1. The fairness in action in the administrative sphere is the question for adjudication which has surfaced in the following circumstances:
1. The respondent No. 1 is the Food Corporation of India, constituted and established under the (The) Food Corporations Act, 1964. The respondent Nos.2 to 5 are its officials. The petitioner is also working in the same establishment as Technical Assistant in Grade-1. By an order dated 12.2.1998 (Annexure-1 to the writ petition) 15 Technical Assistant Grade I and Grade II were transferred and posted to the places shown against each in the said notification. The petitioner, by the aforesaid order was transferred from Guwahati to Dibrugarh in his own grade. The petitioner challenged the above order so far reality to his transfer in T.S.No.260 of 1998. The Trial Court, on an application of the petitioner for an ad interim injunction ordered the parties to maintain status quo as on 21.9.1998. Both the parties are at issue on the reach, and status of the content of the status quo. The petitioner filed application under Section 151 of the Civil Procedure Code before the Trail Court for an order for payment of his salary, which was turned down by the learned Trail Court. The petitioner brought the matter to the High Court by way of a Civil Revision which was numbered and registered as Civil Revision No. 124 of 1999. When the matter rested at that stage the following order was passed:
'... THE FOOD CORPORATION OF INDIA
REGIONAL OFFICE: GUWAHATI-7
No.Estt.3(3)/83/TAG-I Dated 25.5.1999. Shri P.P. Kalit, a TAG-I, DO, Guwahati, who is under order of transfer to District Office, FCI, Dibrugarh vide this office order No. Est.3 (3)/ 83/ TAG-I dated 12.2.1998 is hereby cancelled.
Shri Kalita is posted as RO, FCI, Guwahati in Legal Section with immediate effect.
This is issued with the approval of S.R.M.
Sd/-
25.5.1999
DY. MANAGER (Pers.)
for SR. REGIONAL MANAGER.
DISTRIBUTION:
1. The person concerned.
2. The District Manager, FCI, DD, Guwahati.
3. The District Manager. FCI. DO, Dibrugarh.
4. The Dy. Manager (F/A), FCI. RO, Guwahati.
5. The Asstt. Manager (Admn.), FCI. RO. Guwahati,
6. Office Order file.
7. Guard file.
2. By order No. Estt.3(3)/85/TAG-I/4170 dated 31.5.1999 a consequential order was passed and cancellation of the transfer order dated 12.2.1998 and thereby directing the District Manager of the Food Corporation of India (hereinafter referred to as Corporation) District Office to regularise of leave of the petitioner and, ordered for payment of his salary after regularisation of leave. By the same order the District Manager of the Corporation was ordered to relieve the petitioner from District Office, Guwahati to report for duty at Regional Office, Guwahati, Legal Division. Petitioner also in his turn withdrew the Civil Revision Petitioner pending before the Court and the High Court by its order dated 7.6.1999 in Civil Revision Petition No. 124/99 dismissed the same as not pressed. Petition similarly filed application before the Trial Court praying for withdrawal of the Suit. The Trial Court by its order dated 11.6.1999 dismissed the Suit on withdrawal. The petitioner stated that the District Manager of the Corporation however did not act as per the order dated 25.5.1999 as well as advised issue from the Regional Office to District Office to regularise the leave of the petitioner and relieve him from the District Office to enable him to join in the Regional Office. Instead the District Manager dispatched the communication to his superior authority.
'.. With reference to your letter cited above, it is to inform you that Shri P P Kalita. TAG-I. DO, FCI, Guwahati has been transferred to DO. FCI, Dibrugarh vide this office order No.Estt.3(3)/85/TAG-l/ 17 dtd. 12.2.1998 and subsequently this transfer was cancelled vide this office order No. ESTT.3(3)/85/TAG-l dated 25.5.1999.
Now the authority has not given any credence to this office order of even dt.25.5.1999 thereby meaning its nullity in toto and has not given any cognisance to all the prayers/request of Sri Kalita against his transfer order dtd. 12.2.1998 which now stands as it is. You are requested to send the service book and leave A/Cs of Sri P P Kalita to DM, FCI. Dibrugarh for regularisation of his leave/salary etc. with intimated to this office..'
The petitioner moved the authority to implement its order dated 25.5.1999 as well as the order dated 31.5.1999 and on the failure of the respondents to give effect to its own order this application is moved challenging the legality and validity of the aforesaid order as arbitrary, discriminatory and unlawful.
3. The respondent/Corporation contested the case and submitted its affidavit. The respondents in its affidavit denied about the frequent transfer of the petitioner and stated that transfer of the petitioner from Tangla to Guwahati was within the District and as such it was not countable as transfer. It was also contended by the respondent that petitioner's transfer form District Office, Guwahati to District Office. Dibrugarh on longest stay basis. As regards the cancellation of the order dated 25.5.1999 vis-a-vis consequent order dated 31.5.1999. the respondents stated that the then Senior Regional Manger passed the aforesaid orders without looking into 'some vital facts and/or on wrong interpretation of the facts and circumstances of the whole matter cancelled the earlier transfer order dated 12.2-1998 and posted him at Regional Office, Legal Section, Guwahati vide its order dated 25.5.1999. While passing the said order, the then authority, the SRM did not take into account the fact that the transfer of the Writ petitioner from District Office Guwahati to District Office, Dibrugarh was made on the basis of seniority, his longest stay at the same place as well as on administrative exigencies. As these vital facts were not considered at the time of passing the order dated 25.5.1999, the present authority after verifying and reviewing the representation and the report submitted by District Manager, FCI, Guwahati and also taking into consideration all the aspects of the mater mentioned above and modified the earlier order dated 25.5.1999 and passed the order dated 1.7.99 directing the petitioner to join the District Office, Dibrugarh in order to regularise his leave etc. and to receive his payment/salary etc. from the District Office, Dibrugarh....'
4. Mr A. K. Phukan, learned Sr. counsel appearing on behalf of the petitioner though broadly argued on the transfer issue. The learned Sr. counsel, primarily confined his argument on as to the alleged imperiousness in the impugned order dated 1stJuly, 1999 as being violative of Article 14 of the Constitution of India. Mr. Phukan, learned Sr. counsel submitted that arbitrariness is antithetical to article 14 of the Constitution of India, what is arbitrary is also unreasonable and so unjust and therefore incompatible with the equality clause contained in Article 14. Mr. Phukan, learned Sr. counsel submitted that the authority took a conscious decision to cancel the order of transfer on due deliberation and thereafter the competent authority took the decision to cancel the transfer order and post the petitioner in the legal Section. The authority took a decisive decision reflecting upon all the aspects of the matter and thought it fit to effectively avail and profit by the higher learning of the petitioner, in view of his added legal qualification since he held a master degree in Law. The competent authority appraised upon the matter and took a deliberate decision for canceling the transfer order and for that purpose ordered the subordinate authority to regularise his leave and to take steps for payment of his salary. The respondents in a most arbitrary and mechanical fashion sought to extirpate the order dated 25.5.1999 and 31.5.1999, submitted the learned Sr. counsel, Mr. Phukan, learned Sr. counsel assailed the impugned action as arbitrary, discriminatory and as violative of the Article 14 of the Constitution of India. Mr Phukan, learned Sr. counsel referring to the communication dated 1.7.1999 submitted that the authority acted in most despotic manner by not giving any credence to the order dated 25.5.1999 without any valid reason. The learned sr counsel submitted that except the ipse dixit of the Regional Manager there is justifiable ground and/ or reason as to why it was not in a position to give any credence to the office order dated 25.5.1999. There is no finding as such as to why the order dated 25.5.1999 became nullity. The learned counsel in support of his contention also referred to a decision of the Supreme Court in Basudeo Tewari v. Sido Kanhu University and ors. reported in 1998(2) U.J.(S.C. Sc) 836.
5. Ms. Anima Hazarika, learned counsel appearing on behalf of the Corporation not only defended the action of the respondents but also pointed out that the authority all through out acted bona fide and in the interest of the administration. Ms. Hazarika, learned counsel appearing for the respondents submitted that in taking the impugned action the Corporation took into consideration mainly the administrative exigencies of the situation. Referring to the records Ms. Hazarika, learned counsel submitted that the petitioner has had a long stint in the District Office for about 14 years. Mentioning to the earlier transfer orders against the petitioner prior to the impugned order the learned counsel submitted that those transfers were confined to one FCI District. Petitioner's earlier order to Tongala and other places therefore is not to be counted as inter-District Transfer, though it may be to different revenue Districts under the State Administration. Ms Hazarika, learned counsel submitted pointing to the order dated 25.5.1999 and consequent order dated 31.5.1999 that the authority while canceling his earlier transfer order dated 12.2.1998 by the order dated 25.5.1999 misinterpreted the facts and cancelled the transfer order without taking note of facts that his transfer order from District Office, Guwahati to District Office Dibrugarh. Ms. Hazarika, learned counsel therefore submitted for dismissal of the Writ Petition.
6. The issue requiring adjudication is confined to narrow campus namely the legitimacy of the actions of the respondents in avoiding its own order dated 25.5.1999. The power and competency of the respondents in transferring its employee is not in dispute, what is in dispute is to the legality as well as the methodology adopted by the respondents in evading and averting the decision taken by the same authority dated 25.5.1999. In the instant case transfer order was made on 12.2.1998 and the same was under challenge before the Civil Court. Respondents were well aware of the civil suit as well as the interim order passed by the Civil Court. The respondents all along contested the case before the Trail Court as well as High Court. During the pendency of the Court cases, the respondentsconsidered the representation of the petitioner as it is reflected from the records of the case, the competent authority was also made aware of the fact that the petitioner was released from service. The competent authority deliberated upon the mater afresh. The authority while taking its decision to withdraw the transfer order took note of the fact that the petitioner was a qualified person, possessing master degree in Law and his skill in the field can be gainfully made use of in the Legal Division of the Corporation. The authority also took note of the fact that about the lapse of time, after the transfer order was issued, therefore decided to modify the transfer order and posted him for the Regional Office to Legal Division. The aforesaid decision of the respondents is a conscious decision of the respondents and sequel thereto the petitioner withdrew the Court cases. The petitioner was made aware of the order and made him to believe that the transfer order was withdrawn. The said order not only generated hope on the petitioner but it also engendered a legitimate expectation to the petitioner. The reasoning of the respondents for retracting the order was already indicated in the communication to the Regional Manager to the District Manager dated 1.6.1999. No reason whatsoever manner was given as to why the transfer order could not be given credence to and as to why the order dated 25.5.1999 and 31.5.1999 was treated as nullity by the Regional Manager. Citing liberally to the office no tings, Ms. Hazarika pointed to the noting about the withdrawal of the suit and civil Revision by the petitioner and mentioned to the notes dated 17th June. 1999, 19th and 28th June, 1999 it was advised for transferring the employee to Dibrugarh to get regularised his absence period at the transferred place of posting and after that only it should be considered to honor the cancellation order of the transfer by the Sr. Regional Manager. The aforesaid view of the office note was endorsed by the competent authority.
7. From the facts enumerated above, it thus appears that the initial order of transfer dated 12.2.1998 was revoked by the respondents on due deliberation on the matter. The authority concerned took note of the qualification of the person and thought it fit to utilise his service in the Legal Division. The aforesaid authority is competent to Judge the quality and attribute as well the worth of its officers and to judge the utility, fitness, serviceableness of its employees in the particular field of administration. In deciding quality and attribute of the officers if the authority took into consideration, the higher academic attainment, it cannot be said to be arbitrary, or unreasonable. In revoking the order thecompetent authority also took note of the fact that the incumbent did not join in his place of posting of transfer and sought for payment of his salary, but at the same time asked for payment of his salary. The authority observed that the salary could not be paid unless the leave was regularised. To straighten the matter, the authority decided to cancel the transfer order and thereafter ordered for regularising of his leave for payment of his salary. The above order as such cannot be faulted. As alluded earlier the above order was duly communicated to the petitioner which made him to believe that the order will be acted upon, which in turn promoted the petitioner to withdraw the legal proceedings pending in the High Court as well as in the Trial Court. The decision of the authority animated a reasonable expectation, to the petitioner that he would be allowed to retain the benefit and not meant to be waxed and waned. The action of the respondents gave rise to legitimate expectation at the root of legitimate expectation is the principle of rule of law enshrined in the Indian Constitution itself. Rule of Law in its train impart regularity predictability, consistency and certainty in the action of the public authority. The principle of legitimate expectation provides for the entitlement of the procedural protection. The principle of legitimate expectation is a doctrine that surfaced as a legal policy in England in early 1970. The expression of legitimate expectation first appeared in English Law in Schmidt v. Secretary of State for Home Affairs reported in (1969) 1 All ER 904. The principle of legitimate expectation has made its inroad in Indian jurisprudence also. The State and its instrumentalities in administering its affairs are expected to honour its own pledge and treat its subject fairly without any discrimination. What is unjust or unfair also amounts to abuse or misuse of power. In R v. IRC, expression, the House of Lords used the expression in judging the reasonableness vis-a-vis assurances against unfairness (1985 2 All E.R.327). In Council of Civil Service Union v. Minister for the Civil Services reported in 1984 2 All ER 935. Lord Diplock held that for legitimate ex-pectation to arise, a decision must affect the other person by depriving him some benefit or advantage which either (i) he had in the past been permitted by the decision maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision maker will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn: In Navjyoti Coop. Group Housing Society and ors v. Union of India and ors reported in (1992) 4 SCC 477 the Division Bench of the Supreme Court observed that the doctrine of legitimate expectation imposed in essence a duty on public authority to act fairly by taking into consideration or relevant factor relating to such legitimate expectation. In Food Corporation of India v. Kamdhenu Kettle Field Industries reported in (1993) 1 SCC 71 the Supreme Court held that the State action has to conform to Article 14 of the Constitution of India and non-arbitrariness is a significant facet. The Supreme Court in the above decision repulsed the theory of unfettered discretion in public law and held that public authority possesses the power only to use them on public good.
8. The doctrine was restated in Union of India v. Hindustan Development Corporation reported in (1993) 3 SCC 499, MP Oil Extraction v. State of M P reported in (1997) 7 SCC 592, National Building Construction Corporation v. S Raghunathan and ors. reported in (1998) 7 SCC 66, Punjab Communications Ltd. v. Union of India (1999) 4 SCC 727.
9. In my considered opinion, the doctrine of legitimate expectation cannot in all circumstances put a spoke in the wheel and rein in the administrative discretion by application of the principle ofsubstantive legitimate expectation.
10. The authority is/was not precluded from taking a contrary decision as argued by Ms. Hazarika, learned counsel for the respondents. The authority is entrusted with the discretion but under no circumstances said discretion can be said to be unfettered discretion. All State action must correspond to Article 14 of the Constitution of India freed from arbitrariness what is capricious, fanciful is also arbitrary and unreasonable. Arbitrariness and whimscality is anathema to the equality clause enshrined in Article 14. The decision making process must satisfy the requirement of fairness and non-arbitrariness and conform to Article 14. In a democratic polity there is no such element as unfettered discretion. The State and its instrumentalities are to act fairly, candidly and in unprejudiced fashion free from arbitrariness, caprice or bias. Discretion, as stated by Great Coke, is 'Scire per legem quod sit Justum- a science or understanding to discern between falsity and truth, between right and wrong between shadows and substance, between equity and colour able glosses and pretence and not to do according to their wills and private affection'. Exercise of discretion in the words of Lord Hasbury L.C. must be 'according to rules of reason and justice and not according to private opinion according to law and not humour' (Sharp v. Wakefield (1891) AC 173).
11. In this context, it would now be pertinent to take stock of the factors those were taken note of by the authority which stimulated the respondents to resile from its decision dated 25.5.1999 by which the earlier transfer order was revoked. Sequal to the order of the competent authority dated 25.5.1999 to petitioner withdrew the pending legal proceedings from the High Court as well as from the Trial Court on 7.6.1999 and 11.6.1999. Immediately, thereafter the petitioner submitted representation to the authority to implement the order dated 25.5.1999 from the office note it appears that matter was processed. Already by order dated 25.5.1999 the respondents authority were ordered to regularise his leave. The matter was seemingly put down in the process. The officials of the respondents who were asked to regularise the period of absence and the said aspect was attended to the task entrusted and submitted its recommendation, a piece of the office note is cited below:
'....Now the question conies as to how to handle this case of Sri Kalita who is on long absence, unnecessarily. To my mind the solution is simply on the fact that since his case for salary has been dismissed by the Hon'ble Court (para 4 at pre-page) and since his absence is to be regularised and salary paid only by the District office at Dibrugarh were he has been transferred and since we have no bar/obligation not to implement this transfer order in the background of the withdrawal of the petition by the petitioner (Shri P.P. Kalita himself). Sri P.P. Kalita first be allowed/ordered to join his transferred place of posting keeping in abeyance/ignoring the subsequent SRM (para 5 at pre-page) and to get regularised his absence period and the consequential benefits.
After that should it be considered to honour the cancellation order of this transfer by the subsequent SRM (para 5 of pre-page) we may implement the cancellation order and call him back to join RO notwithstanding the fact that there is no (illegible) obligation to honour the subsequent order.
For kind decision. Ad/- 17/6 ....'
12. The said proposal was instantly accepted, which promoted the authority to cancel its own order dated 25.5.1999. From the aforesaid noting it thus appear that the authority took note of the following factors (a) The order of the Civil Judge Jr. Division No. 1 in Misc.(J) case No. 287/98 rejecting the application of the petitioner under section 151 of the CPC in the Title Suit No. 260/98 (b) The petitioner was transferred to Dibrugarh office prior to the order dated 25.5.1999 therefore the Dibrugarh office was to regularise the leave period, (c) In view of the withdrawal of the Court cases there is/was no bar/obligation not to implement the transfer order.
The order dated 18.3.1999 was an order passed on application under Section 151 of the CPC. In the Suit the petitioner submitted an application for non-payment of his salary from the month of August 1998. The learned Court was not inclined to pass any order under Section 151 in view of other remedy available to the petitioner for recovery of his salary. The aforesaid order was an order passed in course of suit which was withdrawn consequence of the withdrawal of the transfer order. An interim order was passed in course of a proceeding is not decisive for regularising the salary of the employee. Similarly the 2nd ground mentioned in noting is also irrelevant consideration in over ruling the order of the competent authority dated 25.5.1999. The petitioner was transferred to Dibrugarh no doubt but that order was subsequently withdrawn by the same authority on 25.5.1999. So there was no reason as to why period of absence could not be regularised by the Office. in my opinion the aforesaid consideration was also totally irrelevant if not unfair in the decision making process. The petitioner withdrew his cases only after cancellation of the transfer order. No advantage could be taken from the order of withdrawal of the litigation. The withdrawal of the petitions on those backgrounds cannot be added to the advantage on the authority to disclaim its own order lawfully passed. The discretion vested is not unfettered, reasons those are mentioned for resiling this lawful order dated 25.5.1999 are seemingly ultra virus. The respondents took into considerations those were legally irrelevant over looking the relevant consideration viz. the considerations those prevailed upon the authority in passing the order dated 25.5.1999 wherein in it took into consideration administrative efficiency and to utilise the services of the petitioner in the legal Department. The consideration those prevailed upon the respondents were relevant consideration and there is no overwhelming weighty consideration to set at nought the decision dated 25.5.1999. The respondents in the case in hand took into consideration the irrelevant considerations over looking the relevant consideration. There is no over-riding reasons of public interest to justify the respondents from reversing its earlier decision. The impugned decision making process, is thus afflicted with material error of law. The assessment of the respondents as reflected in the office note focused upon factors, which has no nexus with the materials and considerations that animated the competent authority (the Sr. Regional Manager) in taking its decision on 25.5.1999. As alluded the decision dated 25-5.1999 is based on administrative expediency and administrative efficiency for using the legal skill of the petitioner in the administration. In taking the steps for recalling the transfer order dated 12.2.1998 (Annexure-1to Writ Petition) vide order dated 25.5.1999 (Annexure-10 of the Writ Petition), the respondents undertook the exercise of balancing and weighing the relevant consideration. The materials/grounds noted in the office noting totally over looked those material, considerations and acted upon materials those have no nexus for reviewing the order dated 25.5.1999. An employee is entitled to rely and act upon the dealing and conduct of its employer. He is not reasonably expected to know the limits of the authority of the employer. He is not to suffer from his faith reposed in the administration. The petitioner, after passing of the order dated 25.5.1999, reciprocated by withdrawing the litigations against the respondents. The authority cannot now add to its own advantage by citing of the same. The decision making process that promoted the respondents to pass the impugned order dated 1.7.1999 is therefore ultra virus and liable to be quashed. The order of cancellation/revocation of the earlier order dated 25.5.1999 in the circumstances can not be legally sustained. The impugned order communicated vide Memo. No. Estt.3(3)/85/TAG-l/233 dated 1.7.1999 (Annexure-13) is accordingly quashed and the Writ Petition is allowed. There shall, however, no order as to costs.
13. Rule is made absolute.