HIGH COURTO UTTARANCHALAT NAINITAL v. Senior Superindents of police (

The Apex Court in the case Shrilekha Vidyarthi vs. State of U.P. AIR 1991 SC 537 has held as under: “It is now too well settled that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Art. 14 of the Constitution and basic to the rule of law, the system which governs us. Arbitrariness is the very negation of the rule of law. Satisfaction of this basic test is every state action is sine qua non to its validity and in this respect, the State cannot claim comparison with a private individual even in the field of contract. This distinction between the State and a private individual in the field of contract has to be borne in the mind. ……………….. …………………………………………… Every Stage action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law Contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that ‘be you ever so high, the laws are above you,’ This what men in power must remember, always. Almost a quarter century back, this Court in S.G. Jaisinghani vs. Union of India (1967) 2 SCR 703, at pp. 718-19 : (AIR 1967 SC 1427 at p. 1434), indicated the test of arbitrariness and the pitfalls to be avoided in all State actions to prevent that vice, in a passage as under: “In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion when conferred upon executive authorities must be confined within clearly defind limits. The rule of law from this point of view means that decision should le made by the application of known principles and rules and in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law (see Dicey “ Law of the constitution” Tenth Edn. Introduction ex). “Law has reached its finest moments” stated Douglas. J. in United States v. Wunderlick (1951-342 US 98: 96 Law Ed 113), “When it has reed man the unlimited discretion of some ruler….. where discretion is absolute, man has always suffered:. It is in this sense that the rule o law may be said to be the sworn enemy of caprice, Discretion, as Lord Mansfield stated it in classic terms in the case of John Wikes (1770-98 ER 327) “means sound Discretion guided by law. It must be governed by rule. not humour: it must not be arbitrary, vague and fanciful.” The petitioner has stated that other employees junior to her are working in the establishment and the post is still lying vacant, she is therefore. Entitled to continue on her post. It has been held by a Division Bench of Allahabad High Court consisting of Hon’ble Mr. Justice M. Katju and Hon’ble Mr. Justice U.K. Dhaon that a temporary employee is also entitled for all benefits. It has been observed as under: “The traditional concept has been that a temporary employee has no right to the post vide State of U.P. v. Kaushal Kishore 1991 (62) FLR 350 (SC) and Triveni Shanker Saxena vs. State etc. 1992 (64) FLR 330 (SC). However, in our opinion, this traditional concept has now to stand modified in the light of the new interpretation of Article 14 to the Constitution given by the Supreme Court in the Seven Judge Constitution Bench decision in Meneka Gandhi v. Union of India AIR 1978 SC597. It has been held in that decision that Article 14 is not only directed against discrimination but also against arbitrariness. Hence, in our opinion, the traditional concept that a temporary employee has no right to the post has now stands modified in view of the new interpretation of Article 14 in Maneka Gandhi’s case and it can no longer be treated as an absolute concept.” The alleged preliminary inquiry held by the Circle Inspector, Police Line against the petitioner was ex parte and no notice of such inquiry was ever served upon the petitioner nor he was afforded any opportunity to be heard. The punishing authority has made the alleged enquiry as basis of his conclusion which is not proper. In view of the aforesaid observation, a writ of certiorari is issued quashing the order dated April 17, 2004, passed by the respondent. The respondents are directed to reinstate the petitioner, However, liberty is given to the respondent to proceed a fresh if he intents to do so in accordance with law after affording opportunity to the petitioner for hearing. Accordingly, the writ petition is allowed. No order as to costs. Dated: 13.7.2005 Rajesh Tandon J.