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2022 DIGILAW 879 (HP)

Om Prakash Sharma v. State of H. P.

2022-12-26

TARLOK SINGH CHAUHAN, VIRENDER SINGH

body2022
JUDGMENT : Tarlok Singh Chauhan, J. The instant petition has been filed for grant of the following substantive reliefs:- i. Issue a writ in the nature of certiorari may kindly be issued and the clause-1 of impugned letter dated 12.12.2022 (Annexure P-3) issued by respondent No.1 and Head Office Order No.182/2022-23 dated 13.12.2022 (Annexure P-4) issued by respondent No.3 may kindly be TODAY] quashed and set aside. ii. That the respondents may kindly be directed to re-engage the petitioner against the post of Tehsildar (Bank Recovery) with the respondent No.3 and be allowed him to complete one year i.e. uptil April, 2022. 2. As per the pleadings of the petitioner, he retired from the post of Tehsildar on 31.03.2021. The State had formulated a policy for re-engaging retired employees for a further period of one year on contract basis so that the experience of such employees could be utilised meaningfully, as such a panel of retired Tehsildar was prepared by the Financial Commissioner-cum-Secretary Revenue, in which panel the name of the petitioner was also included. 3. Since the post of Tehsildar (Bank Recovery) was lying vacant with respondent No. 3, name of the petitioner was sent to respondent No. 3 i.e. H.P. State Co-operative Bank by respondent No. 2 i.e. Financial Commissioner-cum-Revenue Secretary, who in turn, placed the name of the petitioner before the Board of Directors consequent to which after its approval, the petitioner was assigned the post of Tehsildar (Bank Recovery) by respondent No. 3 on 06.04.2022, purely on contract basis for a period of one year on a fixed salary of Rs. 38,673/-. 4. The petitioner joined as such on 13.04.2022, however, in view of the recent change of guard, respondent No. 1 has issued letter dated 12.12.2022, relevant portion whereof reads as under:- I am to refer to the subject cited above and to say that the Hon'ble Chief Minister has directed to take immediate steps to comply with the following decision:- 1. All extensions or re-employments accorded and operative be terminated forthwith except for Government medical colleges. 2. Decision taken by the cabinet since 1 April, 2022 will be reviewed. All intuitions for which notification for creation/upgradation have been issued be de - notified. Thereafter, administrative departments may put up for fresh consideration of the cabinet, such proposals which are justified. 3. All extensions or re-employments accorded and operative be terminated forthwith except for Government medical colleges. 2. Decision taken by the cabinet since 1 April, 2022 will be reviewed. All intuitions for which notification for creation/upgradation have been issued be de - notified. Thereafter, administrative departments may put up for fresh consideration of the cabinet, such proposals which are justified. 3. Appointments Vice-Chairman nominated members in Boards Corporations, institutions other Committees including Committees ULBS terminated forthwith. 4. All recruitment departments, underway Boards/Corporations Autonomous Bodies Government, including Public Universities, except being through HP Service Commission and HP Subordinate Services Selection Board kept abeyance. would however not apply the recruitment being made medical colleges and institutions health department. 5. Status quo be maintained in respect of those transfer orders which are not implemented. 5. As a fall out and direct outcome of this letter, the services of the petitioner have been terminated and aggrieved thereby the petitioner has filed the instant petition for the reliefs as quoted above. 6. It is vehemently argued by Shri Neel Kamal Sharma, learned Advocate that the services of the petitioner could not have been terminated without following basic principles of natural justice and fair play and the action of the respondents is in violation of the provisions of Constitution of India, more particularly, Articles 14 and 16 thereof. We have heard learned counsel for the petitioner and have gone through the record of the case. 7. It is the specific case of the petitioner that his appointment was in pursuance to the policy (though the same has not been annexed with the petition) of the State Government wherein they had decided to re-engage the retired employees after attaining the age of superannuation for a period of one year on contract basis so that the experience of such employees could be properly utitilised. 8. Once that be so, obviously nothing prevented the respondents to review such policy. After all, it is more than settled that policy can be reviewed by the competent authority from time to time. Moreover, the respondents could themselves take a policy decision even if there was none. 9. The scope of judicial review with regard to change of policy is well settled. The Court can interfere with the change in policy only after being satisfied that the same is irrational or perverse. 10. Moreover, the respondents could themselves take a policy decision even if there was none. 9. The scope of judicial review with regard to change of policy is well settled. The Court can interfere with the change in policy only after being satisfied that the same is irrational or perverse. 10. Noticeably, it is not the case of the petitioner that he was re-employed after giving wide publicity that too by inviting the best talents and it is settled law that policy should be made strictly in accordance with the relevant provisions and a candidate who is not appointed strictly in accordance with these provisions would have no right to hold the post even for the remainder of the contract period, on the basis of the policy decision. There is justifiable reason to withdraw the earlier decision to grant re-employment and the same cannot be said to be unreasonable, more particularly, when we find no infirmity in the same. 11. It is in the larger public interest that the services of the re-employed needs to be dispensed with as the retired employees per se do not have any right of re-employment. Even if the re- employment, is for a fixed period, even then it is settled law that an appointment for a fixed period can be curtailed for a good and valid reason and taking into consideration the case of this nature where large number of persons have been re-employed, there is no requirement to follow the principle of natural justice, more particularly, the rule audi altrem paltrem by giving hearing to such re-employed person. 12. In coming to such conclusion, we are duly supported by the following observations of the Honb'le Supreme Court in Kerala State Beverages M and M) Corp. Ltd. vs. P.P. Suresh & Ors. (2019) SCC 710, wherein it was observed as under:- 25. The principle of procedural legitimate expectation would apply to cases where a promise is made and is withdrawn without affording an opportunity to the person affected. The imminent requirement of fairness in administrative action is to give an opportunity to the person who is deprived of a past benefit. In our opinion, there is an exception to the said rule. The principle of procedural legitimate expectation would apply to cases where a promise is made and is withdrawn without affording an opportunity to the person affected. The imminent requirement of fairness in administrative action is to give an opportunity to the person who is deprived of a past benefit. In our opinion, there is an exception to the said rule. If an announcement is made by the Government of a policy conferring benefit on a large number of people, but subsequently, due to overriding public interest, the benefits that were announced earlier are withdrawn, it is not expedient to provide individual opportunities to such innominate number of persons. In other words, in such cases, an opportunity to each individual to explain the circumstances of his case need not be given. 13. While resolving the validity of the policy decision, like withdrawing the extension or re-employment, it is not proper for the Court to put the conflicting claim in a sensitive judicial scale and decide the issue by finding which way the balance tilt. That is the exercise which the administrator and the legislature have to undertake, this is so because often the Court has no satisfactory and effective means to decide which alternative out of many competing one is best in the circumstance of a given case. 14. However, it is not that every question of policy are outside the scope of judicial review or necessarily there are no manageable standard for reviewing any or every question of policy, where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law, therefore, violative of Article 14, but that is not the situation in the instant case. 15. The decision taken by the respondents can neither be termed to be unreasonable or arbitrary. The fundamental premise upon which it proceeds is fair and reasonable and it also does not offend the constitutional limitations. This decision cannot be termed to be arbitrary or irrational. Wisdom of the legislative policy is ordinary not open to judicial review and can be interfered with primary on it being violative of the fundamental rights but that is not the position in the instant case. 16. The scope of judicial review of governmental policy is now well defined. Courts do not and cannot act as appellate authority examining the correctness, suitability and appropriateness of policy. 16. The scope of judicial review of governmental policy is now well defined. Courts do not and cannot act as appellate authority examining the correctness, suitability and appropriateness of policy. Nor the courts are advisor to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining a policy of the government is to check whether it violates the fundamental rights of the citizen or opposed to any statutory provision manifestly, arbitrarily. Court cannot interfere with policy either on ground that it is erroneous or on the ground that a better, fair or wise alternative is available, legality of the policy and not the wisdom or soundness of the policy, is the subject of all judicial review. 17. In view of he aforesaid discussion and for the reasons stated above, we find no merit in this petition and the same is accordingly dismissed, so also pending applications, if any.