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PETITIONER:

STATE OF U.P. & ANOTHER

Vs.

RESPONDENT:

GIRISH BIHARI

DATE OF JUDGMENT: 14/02/1997

BENCH:

SUJATA V. MANOHAR, K. VENKATASWAMI

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

Ahmadi, CJI

Leave granted.

The respondent Dr. Girish Bihari, a member of the

Indian Police Service, was to reach the age of

superannuation on 5th March, 1996 and therefore was to

retire from service with effect from the afternoon of

31.3.1996 i.e. on the last date of the month in which he

reached that age. On 20th March, 1996, the Governor, State

of Uttar Pradesh by an order under Rule 16 of All India

Services (Death-cum-Retirment benefits) Rules, 1958

(hereinafter referred to as "the Rules") passed an order for

extension of the service of Dr. Girish Bihari for 6 months

from the date of his retirement i.e. 31.3.1996. On 23rd

March, 1996, the Governor in exercise of powers under

Section 21 of the General Clauses Act issued the impugned

order cancelling the earlier order dated 20th March, 1996

granting extension to the appellant.

The surrounding circumstances of the case are as under

:-

On 18th October, 1995, under a proclamation issued

under Article 356 of the Constitution by the President, the

President assumed to himself all function of the Government

as well as the powers vested in or exercisable by the

Governor. Having assumed powers under Article 356, the

President by a further notification authorised the Governor

to exercise all powers by himself on his behalf. On 19th

March, 1996, the Election Commission announced elections to

the State Legislature and issued instruction known as 'Model

Guidelines for the Government'. On 20th March, 1996, the

Election Commission sent out messages to the Chief

Secretaries about announcement of general elections to the

House of People and Legislative Assemblies inter alia

mentioning therein that the standing instructions of the

Commission including ban on transfers, etc., have come into

force. The Chief Electoral Officer was of the view that the

order retaining the respondent beyond the date of

superannuation required the prior consent of the Election

Commission. The Election Commission directed that the order

dated 20th March, 1996, granting extension to the respondent

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be revoked as it was violative of the Model Code of Conduct

issued by the Commission. The Governor sought advice from

the Advocate General and thereafter by the impugned order

cancelled the order dated 20 the March, 1996. The respondent

challenged the impugned order before the Central

Administrative Tribunal inter alia on the grounds that the

governor instead to acting on his fair judgment acted under

pre-emptory direction of the Election Commission and

therefore the impugned order was bad; that the order dated

20th March, 1996 had created a right to continue for a

period of 6 months and therefore the impugned order passed

without an opportunity to the appellant of being heard was

vitiated on account of violation of the principles of

natural justice. The petition was defended by the appellant

State of Uttar Pradesh on the ground that there was no

infirmity in the order as the Governor had used his own

judgment and discretion in a fair manner after obtaining

constitutional advice under Article 156(2) of the

Constitution of India and that the impugned order was to be

operative with effect from 1.4.1996 and therefore till then

the order had not created any vested right of any kind of

the respondent.

The Tribunal returned findings on all the substantial

questions in favour of the appellant and against the

respondent. The Tribunal held that the letter dated 20th

March, 1996 granting extension to the respondent did not

create any vested right nor was the protection under Article

311(2) of the Constitution of India available in the

circumstances of the case as the order of cancellation of

extension was not passed by way of any disciplinary action.

The Tribunal further held that the advice and direction of

the Election Commission were not without jurisdiction, nor

was the order of cancellation of extension based on

extraneous considerations. The tribunal held that the

impugned order dated 23rd March, 1996 was not arbitrary or

violative of Articles 14 and 16 of the Constitution. The

Tribunal, however, observed that the principles of natural

justice had not been observed before passing the order

inasmuch as the respondent was not given a hearing before

withdrawing the order of extension. The Tribunal observed

that the principles of natural justice implied: (i) the

principles of audi alteram partem; and (ii) justice should

not only be done but must also manifestly appear to be done.

The Tribunal said:

"It is well settled that an

administrative decision which

results in adverse civil

consequences, must follow the

principles of natural justice. In

the present case while it is true

that any vested right did not

accrue to the applicant, before

1.4.1996, it cannot be denied that

the benefit which accrue to him by

the order of extension dated

20.3.96 was withdrawn rather

abruptly within a period of three

days on 23.3.96 without giving him

a show cause or an opportunity for

hearing. We therefore, are of the

considered view that there has been

violation of principles of natural

justice in the present case".

The Tribunal referred to a few judgments on the aspect

of the application of the application of the principles of

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natural justice in the context of administrative law. The

State of Maharashtra and another V. Lok Shikshan Sansatha

and other, (1971) 2 SCC 410 was cited by the State. The two

decisions which are referred to by the Tribunal in support

of its decision are Shrawan Kumar Jha v. State of Bihar,

(1991) Sup.(1) SCC 310, and Scheduled Caste and Weaker

Section Welfare Association v. State of Karnataka, (1991) 2

SCC 604. In Shrawn Kumar's Case, 175 candidates were

appointed as Assistant Teachers but before they could join

the Deputy Development Commissioner Cancelled the orders of

appointment on the ground that the District Superintendent

of Education, Dhanbad, who issued the orders of appointment,

had no authority to make the appointments. A Division Bench

of this Court Comprising kuldip Singh and K. Ramaswamy, JJ.

observed that the candidates should have been given an

opportunity of hearing before their appointments were

cancelled. The Court accordingly directed the solicitor

General to ask the Secretary (Education), Government of

bihar to grant an opportunity of hearing to the Candidates

and to give a finding as to whether they were validly

appointed as Assistant Teachers. The Court also ordered

that if anyone had actually worked as a Teacher, he or she

would be entitled to the salary for that period. it is

interesting to note that this Court while directing that a

hearing be given to those appointed as Assistant Teachers

did not grant any relief in terms of actual appointment in

pursuance to the appointment letters. Nor did the Court

order for any pecuniary benefits being given to those

appellants pursuant to the appointment letters. Salary,

etc., were ordered to be paid only in case anyone of those

candidates had actually joined and worked. The Tribunal,

however, has gone much further by holding that the

respondent would be deemed to have continued in service

after retirement in pursuance to the extension order.

In Scheduled Caste and Weaker Section Welfare

Association's case (supra), the State of Karnataka had

issued a notification in respect of certain area as the slum

area, under Section 3 of the Karnataka Slum (Improvement &

Clearance) Act and subsequently after hearing objections

declared the entire area the slum clearance area under

Section 11 of the same Act but later after about three years

cancelled the earlier notification and redeclared only a

much smaller area as slum area. The residents of the area

not covered by the last notification o slum area contended

that they had been deprived of the benefits of the Act in

violation of the principles of natural justice and Article

14 of the Constitution. One of the points which came up for

consideration in the case was of the principles of natural

justice. The notifications under Section 3 and Section 11 of

the Karnataka Slum (Clearance & Improvement) Act which

provided for declaration of areas as slum areas and as slum

clearance areas respectively, affected the rights of the

inhabitants of that area. This Court held that when any

alteration was sough to be made in the original scheme, it

became incumbent upon the authorities to give an opportunity

to the persons who had been affected by the earlier order

and were required to adopt a certain course of action. This

case is clearly distinguishable on facts. The Tribunal

itself has held that the order of extension of service did

not create any right and had been cancelled before the date

the order came into operation. Consequently, the respondent

was not affected either by the order of extension or by the

order cancelling the extension. In contrast, in Scheduled

Casts & Weaker Section Welfare Association's case (supra),

the Court held that the rights of the inhabitants of the

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concerned areas were affected by declaration under Section 3

and 11 as well as by any change in the declared policy.

In the face of the Tribunal's own findings that till

the order of extension of service could become operative, no

right under order had vested in the incumbent, it is

difficult to agree that there still was a necessity to grant

him hearing before the extension order was cancelled. The

respondent did not ask for an extension. It was a unilateral

action on the part of the State/appellant. The respondent

may or may not have accepted the offer. Till the order came

into force, as correctly observed by the Tribunal, no vested

right could have arisen. If the order of extension did not

create any right, the cancellation order could not have

withdrawn any such right. Hence, the question of right to

hearing did not arise and we see no violation of rules of

natural justice.

Before this court, the principle of estoppel was

pleaded on behalf of the respondent. Again there is no basis

on which any such plea can be taken. There is no statutory

estoppel in favour of the respondent. The respondent does

not say that he altered his position in any way on account

of the extension order dated 20th March, 1996 and hence the

subsequent order of 23.3.1996 could not have prejudiced him

in any way. We do not see how the principle of estoppel can

be attracted to this case.

On the above premises, the judgment of the Tribunal has

to be set aside and the order dated 23rd March, 1996 must be

upheld. The appeal is allowed but we make no order as to

costs.