SUPREME COURT OF INDIA
State of Orissa
Vs
Gopinath Dash
Civil Appeal No.2272 of 1998
(Arijit Pasayat and Tarun Chatterjee)
09/12/2005
JUDGMENT
ARIJIT PASAYAT, J.
1. 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.
2. 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 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 allotteed 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 t and inconsistent with justness and fair-play.
3. 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.
4. 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.
5. 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 vs. State of J.
& K. (relied on), Shri Sitaram Sugar Co. vs. Union of India
(relied on). 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.
6. 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.
7. 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 the Court cannot
interfere even if a second view is possible from that of the Government. #
8. The Court should constantly remind itself of what the Supreme Court of the
United States said in Metropolis Theatre Company vs. 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.
9. The conclusions of the High Court for granting relief, so far as the
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 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 services 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." *
10. Considering in the background of the legal principles set out above, the
conclusions of the High Court do not appear to be defensible, muchless for the
reasons indicated by the High Court.
11. 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.
12. The appeal is allowed with no order as to costs.