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2018 DIGILAW 112 (CAL)

Abdur Rouf v. State of West Bengal

2018-01-16

DARA SHEKO

body2018
JUDGMENT : DARA SHEKO, J. 1. In the tune of the text of the writ petition Mr. Milan Bhattacharya, learned Senior Counsel representing the writ petitioners submitted that for the welfare and benefit of the writ petitioners as a class, they being the Special Assistants, shortly to be called on as S.As and the Confidential Assistants, shortly to be called on as C.As to the Ministers of the State, the earlier Government on taking opinion of different departments including concurrence of the Finance Department issued Notification No. 160 Home (Cons) CE/N/R/-2R-2P-3/94 dated Calcutta, the 2nd March, 1996 namely the West Bengal Special Assistants and Confidential Assistants to Ministers (Pension) Rules 1996, shortly to be called on hereafter as the Pension Rules 1996 to introduce pension scheme to those S.As and C.As who served with the “Minister” for a minimum period of two years after 1st January, 1985. Inviting attention to subsequent notifications No. 66-Home dated 19th March, 1999, 181 dated 2nd July, 2003, 21st July, 1999 (Labour Department), No. 9444-F dated 24th November, 2005, No. 247 dated 18.08.2006 and No. 179 dated 10.08.2009, Mr. Bhattacharya further submitted that said pension scheme was also re-considered and amended time to time by giving a moderate shape as far as it would had been practicable for the welfare and benefit of those pensioner S.As and C.As served to the Ministers. 2. Criticizing the impugned order No. 131 dated Kolkata the 21st February, 2013 and Notification No. 135 dated 22nd February, 2013 suddenly rescinding said pensionary benefit vis-a-vis the family pension in respect of those S.As and C.As issued by the Additional Chief Secretary in the name of Government of West Bengal as unconstitutional, Mr. Bhattacharya argued that while the previous Government created said Pension Rule 1996 in exercise of power under Article 309 of the Constitution of India the subsequent Government could have modified or amended said Rule, but would not altogether rescind. 3. Mr. Bhattacharya argued that while the previous Government created said Pension Rule 1996 in exercise of power under Article 309 of the Constitution of India the subsequent Government could have modified or amended said Rule, but would not altogether rescind. 3. Mr. Bhattacharya argued further that since any administrative power was not codified in the Rule, far to speak of vesting power of rescinding, and since on receipt of application for pension benefit only its entitlement or admissibility would have to be interpreted in terms of said pension rules, and thereby, the right of pension already having been accrued and vested the S.As and C.As should not be deprived of merely by the impugned administrative order or Notification, the same should be struck down as it was arbitral and not supported by reason. In support of above submissions Mr. Bhattacharya except the compiled decisions on constitutional principles referred to and relied specifically upon the following cases:— 1. Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi reported in (1975) 1 SCC 421 : AIR 1975 Supreme Court 1331 (Five Judges Bench). (Paragraph-22) 2. Narendra Kumar Maheshwari v. Union of India reported in 1990 Supp SCC 440 : AIR 1989 Supreme Court 2138. (Paragraph-54) 3. U. Raghavendra Acharya v. State of Karnataka reported in (2006) 9 SCC 630 : AIR 2006 Supreme Court 2145. Paragraphs-25, 26, 28, 29. 4. State of Tamil Nadu v. K. Shyam Sunder reported in (2011) 8 SCC 737 : AIR 2011 Supreme Court 3470 (Three Judges Bench).Paragraph-20 5. State of Bihar v. Bihar M.S.E.S.K.K Mahasangh reported in (2005) 9 SCC 129 : AIR 2005 Supreme Court 1605. Paragraph-64 6. State of Bihar v. Sunny Prakash reported in (2013) 3 SCC 559 . (Paragraphs-19 & 20) 7. Bijitaswa Rout v. State of West Bengal reported in (2013) 1 Cal LT 652 (HC). 8. Krishena Kumar v. Union of India reported in (1990) 4 SCC 207 : AIR 1990 Supreme Court 1782 (Paragraph 18, on doctrine of precedent.) 4. Mr. State of Bihar v. Sunny Prakash reported in (2013) 3 SCC 559 . (Paragraphs-19 & 20) 7. Bijitaswa Rout v. State of West Bengal reported in (2013) 1 Cal LT 652 (HC). 8. Krishena Kumar v. Union of India reported in (1990) 4 SCC 207 : AIR 1990 Supreme Court 1782 (Paragraph 18, on doctrine of precedent.) 4. Mr. Tapan Mukherjee learned Additional Government pleader representing the State in the first phase of argument submitted that the writ court would have no jurisdiction at the first instance to entertain the lis of the writ petition if the Pension Rule 1996 was so framed under Article 309 of the Constitution of India, and in that event jurisdiction would have been vested to the concerned Tribunal dealing with the service matter concerning alleged right of the employee seeking to restore pension benefit. 5. Alternative phase of argument of Mr. Mukherjee is that the said Pension Rule 1996 was not at all framed in exercise of power under Article 309 at the Constitution of India, rather it was framed by the State under Article 162 of the Constitution of India, therefore it was administrative order to be implemented under Article 163 of the Constitution within the meaning of conduct of business under Article 166 of Constitution in the name of the Governor without calling upon its validity into any question. Submitted, had the Pension Rule 1996 been framed in exercise of Article 309 of the Constitution, then, it ought to have been accompanied with condition of services which was in want of, and therefore, engagement of the S.As and C.As being temporary in nature and co-terminus with the tenure of the concerned Minister(s), they being not qualified even to come under pension scheme like any other Government employee due to non-completion of minimum ten years of employment, and such engagement being not also for the interest of public at large, the said Rule was framed in administrative capacity as it was within serial no. 42 under List II of 7th Schedule of the Constitution of India to subserve the interest of a limited group of persons lent services to the “Minister(s)”. With the above, Mr. 42 under List II of 7th Schedule of the Constitution of India to subserve the interest of a limited group of persons lent services to the “Minister(s)”. With the above, Mr. Mukherjee submitted to dismiss the writ petition since the pension benefit was introduced by earlier Government within the ambit of Article 162 read with 166, of the Constitution of India, and thereby the orders dated 21st February, 2013 and Notification dated 22nd February, 2013 having been issued again in exercise of conduct of business of the Government, and for which the Governor is not supposed to assign reason, said act had no sufferance from constitutional vires. In support of above argument Mr. Mukherjee relied upon the following cases:— 1. Samsher Singh v. State of Punjab reported in (1974) 2 SCC 831 : AIR 1974 Supreme Court 2192 (Paragraph 48) 2. Indian Drugs & Pharm. Ltd. v. Punjab Drugs Manufacturers Association reported in (1999) 6 SCC 247 : AIR 1999 Supreme Court 1626 (Paragraph 16) 3. State of Punjab v. Nestle India Ltd. reported in (2004) 6 SCC 465 (Paragraphs 32, 36) 4. Maya Dutta v. State of Orissa reported in AIR 1960 Orissa 7 (Paragraph 15) 5. Bannari Amman Sugars Ltd. v. Commercial Tax Officer reported in (2005) 1 SCC 625 (Paragraphs 18, 19, 20, 21) 6. Shanti Sports Club v. Union of India reported in (2009) 15 SCC 705 (Paragraph Nos. 41, 52) 7. State of Gujarat v. Justice R.A Mehta (retired) reported in (2013) 3 SCC 1 . (Paragraph Nos. 33, 46, 49) 8. Gujarat Urja Vikas Nigam Limited v. Tarini Infrastructure Limited reported in (2016) 8 SCC 743 (Paragraph 19) 9. Essar Steel Limited v. Union of India reported in (2016) 11 SCC 1 . 6. The lis involved in the writ petition, is whether the Pension Rule 1996 and its time to time amended circulars issued or implemented by the previous Government can be rescinded by the present Government by order dated 21st February, 2013 and Notification dated 22nd February, 2013? 7. Consulted the materials on record, impugned Rule, Order, Notifications and the cases cited at the Bar which will be dealt with hereafter appropriately. 8. 7. Consulted the materials on record, impugned Rule, Order, Notifications and the cases cited at the Bar which will be dealt with hereafter appropriately. 8. No doubt on it that after initiation of office note from the office of the then Chief Minister followed by some exercises through different departments like L.R Department, Finance Department the Pension Rule 1996 was introduced to regulate the grant of Pension to the S.As and C.As to the “Ministers” in the name of the Governor, since the Government was of “Opinion that the Special Assistants and the Confidential Assistants to Ministers of the State of West Bengal should be granted a monthly pension in recognition of the services rendered by them.” 9. The terms “Minister” and “Pension” as defined under Rule 2(c) and (d) of said Rule 1996 are set out respectively. “Minister” means the Chief Minister, a Minister, a Minister of State, a Deputy Minister, a Parliamentary Secretary or a Member of the West Bengal Legislative Assembly who has been conferred with the status of a Minister or a Minister of State, and includes the Speaker and the Deputy Speaker of the said Assembly; “Pension” means the pension admissible under sub-rule(1) of rule 4; 10. This Pension Scheme since would be qualified subject to Rule 4 sub-Rule (1) the same is also set out:— Rule 4 sub-Rule (1):- With effect from the 1st day of April, 1994, there shall be paid a pension of five hundred and fifty rupees per mensem to every person who has served after the 1st day of January, 1985, for a minimum period of two years, as a Special Assistant or Confidential Assistant to a Minister or to more than one Minister and has been paid the full amount of the emoluments that may be admissible on the count of Special Assistants to a Minister or Confidential Assistants to a Minister from time to time under the Orders of the State Government: Provided that where any person who has served as aforesaid for a period exceeding five years, there shall be paid to him an additional pension of fifty rupees per mensem for every year in excess of five, so, however, that in no case the pension payable to such person shall exceed seven hundred and fifty rupees per mensum. 11. 11. This is also admitted position that by time to time Notifications lastly by Notification No. 179 dated 10th August, 2009 entitlement on quantum of pension and on other formalities amendments were made, presumably to give the amount of such pension scheme to some moderate shape. 12. It is obvious that the Pension Rule 1996 was not prefixed with any Act enacted by the constitutional process, as it exists usually as a part of any other Act of the land. The Pension Rule 1996, as it stood, providing financial benefit to a group of “Assistants” designated as Special Assistants or Confidential Assistants to the “Minister” within the meaning of Rule 2(c) was of purely temporary in nature. The Rule even did not provide any regular selection procedure. Their appointment would depend on the choice and desire of the “Minister”, tenure of which obviously was co-terminus with the tenure of the Ministry. It is needless to mention that in our democratic system the central and its States are ruled by its respective elected Government run by its new set of Ministers, of whom there may be again change in the Ministry during tenure of the Government. That is why, it can be recalled that to come under such pension scheme the aspirant S.A or C.A ought to have been qualified by service for a minimum period visa-vis not less than a period of two years. As per that Pension Rule of 1996 though retrospective effect of pension benefit was given on and from 1st January, 1985 only and not prior to that. So, this benefit in one way was never known before. It was introduced in 1996 with retrospective effect from 1st January, 1985. Qualifying criteria was, only serving the “Minister” for a period not less than two years. The procedure of appointment was not on regular process of selection but subject to election. That is why the Notification no. So, this benefit in one way was never known before. It was introduced in 1996 with retrospective effect from 1st January, 1985. Qualifying criteria was, only serving the “Minister” for a period not less than two years. The procedure of appointment was not on regular process of selection but subject to election. That is why the Notification no. 160 dated 12th March, 1996 of the Home Department was captioned as “Constitution and Elections.” Article 309 of the Constitution of India is set out:— Recruitment and conditions of service of persons serving the Union or a State:— Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State: Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act. 13. The aforesaid constitutional provision has empowered the union or a State under it for recruitment of employees by determining condition of services of such recruited persons. Recruitment, so made being so empowered, must be again through the determined selection process against sanctioned vacancy. After recruitment they are appointed in the interest of public service and accordingly are posted with the affairs of either union or state to serve with the public services in lieu of salary fixed for the post. The salary and the pension scheme, where it is in force, are being adjusted from public exchequer which is accumulated from several source of earnings of the Government including collection of revenue and taxes. The affairs of pension are also regulated and controlled by the State, of course, being empowered by 7th Schedule List-II of the State List, serial no. 42. The affairs of pension are also regulated and controlled by the State, of course, being empowered by 7th Schedule List-II of the State List, serial no. 42. Therefore the Pension Rule 1996 having made no indication about appointing the S.As or C.As for the interest of public service, and thereby, for having basic difference in the mode of appointment having no condition of services therein, I failed to accept the argument that Pension Rule 1996 for the S.As and C.As was made ever in exercise of the power of the State vested under Article 309 of the Constitution of India. Rather said Pension Rule 1996 was made beyond doubt by remaining within domain of the List-II of the State List (serial no. 42) of 7th Schedule of the Constitution of India provided with Article 162 read with Article 166(3) of the Constitution of India since it fell within the conduct of business of the Government of the State. In effect the same was simply an executive action of the Government being authenticated in the name of the Governor. Because the State having enjoyed similar executive power, in limited manner like the legislature and parliament, in making laws by invoking administrative power under Article 162 it would fall under the conduct of Business of the Government of a State. Article 162 is set out:— Article 162:— Extent of executive power of State:— Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws: Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof. Similarly Article 166 is set out:- Conduct of business of the Government of a State:— 1. All executive action of the Government of a State shall be expressed to be taken in the name of the Governor. 2. Similarly Article 166 is set out:- Conduct of business of the Government of a State:— 1. All executive action of the Government of a State shall be expressed to be taken in the name of the Governor. 2. Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall be called in question on the ground that it is not an orders or instrument made or executed by the Governor. 3. The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business to act in his discretion. 14. Mr. Bhattacharya, of course, relied upon the case of Narendra Kumar Maheswari v. Union of India (supra), of which relevant part from paragraph 64 is set out:— “The power of discretion of the government in the matter of grant of largess including award of jobs, contracts, quotas, licences etc. must be confirmed and structured by rational, relevant and non-discriminatory standard or norm and if the government departed from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it could be shown by the government would be liable to be struck down, unless it could be shown by the government that the departure was not arbitrary but was based on some valid principle which in itself was not irrational, irrelevant, unreasonable or discriminatory. Change of policy would not be sufficient to exonerate the government from the liability; the government would have to show what precisely was the changed policy and also its reason and justification so that the Court could judge for itself which way the public interest lay and what the equity of the case demanded.” 15. It is obvious that if any scheme like pension is allowed to continue, or, is allowed to exist, which was never before then, there must be relationship of employer and employee, and certainly the terms “employer” and “employee” would have to be identified as institutionalized being co-related with the term “Pension”. In that event, there ought to be condition of services. In that event, there ought to be condition of services. No procedure has been laid down ever anywhere in the pension rule even to face any show cause notice far to speak of departmental enquiry or disciplinary proceeding in the event of departure of any norms of assistance. The Pension Rule 1996 thereby having not been structured even from rational point of view, rather, the tenure of service of such S.As and C.As for qualifying to entitlement to such pension scheme having no semblance with achieving minimum pension benefit available to an employee not before completion of at least ten years of regular service, the said Pension Rule 1996 had sufferance from discriminatory norm and standard. Apart from deficiency indicated above, in the case on hand the very requirement of “public interest” in appointing S.As and C.As being in want of, the case of Narendra Kumar Maheshwar (supra) is distinguished. Therefore, though earlier Government functioning under the Council of Ministers had introduced the pension Rule 1996 (supra) can it be, or, can it not be rescinded in the name of the Governor of the State who is always presumed to have been acting on either way in the Constitutional sense to the satisfaction of the Council of Ministers? Therefore, the President or the Governor is not supposed to assign any reason in the order so published or to be published in his name. Some relevant portion from paragraph 48 of the case of Samsher Singh (supra) is set out as indicative answer on the lis:— Paragraph 48:- Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise by the President or the Governor of any power or function, the satisfaction required by the Constitution is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor in the Constitutional sense in the Cabinet system of Government, that is, satisfaction of his Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions. The decision of any Minister or officer under rules of business made under any of these two Articles 77 (3) and 166 (3) is the decision of the President or the Governor respectively. These articles did not provide for any delegation. The decision of any Minister or officer under rules of business made under any of these two Articles 77 (3) and 166 (3) is the decision of the President or the Governor respectively. These articles did not provide for any delegation. Therefore, the decision of Minister or officer under the rules of business is the decision of the President or the Governor. 16. The group of S.As and C.As can be clubbed as a limited number of assistants who used to assist the “Minister.” So effect of rendering services by them did never come within the meaning of employee or public servant working by appointment for the interest of public services with the condition of services. When public exchequer is to be burdened permanently by benefiting retired employee or his/her dependant as a class, they ought to have served an institution or department being answerable to the public, and not to a limited group or persons like the writ petitioners who are not subject to even any departmental or disciplinary proceeding. Initiation of office note in the file or even a decision made therein gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be. Therefore the provision in the constitution does not provide that the President or the Governor, as the case may be, would be supposed to assign reason either to introduce or to rescind or cancel or modify any rule or law. Which requires, is only authentication. Because unless it is not expressed in the name of either the President or the Governor it would not be treated as any rule or law (2009) 15 SCC 705 (supra). This Court, therefore being led by the decision reported in (1975) 1 SCC 421 : AIR 1975 Supreme Court 1331 (supra) undoubtedly can caption the Pension Rule 1996 merely as an administrative order to benefit those group of servers and therefore the same cannot take place of status of a law to maintain a rule of general conduct. Paragraph 49 from the case of State of Gujarat v. J.R.A Mehta (supra) is set out:— Paragraph 49. Paragraph 49 from the case of State of Gujarat v. J.R.A Mehta (supra) is set out:— Paragraph 49. The exceptions carved out in the main clause of Article 163(1), permit the legislature to entrust certain functions to the Governor to be performed by him, either in his discretion, or in consultation with other authorities, independent of the Council of Ministers. The meaning of the words “by or under” is well settled. The expression “by an Act”, would mean by virtue of a provision directly enacted in the statute in question and that which is conceivable from its express language or by necessary implication therefrom. The words “under the Act”, would in such context, signify that which may not directly be found in the statute itself, but which is conferred by virtue of powers enabling such action(s) e.g by way of laws framed by a subordinate law-making authority competent to do so under the parent Act. (Vide Indramani Pyarelal Gupta v. W.R Natu.) 17. Therefore utilization of discretion with constitutional sense is the prime consideration. It therefore does not require containment of reason either to introduce any new rule or to rescind it. 18. In the case of U. Raghavendra Acharya (supra) status of the appellants were at par with the teachers of the Government college was undisputed. So the appellants were held entitled to in terms of their conditions of service. The fact and circumstance of said case is completely different to the case on hand, since in the case there was no conditions of service. The decision therefore is also not applicable in this case. 19. Paragraph 20 from the case of State of Tamil Nadu v. K. Shyam Sunder (supra) on which Mr. Bhattacharya also relied, is set out:— Paragraph 20:- Thus, it is clear from the above, that unless it is found that act done by the authority earlier in existence is either contrary to statutory provisions, is unreasonable, or is against public interest, the State should not change its stand merely because the other political party has come into power. Political agenda of an individual or a political party should not be subversive of rule of law. 20. Since the earlier Government had issued the Pension Rule, 1996 and the subsequent Government abolished it, Mr. Political agenda of an individual or a political party should not be subversive of rule of law. 20. Since the earlier Government had issued the Pension Rule, 1996 and the subsequent Government abolished it, Mr. Bhattacharya criticized such act and activity of the subsequent Government as colourable legislation, of course, basing upon the above text of the cited case. Let me indicate once again that the pension provision for S.As and C.As who would have completed rendering service to the Minister for a period of only two years was unknown previous to enforcement of the aforesaid Rule 1996. It was newly introduced to render benefit to a particular class of persons rendering services only to the Ministers. So far as an employee having conditions of services is entitled to get the benefit of pension only after completion of tenure of regular qualified service for a minimum period of ten years. There are some other provisions of pension scheme, if, such as, any such regular employee, subject to condition of services, takes voluntary retirement or retires after completion of tenure of service, then the pension scheme is enforced stretching proportionate benefit also to his/her family if any employee dies after arriving under any of the circumstances. This policy of pension is open to all employees who are guided by the service Rules and condition of services, be it Central or State, provided there is pension scheme appended to his/her service condition. For analogy, it may be mentioned that in the private sector or even in some Government Undertaking Sectors there may not be pension scheme and the employees are working under their agreed conditions being financially compensated in some other way to which either the employers or the employee have no dissatisfaction. But in the case on hand, while the chosen S.As and C.As at the desire of the Ministers are merely a group of persons to render services to the elected Ministers, and a tenure of two years was made as qualifying period for coming within zone of the pension scheme created by the aforesaid Pension Rule 1996, which was never before, cannot be said to have been created for public interest. So that the public exchequer would be liable to be burdened again despite termination of Ministry on completion of its tenure. So that the public exchequer would be liable to be burdened again despite termination of Ministry on completion of its tenure. Therefore, its abolition by the subsequent Government cannot be said as contrary to statutory provisions or unreasonable one or against public interest since the pension scheme like the impugned one had no place before in any statute. Rather to remove discrimination and disparity in future with the main stream of pension scheme where an employee is to subserve at least minimum ten years to come within the pension scheme it was rescinded. The writ petitioners cannot expect permanent remedy of the pension scheme which was introduced by the Pension Rule, 1996, service of whom was temporary in nature and co-terminus with the tenure of the elected Minister. Therefore, the ratio of the decision laid down in the case of State of Tamil Nadu v. K. Shyam Sunder (supra) is not applicable to the case of the writ petitioner. In the same logic the ratio of the case State of Bihar v. Bihar M.S.E.S.K.K Mahasangh (supra) from where the text of paragraph 64 was pressed by Mr. Bhattacharya is also not applicable in the case, because, there was no question of dishonouring the rule issued by the previous elected Government. To my mind, it was rescinded to avoid conflict, or, disparity, or, discrimination in the employee at large serving in the State, and thereafter coming in the zone of pension (wherever applicable) after completion of long tenure of service. Therefore, to save the loss of face of the Government and therefore taking advantage of being elected through votes of the public at large if the newly elected Government policy wise thought it fit to keep those servers under some other nomenclature providing moderate pay package with some additional facilities burdening the public exchequer allowing to remain co-terminus with the Ministers, then, whether it would be unconstitutional, or, in violation of statutory provision, or, principle of natural justice? Answer shall be no and no. In Jit Ram Shiv Kumar v. State of Haryana followed by the Supreme Court in the case of State of Pubjab v. Nestle India Ltd. (supra) it is held, “The Plea of estoppel is not available against the State in exercise of its legislative or statutory functions.” The status of assistants was temporary and co-terminus in the previous Pension Rule 1996. In the impugned Notification dated 22nd February, 2013 those posts also are given same temporary with contractual status, which “will be terminated automatically with the cessation of the Minister…” and superseding earlier executive instruction etc., if any, with regard to the appointment of “Confidential Assistant” and “Special Assistant”. It is also made clear “No pensionary benefit or family pension will be admissible after termination of service.” So, on principle, service of those assistants with pay package with some other facilities have been kept in vogue, except pension benefit. Rather state pensions being within domain of the power of state under 7th Schedule of the Constitution the said Notification dated 22nd February, 2013 is an administrative order having the reason in built, which need not be assigned when it is published in the name of Governor. 21. From the case of Bijitaswa Rout v. State of West Bengal (supra) this Court appreciated by giving following observation in paragraph 34, “Separation of powers is discernible, in the very scheme of the Constitution. It has entrusted the executive or the administrative wing the exclusive domain of formulating policies for governance, which is regarded by it to be in the best interest of the nation and its people. What is good and right for the people rest or their decision and all their actions must be directed towards achieving the same, with the caveat that the executive power of the State must be exercised in tune with the constitutional norms and principles. It is also open to the executive to change its policy according to the demands of the time and situation, and also in public interest, for justifiable reasons. However, it is not the law that a policy decision enjoys immunity and can never be the subject of judicial review.” 22. In paragraph 42 in the case of State of Punjab v. Nestle India Ltd. (supra) as it was quoted, some relevant portion therefrom is reproduced:— There is no room for any administrative action or for doing the thing ordained by the statute otherwise than in accordance therewith. Where of course, the matter is not governed by a law made by a competent legislature, the executive can act in its executive capacity since the executive power of the State extends to matters with respect to which legislature of a State has the power to make laws (Article 162 of the Constitution). Where of course, the matter is not governed by a law made by a competent legislature, the executive can act in its executive capacity since the executive power of the State extends to matters with respect to which legislature of a State has the power to make laws (Article 162 of the Constitution). So, what remains to question anymore the subsequent executive legislation issued in the name of the Governor rescinding the pension Rule 1996? 23. The judicial review, of course, is required to overview that there is no statutory violation in discharging statutory obligation towards the subject by the authority. When policy on pension scheme already exists in the statute with its rules and regulations and when the pre-requisite condition to come under pension scheme is the completion of qualifying period of service by a permanent employee, then creation of pension scheme for the “assistants” of temporary nature was unconstitutional and it was rather created in violation of the scheme of main stream and therefore it was opposed to the principle of natural justice which have appropriately taken care of by impugned order No. 131 dated 21st February, 2013 issued in the name of the Governor from the Home Department. 24. In any view of the matter when this Court fails to appreciate and accept that the Pension Rule, 1996 was ever made and issued in exercise of the power conferred under Article 309 of the Constitution of India, then the matter pertaining to the pensions payable by the State out of its consolidated fund being within the 7th Schedule of the State as indicated above, the matter was dealt with by the earlier Government under Article 162 read with Article 166 for its publishing in the name of the Governor of the State. In this context I took opportunity to set out Clause 22 of the Bengal General Clauses Act, 1899:— Clause 22:- Where, by any Bengal Act (or West Bengal Act), a power to (issue) orders, rules, bye-laws, or notifications is conferred, then, that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any orders, rules, bye-laws or notifications so (issued). 25. 25. Therefore, any order or notification in executive capacity if it is made and issued by the State, then, the State under the above Clause 22 of the Bengal General Clauses Act is empowered also to rescind, or, cancel, or, supersede the same. Mr. Bhattacharya, of course, criticized the impugned order dated 21st and 22nd February, 2013 that those orders were without reason. In view of above discussion answer may be given particularly taking note of disparity and discrimination for the reason briefly stated:— (i) the said pension rule was not applicable for one to all employees serving in the State, (ii) there was no condition of services, (iii) they were not appointed through any selection process (iv) their appointment were temporary. (v) they had no enforceable right even over the process of appointment which would be genesis of claim of pension. 26. However, the impugned order published in the name of the Governor is set out:— Order No. 131-Home (Cons.)/RIM (Cons.)-88/20-12 Dated, Kolkata the 21st February, 2013. WHEREAS the State Government have been considering for some time to review the administrative instruction entitled as “The West Bengal Special Assistants and Confidential Assistants to Ministers (Pension) Rules, 1996” (hereafter referred to as the said administrative instruction); NOW, THEREFORE, the Governor, after consideration of the matter, is pleased hereby to rescind the said administrative instruction on and from 01/03/2013. By order of the Governor, Sd/- Additional Chief Secretary to the Govt. of West Bengal. 27. The above text of the order accordingly shows that the Pension Rules, 1996 were not suddenly rescinded in one fine morning. Because before rescinding the same the subsequent elected Government had considered for some time, reviewed the administrative instruction and, the reasons were in built, though were not come out in very many words in the impugned order dated 21st February, 2013, and that is why the effect of rescinding was not made retrospective but made prospective i.e on and from 1st of March, 2013, meaning thereby, the benefit already enjoyed by those assistants pursuant to earlier Pension Rule, 1996 upto 28th February, 2013 would not be affected, and the newly elected Government would bear the same. Therefore the impugned order dated 21st February cannot be said as an outcome of arbitrary act in violation of any statute or natural justice. 28. Therefore the impugned order dated 21st February cannot be said as an outcome of arbitrary act in violation of any statute or natural justice. 28. Another impugned notification dated 22nd February, 2013 by which the earlier executive instruction with regard to the appointment of Confidential Assistants and Special Assistants was superseded by creation of the “Assistants” with new nomenclature namely, Executive Assistant and Special Executive Assistant w.e.f 1st day of March, 2013 giving entitlement to the concerned Ministers and others mentioned therein, it was made clear that no pensionary benefit or family pension would be admissible under termination of service. Said notification also was issued in the name of the Governor. Therefore when the conduct of business is permissible empowering the State under the Constitution of India to take any appropriate steps in respect of the subject in dispute, and, while it was taken in the form of review by the subsequent elected Government, this cannot be captioned as statutory violation or arbitrary and colourable legislation, since policy decision from executive wing always can be amended or even rescinded to the discretion of the Government under Clause 22 of the Bengal General Clauses Act, 1899. 29. To put an end to the lis favouring the view that public interest shall always prevail, and, that has been very much taken care of by passing executive order (s) like the impugned orders which were passed after consideration on review, and, it was accordingly taken to issue order(s) in the name of the Governor superseding all previous orders with regard to the appointment of “Confidential Assistant” and “Special Assistant”. While such orders were passed in the name of the Governor this Court observed that it need not necessarily assign with expressed reason specially when the same are in built, and it was so dealt with under Article 166 of the Constitution of India. The writ petitioners, however, have come up with their plea of getting financial assistance in the garb of pension benefit which has been rescinded already by the impugned orders. Those orders are policy decision of the subsequent elected Government and, therefore, it should not be the Court to interfere with, but it could be the Assembly or the Parliament who may take care of for permanent solution after debate if the matter is so raised by the press of the Assembly or the Parliament. All other cases cited by Mr. All other cases cited by Mr. Bhattacharya, or by Mr. Mukherjee, of course, being academic on maintaining constitutional provisions, but in view of above discussion and observation taking note of facts and circumstances of the case on hand all other cases are not dealt with individually to avoid unnecessary length of the judgment, specially because, for the observations given above, the writ petitioners are debarred to get any favour of the ratio decidendi of those cases, not discussed separately. At last though not the least, there being no infringement of fundamental or statutory rights, since the benefit provided by the Pension Rule 1996 was unknown before and the very appointment of the service providers was temporary in nature and for other reasons discussed above, the writ petition stands dismissed. 30. No order as to costs. 31. Urgent certified copy be supplied on priority basis if applied for.