Partly allowed

Mr. Anthony Xavier Fernandes v. the State of Goa through Chief Secretary and Anr.

Bombay HC1 Apr 2008PILWP/2/2008

Case brief

AI extract

What is this about?

The High Court held that the State Government's decision to reject an approved selection for an Additional President of the Administrative Tribunal was arbitrary and contrary to public interest. The Court set aside the impugned notes by the Law Minister and Chief Minister and directed the appointment of the selected candidate within two weeks.

What did the court decide?

Rule made absolute; State directed to appoint Shri Ulhas Raikar as Additional President within two weeks; impugned notes of Law Minister and Chief Minister set aside.

Mr. Anthony Xavier Fernandes Vs the State of Goa through Chief Secretary and Anr. — Bombay HC (2008) — LawSathi Research

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IN THE HIGH COURT OF BOMBAY AT GOA `

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PUBLIC INTEREST LITIGATION NO. 2 /2008

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Mr. Anthony Xavier Fernandes Gaurawado, Calangute, Bardez, Goa.

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... Petitioner.

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Versus.

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State of Goa, Through Chief Secretary, Secretariat, Porvorim, Goa.

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The Registrar General, High Court of Bombay, Mumbai.

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.. Respondents

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Mr. S. S. Kantak, Advocate General with Ms. Rakhi Chodankar, Addl. Govt. Advocate for respondent No.1.

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CORAM : SWATANTER KUMAR, CJ & N.A. BRITTO, J. DATE : 1ST APRIL, 2008.

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ORAL JUDGMENT : (PER SWATANTER KUMAR, CJ.)

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On 12^th February, 2008, the Division Bench of this Court

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passed the following Order :

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"Considering the grievance about the non-disposal of number of matters pending before the Administrative Tribunal for a long time and as it is

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revealed that already there is selection for the Additional Judge to the Tribunal, it is not known why the vacancy has not been filled up till this date. In the circumstances, the Registry to register the letter in question as P.I.L. and issue notice to the State of Goa, through the Chief Secretary and the Registrar General of Bombay High Court returnable on 3^rd March, 2008."

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It appears from the record of the case file that respondent

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No.1 was served. However, service on respondent No.2 was awaited. Thereafter, even respondent No.2 was served. The case remained pending before this Court. However, on 18.3.2008, the learned Advocate General appearing for the State informed the Court that the decision had been taken to establish a separate Tribunal for the South Goa District and that the selection list had lapsed. Keeping in view the facts of the case and the statement made by the learned Advocate General,we had directed the original records to be produced in the Court as well as a proper affidavit to be filed. The matter came up on 19.3.08, on which date further time was prayed by the learned Advocate General which was granted and the matter was directed to

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be listed today. Despite repeated directions, no affidavit has been filed on behalf of the State till today. However, the learned Advocate

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General submitted that he has instructions to say even today that the statement made by him before the court on 18^th March, 2008 holds good. It would be evident from the discussion in the later part of this judgment that even this statement is not supported by the record produced before us.

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Keeping in view the larger public interest and finding that correct facts were not brought before the court, we consider it imperative for the court to deal with this case in some detail. The decision of the Law Minister and the stand taken by the State in court appear to be an attempt to over-reach a decision taken earlier in accordance with law to ensure proper administration of justice for the Administrative Tribunal, Goa. The decision is neither in public interest nor is supported by any accepted cannons of administrative functioning in the Government. It appears to be arbitrary and certainly, prejudicial to the interest of the litigants whose cases are pending before the Tribunal for years. Now, we may refer to the facts giving rise to the present Public Interest Litigation.

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As is evident from the order of the Court dated 12.2.08, the Division Bench of this Court had acted on the basis of a petition filed by one Mr. Anthony Xavier Fernandes. According to him, a large number of cases, nearly more than 4000, were pending before the Goa Administrative Tribunal and the post of an Additional President of the Administrative Tribunal was lying vacant despite the process of selection having been completed. It is also averred in the petition that besides the petitioner, large number of litigants are put to great inconvenience and suffering as a result of non-filling of the vacancy in the Administrative Tribunal and there is no saviour in the Government for " Aam admi ". It was specifically averred in this application that about 70 to 80 cases are listed every day before the Administrative Tribunal, Panaji. One Judge was unable to handle them and the aggrieved parties were not able to get any hearing despite their best efforts.

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Earlier, an affidavit was filed on behalf of the State of Goa on 17.3.2008, wherein the facts were hardly disputed. However, it

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was stated that in Writ Petition No.351/01 decided on 24.7.02 it was held that the appointment to the post of President was set aside on the ground that it was made without prior consultation with the High Court and the appointment of the Additional President was not made at that stage. It was stated that the Rules were amended and the name of the candidate who was first on the merit list was forwarded to the High Court for approval, which was approved by the High Court and now the Government had taken a decision not to revive the select list and thus the post continues to be vacant.

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A separate affidavit was filed on behalf of respondent No.2 wherein it was admitted that there were 4461 cases pending before the Administrative Tribunal for disposal, as reported by the Government of Goa vide its letter dated 28.1.08. It is further stated that because of the heavy work pendency, it was not possible for the President to deal with the matters and the High Court had granted its approval well in time for appointment of the Additional President of the Administrative Tribunal in public interest and to ensure

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expeditious disposal. The High Court had also informed that it had no objection for the acceptance of the existing select list of the candidate for the post of Additional President.

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At this stage itself, it will be appropriate for us to notice the contents of the letter dated 12.12.2007, written by the Government of Goa to the Registrar General of the High Court. It was noted in the said letter that the selection process had begun in the year 2006. The candidates were interviewed on 10.5.06 and based upon the marks obtained by the candidates, a Merit List was prepared and the name of Shri Ulhas B. Pai Raikar was recommended. Paragraphs 3 and 4 of this letter make the stand of the Government absolutely clear in relation to the appointment which reads as under:

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"3. I would like to bring to your kind notice that one year has already lapsed from the date of selection. The Recruitment Rules do not provide the validity period of the Selection List. However, the O.M. dated 13.06.2000 issued by the Personnel Department, Secretariat, Panaji states that the Select List shall be valid only for a period of one year. Starting the selection process afresh will take considerable time. In view of the large pendency of cases before the Administrative

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Tribunal and also considering the hardships faced by the litigants and the Advocates, the Government is desirous of relaxing the provisions of the said O.M.

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I am forwarding herewith the copies of the Minutes of D.S.C. and Select List drawn, with a request to kindly place the same before the Hon'ble the Chief Justice, for approval. The copy of the rules and O.M. dated 13.06.2000 is also forwarded for perusal."

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Inspite of the fact that a clear decision had been taken by the Government to appoint Additional President of the Goa Administrative Tribunal and that the proposal on the request of the Government was duly approved by the High Court, no appointment was made. Undue delay in implementing the decision added to the misery of the litigants whose cases were pending before the Tribunal. There was further increase, by passage of time, in the pendency before the Tribunal. The cause of common litigant could have pursued the right quarters in the Government to implement that decision at the earliest. Vide order dated 18^th March, 2008, we had asked the Government to produce the original records in the court which was produced by the learned Advocate General and perused by us. In

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order to squarely answer the matter in issue in the present case, reference to the records produced before us is essential.

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In the note of the Law Secretary dated 29/7/2004,the proposal for appointment of an Additional President of the Administrative Tribunal was being considered by the Government. While referring to the Goa Administrative Tribunal (Amendment) Rules, 2003 it was noticed "I t is not out of place to state here that filling up of the post of additional President is very much imperative and the Government is hard pressed now for filling up the said post of the Additional President, which was created way back on 25.2.03. Secondly,of late the workload of the Tribunal has also increased by leaps and bounds, thereby rendering it almost impossible for the President alone to handle all the pending cases as well as new cases that are being filed before it day-in and day-out"(emphasis supplied by us) .

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The matter has drawn attention from various Departments of the Government and of course long notings were made on different

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occasions. However, on 27.12.04, the matter was referred to the High Court. As consistent with its earlier view, the Government felt that it could not invite applications and fill up the vacant post, without approval of the High Court. It was suggested that the High Court may be informed that if any Judicial Officer was not available then the State Government may be allowed to advertise the post by inviting applications. The matter still remained pending with reference to different matters, including with reference to Clauses (a) to (c) of Rule 2(2) of the Goa Administrative Tribunal Rules, 1966.

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On 12.1.05, the Government, in its noting noticed that the Selection Committee was headed by a sitting Judge or a retired Judge of the High Court, nominated by the Chief Justice of the High Court and hence it was felt that it would be an effective prior consultation with the High Court and without any further consultation, the appointment should be made. It is not necessary for us to refer to the intervening notings because they relate to various facets, necessary or unnecessary for selection and appointment of

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the appropriate candidate. As already noticed, the selection process was completed and the candidate was recommended as back as on 10.5.06.

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On 11.5.06, in the noting recorded by the competent officer in the State hierarchy, the recommendation was sought, inter alia, on the following :

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"Therefore it is proposed that if agreed to by the Government, the offer of post of Addl. President of Administrative may be given to Shri Raikar and in case the same is accepted by him, we may post him immediately before obtaining the medical Report and Report of Character and Antecedents with a rider that his posting is subject to production of the medical Report and Report of Character and Antecedents. In case the offer is rejected, it is proposed to give the offer to the next candidate in the seniority list."

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Contrary to the settled principles of law, the administration diverted the main issue and travelled into the field of interpretation of rules and in one of the notings of the file stated "High Court need not be involved in the process of selection". In fact, the decision to appoint Additional President of Administrative Tribunal had already

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been taken in consultation with the High Court, which for the reasons best known to the authorities, was not implemented. To a large extent, the note dated 5.6.2007 introduced diverse issues. This, however, was not expected to have hampered the appointment of the selected candidate.

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In the note dated 7.9.07, it was recorded as under : "12. It is, however, to be noted that one year has already lapsed from the date of selection. The Recruitment Rules do not provide the validity period of the Selection List. However, the Office Memorandum dated 13.6.2000, issued by Department of Personnel, states that the Select List shall be valid only for a period of one year. In view of this Circular and considering the exigencies, the Government, in consultation with the High Court, may decide whether to extend the time and to appoint the same candidate or whether to call for fresh applications for the post of Additional President of the Goa Administrative Tribunal"

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This note was approved by the Chief Secretary on 11.9.07 who wrote "since Shri Raikar has been selected after following the due procedure as per Rules, he may be appointed as Additional President of Goa Administrative Tribunal after consultation with the High Court. He may be asked to sit in Margao, S.Goa and dispose cases from that

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region." This matter was put up before the Chief Minister, who sought opinion of the learned Advocate General. The learned Advocate General, vide his opinion dated 30.11.07, observed as under :

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"However at this stage this aspect need not be taken any further since the selection of Shri Raikar is by a Selection Committee on which the High Court had nominated Shri G.D. Kamat, former Judge of Bombay High Court and retired Chief Justice of Gujarat High Court. If necessary in case of any further appointment to be made, said issue of amendment to rule 2(A) can be reexamined. Rule 2(A) can otherwise continue since it provides for selection of a Judge by a Committee comprising of a sitting or retired High Court Judge nominated by Chief Justice and this will enable getting the best talent available."

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This was put up before the Chief Minister, who recorded the noting "As per the advise of Ld. A.G. at "X" above, L.S. may bring the full facts of the appointment process to the notice of High Court before appointment". That probably resulted in issuance of the letter dated 12.12.07, which letter was replied by the High Court vide its letter dated 31.1.08, which reads as under :

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"With reference to the subject noted above, I am

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directed by the Hon'ble the Chief Justice and Judges to inform you that High Court has no objection for acceptance of existing Select List of the candidate for the post of Additional President, Goa Administrative Tribunal."

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However, for reasons best known to the Law Minister, and in complete contradictions to the decision taken and approved, he made the following note on 21.1.08:

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"L.M. I had called file during Assembly Session in view of questions raised. The Govt. has decided during my tenure to have separate Tribunal for South Goa and not additional.

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The period of waiting list as per Govt. rules are also over and we should not break these rules. Accordingly, the C.S. to write to Registrar High Court withdrawing letter No.2-5(4) 91-LD dated 12.12.07."

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As is evident from the aforestated noting, the Law Minister directed the Chief Secretary to write a letter to the High Court. The Chief Secretary, however, expressed his reservations, and rightly so, and recorded the following note on 4.2.2008 on the file :

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"After receipt of the file from CM, I find that the High Court has approved the filling up the post of

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Additional President of Goa Administrative Tribunal on the basis of the letter issued by Law Secretary at page. 284/c.

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Now that the approval has been received, it may cause unnecessary embarrassment to the Government if we do not issue the appointment order of Shri Ulhas B. Pai Raikar."

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Despite the above noting of the Chief Minister which suggested that the decision already taken by the Government after seeking approval of the High Court should be implemented, the Law Minister recorded a note contrary to the Government decision. From the record, it appears that the Law Minister, for the reasons best known to him, had obstructed or hampered the finalisation and issuance of the Letter of Appointment as and when it matured. This attitude besides being unexplainable, does not support the idea of good governance and protection of public interest. The noting reads as under:

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"There is no question of additional President to be appointed. Learned A.G. may immediately work out action of separate Administrative Tribunal for South Goa."

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It must be noticed that the note of the Chief Secretary dated 4.2.08 was not even put to the Chief Minister and the Law Minister took unto himself to undo the result of all efforts of previous years and, that too without any plausible cause. We must also notice that note of the Law Minister is factually incorrect. It has been stated in the note dated 21.1.08 that during his tenure, the Government had taken a decision to have a separate Tribunal for South Goa and not Additional. Perusal of the file shows that no such decision had ever been taken by any authority. Therefore, the note recorded by the Law Minister was based on misconception of facts and was also arbitrary being devoid of any reasoning. The records produced before us which contain even the noting made during the pendency of writ petition does not show that any decision was taken by the Chief Minister or the Cabinet to take recourse to any other method except for selecting and appointing a selected candidate to the post of Additional President of the Goa Administrative Tribunal. It appears that the Law Minister exceeded his authority even under the rules of business in directing action to be taken contrary to the

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collective decision taken at the highest level of the State administration. This is not in conformity with the rules of administration and even against administrative propriety. The doctrine of public accountability is effectively applicable to the administrative decision and the person taking such a decision is required to ensure that the decision taken is in accordance with rules of law and is in public interest. Furthermore, he is accountable for his decision. The authorities are expected to take into consideration the public necessity and interest of administration of justice system in the State. Both these aspects have been ignored in the noting of the Law Minister dated 21.1.2008 and in fact, the discretion has taken better of the above referred two concepts.

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In the light of the above facts, we have no hesitation in coming to the conclusion that the directive issued by the Law Minister is violative of constitutional mandate. Apparently,it is not in public interest and in fact, smacks of arbitrariness. The action of the Law Minister was contrary to any known cannons of administrative law and the rules of business. It is unfortunate but true that public interest

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was the casualty in the whole process. The trend of the noting conveys the intention that will of the Minister must prevail whatever be its consequences. The suffering of the litigants as well as proper administration of justice in the Tribunal was not treated as relevant considerations by the authorities. It is of significance to notice here that the Administrative Tribunal of Goa deals with various jurisdictions. The aggrieved persons raising claims under as many as 27 legislations including Goa, Daman & Diu Agricultural Tenancy Act, 1964, Goa, Daman & Diu Rent Control Act, 1968, Goa, Daman & Diu Mundkar Act, 1975, Goa, Daman & Diu Land Revenue Code, 1968, Goa, Daman & Diu Sales Tax Act, 1964, Goa Panchayat Raj Act, 1993 are entitled to approach the Tribunal for relief, in accordance with law. This is an indicator of the extent of jurisdiction that is vested in the Administrative Tribunal and how important it is for the Tribunal to deal and dispose of the cases expeditiously in the larger public interest. Lest the arrears mount up to such an extent that the importance and purpose of constituting such a Tribunal is undermined. The pendency in the Tribunal has considerably increased

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firstly as a result of inaction of Government and subsequently, for non-implementation of the decision taken by the Government in accordance with law.

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It will be appropriate at this stage for us to refer to certain decisions of the Supreme Court and this court, having bearing on the questions that fall for consideration of the Court in the present petition. Law in relation to judicial review of administrative action has now been well settled and can be stated in unambiguous terms.

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In its recent Judgment in Subhash R. Acharya v. State of Maharashtra, 2007(6) Bom.C.R. 100, the Division Bench of Bombay High Court has discussed the applicability of principles of arbitrariness, doctrine of proportionality and public accountability to administrative decisions and held as under:-

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"Judicial review of administrative action was further expanded by the Supreme Court in the case of (State of NCT of Delhi and another Vs. Sanjeev Alias Bittoo), 2005 DGLS 298: (2005) 5 S.C.C. 181. The Supreme Court emphasised that the present trend of judicial opinion is to further

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restrict arbitrariness in the administrative action of the Government referable to executive, legislative or quasi judicial nature. Though the scope of judicial review was stated to be limited but where the decision making process was per se faulty and not in conformity with rules, judicial intervention was permissible.

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Reference in this regard can also be made to the case of (Tata Cellular Vs. Union of India), 1994 DGLS 649: (1994) 6 S.C.C. 651, wherein the Supreme Court has held that unreasonable decision or a decision without proper application of mind or decision with procedural impropriety were the kind of cases which would squarely fall within the limited scope of judicial intervention.

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Before we examine the facts of the present case in the light of the above principles, another important facet of the case in relation to the doctrine of public accountability and application of Wednesbury principles in State action would be important to be noted. A Division Bench of this Court in the case of (Mohammed Salim Abdul Karim Vs. The State of Maharashtra and others), Writ Petition No.1513 of 2006, commenting upon the fairness in State action, held as under:

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In the case of (Shanti Prasad Agarwal and ors Vs. Union of India and ors.), 1990 DGLS 478 : 1991 Supp (2) Supreme Court Cases 296, the Supreme Court clearly stated that the administrative law requires that in an administrative action, while adhering to the

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principles of natural justice, passing of a speaking order would be desirable. In the case of (Shri Mahender Kumar Vs. Land Acquisition Collector), W.P.(C) No.13380-12 of 2005, dated 11^th May, 2006, the Division Bench of the Delhi High Court observed as under:

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"....Wherever a cause is relatable to breach of statutory or implied duty of a public officer, the rule of law would essentially provide for a remedy even if it is not so specifically spelled out in the provisions of the Act. Arbitrariness and unreasonableness being facets of Article 14 are available as grounds not only for questioning an administrative action but in certain cases may even invalidate subordinate legislation. Timely action is the essence of Government functioning and unreasonable delay questions the very correctness of such orders. Wherever the records offer no explanation for prolonged unreasonable delay, the equity will tilt more in favour of the petitioners than uphold the action of the authorities to be correct, being done in the normal course of its business ........"

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".... Concept of public accountability has been applied to the decision making process in the Government by the courts for a considerable time. This concept takes in its ambit imposition of costs and its recovery from the officer concerned for their negligence or acts of prolonged, unexplained delays running into years. In the case of (State of Andhra Pradesh Vs. Food Corporation of India), 2004(13) Supreme Court Cases 53, the Court directed as under:"

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We are shocked as to the manner in which the State Government is filing petitions in this Court resulting not only in wasting the time of this Court and all others concerned but in total waste of public money. The impugned orders have been challenged after more than eight years with almost no explanation, as is evident from the paragraph reproduced above"

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"....The doctrine of full faith and credit applied to the acts done by the officers and presumptive evidence of regularity of official acts done or performed, is apposite in faithful discharge of duties to elongate public purpose and to be in accordance with the procedure prescribed. It is now settled legal position that the bureaucracy is also accountable for the acts done in accordance with the rules when judicial review is called to be exercised by the Courts. The hierarchical responsibility for the decision is their inbuilt discipline. But the Head of the Department/designated officer is ultimately responsible and accountable to the Court for the result of the action done or decision taken. Despite this, if there is any special circumstance absolving him of the accountability or if someone else is responsible for the action, he needs to bring them to the notice of the Court so that appropriate procedure is adopted and action taken. The controlling officer holds each of them responsible at the pain of disciplinary action. The object thereby is to ensure compliance of the rule of law"

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"....It is known fact that in transaction of the Government business, none would own personal

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responsibility and decisions are leisurely taken at various levels. It is not uncommon that delay would be deliberately caused in filing appeal or revision by Government to confer advantage to the opposite litigant; more so when stakes involved are high or persons are well connected/influential or due to obvious considerations. The Courts, therefore, do not adopt strict standard of proof of every day's delay. The imposition of costs on officers for filing appeals causes public injustice and gives the manipulators an opportunity to compound the camouflage. Secondly, the imposition of costs personally against the officers would desist to pursue genuine cases of public benefit or importance or of far reaching effect on public administration or exchequer deflecting course of justice. The principle of care, maintenance of higher caution, expeditious decision making process in exercise of statutory powers, public accountability and transparency are also applicable to the various proceedings under the law of acquisition. Various provisions of the Act could be referred to demonstrate that the exercise of powers eminating from statutory provisions is coupled with public obligation, to protect the rights of the land owners..."

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The basic rule of law is truly applicable to the administrative acts as well. The need for reasoned orders and prompt action by the State administration is the requirement of the day".

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The concept of public accountability has been applied to the decision making process in the Government by the courts for a considerable

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time. Administrative or executive actions are subject matter of judicial review. Defining this role, the Supreme Court in the case of (State of Bihar Vs. Subhash Singh), 1997 DGLS 176 : A.I.R. 1997 S.C. 1390 held as under:

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"In our democracy governed by the rule of law, the judiciary has expressly been entrusted with the power of judicial review as sentinal in qui vive. Basically judicial review of administrative actions as also of legislation is exercised against the actions of the State. Since the State or public authorities act in exercise of their executive or legislative power, they are amenable to the judicial review"

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"... The normal principle that the permanent bureaucracy is accountable to the political executive is subject to judicial review. The doctrine of "full faith and credit" applied to the acts done by the officers and presumptive evidence of regularity of official acts done or performed, is apposite in faithful discharge of duties to elongate public purpose and to be in accordance with the procedure prescribed."

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The decision of the Delhi High Court in the case of (Major General B.D. Wadhwa Vs. Union of India and others), W.P.(C) No.10630/2006), at this stage can be usefully referred to:

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"The main line of arguments raised on behalf of the petitioner is that the Court is entitled to investigate the action of the authorities with a view to see, whether it has taken into account matters which ought not to

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have been taken into account or conversely has refused or neglected to take into account the matters which it ought to take into account. It is also contended that no promotion board or authority can exercise unfettered discretion. The process of selection should essentially be in conformity with the basic rule and should not be arbitrary, discriminatory in its form and conclusion. In support of his contention, he relied upon the judgments of (Associated Provincial Picture Houses Ltd. Vs. Wednesbury Corporation), 1947(2) All.E.R. 680 and (Air Vice Marshal Harish Masand Vs. Union of India & Ors.), 2004(VIII) A.D.(Del.) 429.

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On the other hand, the learned Counsel appearing for respondent No.4 with some vehemence contended that the power of judicial review of such administrative actions has inbuilt limitations. "Reasonableness" and "Rationality" or even "Proportionality" of decision making process can be examined within a very limited scope Refer (R.M. Arunachalam Vs. Commissioner of Income Tax, Madras), 1997(7) S.C.C. 463.

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Further, it is contended that the competent authority can select any person, not necessarily the senior most, keeping in view the service profile of the candidate and judicial review is permissible only to the extent of finding whether the process in reaching the decision has been observed correctly and not the decision as such. In this regard, reliance has been placed to the case of (Union of India and ors. Vs. Lt. Gen. Rajendra Singh Kadyan and another), 2000

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DGLS 1127 : 2000(6) Supreme Court Cases 698. Emphasizing on the restricted scope of judicial review, under Article 226 of the Constitution of India, it is also contended that the Court does not act as an Appellate Authority and even if a decision taken by the Government does not appear to be agreeable to the Court, the Court would not interfere unless such decision was offending the above rules of law Refer: (Ekta Shakti Foundation Vs. Govt. of NCT of Delhi), 2006 DGLS 439 : J.T. 2006(6) S.C. 500."

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Usefully, a reference can also be made in regard to the judgments of the Supreme Court in the cases of (i) (Secretary, Jaipur Development Authority, Jaipur Vs. Daulatmal Jain and others), 1996 DGLS 1465 : (1997) 1 S.C.C. 35, (ii) (Vineet Narain Vs. Union of India), 1997 DGLS 1607 : A.I.R. 1998 S.C. 889), and (iii) Kumari Shrilekha Vidyarthi etc. etc. Vs. State of U.P. and others, 1990 DGLA 540 : A.I.R. 1991 S.C. 537."

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In a recent Judgment titled as Hardev Motor Transport v. State of M.P. and others,(2006)8 SCC 613, the Supreme Court enunciated the principle that the powers conferred on a Government Authority are expected to be exercised fairly,even if the powers vested in the Authority are very wide. However, only because a wide power has been conferred,the same by itself would not lead to a presumption

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that the same is capable of misuse or on that count alone, the provisions of Article 14 of the Constitution would be attracted. But, when a statute confers a wide power upon a statutory authority, a closer scrutiny would be required. In a more recent Judgment in the case of Reliance Energy Ltd. v. Maharashtra State Road Development Corpn. Ltd. (2007) 8 SCC 1, the Supreme Court emphasized and defined with great clarity the scope of judicial review. The Courts could look into the matter and see whether the decisions are in consonance with the principles which govern exercise of public power. The canons of administrative law contemplate that administrative actions should be subject to judicial review particularly when there are apparent illegalities, when the decision is irrational and when there are certain procedural improprieties in the decisions taken by the authorities concerned.

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There are catena of Judgments which require the State Government to exercise its powers fairly and in public interest. The law also places an obligation upon the State to have transparency

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in its administration and, thus, essentially the administrative actions and decisions cannot be contrary to constitutional mandate and they must be in the interest of the public. Wherever the decision making process is vitiated being in violation of any of the above principles the decision needs to be struck down. In the case of Jitendra Kumar and others v. State of Haryana and another, (2008) 2 SCC 161, the Supreme Court while describing the essentials of judicial review of administration action also introduced the concept of legitimate expectations and need of bonafide decision by the State Government.

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Another known principle of administrative law is that arbitrary action or arbitrariness in State action would vitiate the action if it offends the spirit of Article 14 of the Constitution of India. It is described perhaps as the most important and fundamental principle. Fairness and equality of treatment is an essential feature of administrative action. Arbitrariness in State decisions would be contrary to the basic rule of law and, therefore, unacceptable even when considered by the courts within the specified limitations of

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judicial review. The discretion vested with the authorities is to be exercised with great caution. Every power is expected to be exercised, fairly and reasonably. Absolute unguided power would essentially give rise to arbitrariness and if so exercised, it would vitiate the process as well as the decision. Administrative orders of wider ramifications should be supported by some reasons so as to reflect proper and objective application of mind. Unfettered powers might be struck down as unconstitutional if no safeguards for its control are provided. Where the power is exercised in disregard to the prescribed safeguards, it would be held that power has been exercised unlawfully. To put it simply, higher the power greater is the responsibility to act fairly, in public interest and to ensure good governance.

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The power of judicial review has its limitations and we are quite aware about the same. If a decision is one which no reasonable person or Tribunal could arrive at then the decision would be liable to be struck down. A discretionary power is not completely discretionary in the sense of being entirely uncontrolled. The Courts have rejected

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the concept of an absolute and unfettered statutory discretion. It is an eternal principle of administrative law that there is nothing like unfettered discretion immune from judicial reviewability. As Krishna Iyer, J. has emphasized that "absolute power is anathema under our constitutional order" and that "naked and arbitrary exercise of power is bad in law". The power given to an administrative authority "to act in its discretion is not power to act adarbitrarium. It is not a despotic power, nor hedged with arbitrariness, nor legal irresponsibility to exercise discretionary power in excess of the statutory ground, disregarding the prescribed conditions for ulterior motive. If done, it brings the authority concerned in conflict with law.(See page 602 of M. P. Jain & S. N. Jain Principles of Administrative Law).

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Now, we will revert to the facts of the present case in the light of the above principles.

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IS THE DECISION OF THE AUTHORITIES IN PUBLIC INTEREST?

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This aspect of the case hardly needs any elaborate discussion. The record clearly reflects that the decision of the Law Minister and agreed by the Chief Minister is not in public interest. The noting recorded in the files of the Government in the year 2003 demonstrated the necessity for appointment of an Additional President of the Administrative Tribunal as that was the need. The expression "Very imperative and the Government is hard pressed" in the file noting shows the approach of the Government as well as the need of the public. At that time, hardly much arrears might have been pending before the Administrative Tribunal and even if so they were within the range of manageable limits so as to provide justice to the people of the State. It has taken years and years for the Government to take this decision and which now has been given up without any plausible reason. As on 28^th January, 2008 there are more than 4461 cases pending before the Tribunal, which by passage of time have increased further and will go on increasing and may reach a number which would frustrate the very purpose of constituting a special Tribunal for providing expeditious disposal of cases. It can safely be known that the

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very purpose of the Government creating a specialized Tribunal is to make justice easily accessible. The laudable purpose is to grant relief to the public at large and to ensure that the litigants do not suffer agony of prolonged litigation. The Chief Minister, after obtaining the opinion of the Advocate General, had accepted the proposal of the departments to appoint Additional President of Goa Administrative Tribunal and had directed that full facts be brought to the notice of the High Court before the appointment. The entire process of selection was found to be in conformity with law and vide letter dated 12^th December, 2007, the Government had written complete facts in that regard to the High Court and sought its approval. In its letter, the Government had made a specific reference for extending the life of the panel. The High Court accorded its approval and found nothing wrong with the process of selection. After completion of this entire process, it was unfair and improper for the Law Minister to make the questioned noting. It appears to have been recorded primarily to frustrate and throttle the entire process and deny the appointment to a duly selected candidate.

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Both the reasons recorded in the impugned noting were without any basis and, in fact, were factually incorrect. First, the reason that life of the Panel had exhausted, does not stand to any reason because the name of the selected candidate was sent for approval of the High Court as back as on 12^th May, 2006, which is within the prescribed time and the same was approved by the High Court. Even otherwise, once the High Court had agreed to the request of the Government made in its letter dated 12^th December, 2007, the issue in relation to life of the panel had lost all its significance. Secondly, it was recorded in the order that earlier, a decision had been taken by the Government to amend the law and constitute a separate Administrative Tribunal for South Goa but such decision is nowhere found on the file. Thus, we are really at loss to understand as to for what reasons the Law Minister has passed the order in question. What public interest was sought to be served by frustrating the appointment in question. It appears that attempts were made to delay the appointment and when final decision was taken and all concerned

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authorities including the High Court had concurred with such appointment then a note without any plausible reasons was recorded to frustrate the entire process. The entire exercise done by various departments of the Government as well as the High Court and the Selection Committee constituted in accordance with law over a long period of four years was brought to a naught. We are unable to contribute to such practice or approach of the Government. Administration of Justice is not a matter which exclusively falls in the domain of the Government. The Government is expected always to act in coordination with the High Court and to seek the approval of the High Court wherever required in relation to such matters. Such decisions cannot be permitted to be taken at the whims and fancies of individuals. The interest of public at large must take precedence over individualistic interest. Merely because one occupies high status in the hierarchy in the Government does not vest him with unguided and unfettered powers particularly,in relation to matters of administration of justice. In our view,public interest has been made to suffer repeatedly in the present case and none else but the Government itself

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is responsible for increasing the pendency before the Tribunal. Public interest is an expression which takes in its ambit the concept of responsibility and fair governance. The excuse now put forward by the Government before the Court that it plans to amend the law and create the separate Administrative Tribunal for South Goa is nothing but again is an attempt to sidetrack the appointment of the selected person. In a case of existing vacant post of Additional President of Goa Administrative Tribunal, the Government has taken more than four years to finalise the appointment to that post, then it would be anybody's guess as to how much time would be taken by the Government and the appropriate authorities to amend and implement the law, complete the process of selection and then make appointment of the duly selected person to the post. It really may be too long a way for a common man to get benefit out of this loud thinking of the State administration. We have already noticed that there is no such decision taken by any competent authority that is available on record. The above noted facts and circumstances clearly demonstrate that action of the State and the impugned notings suffer from the vice of

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arbitrariness and are not in larger public interest.

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WHETHER THE DECISION OF THE LAW MINISTER AND THE CHIEF MINISTER IS ARBITRARY OR BONAFIDE

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It was stated before us that the Government has the power and absolute power to take decisions. Certainly this proposition can hardly be disputed that Government is a body responsible for governance and has powers to take decisions. It is an absolute authority to decide on its policy but it must be kept in mind by the State that its actions, deeds and policies are open to judicial review may be within the limited scope as defined by the various Judgments of the Supreme Court. The Constitution does not vest any absolute power in the State to take arbitrary and discriminatory decisions which offend the basic rule of law. In our Constitution, the State is under obligation to ensure that public at large gets justice and it cannot take decisions which will compel the public to suffer as the decision of their cases would be delayed for want of timely and proper action by the State.

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In the present case, we have already noticed that the Government correctly examined the need for creating the post of Additional President for the Administrative Tribunal for South Goa and making appointment to that post at the earliest in public interest. This action was treated by the State administration as imperative. Subsequently, the selection was made, name was recommended to the High Court for appointment and it was approved by the High Court. Thereafter, for the reasons best known to the administration, the matter remained pending. The Government had correctly noticed the position of law while referring to various judgments of the Supreme Court that the High Court should be consulted. The consultation with the High Court was purposefully completed. Then suddenly, there was total non-communication with the High Court and in fact, in one of its notings most surprisingly, it was stated that the High Court need not be involved in the process of selection. Such remark besides being unjustified was not even required. However, vide letter dated 12^th December, 2007, the matter was again referred to the High Court and

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proposal of the State was accepted by the High Court. This complete process was set at naught by the impugned noting of the Law Minister.

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It is a settled principle of law that every administrative decision should be supported by reasons, howsoever, brief it may be. We have already held that both the reasons recorded in the impugned noting were incorrect, both in fact and law. The decision of the Government taken with the approval of the High Court was legal, sustainable and was certainly serving the ends of justice as well as public interest. During the interregnum period of making the reference and receiving the approval of the High Court, the Law Minister interjected his noting which was neither called for nor justified on any plausible grounds. The Government could always continue with its desire of amending the law and taking steps in furtherance thereto but that could not be a ground for stalling the appointment of the selected candidate. The impugned noting not only attempts to frustrate the valid decision taken at the highest level of State administration but also defeats public interest. All accepted

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norms of proportionality have been defeated by the impugned decision. Comparative hardship, elongation of litigation and their effect on the administration of justice have been lost sight of and the action is exfacie arbitrary. It amounts to colourable exercise of the authority. The public interest normally should outweigh the personal opinion of an authority but in the present case it is entirely to the contrary. Here discretion of the authority totally outweighed the public interest. The rules of business would empower the person to review an administrative decision but review of such decision should always be in consonance with the known canons of administrative law and again should not be arbitrary. It is strange that on the noting of the Law Minister,the Chief Minister also agreed to overturn an earlier decision taken in accordance with law. Not only the public interest but even the principle of propriety would demand that the earlier decision should have been carried out to its logical end rather than frustrating the whole exercise. Use of authority or power should not be contrary to the rules as well contrary to the basic rule of law. The decision of the Law Minister besides being unreasoned,was improper and ex facie

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arbitrary. A matter which has been seriously pondered over by the authorities and the decision taken after seeking legal opinion and concurrence of the High Court should not be permitted to be frustrated on mere whims of an individual. It was expected of the authority to act in larger interest and ensure that the public does not suffer. In our view, the noting of the Law Minister dated 21-1-2008 and that of the Chief Minister dated 24-1-2008 cannot be given effect to. We are of the considered opinion that the view taken by the Chief Secretary on 4-2-2008 is correct exposition of law and is in larger public interest and has our approval. The power of superintendence is vested in this Court under Articles 226 and 227 of the Constitution of India. This Court cannot ignore the prevalent state of affairs as it affects adversely the state of administration of justice in the State of Goa. We reiterate that the view earlier taken by the State and duly accepted by the High Court, ought to have been implemented and such a view ought to have taken precedence over any other view which might have been there to the contrary. We express the hope that whenever required,the Government will take the concurrence of this

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Court and when taken, the same would be respected and implemented.

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For the reasons aforestated, we thus pass the following order:-

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(i) Rule is made absolute. (ii) The State Government should appoint the duly selected candidate i.e. Shri Ulhas Raikar as Additional President of Administrative Tribunal, South Goa within two weeks from today.

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(iii) The State and all concerned authorities are directed to provide proper staff and infrastructure to the newly appointed person within the same period.

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(iv) The noting of the Law Minister dated 21^st January, 2008 and that of the Chief Minister dated 24^th January, 2008 are hereby set aside and shall not be given effect to.

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(v) The President of the Administrative Tribunal is hereby directed to allocate work relating to South Goa to the Additional President in terms of the Government decision.

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(vi) The learned Advocate General had made a statement that Government will set up a separate Administrative Tribunal for South Goa within a period of six months from today. Firstly, there is no such decision on the file by any competent authority. Needless to point out that Government is free to act in that direction if it so desires, but compliance to the above directions in no way would depend upon this aspect. We have no hesitation in observing that in matters of policy and appointments relating to administration of justice in the State of Goa, the Government should act in complete coordination with and seek approval of the High Court wherever required.

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No order as to costs.

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CHIEF JUSTICE

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JUDGE

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ssm/rd

Mr. Anthony Xavier Fernandes v. the State of Goa through Chief Secretary and Anr.

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Mr. Anthony Xavier Fernandes v. the State of Goa through Chief Secretary and Anr.

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