Non Teaching Employees Association, Bihar Veterinary College, Patna-14 v. The State Of Bihar

: Mr. Ajit Kumar, Advocate. For the State : Mr. Mayank Rukhaiyar, A.C. to G.A.5 ------------ 3/

15.04.2009 Heard learned counsel for the petitioner, learned counsel for the State and learned counsel for the Rajendra Agricultural University. The claim in this application relates to merger of 50% Dearness allowance in the basic pay scale of the members of the petitioner-association employed in the University. It is the case of the petitioners that they under the statutory rules are at par with the state government employees, inter alia, for merger of 50% dearness allowance in the basic pay scale. In pursuance of grant of such benefit by the state government to its own employees, - 2 - the University under its own statute extended the same to the members of the petitioner-association in the year 2005. Certain enhancements granted by the state government to its employees in the year 2005 were also likewise extended to the petitioners. Now, the impugned order dated 19.1.2009 has been issued to the effect that this benefit shall not be available for the period 1.4.2009 to 31.3.2010, till a final decision is taken in the matter by the government. Once, the statutory rules provides for extension of such benefit granted by the state government to its own employees, there is no justification in the impugned order. Counsel for the State sought to persuade this court from the statute of the University at Annexure-1 that it could not have been granted without prior approval of the state government and that benefit granted in 2005 or there after was without the approval of the state government which was required under the law. Counsel for the University submits that the University is not required to take approval of the state government under the statute. The lis before this court is confined to the recitals in the impugned order dated 19.1.2009 at Annexure-8. The order, in fact, contains no reasons at all for withholding the same for the period

1.4.2009 to 31.3.2010. To this court, the impugned order itself makes it apparent that it was being withheld for a financial year only. If the petitioner be correct in their contention that the benefit had been given to them earlier, surely, a benefit was sought to be taken away. In any event of the matter, an administrative order, which is amenable to judicial review, is required to be reasoned. The necessity - 3 - to give reasons has been emphasized by the court both as a control on the administrator of arbitrariness, and disclosing the mind of the administrator facilitating judicial review. Reference may be made to 2005(2) SCC 235 (MMRDA Officers Association Kedarnath Rao Ghorpade Vs. Mumbai Metropolitan Regional Development Authority and another) at paragraph 5 and 7 as follows: is one of “5. Even in respect of administrative orders Lord Denning, M.R. in Breen V. Amalgamated Engg. Union observed: (All ER P.1154h) “The giving of reasons the fundamentals of good administration”. In Alexandar Machinery (Dudley) Ltd. V. Crabtree it was observed: “Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at.” Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the “inscrutable face of the sphinx”, it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking-out. The “inscrutable face of the sphinx” is ordinarily incongruous with a judicial or quasi- judicial performance (Chairman and Managing Director, United Commercial Bank V. P.C.Kakkar).

7. Therefore, without expressing any opinion on the merits of the case, we remit the matter to the High Court for fresh consideration on merits. It goes without saying that the High Court shall pass a speaking order recording reasons in support of its conclusions.” If reasons had been assigned in Annexure-8 dated

19.1.2009, this writ application would easily have been disposed of, by - 4 - at best, interpreting the statutory provision by the court. The respondents have passed an order and left it to the citizen to come to the court when it is their stand that in the counter affidavit they will explain the order. This is exactly what the law prohibits that the order of the government has to be tested on the reason assigned in the order and it cannot be explained in the counter affidavit. If the order is not reasoned it becomes arbitrary and creates hindrance in judicial review. Only for that reason, the order dated 19.1.2009 is set aside. The respondent-state government shall be at liberty to pass a reasoned and speaking order on the issue, interim or final as they may choose. In no event, this order by virtue of setting aside the order dated 19.1.2009, shall be construed as affirmation by this court of the claim of the petitioners or a direction to grant such benefit. This court expects the State-respondents to pass appropriate reasoned order, interim or final, expeditiously within a maximum period of twelve weeks from the date of receipt/production of a copy of this order, failing which, the necessary consequences of setting aside of the order dated 19.1.2009 shall follow in so far as the petitioner is concerned. The writ application stands disposed. JA/- (Navin Sinha, J.)