Patna High Court refused to interfere with Cabinet resolution, Planning department's order in Accredited Statistical Volunteers case

In Shambhu Kumar vs. The State of Bihar through Chief Secretary & Ors. (2017), Justice Jyoti Saran passed in a 717-page long judgement dated January 24, 2017, wherein, he concluded: "I am not persuaded to either interfere with the Cabinet resolution or with the order of the Planning department issued thereunder, a copy of which has been  placed on record vide Annexure C‘ to the counter affidavit filed in CWJC No.11550 of 2016 but with a rider that in case the State would be in need of the services of the Accredited Statistical Volunteers then the claim of these petitioners may be considered for such engagement considering the experience gained and the training undergone by these petitioners over the period of time and even if the State would decide to look for fresh aspirants, due weightage be given to the case of these petitioners including age relaxation. The writ petitions are accordingly disposed of."  

The Shambhu Kumar case was heard along with 73 + 200 + 5+ 15 + 7 + 8 + 7+ 11+ 5+ 37 + 200 + 58 + 200 + 200+ 200 + 27 + 434 + 341 + 253+ 316 + 464 + 350 + 64 + 52 + 200 + 6+ 21+ 200 + 24 + 3 + 15 + 21 + 6 + 13 + 9 + 57 + 353 + 10 + 309 +  228 + 25 + 299 + 11 + 242 + 100 + 88 + 92 + 15 + 58 + 18 + 200 + 201 + 16 + 23 + 302 + 101 + 144 + 60 + 58 + 93 + 79 + 128 + 82 + 4 + 201 + 60 + 22 + 90 + 49 + 200 + 200 + 24 + 54 + 44 + 59 + 61 + 44 + 23 + 1 + 134 + 100 + 18 + 4 + 15 + 87 + 31 +6 + 5 + 7 + 8 + 101 + 7 + 62 + 45 + 152 + 200 + 31 + 101 + 23 + 28 + 125 + 94 + 166 + 12 + 24 + 119 + 82 + 13 + 57 + 32 + 22 + 20 + 4 + 5 + 39 + 7 + 5 + 12 + 9 + 12+ 33 + 4 + 89 + 6 + 7 + 5 + 56 + 30 + 300 + 100 + 5 + 4 + 193 + 27 + 7 + 24 + 46 + 34 + 56 + 111 + 48 + 55 + 29 + 1 + 6 + 29 +15 + 6 + 93 + 1 + 31 + 31 + 1 + 24 + 45 + 8 + 5 + 1 = 1 + 65 +  20 + 22 + 24 + 226 + 114 + 4 + 16 + 92 + 11 + 78 + 37 + 20 + 3 + 20 + 4 + 5 + 8 + 5 + 1 + 5 + 24 + 16 + 5 + 18 + 23 + 10 + 5 + 32+ 2 + 55 + 109 + 5 + 162 + 125 + 350 petitioners.  The petitioners in this batch of writ petitions had questioned the decision taken in the meeting of the Cabinet held on June 7, 2016 in so far as it approved the Agenda No.4 relatable to cancellation of the panel of the Accredited Statistical Volunteers (ASV) prepared following the advertisement published under the authority of the Planning and Development Department of the Government of Bihar in its Directorate of Economics and Statistics dated February 12, 2012. The Cabinet decision so taken was translated in the notification of the State Government bearing Memo No.1459 dated 26.7.2016, whereby the panel of the ASVs‘ has been cancelled with immediate effect.

Since each of the writ petition was for the same cause of action and since it was the same Cabinet decision and the order of the State Government which was put to challenge in each of the writ petitions, hence with the consent of the parties, the matters was heard analogous with the purpose of final disposal. 

 

There was an admitted empanelment of more than 60,000 ASVs‘ across the State but the work requirement shows that whereas 1604 ASVs‘ were engaged for 20 days in the year 2012, 6171 ASVs‘ were engaged for 50 days in the year 2013 and 7198 ASVs‘ were engaged in 2014 for 50 days. Following
the second advertisement under the 6th Economic Census, of the 61506 candidates engaged, only 42961 worked for 30 days in the census work in the year 2013 that 468 ASVs‘ were engaged for 15 days in 2014. The details so given are not contested and which by itself reflects the nature of engagement of these ASVs‘. In the nature of engagement of the ASVs‘, the issue was whether the petitioners had a right, either for continuity of the panel or for regularisation. Justice Saran observed: "In my opinion, the issue has to be answered in the negative. The petitioners have not been appointed against any sanctioned post nor they have been paid any salary for their engagement and the engagement during this period of three years at best makes it to 50 days in a year. The petitioners also cannot insist on maintaining the panel or its continuity for it would strike at the root of Article 14 of the Constitution of India depriving the others who may have become eligible for consideration."  He added: "The legal position is well settled and a mere empanelment gives no right to the incumbent to seek permanency against the post. The case of the petitioners is on even worse pedestal because they have not been appointed against any post rather they have simply been empanelled for discharging certain work as per the requirement. Regularisation is a concept attached to a post existing within a cadre and the foundation rests on a continuity of engagement. In the present case neither the engagement has been made against any post nor is it against a salary nor there is a continuity of work. All the three pre-requisites to a plea for regularisation is manifestly absent in the present case. May be, the empanelment of the petitioners as ASVs‘, provided them with some kind of status but it did not invest them with any right for seeking creation of a post of the like or for seeking permanency on any other vacancy available in the department. The other issue of arbitrariness raised by the petitioners for questioning the policy decision of the State to scrap the panel, even though attractive on the proposition advanced but does not stand the test calling for any intervention."

 

The petitioner's counsel had submitted that even if the nature of engagement was contractual, yet its termination was required to be supported with reasons and cannot be done in a whimsical and arbitrary manner. He made reference to the following judgments in support of his submissions:
(1) (2008) 1 SCC 448 (Director SCTI for Medical Science and Technology vs. M. Pushkaran). With reference to the opinion present at paragraphs 12 to 18, the counsel submitted that once a panel has been prepared it cannot be ignored nor can be cancelled on whimsical decision and in absence of good reasons.
(2) (2013) 14 SCC 65 (Nihal Singh vs. State of Punjab). With reference to paragraphs 32 to 36 of the judgment it was submitted that while it is undisputed that it is the sovereign function of every Government to create public posts but an exception is present at paragraph 33 of the judgment where the Supreme Court has held that the jurisdiction of the Constitutional Courts to examine any such decision is not barred.
(3) 2012 (1) PLJR (SC) 321 (GRIDCO Limited vs. Sri Sadanand Doloi). The counselreferred to the facts of the case discussed in paragraph 3 of the judgment to submit that an issue as regarding the scope of judicial review of contractual appointment came in for consideration before the Supreme Court and it was held at paragraph 26 of the judgment that a Writ Court is fully entitled to a judicial review of such actions if it was founded on illegality, perversity, unreasonableness, unfairness and irrationality.
(4) (2008) 14 SCC 58 (Ramesh Chandra Sankla vs. Vikram Cement). The counsel referred to paragraph 90 to 98 of the judgment to impress upon the Court as regarding the exercise of jurisdiction under Articles 226 and 227 of the Constitution of India in the larger interest of justice.
(5) 2014 (1) PLJR (SC) 321 (State of Jharkhand vs. Harihar Yadav). The counsel referred to paragraphs 14 and 22 to 24 of the judgment to submit that in the present context an issue of social justice also becomes a relevant factor for assessment of the relative rights and which is also a factor in course of administration of justice. 

(6) (2009) 8 SCC 556 (Maharashtra State Road Transport Corporation vs. Casteribe Rajya Parivahan Karmchari Sanghatana). On the opinion expressed in paragraphs 11, 39 and 44 to 48, the counsel submitted that the issue of unfair labour practices was examined by the Supreme Court and while taking note of the opinion earlier expressed in the case of Indian Drugs and Pharmaceuticals Ltd Vs. Workmen since reported in (2007) 1 SCC 408, the concept of need-based employment has been approved. He submits that the issue of employment and the objections as to the contractual nature of appointment have been taken note of and rejected and the opinion of the Labour Court to grant relief to the Workmen in the background that their
services were yet required, stood confirmed.
(7) (2007) 1 SCC 408 (Indian Drugs and Pharmaceuticals Ltd. Vs. Workmen). The counsel submitted with reference to paragraph 4 and paragraphs 32 to 40 that while there is no dispute on the legal position that the Courts would not exercise its discretion which would result in creation of posts or in causing financial burden on the exchequer, he submits that the case of the petitioners is distinguishable because whereas in the present case these petitioners have been empanelled after undergoing a selection process, on the other hand there is yet work available for being discharged by these petitioners. He submits that the case of the petitioners is not a case of backdoor appointment.
(8) (2013) 16 SCC (Mahipal Singh Tomar vs. State of Uttar Pradesh). With reference to paragraphs 37 to 41 of the judgment, the counsel submitted that in the present case the Cabinet decision has been taken without any opportunity to the petitioners to defend themselves and which decision of the State Government is in gross violation of the principles of Natural Justice.

 

The counsel submitted that there was no foundation for a decision to cancel the panel and once the Cabinet has taken a decision for regularisation, then the authorities are precluded from interference with the panel on the principles of promissory estoppel. The counsel in support referred to a judgment of the Supreme Court reported in 1986 BLJR 408 (SC) (S.N. Yadav Vs. Bihar State Electricity Board) more particularly paragraphs 3, 4 and 7.  

 

Drawing on Supreme Court's decision in paragraphs 13 and 17 AIR 1991 SC 537 (Kumari Shrilekha Vidyarthi Vs. State of U.P.), he submitted that while considering a similar decision regarding cancellation of panel of Law Officers, it was held that such decision taken must accompany reasons, even if it is not communicated. It is the submission of learned counsel that a decision which was not founded on reasons was held to be arbitrary. 

He also drew on Supreme Court's decision in Oryx Fisheries Private Limited vs. Union of India to submit that orders determining inter-party rights has to be backed by reasons. According to counsel, even a policy decision cannot be taken on whims and any such decision is liable to be struck down. Learned counsel in support of such proposition has made reference to a judgment of the Supreme Court reported in AIR 1985 SC 1147 (Ram & Shyam Company vs. State of Haryana). It was the argument of the counsel that a reason not reflecting in the decision, cannot be supplemented by affidavits. In support of his submission, he referred to the judgment of the Supreme Court reported in AIR 1978 SC 851: (1978)1 SCS 405 (Mohinder Singh Gill Vs. Chief Election Commissioner, New Delhi).

The counsel also made reference to the judgments of the Supreme Court reported in (1995) 3 SCC 401 (Union of India vs. Dinesh Kumar Saxena) and (1995)5 SCC 219 (Ghaziabad Development Authority vs. Vikram Chaudhary) to submit that the issues raised, requires a remand for a fresh consideration by the State on the issue of regularisation.

The counsel referred to a Division Bench judgment of the High Court reported in 1996(2) PLJR 394 (The Bihar State Adult and Non-formal Educational Employees Association vs. The State of Bihar) and in reference to the facts discussed in paragraph 7 and the conclusion at paragraph 33 he submitted that the Division Bench taking note of a similar situation issued direction for regularisation of the Teachers engaged on casual basis under the scheme of Adult Education. The counsel also referred to a judgment of the Supreme Court reported in 2015(2) PLJR (SC) 437 (Amarkant Rai vs. State of Bihar), to support the claim of regularisation advanced by the petitioners.

The issue which the High Court considered in the backdrop of the arguments advanced by the counsel for the parties was: 
(a) Whether the petitioners have a right to the continuity of panel;
(b) Whether they have a right to claim regularisation against a Government post;
(c) Whether the decision of the Cabinet to scrap the panel is arbitrary; and
(d) Whether the petitioners were entitled to a hearing.
The length of the argument advanced by counsel appearing on behalf of the petitioners basically was equity-based. 

The High Court relied on the Supreme Court's decision in 1993 Supp. (3) SCC 268 Babita Prasad vs. State of Bihar) for an answer to the plea of the petitioners regarding continuity of panel. It is also an answer to the prayer of regularisation and which runs as follows:"―26. The mere fact that the candidates who had been brought on the panel had been sent for training at the Government expense, would also not imply that any indefeasible right had been created in their favour for appointment after they had completed their training and their names were entered in the panel because the training was merely intended to confer eligibility on the candidates for being brought on the list. In the facts and circumstances of the case, we, therefore, hold that the panel prepared in the present case was only in the nature of an eligibility list of qualified trained teachers arranged according to their merit in a chronological order. It had been prepared without any process of selection whatsoever as none who was a trained qualified teacher was excluded from being brought on the list. The list was neither related to existing vacancies nor to anticipated vacancies. Such a panel did not create any vested or indefeasible right on the empanelists to be appointed." 

In the Liberty Oil Mills vs. Union of India reported in AIR 1984 SC 1271, it was held that the expression "without assigning any reasons" implied that no decision was communicated and although the reasons for a decision taken may not be stated but the reasons must exist otherwise a decision becomes arbitrary. It was clarified that "non-assigning of reasons" or "non-communication thereof" may be based on public policy but a termination of appointment without existence of a cogent reason, would be arbitrary and against the public policy. 

Justice Saran observed:"As regarding the non-adherence to the rules of natural justice, in my opinion, where the purported action is resting on a policy decision of the State, it would not require a scrutiny on the issue as long as it satisfies the test of arbitrariness and is based on sound reasons, equity, fairplay and justice. It is not a case where the State Government while retaining some of the 'ASVs‘, has done away with the others rather the panel itself has been scrapped and the reasons assigned is non- availability of fund and non-availability of work." 

The petitioners' contention regarding abandonment of the committee constituted to examine the grievance of the petitioners under the Cabinet decision dated February 19, 2015 mentioned in the letter of the Special Secretary, Cabinet Secretariat Department dated February 20, 2015. The resolution of the Cabinet passed on February 19, 2015 was acted upon and though a meeting was held on January 21, 2015 by the Chief Minister but it did not reach any conclusion. Although the file contained several notings which reflected that it was being acted upon until March 11, 2015 but it is apparent that thereafter the file was closed and the matter waas proceeded in another file Bearing No.LFkk0-02/06- 05/2010 and after a gap of five months the notings have initiated to consider the continuity of the panel iself. The notings started from August 3, 2015 and proposal mooted was for reconsideration of the continuity of the panel. In this background and after taking legal opinion thereon that a fresh memorandum was placed before the Cabinet, and discussed the reasons which form the basis for cancellation of the panel and it was accepted by the Cabinet decision and following which a formal order was issued by the Planning and Development department bearing Memo No.1549 dated July 26, 2016 cancelling the panel of "ASVs". The discussions clarified two aspects of the matter. Firstly that the decision of the Cabinet to constitute a Committee for considering the grievance of the "ASVs" was acted upon until March, 2015 but abandoned thereafter and the reasons were not explained.  Secondly, it was submitted by the counsel for the State that the contention committee so constituted was to consider only the cases of contract employee, was not correct. 

Justice Saran noted:"It is a different matter that the Cabinet resolution dated 19.2.2015 was not taken to its conclusion and may be a committee was also constituted to examine the cases of contract employees but it is not a case where the grievance of the petitioners did not find notice rather it was considered by the Cabinet and directions were issued for examining the same. It is another aspect of the matter this exercise was abandoned midway." The issue was whether in view of the position explained where undisputedly the Cabinet had constituted a committee to consider the grievance of the "ASVs", the subsequent resolution of
the Cabinet in the background explained in the memorandum which forms the basis for the resolution impugned, would require an interference. 

Justice Saran observed: "In my opinion, the two resolutions have been passed by the Cabinet at different stages. May be at the stage when the first resolution was passed on 19.2.2015, the Cabinet was of a different opinion but the developments that has taken place in between the first resolution passed on 19.2.2015 and the second resolution passed on 7.6.2016, becomes a relevant factor for a judicial review of the action taken. The counter affidavit as regarding the work discharged by these petitioners coupled with the stand on the availability of work and availability of funds, would not persuade this Court to issue any direction to the State to continue with the panel. Even if there have been stray instances of work being taken from these "ASVs", the choice lies with the State for such engagement. If the State has decided to now get the work done departmentally and there is nothing on record which would show that the State has deviated from such stand, there is no reason for the petitioners to raise any grievance nor any occasion arises to interfere with the decision. In fact in the words of the Supreme Court as found in the judgment of the Indian Drugs and Pharmaceuticals Ltd. (supra) and Nihal Singh (supra), any direction by this Court in the circumstances discussed, either for continuation of the panel or for considering the cases of these petitioners for regularisation, in absence of facts supporting continuity of discharge, would amount to a direction for creation of post as well as financial liability which is neither in the domain nor within the framework of judicial review."