Rifat Arifa v. State of J&K

The grounds of challenge, amongst others, urged in the writ petition are that the petitioners being Agriculture Engineers have a genuine right to claim selection on the pattern of ReZ on the similar lines as that of the agriculture graduates; and that the action of respondents by rejecting the claim of petitioners have prejudiced their rights as the decision is clearly in violation of rights of petitioners guaranteed under the Constitution; and that the agriculture graduates were not regularised at the time of passing of impugned order, as such, the impugned order is without any reasonable ground; and that the petitioners got themselves registered on the same pattern as that of agriculture graduates and therefore, cannot be denied the similar treatment.

Reply/objections to the petition have been filed by respondents, wherein it is being stated that the Agriculture Department by virtue of 12 SWP no.2133/2018 c/w SWP no.475/2013 Cabinet decision no.248/14 dated 23rd October 2006 accorded sanction for engagement of all the unemployed Agriculture Graduates as ReZ under ReZ scheme on monthly stipend of Rs.1500/- and that the said scheme was effective from April 2007 in respect of Agriculture Graduates who were unemployed as on October 2006 and were required to register themselves with Chief Agriculture Officers of the concerned District. It is being vehemently stated by respondents that as per the Government Order no.20-Agri of 2007 dated 6th February 2007, the ReZ Scheme was enacted for accommodating the Agricultural Graduates, i.e., candidates possessing B.Sc. Agriculture Degree and not the Agriculture Engineering Diploma Holder candidates because the requisite qualification/degree for being registered/regularised is B.Sc. Agriculture Degree.

It is being also stated that the instant writ petition has been filed by petitioners, who are graduates and have acquired three years Diploma in Agriculture Engineering from J&K State Board of Technical Education and do not possess the requisite degree, i.e., B.Sc. Agriculture.

Heard learned counsel for parties and considered the matter.

M/s N. A. Malik and Saqib Amin Parray appearing counsel for the petitioners and Mr. Irfan Andleeb, Dy.AG, while making their submissions reiterated the contentions raised and grounds urged in their respective pleadings. The appearing counsel for the petitioners would contend that the respondents during the whole process of consideration accorded to 13 SWP no.2133/2018 c/w SWP no.475/2013 the case of the petitioners generated a legitimate expectation unto the petitioners for their absorption in the respondents department on the analogy the respondents have had extended the said benefit of absorption and regularization to other ReZ‘s, however, by issuance of the impugned order, the respondents subjected the petitioners to hostile discrimination viz-a-viz said ReZ‘s while acting arbitrarily and in utter disregard to the doctrine of legitimate expectations and of equality enshrined under Article 14 of the Constitution. Learned counsel appearing for the petitioners in support of the submissions supra placed reliance on the judgement of the Apex Court titled as ―Food Corporation of India v. Kamdhenu Cattle Feed Industries, reported in (1993) 1 SCC 71, State of Gujarat v. Ambica Mills Ltd, AIR, reported in 1974 (SC) 1300; Budhan Choudhary v. State of Bihar, reported in AIR 1955 SC 191; Noida Entrepreneurs Assn. v. Noida, reported in (2011) 6 SCC 508; judgement dated 1st December 2020 of the Supreme Court in Civil Appeals Nos. 3860- 3862 of 2020, titled as the State of Jharkhand and others v. Brahmputra Metallics Ltd., Ranch and another.

Before adverting to the issues raised by the appearing counsel for the parties in the instant petitions, it would be appropriate and advantageous to refer to certain admitted facts.

Record tends to show that the Government of Jammu and Kashmir in General Administration Department constituted a Cabinet Sub- Committee to examine various ways to engage the unemployed Agriculture Graduates in gainful employment. In terms of 14 SWP no.2133/2018 c/w SWP no.475/2013 Government Order no.20-Agri of 2007 dated 6th February 2007, sanction was accorded to the engagement of all Agriculture Graduates who were unemployed as on October 2006 under the Rehbar-i-Ziraat (ReZ) Scheme at a monthly stipend of Rs.1500/- and the scheme was made effective from April 2007 subject to the conditions that all the unemployed Agriculture Graduates would register themselves with the Chief Agriculture Officer of concerned District; candidates would execute an agreement with Chief Agriculture Officer stating therein that they were not performing any government service whether on contract basis or ad hoc; the engagement would not confer any right to claim a regular appointment. 3000 unemployed Agriculture Graduates had been engaged as ReZ since 1st April 2007 as is evident from perusal of the Minutes of Meeting of Cabinet Sub-Committee (Annexure D to writ petition). It is manifest from perusal of minutes of the meeting of Cabinet Sub-Committee held on 24th January 2008 that after a detailed consideration of the memoranda presented on behalf of unemployed Agriculture Graduates, Agriculture Engineers and Sericulture Graduates that the Sub Committee took the following decisions: i) A mechanism be evolved through a proper scheme to absorb Agriculture Graduates (including Engineers and Sericulture Graduates) on the same basis as has been adopted for those engaged as Rehbar-I-Talim. A committee headed Financial Commissioner, Agriculture, Principal Secretary, GAD, Commissioner/Secretary, Secretary Rural Law Development Department would develop a framework and the modalities for absorption of Rehbar-I-Ziraat (and Agriculture Engineers and Sericulture Graduates) into Government service taking into account Centrally Sponsored Schemes ii) …… iii) Secretary Rural Development Department and Commissioner/ Secy, Agriculture Department to collect and submit data to the 15 SWP no.2133/2018 c/w SWP no.475/2013 Committee on the ongoing projects under centrally sponsored Schemes whereunder staff with technical expertise (Agriculture Graduates, Agriculture Engineers) are required….‖

The decision of the Cabinet Sub-Committee provided that Agriculture Graduates, including Agriculture Engineers, were decided to be engaged on the lines of Rehbar-i-Taleem Scheme.

Record would further demonstrate that not only this, in terms of Government Order no.504-GAD of 2008 dated 15th April 2008,a Committee was constituted for undertaking an exercise to develop the framework and modalities for absorption of ReZ (and Agriculture Engineers and Sericulture Graduates) in the Government service taking into account the Centrally Sponsored Schemes for Rural Development/ Watershed Development. The Committee held its meeting on 20th May 2008, in which after threadbare discussion under the chairmanship of Principal Secretary to Government, Agriculture Production Department, the following decisions were taken: i) ii) iii) to be regularised The Agriculture Production Department will define the role of REZ the Agriculture Production Department and will also find out the number of vacancies that what become available in the next few years in the Agriculture, Horticulture, Sericulture and Allied Departments. Principal Secretary to Government, Forest Department and Secretary to Government, Rural Development Department will submit data regarding on going projects under Centrally Sponsored Schemes where under staff with technical expertise (Agriculture Graduates, Agriculture Engineers) are required and could be absorbed. SKUAST Kashmir/Jammu will also be approached to furnish the number of vacancies available against which the Agriculture Technocrats could be absorbed in these Universities. iv) The Director Floriculture Kashmir/Jammu will also be requested to furnish the detail of vacancies against available these Agriculture Graduates/Engineers could be absorbed. The Committee, in view of the fact that various Centrally Sponsored Projects under IWDP are being carried out by the technical staff (viz. Agriculture Forest Department and v) 16 SWP no.2133/2018 c/w SWP no.475/2013 graduates/ engineers) are required by them in these projects so it was decided that in the next meeting the Principal Secretary to Government, Forest Department will be requested to send a representative to attend the meeting.‖

Before proceeding further in the matter the principles and propositions of law being ―Doctrine of Legitimate Expectations‖ and ―Doctrine of Equality‖ propounded by the Apex Court as being relevant herein need a brief reference hereunder: - The Hon‘ble Supreme Court in National Buildings Construction Corporation v. S. Raghunathan, 1998 7 SCC 66, held that the doctrine of legitimate expectation has its genesis in the field of administrative law and that the Government and its departments, in administering the affairs of the country, are expected to honour their statements of policy or intention and treat the citizens with full personal consideration without any iota of abuse of discretion. The policy statement cannot be disregarded unfairly or applied selectively. Unfairness in the form of unreasonableness is akin to violation of natural justice. It was in this context that the doctrine of legitimate expectation was evolved which has today become a source of substantive as well as procedural rights.

With regard to relationship between Article 14 and the doctrine of legitimate expectation, a three Judge Bench of the Supreme Court in Food Corporation of India (supra) has held as under: - “7. In contractual sphere as in all other State actions, the State and all its instrumentalities have to conform to Article 14 of the Constitution of which non-arbitrariness is a significant facet. There is no unfettered discretion in public law: A public authority possesses powers only to use them for public good. 17 SWP no.2133/2018 c/w SWP no.475/2013 This impose the duty to act fairly and to adopt a procedure which is ‗fairplay in action‘. Due observance of this obligation as a part of good administration raises a reasonable or legitimate expectation in every citizen to be treated fairly in his interaction with the State and its instrumentalities, with this element forming a necessary component of the decision making process in all State actions. To satisfy this requirement of non- arbitrariness in a State action, it is, therefore, necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision or else that unfairness in the exercise of the power may amount to an abuse or excess of power apart from affecting the bona fides of the decision in a given case. The decision so made would be exposed to challenge on the ground of arbitrariness. Rule of law does not completely eliminate discretion in the exercise of power, as it is unrealistic, but providers for control of its exercise by judicial review. is a relevant

The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a the principle of non- Legitimate expectation forms part of arbitrariness, a necessary concomitant of the rule of law. Every requiring due legitimate expectation consideration a fair decision making process. Whether expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent.‖ factor

In supra-mentioned case of Noida Entrepreneurs Assn., an elaboration discussion on the relationship of Article 14 and doctrine of legitimate expectation was made in the following terms: ―39.State actions are required to be non-arbitrary and justified on the touchstone of Article 14 of the Constitution. Action of the State or its instrumentality must be in conformity with some principle which meets the test of reason and relevance. Functioning of a "democratic form of Government demands equality and absence of arbitrariness and discrimination". The rule of law prohibits arbitrary action and commands the authority concerned to act in accordance with law. Every action of the State or its instrumentalities should neither be suggestive of discrimination, nor even apparently give an impression of bias, favouritism and nepotism. If a decision is taken without any principle or without any rule, it is unpredictable and such a 18 SWP no.2133/2018 c/w SWP no.475/2013 decision is antithesis to the decision taken in accordance with the rule of law. …. 41. The Public Trust Doctrine is a part of the law of the land. The doctrine has grown from Article 21 of the Constitution. In essence, the action/order of the State or State instrumentality would stand vitiated if it lacks bona fides, as it would only be a case of colourable exercise of power. The Rule of Law is the foundation of a democratic society. 34. Power vested by the State in a Public Authority should be viewed as a trust coupled with duty to be exercised in larger public and social interest. Power is to be exercised strictly adhering to the statutory provisions and fact-situation of a case. ―Public Authorities cannot play fast and loose with the powers vested in them‖. A decision taken in arbitrary manner contradicts the principle of legitimate expectation. An Authority is under a legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for which power stood conferred. In this context, ―in good faith" means ―for legitimate reasons‖. It must be exercised bona fide for the purpose and for none other…...‖

A further reference to the judgmenet of the Apex Court on the doctrine of legitimate expectations, passed in the cases titled as ―State of Jharkhand and others v. Brahmputra Metallics Ltd, reported in 2020 SCC Online SC 968”, would also be relevant and germane herein wherein at para 37 following has been observed; “37. While this doctrinal confusion has the unfortunate consequence of making the law unclear, citizens have been the victims. Representations by public authorities need to be held to scrupulous standards, since citizens continue to live their lives based on the trust they repose in the State. In the commercial world also, certainty and consistency are essential to planning the affairs of business. When public authorities fail to adhere to their representations without providing an adequate reason to the citizens for this failure, it violates the trust reposed by citizens in the State. The generation of a business friendly 19 SWP no.2133/2018 c/w SWP no.475/2013 climate for investment and trade is conditioned by the faith which can be reposed in government to fulfil the expectations which it generates.‖

The doctrine of legitimate expectation has also been described in Halsbury’s Laws of England Fourth Edition, Volume I(I) 151in the following words: ―81. Legitimate expectations. — A person may have a legitimate expectation of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment. The expectation may arise either from a representation or promise made by the authority, including an implied representation, or from consistent past practice. The existence of a legitimate expectation may have a number of different consequences; it may give locus standi to seek leave to apply for judicial review; it may mean that the authority ought not to act so as to defeat the expectation without some overriding reason of public policy to justify its doing so; or it may mean that, if the authority proposes to defeat a person‘s legitimate expectation, it must afford him an opportunity to make representations on the matter. The courts also distinguish, for example in licensing cases, between original applications, applications to renew and revocations; a party who has been granted a licence may have a legitimate expectation that it will be renewed unless there is some good reason not to do so, and may therefore be entitled to greater procedural protection than a mere applicant for a grant.‖

What emerges from above is that it may not be incongruous to mention here that legitimate expectation is founded on the concept of fairness and arise out of natural justice as a concept has engaged the attention of the Courts in several decisions. The concept arises out of what may be described as a reasonable expectation of being treated in a certain way by an administrative authority even though the person who has such an expectation has no right in law to receive the benefit expected by him. Any such expectation can arise from an ―express promise‖ or a ―consistent course of practice or procedure‖ which the person claiming the benefit may reasonably expect to continue. The 20 SWP no.2133/2018 c/w SWP no.475/2013 question of redress which the person in whom the legitimate expectation arises can seek and the approach to be adopted while resolving a conflict between any such expectation, on the one hand, and a public policy in general public interest on the other, present distinct dimensions every time the plea of legitimate expectation is raised in a case.

In considering the doctrine of legitimate expectation, it is necessary to begin by examining the court‘s role where what is in issue is a promise as to how it would behave in the future made by a public body when exercising a statutory function. In the past it was exhorted that promise was to be ignored since it could not have any effect on how the public body exercised its judgment in what it thought was the public interest. Today such an argument would have no prospect of success. What is still the subject of some controversy is the court‘s role when a member of the public, because of a promise or other conduct, has a legitimate expectation that he would be treated in one way and the public body wishes to treat him or her in a different way. In such circumstances the member of the public would think as to what should he legitimately expect; and in other words what his legitimate expectation is. In such eventualities, the court may decide that the public authority is only required to bear in mind its previous policy or other representation, giving it the weight, it thinks right before deciding whether to change the course. Nevertheless, on the other hand, the court may decide that the promise or practice induces a legitimate expectation of, for example, being consulted before a 21 SWP no.2133/2018 c/w SWP no.475/2013 particular decision is taken. Besides, where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.

Reverting back to the case/s in hand, it would be apropos to say that the Cabinet Sub-Committee constituted vide Order no.1343-GAD of 2006 dated 27th October 2006, decided deriving of a mechanism engaging all agriculture technocrats including petitioners on the pattern of ReT Scheme. This was followed by registering petitioners as ReZs in each district and therefore, petitioners on representation/promise of respondents changed their position, to be paid monthly stipend of Rs.1500/-. A communication dated 14th October 2009 also came up from the desk of Director, Agriculture, suggesting a mechanism to the Government to regularize and enhance wages of agriculture technocrats including petitioners. Although writ petition, SWP no.1638/2011, preferred by agriculture engineers, disposed of vide order dated 5th August 2011, yet respondents rejected their case vide order dated 23rd November 2012, impugned herein. The decisions taken by the Committee constituted by the Government in terms of Government Order no.504-GAD of 2008 dated 15th April 22 SWP no.2133/2018 c/w SWP no.475/2013 2008, as well generated a reasonable and legitimate expectation to the petitioners for their absorption on the lines of ReZ‘s and ReT‘s. The above referred established practice/s adopted by respondents in absorbing unemployed educated youth of different fields as ReTs and thereafter ReZs, which was a regular, consistent predictable and certain conduct, process or activity of the decision-making authority, an expectation got generated in petitioners, being a reasonable, legal, logical and valid one in tune with the principles referred in the preceding paras.

It would be apropos to notice that the practice followed by respondents when they included similarly situated persons under the umbrella of a policy that generated and induced security and hope of a settled and stable future in the mind of the petitioners and the change effected by the respondents from their assured positions against the case of the petitioners in the process seemingly infringed the doctrine of legitimate expectations inasmuch as Article 14 of the Constitution viz-a-viz the petitioners. Petitioners have had a legitimate expectation of being treated in a certain way by respondents as had been a consistent past practice followed by them while bestowing the similarly situated persons the benefit of various schemes, which included Rehbar-e-Taleem, Rehbar-e-Ziraat, however, in the totality of the circumstances, it is perceivable that the impugned order issued by the respondents is tainted with arbitrariness, discrimnatory in nature, manifestly violative of the Doctrine of Legitimate Expectation and Article 14 of the Constitution. 23 SWP no.2133/2018 c/w SWP no.475/2013

Viewed thus, what has been considered and observed hereinabove, the writ petitions succeed and by issuance of Writ of Certiorari, the Government Order no.323-Agri of 2012 dated 23.11.2012 is quashed and by issuance of Writ of Mandamus, the respondents are directed to accord consideration to the case of petitioners for their engagement as Rehbar-e-Ziraat in terms of Government Order no.20-Agri of 2007 dated 6th February 2007.

Disposed of.

No order as to costs. Srinagar 21.10.2022 Ajaz Ahmad, PS Whether the order is reportable: Yes (Javed Iqbal Wani) Judge 24 SWP no.2133/2018 c/w SWP no.475/2013