Administrative Law:
Policy decision – Rehabilitation of displaced workers – On facts, ban on sale of arrack in the State – Arrack workers deprived of their livelihood – Government did not give re-employment – Workers then sought rehabilitation – Issuance of Government order to provide employment to displaced abkari workers, adjusting them against 25% of the daily wage vacancies that would arise in the Corporation – Thereafter, alteration in the criteria for rehabilitation of arrack workers and issuance of Government order directing to earmark the vacancies for dependent sons of arrack workers who perished consequent to loss of employment – Arrack workers filed writ petition seeking implementation of the first government order – Single Judge of the High Court directed the State Government to implement the first government order – Division Bench upheld the order – On appeal, held: There was no assurance given to all the displaced abkari workers that they would be re-employed – Assurance given by the Government was to reserve 25% of daily wage vacancies that would arise in future for the displaced abkari workers – Thus, no vested right accrued to all the abkari workers to claim employment – Further, it came to the notice of the Government that several displaced abkari workers perished after 1996 and their families had to be provided immediate succor, as a result the Government modified the policy decision due to administrative exigencies – Said decision cannot be termed as unreasonable or arbitrary as it was taken in light of overriding public interest and has to be given due weight – Thus, the expectation of the respondents for consideration against the
25 % of the future vacancies in daily wage workers in the Corporation is not legitimate – Promise held out by the Government to provide employment to the displaced Abkari workers had become an impossible task in view of the non-availability of vacancies in the Corporation – Impairment of the fundamental rights of the respondents due to the change in policy cannot be said to be excessive – Change in policy is not disproportionate – Thus, the order passed by the High Court set aside.
Legitimate Expectation – Principle of substantive legitimate expectation – Principle of procedural legitimate expectation – Application of – Stated.
Administrative Decision – Review of – Application of test of proportionality – Stated.
Allowing the appeals, the Court
HELD: 1.1 The Government took a decision to provide employment to displaced abkari workers, adjusting them against 25% of the daily wage vacancies that would arise in the Corporation. There was no assurance given to all the displaced abkari workers that they would be re-employed. The assurance given by the Government was to reserve 25% of daily wage vacancies that would arise in future for the displaced abkari workers. It cannot be said that a vested right accrued to all the abkari workers to claim employment in retail outlets in the Corporation. It cannot be said that a vested right was created by the Government Order dated 20.02.2002 and that it was indefeasible. There was no unequivocal promise that all the displaced workers would be provided re-employment. [Para 11] [176-B-D]
1.2 The assurance given to the abkari workers that they would be considered for employment in 25% of the daily wage vacancies that would arise in the Corporation, according to the Government, had to be altered due to administrative exigencies. The implementation of the decision to provide employment to displaced abkari workers was not possible in view of the fact that the number of vacancies of daily wage employees after the year 2002 were very less whereas there was a large number of displaced abkari workers to be accommodated. In view of the difficulties faced by the Government in implementation of the Government Order dated 20.02.2002, the Government found it fit to modify the policy decision by a Government Order dated 07.08.2004. It came to the notice of the Government that several displaced abkari workers perished after 1996. Their families had to be provided immediate succur. To give priority to the families in immediate need, the Government decided that dependent sons of the deceased abkari workers who died after the year 1996 would be provided employment against the 25% daily wage vacancies in the Corporation. The said decision cannot be termed as unreasonable or arbitrary as it was taken in light of overriding public interest. Relevant considerations were taken into account by the Government to alter the Government Order dated 20.02.2002. [Para 12] [176-D-H]
2.1 An expectation entertained by a person may not be found to be legitimate due to the existence of some countervailing consideration of policy or law. Administrative policies may change with changing circumstances, including changes in the political complexion of governments. The liberty to make such changes is something that is inherent in the constitutional form of government. [Para 17] [178-D-E]
2.2 The decision makers’ freedom to change the policy in public interest cannot be fettered by applying the principle of substantive legitimate expectation. So long as the Government does not act in an arbitrary or in an unreasonable manner, the change in policy does not call for interference by judicial review on the ground of a legitimate expectation of an individual or a group of individuals being defeated. [Para 18] [178-E-F]
2.3 The assurance given to the respondents that they would be considered for appointment in the future vacancies of daily wage workers, according to the respondents, gives rise to a claim of legitimate expectation. The explanation given by the State Government that the change in policy due was to the difficulty in implementation of the Government order dated 20.02.2002 is accepted. Due deference has to be given to the discretion exercised by the State Government. As the decision of the Government to the change policy was to balance the interests of the displaced Abkari workers and a large number of unemployed youth in the State of Kerala, the decision taken on 07.08.2004 cannot be said to be contrary to public interest. The overriding public interest which was the reason for change in policy has to be given due weight while considering the claim of the respondents regarding legitimate expectation. The expectation of the Respondents for consideration against the 25 per cent of the future vacancies in daily wage workers in the Corporation is not legitimate. [Para 19] [178-G-H; 179-A-D]
2.4 There is no dispute that each of the displaced abkari workers was not given an opportunity before the assurance was altered. However, the Government contended that the displaced abkari workers were consulted through their representatives before passing the Government Order dated 07.08.2004. The requirement of an opportunity to be given before altering the policy by which an assurance is given to a large number of individuals has to be examined. [Para 20] [179-D-F]
2.5 In case of a complaint that an administrative authority has reneged from a promise without giving an opportunity of hearing which was the past practice, a claim of legitimate expectation can be raised. In other words, if the policy or practice was to give an opportunity before the benefit is withdrawn, the non-compliance of such a practice would result in defeating the legitimate expectation of an individual or group of individuals. There can be situation where the very claim made can be with regard to an opportunity not being given before withdrawing a promise which results in defeating the ‘legitimate expectation’ [Paras 21, 22] [179-F-G; 180-D-E]
2.6 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. 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. [Para 23] [180E-G]
3.1 While exercising primary review, the Court is entitled to ask the State to justify the policy and whether there was an imminent need for restricting the fundamental rights of the claimants. In secondary review, the Court shows deference to the decision of the executive. [Para 27] [182-C-D]
3.2 Proportionality involves ‘balancing test’ and ‘necessity test’. Whereas the balancing test permits scrutiny of excessive and onerous penalties or infringement of rights or interests and a manifest imbalance of relevant considerations, the necessity test requires infringement of human rights to be through the least restrictive alternatives. An administrative decision can be said to be proportionate if: the objective with which a decision is made to curtail fundamental rights is important; the measures taken to achieve the objective have a rational connection with the objective; and the means that impair the rights of individuals are no more than necessary. [Paras 28, 29] [182-D-F]
3.3 In the instant case, the challenge to the order dated 07.08.2004 by which the respondent was deprived of an opportunity of being considered for employment is on the ground of violation of Article 14, 19 and 21 of the Constitution. The High Court accepted the submissions made by the Respondents and held that the Order dated 07.08.2004 is vitiated as it suffers from the vice of arbitrariness and unreasonableness. However, in view of the challenge to the decision of the Government being on the ground of violation of Articles 14, 19 and 21, the test of proportionality should be applied to review the impugned decision of the Government. [Para 30] [182-F-H]
3.4 The promise held out by the Government to provide employment to the displaced Abkari workers had become an impossible task in view of the non-availability of vacancies in the Corporation. The decision taken by the Government in overriding public interest was a measure to strike a balance between the competing interest of the displaced Abkari workers and unemployed youth in the State of Kerala. The impairment of the fundamental rights of the Respondents due to the change in policy cannot be said to be excessive. Hence, it cannot be said that the change in policy regarding re- employment of displaced abkari workers is disproportionate. [Para 32] [183-DF]
3.5 The contention of respondents which found favour with the High Court was that the Order dated 07.08.2004 was found illegal in Writ Petition (c) No. 26878 of 2007 and that the said judgment has become final. Aggrieved by their non-appointment in spite of inclusion in the list of 265 dependent sons of the deceased displaced workers, they filed a Writ Petition seeking a direction to the Government to appoint them. The High Court directed the Government to appoint those persons who were included in the list, pursuant to the Order dated 07.08.2004 within a period of six weeks. The High Court further observed that the Order dated 20.02.2002 should not have been altered and directed the Government to reconsider the order dated 07.08.2004. The Government complied with the direction of the High Court in the Writ Petition and issued a Government Order dated 30.04.2009 by which employment was provided to 265 dependent sons of deceased Abkari workers. Therefore, it cannot be said that the validity of the order dated 07.08.2004 has been finally decided in Writ Petition (c) No. 26878 of 2007. [Para 33] [183-F-H]
3.6 The findings recorded by the High Court that a right of appointment accrued to the Respondents and it matured into a Right to Life as provided in Article 21 of the Constitution, cannot be accepted. The opinion of the High Court that the Order dated 07.08.2004 is in continuation of the Order dated 20.02.2002 in view of the Order dated 20.02.2002 not being superceded, is disapproved. The Order dated 07.08.2004 was issued in modification of the Order dated 20.02.2002. A close scrutiny of both the Orders would indicate that the Order dated 07.08.2004 replaces the Order dated 20.02.2002 in view of a fresh decision taken to provide employment only to the dependent sons of deceased Abkari workers. [Para 34] [184-BD] Kerala Samsthana Chethu Thozhilali Union v. State of Kerala & Ors. (2006) 4 SCC 327 : [2006] 3 SCR
420 ; Union of India v. Hindustan Development Corporation & Ors. (1993) 3 SCC 499 : [1993] 3 SCR
128 ; Punjab Communications Ltd. v. Union of India & Ors. (1999) 4 SCC 727 : [1999] 2 SCR 1033 ; Ram Pravesh Singh v. State of Bihar (2006) 8 SCC 381 : [2006] 6 Suppl. SCR 512 ; Om Kumar v. Union
of India AIR 2000 SC 3689 : [2000] 4 Suppl. SCR
693 ; Coimbatore District Central Co- operative Bank v. Coimbatore District Central Co-operative Bank Employees Association & Anr. (2007) 4 SCC 669 : [2007] 5 SCR 430 – referred to.
Council of Civil Service Unions and Ors. v. Minister for the Civil Service (1984) 3 All ER 935 ; Hughes v. Deptt. of Health and Social Security, AC at p. 788 ; Findlay v. Secy. Of State of Home Deptt. (1984) 3 All ER 801 ; Attorney General of Hong Kong v. Ng Yuen Shiu [1983] 2 All ER 346 – referred to.
Judicial Review of Administrative Action (1955) and Wade & Forsyth: Administrative Law (2005) – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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