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2020 DIGILAW 343 (HP)

Bhagwati Prashad v. State of Himachal Pradesh

2020-06-16

JYOTSNA REWAL DUA, TARLOK SINGH CHAUHAN

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JUDGMENT Tarlok Singh Chauhan, J. - On 01.01.2014, the State Government notified the 'Himachal Pradesh Transport Service Providers Scheme, 2013' (for short 'Scheme') wherein parameters were fixed for eligibility for having licenses. The licensees were made competent to provide transport service after qualifying the special examination prescribed under the scheme. The scheme also made provisions for renewal/suspension/ cancellation and validity of such licenses. 2. The basic idea to frame the scheme was to provide easy access to the public by providing them various transport services in the Office of the Registering and Licensing Authority in Himachal Pradesh and to make the working of the Transport Department efficient because at that time 'VAHAN' and 'SARTHI' applications were offline and lesser number of people were using online service. 3. The petitioners after qualifying the written examination were granted licenses and were working as 'Transport Service Providers' (for short TSPs). However, the aforesaid scheme came to be abolished vide notification dated 21.04.2020, constraining the petitioners to file the instant petition for grant of the following substantive reliefs: "i) That in view of the above mentioned facts and circumstances, the impugned order dated 21.4.2020 (Annexure P-4) may kindly be quashed and set aside, in the interest of justice and fair play. ii) That the respondents may kindly be directed to allow the petitioners to work as TSPs continuously under the scheme Annexure P-1 or in the alternative they may be given license to work as Parivahan Mitter Kender by providing the requisite infrastructure as provided to Lok Mitter Kender." 4. It is vehemently contended by Shri Kul Bhushan Khajuria, learned counsel for the petitioners that the action of the respondents in issuing the impugned notification dated 21.04.2020, apart from resulting in the loss of livelihood of the petitioners, is contrary to the legitimate expectations of the petitioners, especially, when there was no financial burden on the State Government in executing and continuing with the earlier scheme. 5. On the other hand, Shri Ashok Sharma, learned Advocate General assisted by Shri Ranjan Sharma, learned Additional Advocate General, for the respondents, has argued that the notification dated 21.04.2020 has been issued in public interest and to reduce the footfall of the general public in the transport offices. 5. On the other hand, Shri Ashok Sharma, learned Advocate General assisted by Shri Ranjan Sharma, learned Additional Advocate General, for the respondents, has argued that the notification dated 21.04.2020 has been issued in public interest and to reduce the footfall of the general public in the transport offices. It is submitted that over the past five years the Information Technology Sector has undergone developmental changes necessitating the conversion of offline mode service under the Scheme 2013 into a online mode by the respondents by developing and thereafter launching the software i.e. 'VAHAN' and 'SARTHI' portal. 6. We have heard the learned counsel for the parties and have gone through the records of the case. 7. It is more than settled that discretion to change the policy in exercise of executive powers when not trammelled by any statute or rule is wide enough. However, it is imperative and implicit in terms of Article 14 that a change in policy must be done fairly and should not give an impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 of the Constitution of India and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the State and non-arbitrariness in essence and substance is the heartbeat of fair play. Actions are amenable in the panorama of judicial review only to the extent that the State must act validly for a discernible reason, not whimsically or for any ulterior motive. 8. As observed by the Hon'ble Supreme Court in Punjab Communications Ltd. vs. Union of India and others, (1999) AIR SC 1801 that the change in policy can defeat a substantive legitimate expectation if it can be justified on "Wednesbury reasonableness". The decisionmaker has a choice in the balancing of the pros and cons relevant to the change in policy. It is, therefore, clear that the choice of the policy is for the decision-maker and not for the Court. The legitimate substantive expectation merely permits the Court to find out if the change in policy which is the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made. It is, therefore, clear that the choice of the policy is for the decision-maker and not for the Court. The legitimate substantive expectation merely permits the Court to find out if the change in 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". A legitimate expectation, even when made out, does not always entitle the expectant to a relief. Public interest, change in policy, conduct of the expectant or any other valid or bonafide reason given by the decision-maker may be sufficient to negative the "legitimate expectation". 9. The concept of substantive legitimate expectation was the subject-matter in a fairly recent judgment of the Hon'ble Supreme Court in Kerala State Beverages (M and M) Corporation Limited vs. P.P. Suresh and others, (2019) 9 SCC 710 wherein it was observed as under: "19. An expectation entertained by a person may not be found to be legitimate due to the existence of some countervailing consideration of policy or law.9 H.W.R. Wade & C.F. forsyth, Administrative Law (Eleventh Edn., Oxford University Press, 2014) Administrative policies may change with changing circumstances, including changes in the political complexion of governments. The liberty to make such changes is something that is inherent in our constitutional form of government. 10 Hughes v. Department of Health and Social Security, (1985) AC 776, 788 . 20. The decision makers' freedom to change the policy in public interest cannot be fettered by applying the principle of substantive legitimate expectation.11 Findlay, In re, 1985 AC 318 . So long as the Government does not act in an arbitrary or in an unreasonable manner, the change in policy does not call for interference by judicial review on the ground of a legitimate expectation of an individual or a group of individuals being defeated. 21. The assurance given to the respondents that they would be considered for appointment in the future vacancies of daily wage workers, according to the Respondents, gives rise to a claim of legitimate expectation. The Respondents contend that there is no valid reason for the Government to resile from the promise made to them. 21. The assurance given to the respondents that they would be considered for appointment in the future vacancies of daily wage workers, according to the Respondents, gives rise to a claim of legitimate expectation. The Respondents contend that there is no valid reason for the Government to resile from the promise made to them. We are in agreement with the explanation given by the State Government that the change in policy due was to the difficulty in implementation of the Government order dated 20.02.2002. Due deference has to be given to the discretion exercised by the State Government. As the decision of the Government to the change policy was to balance the interests of the displaced Abkari workers and a large number of unemployed youth in the State of Kerala, the decision taken on 07.08.2004 cannot be said to be contrary to public interest. We are convinced that the overriding public interest which was the reason for change in policy has to be given due weight while considering the claim of the Respondents regarding legitimate expectation. We hold that the expectation of the Respondents for consideration against the 25 per cent of the future vacancies in daily wage workers in the Corporation is not legitimate." 10. Judged in light of the aforesaid exposition of law, we do not find any ground for interference. The plea of legitimate expectation is totally unfounded as firstly the Scheme of 2013 nowhere suggests much less provides for continuing of the scheme in perpetuity. The petitioners can have no legitimate expectation as the decision-makers i.e. the respondents have freedom to change the policy in public interest. 11. That apart, the petitioners have not made any considerable investment under the scheme and most of the amount that was deposited by them towards license fee (Rs. 10,000/-) and security for license (Rs.20,000/-) are refundable and in addition thereto only a nominal fee of Rs.10,000/- over for a period of five years is the amount which is paid by the petitioners for renewal of license. 12. Lastly and more-importantly, the decision of the Government in bringing about the change in the policy cannot be termed to be arbitrary, irrational, unreasonable or perverse, calling for any interference by judicial review. 13. 12. Lastly and more-importantly, the decision of the Government in bringing about the change in the policy cannot be termed to be arbitrary, irrational, unreasonable or perverse, calling for any interference by judicial review. 13. Not only the State and the Country, but the World is grappling with the COVID-19 Pandemic and one of the purpose of amending the scheme is to reduce the footfall of the general public in the offices. 14. Moreover, the principle of legitimate expectation would only apply if a promise made by an authority which is clear, unequivocal and unambiguous and a person can claim that the authority in all fairness should not act contrary to the promise. This is not the fact situation obtaining in the present case. 15. As observed above, the change brought about in the scheme by the respondents in issuing impugned notification cannot either be termed to be unreasonable or arbitrary so as to call for interference in this petition by this Court. 16. Consequently, we see no merit in the instant writ petition and the same is dismissed, so also the pending application, if any.