Full Judgment Text
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CASE NO.:
Appeal (civil) 2272 of 1998
PETITIONER:
State of Orissa & Ors
RESPONDENT:
Gopinath Dash & Ors
DATE OF JUDGMENT: 09/12/2005
BENCH:
ARIJIT PASAYAT & TARUN CHATTERJEE
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT, J.
Challenge in this appeal is to the judgment rendered by
a Division Bench of the Orissa High Court holding that the
policy decision taken by the State in the matter of
allotment of quarters by rotation basis was illegal.
Adumbrated in brief the factual background as projected
by the appellants is as follows:-
An executive order was passed by the Deputy Inspector
General of Police vide his D.O. letter No.4322/SAP in
furtherance of a policy decision that quarters were to be
allotted to all the Orissa State Armed Police Personnel for
a minimum period of three years. This order was passed
keeping in view the dearth of family accommodation which at
the relevant point of time was an acute problem for the
Orissa State Armed Policy Battalion. It was also done with
a view to ensure that every police personnel enjoyed the
facility of rent-free accommodation and that is why it was
done on rotational basis. The practice had continued
uninterruptedly for a long time. Military police
establishments normally function in a separate camp where
provisions are made for all the personnel to be given
residential accommodation. Therefore, the system was
developed to ensure that the employees are provided with
quarters for a given period and after completion of that
period they are required to vacate the quarters. This would
enable other employees who are deprived of quarters can get
quarters so vacated. Contractual agreements were entered
into between the employer and the employees when they were
given government accommodation. Questioning legality of the
orders the respondents along with one Kirtan Behari Swain
who has expired in the mean time filed an Original
Application before the Orissa Administrative Tribunal (in
short ’the Tribunal’). The same was registered as OA No.
758/1989. Challenge in the application was to the system of
allotment of quarters by rotation. Subsequently, another
application was filed challenging the system of allotment of
quarters. The same was numbered as OA 1250 of 1991. The
Tribunal dismissed OA No.758/1989 holding that it had no
jurisdiction to consider the matter as the same was a
dispute related to allotment of quarters which is not
covered by the Special Accommodation Rules as provided in
the Orissa Service Code (in short ’Service Code’). In
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Original Application No.1250/1991 after appreciating that
the rotational system of allotment of quarters was in the
interest of the employees, the Tribunal dismissed the
application in view of the dismissal of the other Original
Application. It was held that since quarters were allotted
by contractual allotments, the Special Accommodation Rules
do not apply. Thereafter 21 persons filed writ petition
before the High Court which was registered as O.J.C No.6383
of 1992. One of the writ petitioners was Panchu Sahu who
was also one of the applicants in O.A. No. 1250/1991. After
dismissal of O.A. No. 758/1989, the applicants before the
Tribunal filed writ petition O.J.C. No.3193 of 1992. The
writ petition No. 6383/1992 was dismissed as withdrawn on
7.7.1994. It was noticed by the Division Bench that since
the Bench was not inclined to entertain the writ petition,
the writ-petitioners wanted to withdraw the petition. In
writ petition no. O.J.C. 3193/1992 the High Court by its
impugned judgment dated 8.8.1996 held that the policy
decision of allotment of quarters on rotational basis was
contrary to and inconsistent with justness and fair-play.
In support of the appeal, learned counsel for the
appellants submitted that the approach of the High Court is
clearly erroneous. It failed to notice that the policy
decision of the government is not to be lightly interfered
with. The High Court did not indicate any justifiable reason
to quash the policy decision.
There is no appearance on behalf of the respondents.
Operation of the impugned judgment was stayed by this Court
by order dated 8.5.1997.
While exercising the power of judicial review of
administrative action, the Court is not the appellate
authority and the Constitution does not permit the Court to
direct or advise the executive in matter of policy or to
sermonize any matter which under the Constitution lies
within the sphere of the Legislature or the executive,
provided these authorities do not transgress their
constitutional limits or statutory power. (See Ashif Hamid
v. State of J. & K. (AIR 1989 SC 1899), Shri Sitaram Sugar
Co. v. Union of India (AIR 1990 SC 1277). The scope of
judicial enquiry is confined to the question whether the
decision taken by the Government is against any statutory
provisions or it violates the fundamental rights of the
citizens or is opposed to the provisions of the
Constitution. Thus, the position is that even if the
decision taken by the Government does not appear to be
agreeable to the Court it cannot interfere.
The correctness of the reasons which prompted the
Government in decision making taking one course of action
instead of another is not a matter of concern in judicial
review and the Court is not the appropriate forum for such
investigation.
The policy decision must be left to the Government as
it alone can adopt which policy should be adopted after
considering all the points from different angles. In matter
of policy decisions or exercise of discretion by the
Government so long as the infringement of fundamental right
is not shown Courts will have no occasion to interfere and
the Court will not and should not substitute its own
judgment for the judgment of the executive in such matters.
In assessing the propriety of a decision of the Government
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the Court cannot interfere even if a second view is possible
from that of the Government.
The Court should constantly remind itself of what the
Supreme Court of the United States said in Metropolis
Theatre Company v. City of Chicago (1912) 57 L Ed 730. "The
problems of Government are practical ones and may justify,
if they do not require, rough accommodations, illogical it
may be, and unscientific. But even such criticism should not
be hastily expressed. What is the best is not always
discernible, the wisdom of any choice may be disputed or
condemned. Mere errors of government are not subject to our
judicial review.
The conclusions of the High Court for granting relief,
so far as relevant are as follows:
"4. Very patiently we have heard the
contentions made by the petitioners and the
learned Government Advocate appearing in
support of the contentions of the opposite
parties. The scarcity of house accommodation
is not in doubt or dispute. The policy to
allot quarters only for three years is
whether pragmatic, fair and rational we are
to examine judicially. It is not appreciated
by us as to why if there is scarcity of
quarters, the allotment must be made
serially and as would be made available,
taking into consideration the eligibility
criteria and such allotment to be for a
limited period notwithstanding the
continuity of the posting of the person
concerned at the same place. A person may
be transferred, he may immediately be asked
to vacate the quarters. A person retires
and/or his service ceases, it may be
appreciated that he should immediately
vacate the quarters. But when a person
remains posted, to vacate the quarters after
three years notwithstanding his continuity,
is certainly not fair, justifiable or
rational. On repeated query no satisfactory
explanation has been given to us. What is
the ultimate goal behind this policy is in
order to avoid discontentment or to please
very body. Such a policy does not fulfil the
test of fair play and justness.
5. Having gone through the detailed
averments and also considering the
allegations and counter allegations, we find
that the grievance of the petitioners is
genuine. If the petitioners remain posted
at Cuttack and if they are provided with the
quarters after considering their
eligibility, they cannot be asked to vacate
their quarter, unless their services cease
or they are transferred elsewhere. This
rotation allotment appears to be contrary to
and inconsistent with the justness and fair
play."
Considering in the background of the legal principles
set out above, the conclusions of the High Court do not
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appear to be defensible, muchless for the reasons indicated
by the High Court.
In the circumstances, the judgment of the High Court is
set aside. If there has been any change in the policy
decision, notwithstanding the present decision, same shall
be operative.
The appeals are allowed with no order as to costs.