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2024 DIGILAW 1327 (CAL)

Mihir Sen v. Union of India

2024-07-24

RAJARSHI BHARADWAJ

body2024
JUDGMENT : Rajarshi Bharadwaj, J. 1. The instant writ application has been preferred challenging, inter alia, the impugned decision pertaining to agents’ commission communicated via office memorandum bearing reference No. 6-1/2011-NS. II (Pt.) dated November 11th 2011 as well as S.B Order No. 29/2011 dated November 24th 2011 issued by the Ministry of Finance, Department of Economic Affairs (Budget Division) herein respondent no.1 and Ministry of Communication & IT, Department of Post herein respondent no.4 respectively. 2. The facts in a nutshell are that prior to October 1st, 1960, multiple agency systems were implemented intermittently to engage small savings workers on a commission basis, aimed at encouraging various segments of the Indian population to invest their savings in Government securities. On October 1st, 1960, these disparate agencies were consolidated into a unified system, known as the Standardized Agency System (hereinafter referred to as 'SAS'), which operated uniformly across urban and rural areas throughout India. 3. The agencies were limited to soliciting the sale of Kishan Bikash Patras, National Savings Certificates 8th issue, Deposits in Time Deposit Accounts, Monthly Income Savings Accounts and Senior Citizens' Savings Scheme Accounts. Subsequently, the Government of India, since October 1st 1960, progressively expanded the range of Small Savings Securities available for sale through duly authorized agents, the SAS. Initially, legal entities such as registered Cooperative Societies, Scheduled Banks, Registered Social Service Organizations, Registered Gram Panchayats and Institutions specially approved by the Government were authorized to act as agents for the sale of such Small Savings Securities. However, this authorization was terminated by a communication dated September 12th 2005, based on an assessment of the agents' efficacy in mobilizing small savings. Consequently, it was decided that fresh approvals for appointing legal entities as agents would no longer be entertained. This decision, among other considerations, also applied to the extension of existing agency agreements held by such entities upon the expiration of their terms. 4. The petitioners were duly appointed as authorized agents following submission of respective applications, with notifications of such appointments directed to the relevant Head/Sub-Post Master. The appointing authorities, including but not limited to the Collector, Deputy Commissioner of the Districts, Tehsildar, Block Development Officer or other Gazetted Officer, were responsible for such appointments. These appointments were mandated to be recorded in a register in Form AAS-9 on a district-wise basis within the offices of the appointing authorities. The appointing authorities, including but not limited to the Collector, Deputy Commissioner of the Districts, Tehsildar, Block Development Officer or other Gazetted Officer, were responsible for such appointments. These appointments were mandated to be recorded in a register in Form AAS-9 on a district-wise basis within the offices of the appointing authorities. Additionally, it was determined that starting from November 21st, 2002, the appointment process for SAS agents, including the petitioners, would be carried out by the respective State Governments, discontinuing the previous practice of appointment by the Regional Director, National Savings Institute. 5. Upon appointment, agents like the petitioners were authorized to solicit investments throughout the State of their appointment and could also be affiliated with one of the post offices under the same head post office for executing transactions. However, for receiving receipt books, an agent was permitted to be affiliated with either a sub-post office or a head post office. Furthermore, an agent was allowed to open accounts on behalf of investors who were not ordinarily residents of the State and were considered outsiders. Typically, all SAS agents were affiliated with sub-post offices. 6. The respondent no.1further instituted commission rates payable to agents following successful solicitation of business. The latest circular antedating the impugned circular was issued on August 2nd, 2004. Particularly concerning SAS agents, it was expressly mandated that they were entitled to receive commissions at rates as prescribed by the Government at regular intervals for each security sold through them under the contractual terms. However, these provisions did not sanction the total cessation of commission payments to an agent. 7. In light of the respondent’s no.1 decision, SAS agents were also authorized to solicit investments in the Mahila Pradhan Khestriya Bachat Yojna (hereinafter referred to as 'MPKBY'). To qualify as an MPKBY agent, the primary requirement was that the agent must be a female. The last two petitioners, being women, possessed exclusive eligibility in this regard. SAS agents or MPKBY agents had executed agreements with the respondent’s no.1 under predetermined terms set forth by the Government. 8. The petitioners were appointed as agents under the Public Provident Fund Scheme, 1968 (hereinafter referred to as "PPF"). Agents appointed to solicit PPF business acted under the authority of the PPF Scheme, a statutory framework established by the Central Government pursuant to the PPF Act. 8. The petitioners were appointed as agents under the Public Provident Fund Scheme, 1968 (hereinafter referred to as "PPF"). Agents appointed to solicit PPF business acted under the authority of the PPF Scheme, a statutory framework established by the Central Government pursuant to the PPF Act. A distinct scheme for authorized agency within the PPF Scheme was introduced on January 1st, 1969, under which separate agents were appointed to solicit investments in the PPF Scheme. SAS and MPKBY agents were also eligible to serve as PPF agents. 9. The operational jurisdiction of PPF agents coincides with the area supervised by the respective Regional Director/Deputy Regional Director. A commission system was in place under the PPF Scheme for agents. PPF accounts opened until November 30th, 2011, entailed an agency commission on both the initial and subsequent deposits made through the agent. In essence, deposits made in the PPF until November 30th, 2011, attracted a commission rate of 1% on the investment. 10. However, The Ministry of Finance issued an office memorandum referenced No.6-1/2011-NS. II(Pt.) dated November 11th, 2011, disseminating a notice. The principle features included, inter alia, the following: (a) The maturity period for Monthly Income Scheme (MIS) and National Savings Certificate (NSC) will be reduced from 6 years to 5 years; (b) A new NSC instrument, with maturity period of 10 years, would be introduced; (c) Kisan Vikas Patras (KVPs) will be discontinued; (d) The annual ceiling on investment under Public Provident Fund (PPF) Scheme will be increased from 70,000 to 1 lakh; (e) Payment of 5% bonus on maturity of MIS will be discontinued; (f) Payment of commission on PPF scheme (1%) and Senior Citizens Savings Scheme (0.5%) will be discontinued; (g) Agency commission under all other schemes (except MPKBY agents) will be reduced from existing 1% to 0.5%; (h) Commission at existing rate of 4% will continue for Mahila Pradhan Kshetriya Bachat Yojana (MPKBY) agents; (i) Incentives, if any, paid by the State/UT Government will be reduced from the commission paid by the Central Government;” 11. In the wake of the edict disseminated through the impugned memorandum dated November 11, 2011, the Assistant Director (Savings Bank), Department of Posts, Ministry of Communication & IT, Government of India, promulgated eight distinct decrees numbered 22-29/2011, all dated November 24, 2011, favouring Circle Heads by articulating in comprehensive detail the determinations encapsulated in a concise format within the aforementioned memorandum of November 11, 2011. The petitioners, finding themselves particularly aggrieved by Order No. 29/2011, contested the stipulations thereof. The communications therein recorded the cessation of commission disbursements on Public Provident Fund (PPF) deposits initiated on or after December 1, 2011, as well as the discontinuation of commission remittances for the Senior Citizen Savings Scheme. Save for the Modified Public Key-Based Encryption (MPKBY), where commission rates remained static, an overarching decline transpired in the commission remunerations earmarked for agents akin to the petitioners. 12. The determination disseminated through the office memorandum of November 11, 2011 and subsequently through the circular of November 24, 2011, with the exception of SB Order No. 29/2011, emanated from the resolutions formulated by a committee instated consequent to the recommendation of the 13th Finance Commission. The 13th Finance Commission advocated for a comprehensive reassessment of the holistic administration of the National Small Savings Funds. By virtue of an order dated July 8, 2010, the Ministry of Finance established a committee tasked with proffering recommendations requisite for the holistic evaluation of the National Small Savings Funds. 13. Nevertheless, in proffering the aforementioned recommendations, no endeavour was undertaken by any committee member to redress the grievances of the agents. At no juncture was any agent association duly consulted prior to the resolution of an issue that directly impacts their livelihood. Put differently, the decision of the Committee, subsequently embraced by the Government, albeit mechanically and devoid of any impartial evaluation and promulgated on November 11, 2011, has left the petitioners bereft of recourse, compelling them to initiate the present writ petition before this Court. 14. The Learned Counsel representing the petitioner has advanced the following arguments: I. The petitioner contends that the impugned notifications lack any discernible public purpose or alignment with public policy. 14. The Learned Counsel representing the petitioner has advanced the following arguments: I. The petitioner contends that the impugned notifications lack any discernible public purpose or alignment with public policy. It is asserted that these notifications lack statutory authority and the purported objective of reforming the Savings Schemes Policy, as claimed by the respondent, does not clash with the existing system of savings collection from the general public through agents such as the petitioners. Furthermore, it is submitted that these notifications fail to meet the standard of reasonableness. It is firmly established that if the government's economic policy is found to be irrational, unreasonable, or in violation of the rights guaranteed under Article 19(1)(g) of the Constitution of India, and if it is determined that the economic policy is not fair, reasonable, or in the public interest, the court possesses the authority to invalidate the economic policy or instruct the government to amend said policy. II. Prior to the issuance of the impugned notifications, the respondent authorities remunerated agents involved in the collection of the Public Provident Fund (PPF) scheme at a rate of 1%. However, as of December 1, 2011, the engagement of PPF scheme agents was entirely terminated and renewals were ceased. Consequently, agents such as the petitioners continued to provide services to PPF account holders, notwithstanding the cessation of commission payments. Similarly, the commission rate payable to agents, including the petitioners, was diminished from 1% to 0.05% as of December 1, 2011, concerning the Monthly Income Scheme (MIS) and National Savings Certificate (NSC) scheme. Moreover, the commission rate pertaining to term deposits was reduced to 0.5%. Consequently, the petitioners' income derived from agency commissions was substantially curtailed, rendering it exceedingly challenging for them to endure amidst the current inflationary pressures. III. The agents akin to the petitioners have found themselves precluded from pursuing employment opportunities within certain governmental departments due to their engagement as agents under the purview of the respondents. Over the course of numerous decades, the petitioners have steadfastly provided their services, tirelessly advocating for the participation of numerous investors in various small-scale savings schemes propagated by the respondent authorities. Over the course of numerous decades, the petitioners have steadfastly provided their services, tirelessly advocating for the participation of numerous investors in various small-scale savings schemes propagated by the respondent authorities. It is an acknowledged fact that upon the introduction of new schemes by the respondent authorities, the petitioners have diligently endeavoured to persuade investors to allocate their funds towards savings schemes such as the Public Provident Fund (PPF), National Savings Certificate (NSC), Monthly Income Scheme (MIS) and similar initiatives during their nascent stages. However, presently, as these schemes have flourished and reached saturation points, the respondent authorities are endeavouring to undermine the petitioners' livelihoods by depriving them of their sole means of earning through commissions garnered from diverse schemes. The petitioners have forsaken alternative career paths in deference to their appointments as agents under the respondent authorities. Yet, through the impugned notifications, the respondents have erected unwarranted barriers and restrictions, placing the petitioners' livelihoods in jeopardy. IV. The petitioners additionally contend that the recommendations put forth by the 13th Finance Commission, advocating reforms in the government's policy concerning small-scale savings, were presented before the Lok Sabha. The Hon’ble House solicited proposals and viewpoints from various sectors. To the best of the petitioner's knowledge, however, these recommendations were not presented before the Rajya Sabha, nor is there any official notification in the Official Gazette acknowledging or accepting such reports and recommendations. Consequently, the impugned notifications lack statutory authority and are not binding upon the respondent authorities. V. It is pertinent to note that the doctrine of legitimate expectation imposes a fundamental obligation on public authorities to act equitably by considering all pertinent factors pertaining to such legitimate expectation. Within the framework of equitable treatment under the doctrine of legitimate expectation, the opportunity for affected parties to make representations concerning any deviation from established past policies is integral. The petitioner has not been presented with any compelling rationale considered by the Central Government to justify a departure from the existing policy. VI. There has been a glaring absence of objective scrutiny concerning the matter, with the report merely reflecting the subjective satisfaction of the committee. Consequently, such a decision is inherently unlawful, indicative of a complete lack of applied intellect and demonstrates a failure to engage in rational decision-making. Furthermore, no consultations were undertaken prior to the formulation of this illegal decision. There has been a glaring absence of objective scrutiny concerning the matter, with the report merely reflecting the subjective satisfaction of the committee. Consequently, such a decision is inherently unlawful, indicative of a complete lack of applied intellect and demonstrates a failure to engage in rational decision-making. Furthermore, no consultations were undertaken prior to the formulation of this illegal decision. Therefore, the government, at its highest echelons, cannot evade its responsibility and disregard the plight of the agents, who, due to the implementation of this decision, are confronted with an exceedingly uncertain future. The repercussions of this decision are substantial, with agents facing a drastic reduction in their monthly earnings from commissions, potentially halving or even diminishing further. Such a scenario directly impacts their livelihoods, particularly considering that agents serve as the primary breadwinners in their respective families, thereby exacerbating the uncertainty surrounding their future prospects. 15. Owing to the lack of representation on behalf of the respondent authorities, no affidavit in opposition has been submitted in response to the matter. 16. On perusal of the documents brought to the Court and considering the submissions made on behalf of the parties, this Court is of the view that it is a settled principle within legal precedent that the purview of judicial review concerning matters of policy is severely circumscribed. Judicial scrutiny does not extend to assessing the correctness, suitability or appropriateness of a policy, nor does it grant the courts advisory jurisdiction over policy formulation, an entitlement exclusively vested in the executive. Furthermore, Courts are not empowered to mandate state for the implementation of a specific policy or scheme based on the presence of potentially superior, more equitable, or judicious alternatives. This principle underscores the deference owed by the judiciary to the executive branch in policy-related matters, emphasizing the separation of powers doctrine and the constitutional boundaries demarcating the roles of each branch. Consequently, while the judiciary retains its vital function of upholding the rule of law and ensuring governmental actions adhere to legal norms, it must exercise restraint and refrain from encroaching upon the policymaking prerogatives constitutionally conferred upon the executive, thus preserving the integrity and equilibrium of the tripartite system of governance. 17. Consequently, while the judiciary retains its vital function of upholding the rule of law and ensuring governmental actions adhere to legal norms, it must exercise restraint and refrain from encroaching upon the policymaking prerogatives constitutionally conferred upon the executive, thus preserving the integrity and equilibrium of the tripartite system of governance. 17. The Supreme Court in Directorate of Film Festivals and Others vs. Gaurav Ashwin Jain and Others reported in (2007) 4 SCC 737 held that: “The Courts do not and cannot examine the correctness, suitability or appropriateness of a policy, nor are the courts advisors to the executive on the matters of policy which the executive is entitled to formulate. The Courts cannot direct the States to implement a particular policy or scheme on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, would be the subject of judicial review.” 18. Moreover, legislative enactments, whether possessing plenary or subordinate authority, are not subject to the strictures of natural justice due to their inherent generality, which renders them devoid of direct application to individual cases. Analogously, constitutional provisions may explicitly exclude the application of natural justice principles, as exemplified by specific clauses within the Constitution of India such as Articles 22, 31(a), (b), (c), and 311(2). Nevertheless, if the legislative action is arbitrary, unreasonable and unfair, Courts may quash such a provision under Articles 14 and 21 of the Constitution. Notably, the absence of natural justice principles in a given scenario, as in the present case where the impugned notification stems from legislative enactment rather than administrative action, serves as a rationale for their non-applicability. Consequently, while legislative measures are generally immune from the strictures of natural justice, the judiciary retains the authority to nullify legislative provisions exhibiting egregious flaws inconsistent with constitutional principles of equality and due process. 19. The Courts must duly consider public interest as a paramount factor in its deliberations. The welfare of the broader populace consistently holds precedence and possesses the potential to supersede even a valid expectation held by an aggrieved party, as exemplified by the directive of the Supreme Court in the case of Food Corporation of India v. Kamdhenu Cattle Feed Industries reported in (1993) 1 SCC 71 . The welfare of the broader populace consistently holds precedence and possesses the potential to supersede even a valid expectation held by an aggrieved party, as exemplified by the directive of the Supreme Court in the case of Food Corporation of India v. Kamdhenu Cattle Feed Industries reported in (1993) 1 SCC 71 . The Court therein counseled that tribunals adjudicating the legitimacy of a claimant's expectation should adjudicate not solely based on the claimant's perspective but rather with due regard to broader public welfare, wherein other weightier considerations may outweigh what would otherwise constitute a legitimate expectation for the claimant. 20. For the foregoing reasons, the writ petition is devoid of any merits and is consequently dismissed. All pending applications are accordingly disposed of. However, there shall be no order as to costs. 21. Urgent Photostat certified copies of this judgment, if applied for, be supplied to the parties upon fulfillment of requisite formalities.