# Vijay Shankar Shukla v. State of U.P. and others

- **Citation:** (2011) 1 ILRA 71
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-12-09
- **Case number:** Writ Petition No. 6938 of 2008
- **Bench:** Shabihul Hasnain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-shankar-shukla-v-state-of-u-p-and-others-41782
- **Pages:** 16

## Text

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1 All] Vijay Shankar Shukla V. State of U.P. and others
71
section 302 IPC, if the fatal injury can be
attributed to the accused. Wrongful acquittal
by the Trial Court, even if it stood, it would
not impede the conviction of the appellants
under section 302 read with section 149 IPC
where there is a charge under section 302
with the aid of Section 149 IPC. The
conviction could also be recorded under
Section 302 read with Section 34 IPC in
place of Section 302 read with 149 IPC, if a
finding was reached that the criminal act
was committed by several persons less than
5 in numbers in furtherance of their
common intention.

9.

Considering
the
aforesaid
submissions and without expressing any
opinion on the merits of the case and
looking to the gravity of the matter, even
though the principal appellant Dilip has
undergone 9 years in jail, we are not
inclined to grant bail to the appellants.
Prayer for bail of the accused appellants is
rejected.

10. However, hearing of the appeal is
expedited.

Office is directed to prepare the paper
books preferably within three months and to

list the appeal for hearing thereafter.

We also leave it open for the State or
complainant to file an appeal to challenge
the non conviction of the appellants under
Section 302 read with Section 34 IPC and
their conviction only under Section 302
IPC.

Let a copy of this order be given to the
Sri M.P. Yadav, learned A.G.A. within a
week for necessary action.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: 09.12.2010

BEFORE
THE HON'BLE SHABIHUL HASNAIN, J.

Writ Petition No. 6938 of 2008

Vijay Shankar Shukla

 ...Petitioner
Versus
State of U.P. and others ...Respondent

Constitution
of
India-Art
226Repatriation Petitioners working for last
25
years
with
State
Urban
and
Development
Agency-an
autonomous
body-on equity and humanitarian grand
seeking protection-either their parent
department sick or closed-initially they
were send for 2.5 years-with further
extension
of
another
2.5
years-but
manage to work long spell of times of 25
years-decision takes by SUDA based
upon direction of state govt who is the
only authority to consider in accordance
with G.O. for appointing the surplus
employee-petition dismissed.

Held: Para 45

However, grievance of those petitioners,
whose parent departments are either
sick or are not in existence, is genuine.
This
Court
feels
that
it
is
State
Government, which directed SUDA to
engage the petitioners on deputation,
fixed the maximum period of deputation
as five years and directed not to absorb
any
deputationist
permanently.
The
decision taken by SUDA is mostly on the
direction
of
the
State
Government.
Hence it is a fit case where the State
Government
should
direct
its
departments
to
take
the
affected
petitioners either on deputation or on
contract. In this regard, the State
Government will be well advised to refer
to Govt. Orders No. 20/1/91-Ka-2/2008
dated 22.9.2008, 20/1/91/Ka-2/2008
dated 20.10.2008 and 20/1/91/Ka-22008 dated 9.6.2009. All these Govt.
72 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Orders have been issued by the Principal
Secretary, regarding the appointments of
surplus staff. In these Govt. Orders
directions have been issued to absorb/
appoint the surplus staff in different
departments.
Case law discussed:
2006 (4) SCC-page-1, 2000 (5) SCC-362, 2001
(10) SCC-520, 2006 (4) SCC-page-1, 2007
(14) SCC-498, 1994 (3) SCC 316, (1991) 1
SCC-212, (199 (Supp) 2 SCC-1421).

(Delivered by Hon'ble Shabihul Hasnain, J.)

1. This is a bunch of seventy seven
writ petitions. The binding thread running
through all these writ petitions, is the
subject matter of repatriation of the
petitioners from the borrowing department/
Agency. All the petitioners are at present
working in the State Urban Development
Agency (hereinafter called as 'SUDA').
Orders have been passed by SUDA
directing the petitioners to return to their
parent department. In one form or the
other, all the petitioners have challenged
the orders of their repatriation from
SUDA. Before venturing into the merits of
the case and the claim of the petitioners, it
will be necessary to know what SUDA
actually stands for.

2. It has been informed that SUDA is
an agency/ autonomous body, registered
under the Societies Registration Act, 1960.
It has temporary establishment in the State
till the scheme lasts. SUDA is being run
with the temporary grant, sanction of
which are given on year to year basis from
the Government of U.P. The administrative
expenditure is meted out from the grant by
the
Government
of
India/
State
Government for the schemes related to the
upliftment of the weaker section of urban
areas.
SUDA
has
no
permanent
establishment, it is an autonomous body
and the powers vest in the governing body
of the Society, and dependent upon the
financial
sanction
by
the
State,
Government.
Temporary
staff
on
deputation basis or on contract basis, are
being deputed in SUDA.

3. As has been indicated above, all
the petitioners have challenged their
repatriation from SUDA to their parent
department. Since common question of
law and facts are involved, it will be proper
that all the writ petitions may be decided
by a common order.

4. The petitioners have come to
SUDA
from
various
Departments/
Corporation/ Govt. Companies and other
instrumentalities
of
the
State.
The
petitioners, who are working in SUDA can
be classified in various categories but for
purposes of these petitions, they can be
classified mainly in two groups. The first
category consists of such employees,
whose parent department are still existing
and functioning; the second category
consists of those employees, whose parent
department have either become sick or are
not existing today.

5. Some of the petitioners are on
deputation, while some of them are on
contract basis. The main question for
consideration before this Court is whether
the petitioners have any right under the law
to continue in service of SUDA? On the
other hand, can SUDA, order for en masse
repatriation of all its employees ? Further
question is, whether SUDA is repatriating
those
employees
also
whose
parent
department do not exist any more. Can
SUDA be allowed to pass and execute
such
repatriation
orders,
wherein
repatriation order may take form of
termination
order.
Can
termination/
retrenchment of the employees be allowed
1 All] Vijay Shankar Shukla V. State of U.P. and others
73
to stand in the garb of repatriation. These
are some of the questions, which have been
argued forcefully, strongly, passionately
and compassionately before this Court.
Legal arguments have been advanced, at
the same time, human considerations have
also been directed to visit the conscience of
this Court.

6. In almost all the writ petitions, stay
order has been granted and the petitioners
are working with the opposite party on the
strength of such stay orders.

7. The petitioner in W.P. No. 6938
(SS) 2008, has challenged the order of the
Director, dated 19.9. 2008, which is
contained in annexure no. 1 to the writ
petition. This order is of repatriation of the
petitioner to the parent department i.e. U.P.
Sahkari Chini Mill Limited, on the ground
that he has completed five years of his
deputation
with
the
SUDA.
Simultaneously,
the
petitioners
have
challenged the Government Order dated
November 15, 2003 issued by the Principal
Secretary, Shahari Rozgar Evam Garibi
Unmoolan
Karyakram
Anubhag,
as
contained in Annexure No.3 to this writ
petition, addressed to the Director, SUDA.
The subject matter of this order is
repatriation of the employees in SUDA. By
this order, the earlier government order
dated
1487/69-1-2002,
24/Sa/90,
dt.
29.5.2002
has
been
cancelled
with
immediate effect and it has been directed
that all the employees who are on
deputation and have completed five years
should be repatriated back to their parent
department. In this regard, it becomes
imperative that G.O. dated 29.5.2002 may
also be seen.

8. The G.O. dated 29.5.2002 has been
annexed as Annexure-3, a perusal of
which, shows that it was in the nature of a
query. The process of repatriation which
was being undertaken by SUDA, was
temporarily stopped by this order. It was
also mentioned that this order has been
passed in order to gain time and for
information so that a more informed and
comprehensive decision could be taken
with regard to policy of repatriation.

9. In this context, its cancellation by
subsequent G.O. of November 15, 2003
becomes more relevant. Put in simple
manner, the G.O. dated 29.5.2002 merges
with the G.O. dated November 15, 2003
and looses its significance.

10. The different grounds have been
taken in different writ petitions against
repatriation. More or less, the grounds can
be summarized as below:

1. That the work and conduct of the
petitioner has been above the board and
there has been no complaint about it by the
authorities
of
SUDA.
In
such
circumstances, why the petitioners are
being repatriated to be replaced by fresh
employees ?

2. That the petitioners have gained
experience of the working of SUDA and
since SUDA is not incurring any financial
or loss of prestige, then the repatriation is
not justified.

3. That the work and project are
available
with
the
SUDA
hence
repatriation is not justified.

4. That some of the employees belong
to such units where their parent department
is non-existing today, the repatriation of
whom would mean, the loss of job. The
74 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
repatriation will become a measure of
punishment.

5. That the State Government does
not have any right to issue the G.O. giving
directions to SUDA to repatriate the
petitioners because the SUDA is an
autonomous body and the powers vest in
the governing body of the SUDA.

6. That in all cases when the
petitioners approached the High Court stay
was granted meaning thereby that the
petitioners were able to prove a primafacie satisfaction of the Court in their
favour.

11. Counter affidavit has been filed
on behalf of SUDA in all the writ petitions
while the same has been filed by the State
only in two writ petitions viz W.P.
No.6938(SS) 2008 and W.P. No.3224 (SS)
2004.

Sri Vivek Raj Singh has raised
objections to the effect that the writ
petition, itself is not maintainable. The
petitioners were given appointment in
SUDA, on the basis of order, which was in
the form of agreement and the deputation
was made in terms of the contract. Since
repatriation is being made; in terms of the
contract, hence no writ petition will lie. It
has been argued that when a person has got
substantive right in his favour, and the said
right is being legally fixed, only then a writ
petition would be maintainable. At the
very out set, the para- 45 of the judgment
of Hon'ble Supreme Court in Secretary
State of Karnataka and others vs. Uma
Devi (3) and others reported in 2006(4)
SCC- page- 1, was placed before this
Court. Same is being quoted below:-

"When the Court is approached for
relief by way of a writ, the Court has
necessarily to ask, itself, whether the
person before it had any legal right to be
enforced."

12. It has been further submitted that
initially every incumbent before joining
SUDA is required to enter into an
agreement
in
which the
period
of
continuance in SUDA is for two and a half
years. This may be extended for another
period of two and half years. As such after
completion of the aforesaid period of five
years, incumbent is repatriated to his
parent department, which has been done in
the cases before the Court.

13. The judgment of Kunal Nanda
vs. Union of India and another, reported
in 2000(5)SCC- 362, has been placed by
Mr. Vivek Raj Singh, counsel for the
opposite parties. In para-6, their Lordships
have held;

"On the legal submissions also made
there are no merits whatsoever. It is well
settled that unless the claim of the
deputationist for a permanent absorption in
the department where he works on
deputation is based upon any statutory rule,
regulation or order having the force of law,
a deputationist cannot assert and succeed
in any such claim for absorption. The basic
principle underlying deputation itself is
that the person concerned, can always and
at any time be repatriated to his parent
department to serve in his substantive
position."

14. In another case of Union of India
vs. S.N. Palekar 2001 (10) SCC- 520, it
has been held in para- 2 that no direction
could have been given by the Central
Administrative Tribunal to the Union of
1 All] Vijay Shankar Shukla V. State of U.P. and others
75
India to absorb the respondent with effect
from the date on the post of Deputy
Director, who was on deputation; meaning
thereby that the deputationist cannot claim
either a right to or can he claim absorption
on permanent basis to the post in question.

15. The most deadly weapon used by
Sri Vivek Raj Singh against the petitioner
comes from the armory of the judgment in
case of Secretary State of Karnataka vs.
Uma Devi (III) and others reported in
2006(4) SCC- page-1, commonly known
as Uma Devi's case. It is interesting to note
that this judgment was not only used for
attacking the contention of the petitioner
but came as a shield against some of the
passionate argument raised by the learned
counsel for the petitioner. In para- 12 and
13, Hon'ble Supreme Court has tried to put
a word of caution for its subordinate courts
in the following manner.

"............Once
this
right
of
the
Government is recognized and the mandate
of the constitutional requirement for public
employment is respected, there cannot be
much
difficulty
in
coming
to
the
conclusion that it is ordinarily not proper
for courts whether acting under Article 226
of the Constitution or under Article 32 of
the Constitution, to direct absorption in
permanent employment of those who have
been engaged without following a due
process of selection as envisaged by the
constitutional scheme."

".........It cannot also be forgotten that
it is not the role of courts to ignore,
encourage or approve appointments made
or
engagements
given
outside
the
constitutional scheme. In effect, orders
based on such sentiments or approach
would result in perpetuating illegalities and
in the jettisoning of the scheme of public
employment adopted by us while adopting
the Constitution. The approving of such
acts also results in depriving many of their
opportunity
to
compete
for
public
employment. We have, therefore, to
consider the question objectively and
based on the constitutional and statutory
provisions. In this context, we have also to
bear in mind the exposition of law by a
Constitution Bench in State of Punjab v.
Jagdip Singh and Ors. (SCR pp. 971-72).
It was held therein,

"In our opinion, where a Government
servant has no right to a post or to a
particular status, though an authority under
the
Government
acting
beyond
its
competence had purported to give that
person a status which it was not entitled to
give, he will not in law be deemed to have
been validly appointed to the post or given
the particular status."

16. Again in para- 35, Hon'ble
Supreme
Court
has
warned
against
misplaced sympathy of the Court to the
petitioner and has observed, which is
quoted below :-

Incidentally, the Bench also referred
to the nature of the orders to be passed in
exercise of this Court's jurisdiction under
Article 142 of the Constitution. This Court
stated that jurisdiction under Article 142 of
the Constitution could not be exercised on
misplaced sympathy. This Court quoted
with approval the observations of Farewell,
L.J. in Latham v. Richard Johnson &
Nephew Ltd. 1913 (1) KB 398"

"We must be very careful not to allow
our sympathy with the infant plaintiff to
affect our judgment. Sentiment is a
dangerous will o' the wisp to take as a
guide in the search for legal principles."
76 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

Further in para- 43, it has been stated
below :-

"..............If
it
is
a
contractual
appointment, the appointment comes to an
end at the end of the contract, if it were an
engagement or appointment on daily
wages or casual basis, the same would
come to an end when it is discontinued".

"..............The High Courts acting
under Article 226 of the Constitution of
India, should not ordinarily issue directions
for
absorption,
regularization,
or
permanent
continuance
unless
the
recruitment itself was made regularly and
in terms of the constitutional scheme.
Merely
because,
an
employee
had
continued under cover of an order of
Court, which we have described as
"litigious employment" in the earlier part
of the judgment, he would not be entitled
to any right to be absorbed or made
permanent in the service. In fact, in such
cases, the High Court may not be justified
in issuing interim directions, since, after
all, if ultimately the employee approaching
it is found entitled to relief, it may be
possible for it to mould the relief in such a
manner that ultimately no prejudice will be
caused to him, whereas an interim
direction to continue his employment
would hold up the regular procedure for
selection or impose on the State the burden
of paying an employee who is really not
required. The courts must be careful in
ensuring that they do not interfere unduly
with the economic arrangement of its
affairs by the State or its instrumentalities
or lend themselves the instruments to
facilitate
the
bypassing
of
the
constitutional and statutory mandates."

In para- 45, it has been held as under:-

"It is not as if the person who accepts
an engagement either temporary or casual
in nature, is not aware of the nature of his
employment. He accepts the employment
with eyes open. It may be true that he is
not in a position to bargain -- not at arms
length -- since he might have been
searching for some employment so as to
eke out his livelihood and accepts
whatever he gets. But on that ground
alone, it would not be appropriate to
jettison the constitutional scheme of
appointment and to take the view that a
person who has temporarily or casually got
employed should be directed to be
continued permanently. By doing so, it will
be creating another mode of public
appointment which is not permissible. If
the court were to void a contractual
employment of this nature on the ground
that the parties were not having equal
bargaining power, that too would not
enable the court to grant any relief to that
employee......................."

"It is in that context that one has to
proceed on the basis that the employment
was accepted fully knowing the nature of it
and the consequences flowing from it.
.............."

17. In para- 47, the theory of
legitimate expectation has also been
considered by their Lordships and has been
formulated, which is quoted below.

"When a person enters a temporary
employment or gets engagement as a
contractual or casual worker and the
engagement is not based on a proper
selection as recognized by the relevant
rules or procedure, he is aware of the
consequences of the appointment being
temporary, casual or contractual in nature.
Such a person cannot invoke the theory of
1 All] Vijay Shankar Shukla V. State of U.P. and others
77
legitimate expectation for being confirmed
in the post when an appointment to the
post could be made only by following a
proper procedure for selection and in
concerned cases, in consultation with the
Public Service Commission. Therefore, the
theory of legitimate expectation cannot be
successfully
advanced
by
temporary,
contractual or casual employees. It cannot
also be held that the State has held out any
promise while engaging these persons
either to continue them where they are or
to make them permanent. The State cannot
constitutionally make such a promise. It is
also obvious that the theory cannot be
invoked to seek a positive relief of being
made permanent in the post."

18. One of the latest judgment of
Managing Director, U.P. Rajkiya Nirman
Nigam vs. P.K. Bhatnagar and others
2007(14) SCC- 498, has been placed. In
para- 11, while dismissing claim of the
petitioner to be regularized, the Court has
held that if the State Government desires to
take any other stand at this stage, that
would have to be decided in the
proceedings other than these. For the
purposes of this case we have no hesitation
in holding that Respondent 1 was the State
Government's employee and was sent on
deputation to the appellant. Now that the
repatriation order has been passed by the
State Government, Respondent 1 cannot
claim to be in service with the appellant.

19. In addition to all these Supreme
Court's judgment, reliance has also been
placed on the decision of this Court in
W.P. No. 1419(SB) 2006, of a bench,
headed by the then Chief Justice H.L.
Gokhale. The writ petition was filed by the
present counsel for the petitioners against
repatriation. The petition was dismissed as
withdrawn.

20. Mr.Vivek Raj Singh, used this
judgment to argue that the Division Bench
was not convinced by the arguments of the
petitioner. At the same time, learned
counsel for the petitioner Mr. Mohd.
Mansoor has also referred to a Division
Bench decision of this Court passed in
W.P. No. 97(SB) 2009, wherein the
aforesaid judgment in 1419(SB)2006 has
been mentioned and interim order has been
passed. This order was passed on 23.1.
2009 and has been annexed with the
Supplementary Affidavit filed by the
petitioner as S.A.-4.

21. One more argument raised by
opposite parties is to the effect that SUDA
is not a permanent body, the life span and
the post created under the scheme of this,
spans only for year to year. The
government orders are issued on year to
year basis for extension/continuity of the
post. In this regard, he has brought on
record, the G.O., dated 12.4.2006 by virtue
of which the continuance of total 858
temporary
posts
was
extended
till
28.2.2007. Similarly, vide G.O. dated
29.3.2007 it was extended till 29.2.2008.
Again government order was issued on
11.4.2008 and extension was granted till
28.2.2009. The Government Orders were
issued on 22.3.2009 extending the term till
28.2.2010 and finally the G.O. dated
26.2.2010 extending the term till 28.2.2011
were issued. One more common, refrain
factors in all these common orders is that
all these Government Orders have been
passed in terms of the conditions laid down
in G.O. No.1019/69-1-03-75 (sa)/97, dt.
02.05.2003.

22. Learned counsel for the opposite
parties
has,
painstakingly,
tried
to
demonstrate that the department itself is
not permanent, hence the services of the
78 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
petitioners can neither be made permanent
nor it can be absorbed. The employees of
SUDA have to necessarily work on
temporary
post
or
on
contractual
appointments. Long continuation in SUDA
beyond the period of deputation raises
problems for the administrator of the
agency. The employees belong to their
parent department, yet they are working
within the administrative control of SUDA
and for any disciplinary action against the
employees, the SUDA has to depend on
the wisdom and efficiency of the parent
department. The disciplinary authority
remains with the parent department and the
liability with the SUDA. It is because of
this reason that SUDA wants to repatriate
the petitioners. He emphasies that even if
SUDA wants to absorb services of its
employees, it is not within the capacity and
control of SUDA because of its annual
renewal. When the department itself is
dependent on the sanction and grant of the
Central/State Government then it can not
create any permanent liability in the form
of absorption of the petitioners.

23. Sri Prashant Chandra, Senior
Advocate assisted by Sri Anurag Verma
for some petition and Sri Mohd. Mansoor
for rest of the petition have argued that the
action of the opposite parties in passing the
order of repatriation is arbitrary, he would
argue
that
there
is
no
apparent
decipherable reason for which repatriation
is being made. He says that the work and
conduct of the petitioners has been
satisfactory. The agency is not running in
loss. It is in fact, getting more and more
projects. It is likely to last for another 25
years.
In
such
circumstances,
the
experienced hands should not be sent out
of the department. Any such action can
only be termed as arbitrary, unreasonable
and whimsical. In this regard, he has relied
upon the judgment of A.L.Kalra Vs.
Projecdt and Equiipment Corporation of
India, 1994 (3) SCC 316. While referring
to para 19 he says that every arbitrary
executive action effecting the public
employment is violative of Article 14 and
16 of the Constitution whether under taken
by
the
State
itself
or
by
the
instrumentalities.

"The scope and ambit of Article 14
have been the subject matter of a catena of
decisions. One facet of Article 14 which
has been noticed in E.P. Royappa v. State
of Tamilnadu deserves special mention
because that effectively answers the
contention of Mr. Sinha. The Constitution
Bench speaking through Bhagwati, J. in a
concurring judgment in Royappa's case
observed as under:

The basic principle which, therefore,
informs both Articles 14 and 16 is equality
and inhibition against discrimination. Now
what is the content and reach of this great
equalising principle ? It is a founding faith,
to
use
the
words
of
pedantic
or
lexicographic
approach.
We
cannot
countenance any attempt to truncate its allembracing scope and meaning, for to do so
would be to violate its activist magnitude.
Equality is a dynamic concept with many
aspects and dimensions and it cannot be
"cribbed, cabined and confined" within
traditional and doctrinaire limits. From a
positivistic point of view equality is
antithetic to arbitrariness. In fact equality
and arbitrariness are sworn enemies ; one
belongs to the rule of law in a republic
while the other, to the whim and caprice of
an absolute monarch. Where an act is
arbitrary it is implicit in it that it is unequal
both according to political logic and
constitutional law and is therefore violative
of Article 14, and if it affects any matter
1 All] Vijay Shankar Shukla V. State of U.P. and others
79
relating to public employment, it is also
violative of Article 16. Articles 14 and 16
strike at arbitrariness in State action and
ensure fairness and equality of treatment.

This view was approved by the
Constitution Bench in Ajay Hasia case It
thus appears well settled that Article 14
strikes
at
arbitrariness
in
executive/administrative action because
any action that is arbitrary must necessarily
involve the negation of equality. One need
not confine the denial of equality to a
comparative
evaluation
between
two
persons to arrive at a conclusion of
discriminatory treatment. An action per se
arbitrary itself denies equal of protection
by law. The Constitution Bench pertinently
observed in Ajay Hasia's case and put the
nuttier beyond controversy when it said
'wherever therefore, there is arbitrariness in
State action whether it be of the legislature
or of the executive or of an "authority"
under Article 12, Article 14 immediately
springs into action and strikes down such
State action. This view was further
elaborated and affirmed in D.S. Nakara v.
Union of India. In Maneka Gandhi v.
Union of India it was observed that Article
14 strikes at arbitrariness in State action
and ensure fairness and equality of
treatment. It is thus too late in the day to
contend that an executive action shown to
be arbitrary is not either judicially
reviewable or within the reach of Article
14. The contention as formulated by Mr.
Sinha must accordingly be negatived.

23. It must be conceded in fairness to
Mr. Sinha that he is right in submitting that
even if the respondent-Corporation is an
instrumentality
of
the
State
as
comprehended in Article 12, yet the
employees of the Corporation are not
governed by Part XIV of the Constitution.
Could it however be said that a protection
conferred by Part III on public servant is
comparatively less effective than the one
conferred by Part XIV ? This aspect was
examined by this Court in Managing
Director,
Uttar
Pradesh
Warehousing
Corporation and Anr. v. Vinay Narayan
Vajpayee where O. Chinnappa Reddy, J. in
a concurring judgment has spoken so
eloquently about it that it deserves
quotation:

I find it very hard indeed to discover
any distinction, on principle, between a
person directly under the employment of
the Government and a person under the
employment
of
an
agency
or
instrumentality of the Government or a
Corporation, set up under a statute or
incorporated but wholly owned by the
Government. It is self evident and trite to
say that the function of the State has long
since ceased to be confined to the
preservation of the public peace, the
exaction of taxes arid the defence of its
frontiers. It now the function of the State to
secure 'social, economic and political
justice', to preserve 'liberty of thought,
expression, belief, faith and worship', and
to ensure 'equality of status and of
opportunity'. That is the proclamation of
the people in the preamble to the
Constitution. The desire to attain these
objectives has necessarily resulted in
intense Governmental activity in manifold
ways. Legislative and executivity have
reached very far and have touched very
many aspects of a citizen's life. The
Government, directly or through the
Corporations, set up by it or owned by it,
now owns or manages, a large number of
industries and institutions. It is the biggest
builder in the country. Mammoth and
minor irrigation projects, heavy and light
engineering projects, projects of various
80 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
kinds are undertaken by the Government.
The Government is also the biggest trader
in the country. The State and the
multitudinous agencies and Corporations
set up by it are the principal purchasers of
the produce and the products of our
country and they control a vast and
complex machinery of distribution. The
Government,
its
agencies
and
instrumentalities, Corporations, set up by
the
Government
under
statutes
and
Corporations
incorporated
under
the
Companies Act but owned by the
Government have thus become the biggest
employers in the country. There is no good
reason why, if Government is bound to
observe the equality clauses of the
Constitution in the matter of employment
and in its dealings with the employees, the
Corporations set up or owned by the
Government should not be equally bound
and why, instead, such Corporations could
become citadels of patronage and arbitrary
action. In a country like ours which teems
with population, where the State, its
agencies, its instrumentalities and its
Corporations are the biggest employers
and where millions seek employment and
security, to confirm the applicability of the
equality clauses of the constitution, in
relation to matters of employment, strictly
to
direct
employment
under
the
Government is perhaps to mock at the
Constitution and the people. Some element
of public employment is all that is
necessary to take the employee beyond the
reach of the rule which denies him access
to a Court to enforce a contract of
employment and denies him the protection
of Articles 14 and 16 of the Constitution.
After all employment in the public sector
has grown to vast dimensions and
employees in the public sector often
discharge as onerous duties as civil
servants and participate in activities vital to
our
country's
economy.
In
growing
realization
of
the
importance
of
employment
in
the
public
sector,
Parliament and the Legislatures of the
States have declared persons in the service
of
local
authorities,
Government
companies and statutory corporations as
public servants and extended to them by
express enactment the protection usually
extended to civil servants from suits and
prosecution. It is, therefore, but right that
the independence and integrity of those
employed in the public sector should be
secured as much as the independence and
integrity of civil servants.

There fore the distinction sought to be
drawn between protection of part XIV of
the Constitution and Part III has no
significance.

24. The main emphasis as is received
from the aforesaid observations of their
Lordship is on fair deal by the State
towards its employees in a welfare State.
The petitioners had tried to engage this
course in testing the validity of repatriation
order on the preamble of Article 14 of the
Constitution of India, they would argue
that action of the instrumentalities of the
State in this particular case is arbitrary to
the extent that it has no nexus, with any
lofty objective to be achieved by the
Agency. The SUDA has measurably failed
to give out any reasonable explanation for
its order of repatriation.

25. Further citing the case of Kumari
Shrilekha Vidyarthi and others vs. State
of U.P. and others (1991) 1 SCC- 212,
attempt has been made by the petitioners to
establish that the action of the SUDA was
amenable to judicial review by this Court.
1 All] Vijay Shankar Shukla V. State of U.P. and others
81

26. In para- 24 and 25, their
Lordships have deprecated the role of the
State action, itself in split personality of
Dr. Jakan and Mr. Hide in the contractual
field,
elaborating
their
views,
their
Lordship has held in para 24 and 25, as
follows :-

24. The State cannot be attributed the
split personality of Dr. Jekyll and Mr.
Hyde in the contractual field so as to
impress on it all the characteristics of the
State at the threshold while making a
contract requiring it to fulfil the obligation
of Article 14 of the Constitution and
thereafter permitting it to cast off its garb
of State to adorn the new robe of a private
body during the subsistence of the contract
enabling it to act arbitrarily subject only to
the contractual obligations and remedies
flowing from it. It is really the nature of its
personality as State which is significant
and must characterize all its actions, in
whatever field, and not the nature of
function, contractual or otherwise, which is
decisive of the nature of scrutiny permitted
for examining the validity of its act. The
requirement of Article 14 being the duty to
act fairly, justly and reasonably, there is
nothing which militates against the concept
of requiring the State always to so act,
even in contractual matters. There is a
basic difference between the acts of the
State which must invariably be in public
interest and those of a private individual,
engaged
in
similar
activities,
being
primarily for personal gain, which may or
may not promote public interest. Viewed
in this manner, in which we find no
conceptual difficulty or anachronism, we
find no reason why the requirement of
Article 14 should not extend even in the
sphere of contractual matters for regulating
the conduct of the State activity.

25. In Wade's Administrative Law,
6th Ed., after indicating that 'the powers of
public authorities are essentially different
from those of private persons', it has been
succinctly stated at pp. 400-401 as under:

...The whole conception of unfettered
discretion is inappropriate to a public
authority, which possesses powers solely
in order that it may use them for the public
good.

There is nothing paradoxical in the
imposition of such legal limits. It would
indeed be paradoxical if they were not
imposed. Nor is this principle an oddity of
British or American law : it is equally
prominent in French law. Nor is it a special
restriction
which
fetters
only
local
authorities : it applies no less to ministers
of the Crown. Nor is it confined to the
sphere of administration : it operates
wherever discretion is given for some
public purpose, for example, where a judge
has a discretion to order jury trial. It is only
where powers are given for the personal
benefit of the person empowered that the
discretion is absolute. Plainly this can have
no application in public law.

For the same reasons there should in
principle be no such thing as unreviewable
administrative discretion, which should be
just as much a contradiction in terms as
unfettered discretion. The question which
has to be asked is what is the scope of
judicial review, and in a few special cases
the scope for the review of discretionary
decisions may be minimal. It remains
axiomatic that all discretion is capable of
abuse, and that legal limits to every power
are to be found somewhere.

(Emphasis supplied)
82 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

The view, we are taking, is, therefore,
in consonance with the current thought in
this field. We have no doubt that the scope
of judicial review may vary with reference
to the type of matter involved, but the fact
that the action is reviewable, irrespective
of the sphere in which it is exercised,
cannot be doubted.

27. The petitioners have also touched
the human factors involved in these writ
petitions. It has been passionately argued
by the petitioner that they are a bunch of
unfortunate employees, who were earlier
abandoned by their parent department,
when they became sick or were closed
down. After undergoing the vagaries of
retrenchment/ termination and the security
of the job, the petitioners were given
protection and shelter in SUDA. The State
Government had tried to rehabilitate the
petitioners in this agency and they were
given to understand that their services will
be absorbed or regularized here. The Court
should consider their cases with human
angle. In this regard, they have also
referred to the case of H.C. Puttaswamy
and others vs. The Hon'ble Chief Justice
of Karnataka High Court, Bangalore and
others (1991 (Supp) 2 SCC- 1421),
referring to para- 12 and part of para- 13 is
being quoted below :-

"12. Having reached the conclusion
about the invalidity of the impugned
appointments made by the Chief Justice,
we cannot, however, refuse to recognise
the consequence that involves on uprooting
the appellants. Mr. Gopala Subramanayam,
counsel
for
the
appellants
while
highlighting the human problems involved
in the case pleaded for sympathetic
approach and made an impassioned appeal
for allowing the appellants to continue in
their respective posts. He has also referred
to us several decisions of this Court where
equitable directions were issued in the
interests of justice even though the
selection and appointments of candidates
were held to be illegal and unsupportable.

"13...............One could only imagine
their untold miseries and of their family if
they are left at the midstream. Indeed, it
would be an act of cruelty at this stage to
ask them to appear for written test and viva
voce to be conducted by the Public Service
Commission for fresh selection (See: Lila
Dhar v. State of Rajasthan)

28. Sri Vivek Raj Singh, learned
counsel for the opposite party has taken a
strong defence that the equity cannot
prevail
over
specific
law.
He
has
maintained that the petitioners do not have
any right and he even put question on the
maintainability of the writ petitions.

29. It has been argued on behalf of
the petitioners that even the Chief Minister
at one point of time, had made a statement
at the floor of the House that the case of
the petitioner shall be considered for
absorption.

30. Two short counter- affidavits
have been filed on behalf of two Principal
Secretaries, namely Principal Secretary,
Nagriya Rojgar Evam Garibi Unmulan
Karyakram
Vibhag,
Govt.
of
U.P.-
opposite party no. 1 and Principal
Secretary, Nagar Vikas, Govt. of U.P.
opposite party no. 2.