Deo Sharan Singh vs State of U.P.and Others

Rajiv Sharma, J.—Heard learned counsel for the petitioner and learned Standing Counsel.

The grievance of the petitioner, who is an orphan, is that he is illegally being denied appointment under the Government Order dated 4.2.1993 and has also assailed the validity of order dated 11.5.2007 whereby the opposite parties have denied/refused the claim of the petitioner.

According to the petitioner''s Counsel, the petitioner is an orphan and was brought up in a Government Children Home, Raebareli, which is an Institution for providing shelter to orphans, destitute and other deprived children. While remaining in the Shelter Home, the petitioner obtained Degree in Bachelor of Arts. On 4.2.1993, the State Government issued a Government Order introducing a rehabilitation scheme for employment of deprived children like orphans and destitute in government service and provided that children living in various Government Children Home shall be employed/absorbed on the vacant posts in the Department of Samaj Kalyan and Mahila Kalyan in accordance with their educational qualification. On coming of the said Government Order in force, the petitioner applied for appointment. When the concerned authorities failed to consider the claim of the petitioner, the petitioner filed a writ petition No.5411 of 1993 before this Court, which was disposed of on 20.7.1993 with the following order:

�The petitioner claims that he is entitled to get employment in accordance with G.O. dated 4th February, 1993 (Annexure No.1). He has made a representation which is pending disposal at the level of administrative authorities. It is observed that the opposite parties may consider and decide the representation of the petitioner in accordance with law at an early date say, within three months.�

Inspite of the aforesaid order, the respondents did not consider the claim of the petitioner on the ground that there is a ban on appointment. When the State Government lifted the embargo on appointment, the petitioner again represented to the respondents in light of the Government Order dated 4.2.1993 and judgment and order dated 20.7.1993 and claimed employment on the post of hostel Superintendent/Manager in pursuance of the advertisement made for selection and appointment on various posts.

On 21.8.1998, the Director, Samaj Kalyan, informed the petitioner that the Department has advertised various posts on 10.8.1998 and further required the petitioner to apply for appointment in pursuance of the advertisement. Through the said letter, petitioner was further informed that his earlier application in respect of appointment on the post of Hostel Superintendent/Manager has been cancelled. After receipt of the aforesaid letter, the petitioner again represented to the Director, Social Welfare requesting that he be appointed/absorbed on the post of hostel Superintendent/Manager, as he belongs to a different class, and cannot be treated like general candidates seeking employment.

Counsel for the petitioner submits that ultimately, the State Government passed an order on 11.5.2007 taking a stand that the petitioner cannot be given appointment under Government Order dated 4.2.1993 as the same stands revoked and nullified on enforcement of Service Rules, namely, the Uttar Pradesh Women Welfare Department NonClerical Employees Service Rules, 1998 w.e.f. 14.9.1998. It has been vehemently argued by the petitioner''s Counsel that the said Service Rules, 1998 nowhere provides for revocation of Government Order dated 4.2.1993. Rule 28 of the said Rules clearly provides that nothing in these Rules shall effect reservations and other concessions provided to the candidates belonging to the Scheduled Castes, Scheduled Tribes and other special categories of persons in accordance with the orders of the Government issued from time to time.

It has been vehemently contended that the Government Order dated 4.2.1993 is referable to provisions of Article 46 of the Constitution of India under which it has been provided that State shall promote with special care the educational and economic interests of the weaker sections of people. In view of the provisions of Article 46 of the Constitution of India and Rules, 1998 the stand of State Government cannot be sustained. The petitioner, whose case for appointment under Government Order dated 4.2.1993 has been pending since the year 1993, cannot be deprived of his right on the basis of Service Rules, 1998, which have come into force with effect from September, 1998. According to the petitioner, Service Rules, 1998 do not take away vested right of the petitioner.

On behalf of the respondents, it has been submitted by the Standing Counsel that the Government of U.P. issued a Government Order on 4.2.1993 wherein it was provided that those orphans who possess requisite educational qualification and are staying at protective homes will be given preference in appointment in the Social Welfare Department and the Department of Women Welfare. In the year 1994, the aforesaid Scheme of protective homes was transferred to the Department of Women Welfare and since then all the Protective Homes in the State of U.P. are being controlled and Managed by the Department of Women Welfare.

Learned Standing Counsel also submits that the Government Order dated 4.2.1993, which was in operation, provides that the priority to the orphans living in Protective Homes will be given in appointment but in the year 1998, Uttar Pradesh Women Welfare Department NonClerical Employees Service Rules, 1998 were promulgated and preamble of the aforesaid Rules categorically provides that the said rules were made in supersession of all existing rules and Government Orders relating to the appointment in the department and as such the Government Order dated 4.2.1993 also stood superseded, which deals with the preferential treatment in appointment to the Orphans living in Protective Homes.

Elaborating further, it has been stated that the representation of the petitioner with regard to giving him priority in the department has already been considered by both the departments i.e. by the Department of Social Welfare and Department of Women Welfare and the same has been rightly rejected vide order dated 11.5.2007. In view of the existing Rules, the petitioner is not entitled for any preference for appointment in the department and if any post is advertised then the petitioner can apply, which will be considered in accordance with the existing Rules.

Counsel for the petitioner in support of his case has placed reliance upon the Judgments of the Apex Court rendered in the cases of Moti Lal Padampat Sugar Mill v. State of U.P. and others, [(1979) 2 SCC 409], State of Punjab v. Nestle India Ltd. and another, [(2004) 6 SCC 465], Hira Tikkoo v. Union Territory, Chandigarh and others, [(2004) 6 SCC 765], Punjab Communications Ltd. v. Union of India and others, [(1999) 4 SCC 727], Bannari Amman Sugars Ltd. v. Commercial Tax Officer and others, [(2005) 1 SCC 625] and National Buildings Construction Corporation v. S. Raghunathan and others with National Buildings Construction Corporation v. S.P. Singh and others, [(1998) 7 SCC 66].

In National Buildings Construction Corporation v. S. Raghunathan and others with National Buildings Construction Corporation v. S.P. Singh and others [(1998) 7 SCC 66), the Apex Court has held as under;

�The doctrine of legitimate expectation has its genesis in the field of administrative law. The Govenrment and its departments, in administering the affairs of the country, are expected to honour their statements of policy or intention and treat the citizens with full personal consideration without any iota of abuse of discretion. The policy statements cannot be disregarded unfairly or applied selectively. Unfairness in the form of unreasonableness is akin to violation of natural justice. It was in this context that the doctrine of legitimate expectation was evolved which has today become a source of substantive as well as procedural rights. But claims based on legitimate expectation have been held to require reliance on representations and resulting detriment to the claimant in the same way as claims based on promissory estoppel. Unfairness in the purported exercise of power can amount to an abuse or excess of power. Thus the doctrine of �legitimate expectation� has been developed, both in the context of reasonableness and in the context of natural justice. The State actions have to be in conformity with Article 14 of the Constitution, of which nonarbitrariness is a significant facet. There is no unfettered discretion in public law. A public authority possesses powers only to use them for public good. Though the doctrine of legitimate expectation is essentially procedural in character and assures fair play in administrative action, it may, in a given situation, be enforced as a substantive right.�

In Punjab Communications Ltd. v. Union of India, [(1999) 4 SCC 727], the Apex Court has held as under:

�The change in policy can defeat a substantive legitimate expectation if it can be justified on �Wednesbury reasonableness�. The decisionmaker has the choice in the balancing of the pros and cons relevant to the change in policy. It is, therefore, clear that the choice of policy is for the decisionmaker and not the Court. The legitimate substantive expectation merely permits the court to find out if the change of policy which is the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made. A claim based on merely legitimate expectation without anything more cannot ipso facto give a right. Its uniqueness lies in the fact that it covers the entire span of time; present, past and future. How significant is the statement that today is tomorrow''s yesterday. The present is as we experience it, the past is a persent memory and future is a present expectation. For legal purposes, expectation is not same as anticipation. Legitimacy of an expectation can be inferred only if it is founded on the sanction of law.�

Apart from legitimate expectation the principle of promissory estoppel would also play a role as the opposite parties once made a solemn assurances cannot go back without there being cogent reasons. In Moti Lal Padampat Sugar Mill (supra), the Apex Court summarized the principle of promissory estoppel as under:

�Where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or affect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective of whether there is any preexisting relationship between the parties or not. Of course the basic requirement for invoking this principle must be present, namely, that the factsituation should be such that �injustice can be avoided only by enforcement of the promise.�

In State of Punjab v. Nestle India Ltd. and another, [(2004) 6 SCC 465], while dealing with principle of promissory estoppel has held as under:

�Of course, the Government cannot rely on a representation made without complying with the procedure prescribed by the relevant statute, but a citizen may and can compel the Government to do so if the factors necessary for founding a plea of promissory estoppel are established. Such a proposition would not �fall foul of our constitutional scheme and public interest�. On the other hand, as was observed in Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P., [(1979) 2 SCC 409] and approved in the subsequent decisions: (SCC p. 442, para 24):

�It is indeed the pride of constitutional democracy and rule of law that the Government stands on the same footing as a private individual so far as the obligation of the law is concerned; the former is equally bound as the latter. It is indeed difficult to see on what principle can a Government, committed to the rule of law, claim immunity from the doctrine of promissory estoppel.�

Having considered the submissions of the rival parties and examined the material on record, I am of the view that the stand taken by the respondents that the petitioner cannot be given appointment in view of the Uttar Pradesh Women Welfare Department Non Clerical Employees Services Rules, 1998 is not tenable. The assertion of the respondents that after promulgation of the Service Rules, 1998 the G.P. dated 4.2.1993 stands superseded is wholly incorrect. The aforesaid Rules came into force on 14th September, 1998 and admittedly, have no retrospective effect. Therefore, it cannot be applied retrospectively by the administrative authorities. The Government Order dated 4.2.1993 remained in operation till the coming of the Rules. The petitioner has made application immediately on issuance of the Government Order dated 4.2.1993. Therefore, the claim of the petitioner for appointment is to be looked into under the Government Order dated 4.2.1993 alone. At this juncture, it would be useful to reproduce Rule 28 of the said Rules, which reads as under:

�Nothing in these rules shall affect reservations and other concessions required to be provided for the candidates belonging to the Scheduled Castes, Scheduled Tribes and other Special categories of Persons in accordance with the order of the Government issued from time to time in this regard.�

From the perusal of the aforesaid Rules, it is quite clear that it does not affect/frustrate the case of the petitioner as he belongs to special category of persons, for which Rule 28 has especially been enacted.

At this juncture, I deem it necessary to mention here that doctrine of promissory estoppel or equitable estoppel will also play role in the present case as the basis of the doctrine is that where any party has by his word or conduct made to the other party an unequivocal promise or representation by word or conduct, which is intended to create legal relations or effect a legal relationship to arise in the future, knowing as well as intending that the representation, assurance or the promise would be acted upon by the other party and has in fact been so acted upon by the other party, such promise, assurance or representation should be binding on the party making it and that party should not be permitted to go back upon it. This doctrine is applicable against the Government also particularly where it is necessary to prevent fraud or manifest injustice.

Before concluding, I would like to refer recent decision of Hon''ble Supreme Court in Onkar Lal Bajaj v. Union of India, (2003) 2 SCC 673, wherein the Hon''ble Supreme Court has laid emphsis that equity and fair play are the essential ingredients of the principle of governance. The relevant paragraph of the aforesaid judgment reads as under:

�The role model for governance and decision taken thereon should manifest equity, fair play and justice. The cardinal principle of governance in a civilized society based on rule of law not only has to base on transparency but also must create an impression that the decisionmaking was motivated on the consideration of probity. The government has to rise above the nexus of vested interests and nepotism and eschew windowdressing. The act of governance has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious actions. Therefore, the principle of governance has to be tested on the touchstone of justice, equity and fair play and if the decision is not based on justice, equity and fair play and has taken into consideration other matters, though on the face of it the decision may look legitimate but as a matter of fact the reasons are not based on values but to achieve popular accolade, that decision cannot be allowed to operate.�

The Government Order dated 4th February, 1993 specifically says that candidates should be given appointment according to their qualifications in the Department of Social Welfare and Women Welfare and also in any related Corporations against the existing vacancies. In paragraph3, it is said that preference shall be given to such candidates in the selection, which is to be held by the District Level Selection Committee for different posts in different services. The case of the petitioner falls under paragraph 2 of the Government Order, referred to above, in the Social Welfare Department. The question of giving preference would only be considered when the appointment is being made in accordance paragraph 3 of the Government Order.

Taking the holistic view of the matter, I have no hesitation in saying that the impugned order is the result of colourable exercise of power and has been passed under the garb of the 1998 Rules so as to justify their action and prevent the Court from interfering the matter.

For the reasons aforesaid, the writ petition is allowed and order dated 11.5.2007 is hereby quashed. The opposite parties are directed to consider the appointment of the petitioner under paragraph 2 of the Government Order dated 4.2.1993 and pass appropriate order within a period of two months from the date of presentation of a certified copy of this order.

(Petition allowed)