came to be issued vide P. No. R-130115/89. Ad. v. of the Department of Revenue in April, 1989
limiting the total reward to Rs. 1 lakh for seizure and to a total limit of Rs. 10 lakhs in one''s career......
This policy thus gives a detailed guideline as to how the procedure shall have to be followed in case of informers and Government servants in
the event of seizure of contrabands and also for other purposes. The eligibility for reward is up to 20% of the duty, if any, sought to have evaded
by a person or 20% of the estimated market value of the contraband articles.
This guideline eloquently mentions that the reward is purely ex gratia payment and it is an absolute discretion of the competent authority and
nobody can claim as a matter of right such reward. What the authority/committee cannot do is to discriminate and to be arbitrary while following
this guideline. Broad parameters to be kept in mind by the concerned Committee considering the cases of such reward are to examine thoroughly:-
-
(i) Specificity and accuracy of the information.
(ii) Risk and trouble undertaken.
(iii) The extent and nature of help rendered by the informer.
(iv) Whether the information leads to the clue of the person involved in the crime.
(v) Risk involved and undertaken by the Government servants.
(vi) Difficulty in securing such informations.
(vii) Extent to which promptness of the staff led to the seizure.
(viii) Special initiatives, efforts and ingenuity of the officers and staff.
(ix) Over and above the seizure of contraband articles, whether others supporting ''such activities, like organizers, financiers, racketeers, carriers,
etc., have been apprehended on account of such seizure or not.
These are the broad parameters available with the Committee, which needs to follow while processing the cases of reward. It speaks of
advance reward and final reward. It categorizes reward into two stages (1) advance reward, and (2) final reward. Depending on the contribution
of the informer Government servants and individual contribution as well as considering the contribution of the team members, such rewards are
expected to be processed and granted. It is also specified that those officers in Group-A level would not be eligible for reward. On the basis of
value of seizures and in appropriate cases, however, it is discretion of the Government to grant lump sum payment to such persons for the service
rendered by them. The Committees are constituted keeping in mind the monetary limit for sanction of reward.
It appears that in the instant case, the smuggled goods worth Rs. 11.56 crores were seized by going into the deep sea. Admittedly, this seizure
of gold of 34000 tolas (3400 biscuits) was after taking a considerable risk, and therefore, it appears that as per the order of the Government,
following said guidelines laid down in the circular, some of the officers had already been granted the final awards. It also further appears that the
name of the present petitioner had been recommended initially by the then Dy. S.P. Mr. P.P. Pandey vide his communication dated 11-10-1989.
It appears that Mr. Pandey was DSP, Jamnagar at the relevant time, therefore, the subsequent communication in this respect addressing the DSP,
Jamnagar on 17-11-2003 by the Joint Commissioner, Customs, Jamnagar does not have any valid basis. It is not being doubted that such
communication by Mr. P.P. Pandey in the capacity of DSP had been addressed. He was never DIG, Jamnagar nor is such post-existing for the
District : Jamnagar. It appears that on earlier occasion when he had recommended the name of the present petitioner vide his communication dated
12-10-1989, he had also sent a copy of such communication to the Director General and Inspector General of Police, Gujarat.
In light of the aforementioned background what is important to be noted, at this stage is that the petitioner has made a grievance that his case
has not been considered as required under the law and he has been discriminated seriously. It is also the say of the petitioner that the person, who
had framed the informant and created a false information for the purpose of getting the reward was prosecuted departmentally as well as under the
regular course of criminal justice system. However, he contended that, that cannot affect his case nor can the Committee discriminate him as others
who were similarly circumstanced and had performed identical role, as has been done by the present petitioner, had been rewarded.
Earlier grievance of the petitioner was set right by this Court in a petition preferred by him earlier being Special Civil Application No. 6554 of
1997 vide order dated 19-6-2003 and pursuant to such directions. Committee also considered the case of the petitioner at length and denied the
award on the ground that case does not fall under the said guidelines set out in the Government policy dated 30-3-1985 as also amended on 13-4-
1989. The Reward Committee minutes held on 7-11-2003 notes the letter of the Ministry dated 20-6-2001 that the reward should not be granted
as a matter of routine. It also further notes that Mr. D.M. Patel, the present petitioner, in whose respect the proposal had been sent, recommending
his name for the reward, was not found to have performed any specific task in relation to the seizure in question and his case does not fall under
any extraordinary or exemplary efforts. It would be apt to reproduce the relevant findings:--
As stated in Para regarding the role played by Shri D.M. Patel, in the first proposal his role is that, he went around the coastal area and kept
watch on coast and creek. In the revised recommendation also, the same thing has been repeated with addition of the fact that he was also
constantly on duty after the seizure till the gold was handed over to A.C. Customs. Thus he has not performed any specific task in relation to the
seizure. Further, from the record it can be seen that the gold was recovered in the after noon of 10-10-189 and handed over to Customs on 11-
10-1989. Effectively there is hardly and guarding by police after the seizure.
D.S.P., Jamnagar''s recommendation does not indicate any risk undertaken by Shri Patel, nor there is any emphasis on any
extraordinary/exemplary efforts on the part of the Govt. servant. From the role played by Shri D.M, Patel and as per Ministry of Finance
instructions as stated in Para 5, it seems that the reward has been proposed for routine & normal nature of work performed by the Police Officer
Shri D.M. Patel.
It can be noted from the said decision of the Committee that it has taken into consideration the parameters laid down for viewing the
performance of informants and the Government servants. It also further can be noted that this Court is not to sit in appeal over the decision of the
Committee. What is required is whether the case of the petitioner has been duly considered by the Committee and whether they had regarded the
material available with them for such purposes as also not disregarded the vital and relevant parameters, as set out in the policy laid down by the
Government and amended time and again. It is reiteratively laid down by Apex Court and various other Courts, time and again, that reward is
never a matter of right and the same being purely an ex gratia payment, subject to guidelines or the discretion of the competent authority, such
discretion cannot be arbitrarily exercised and reward cannot be declined at whims and fancy of the concerned authority. The Court also cannot
insist on the scheme to be implemented in a particular fashion as long as within the four corners of the guidelines, the decision has been taken.
Therefore, no right gets accrued to the petitioner for the reward being ex gratia unless the sum is determined and awarded. What all the Court is
required to consider is that the scheme for reward is examined in terms of the guidelines and the policy in force on the date of consideration and
that the grant or rejection is in reference to the indications set out in the policy itself.
We see no reason to interfere by way of writ of mandamus as there does not appear to be either the case of wrongful exercise of the discretion
or any failure in such exercise. It also does not cull out from the record that exercise of powers by the Committee was either mala fide or in
disregard to the relevant consideration. The petitioner has failed to establish that any discrimination on account of such decision with the Committee
has given rise to any legally enforceable right which necessitates invocation of powers by way of writ of mandamus.
However, the Government servant posted on the vital point to perform his duty is expected to do with utmost zeal and valor. He is also
expected to be vigilant and take all necessary steps for preventing the crime or in apprehending the criminals. It is only in extraordinary
circumstances and events that the ex gratia payment of reward is contemplated when the Government servant fall under any of those set out
parameters. Mere recommendation also does not give the petitioner any right to receive the reward. The petitioner also has not been able to satisfy
this Court as to how the Committee has disregarded the relevant material or has considered the irrelevant details or has done any procedural lapse
necessitating any interference. This Court chooses not to examine the case of the petitioner on merit except to satisfy of its due consideration as it is
not expected to delve into that aspect and it is also expected not to trade on exclusive domain of Committee by applying those parameters to the
case of the petitioner and decide the case of petitioner on merit further. What is vital and crucial is to satisfy ourselves that the directions of this
Court have been duly complied with and his case is considered by the Committee. Resultantly, this petition is dismissed.