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CASE NO.: Appeal (civil)  2272 of 1998

PETITIONER: State of Orissa & Ors

RESPONDENT: Gopinath Dash & Ors

DATE OF JUDGMENT: 09/12/2005

BENCH: ARIJIT PASAYAT & TARUN CHATTERJEE

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       Challenge in this appeal is to the judgment rendered by  a Division Bench of the Orissa High Court holding that the  policy decision taken by the State in the matter of  allotment of quarters by rotation basis was illegal.   

       Adumbrated in brief the factual background as projected  by the appellants is as follows:-

       An executive order was passed by the Deputy Inspector  General of Police vide his D.O. letter No.4322/SAP in  furtherance of a policy decision that quarters were to be  allotted to all the Orissa State Armed Police Personnel for  a minimum period of three years. This order was passed  keeping in view the dearth of family accommodation which at  the relevant point of time was an acute problem for the  Orissa State Armed Policy Battalion.  It was also done with  a view to ensure that every police personnel enjoyed the  facility of rent-free accommodation and that is why it was  done on rotational basis. The practice had continued  uninterruptedly for a long time. Military police  establishments normally function in a separate camp where  provisions are made for all the personnel to be given  residential accommodation. Therefore, the system was  developed to ensure that the employees are provided with  quarters for a given period and after completion of that  period they are required to vacate the quarters.  This would  enable other employees who are deprived of quarters can get  quarters so vacated.  Contractual agreements were entered  into between the employer and the employees when they were  given government accommodation. Questioning legality of the  orders the respondents along with one Kirtan Behari Swain  who has expired in the mean time filed an Original  Application before the Orissa Administrative Tribunal (in  short ’the Tribunal’). The same was registered as OA No.  758/1989.  Challenge in the application was to the system of  allotment of quarters by rotation. Subsequently, another  application was filed challenging the system of allotment of  quarters.  The same was numbered as OA 1250 of 1991.  The  Tribunal dismissed OA No.758/1989 holding that it had no  jurisdiction to consider the matter as the same was a  dispute related to allotment of quarters which is not  covered by the Special Accommodation Rules as provided in  the Orissa Service Code (in short ’Service Code’). In

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Original Application No.1250/1991 after appreciating that  the rotational system of allotment of quarters was in the  interest of the employees, the Tribunal dismissed the  application in view of the dismissal of the other Original  Application.  It was held that since quarters were allotted  by contractual allotments, the Special Accommodation Rules  do not apply.  Thereafter 21 persons filed writ petition  before the High Court which was registered as O.J.C No.6383  of 1992.  One of the writ petitioners was Panchu Sahu who  was also one of the applicants in O.A. No. 1250/1991.  After  dismissal of O.A. No. 758/1989, the applicants before the  Tribunal filed writ petition O.J.C. No.3193 of 1992. The  writ petition No. 6383/1992 was dismissed as withdrawn on  7.7.1994. It was noticed by the Division Bench that since  the Bench was not inclined to entertain the writ petition,  the writ-petitioners wanted to withdraw the petition. In  writ petition no. O.J.C. 3193/1992 the High Court by its  impugned judgment dated 8.8.1996 held that the policy  decision of allotment of quarters on rotational basis was  contrary to and inconsistent with justness and fair-play.

       In support of the appeal, learned counsel for the  appellants submitted that the approach of the High Court is  clearly erroneous.  It failed to notice that the policy  decision of the government is not to be lightly interfered  with. The High Court did not indicate any justifiable reason  to quash the policy decision.   

       There is no appearance on behalf of the respondents.   Operation of the impugned judgment was stayed by this Court  by order dated 8.5.1997.   

       While exercising the power of judicial review of  administrative action, the Court is not the appellate  authority and the Constitution does not permit the Court to  direct or advise the executive in matter of policy or to  sermonize any matter which under the Constitution lies  within the sphere of the Legislature or the executive,  provided these authorities do not transgress their  constitutional limits or statutory power. (See Ashif Hamid  v. State of J. & K. (AIR 1989 SC 1899), Shri Sitaram Sugar  Co. v. Union of India (AIR 1990 SC 1277).  The scope of  judicial enquiry is confined to the question whether the  decision taken by the Government is against any statutory  provisions or it violates the fundamental rights of the  citizens or is opposed to the provisions of the  Constitution. Thus, the position is that even if the  decision taken by the Government does not appear to be  agreeable to the Court it cannot interfere.

       The correctness of the reasons which prompted the  Government in decision making taking one course of action  instead of another is not a matter of concern in judicial  review and the Court is not the appropriate forum for such  investigation.   

       The policy decision must be left to the Government as  it alone can adopt which policy should be adopted after  considering all the points from different angles.  In matter  of policy decisions or exercise of discretion by the  Government so long as the infringement of fundamental right  is not shown Courts will have no occasion to interfere and  the Court will not and should not substitute its own  judgment for the judgment of the executive in such matters.   In assessing the propriety of a decision of the Government

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the Court cannot interfere even if a second view is possible  from that of the Government.           The Court should constantly remind itself of what the  Supreme Court of the United States said in Metropolis  Theatre Company v. City of Chicago (1912) 57 L Ed 730. "The  problems of Government are practical ones and may justify,  if they do not require, rough accommodations, illogical it  may be, and unscientific. But even such criticism should not  be hastily expressed. What is the best is not always  discernible, the wisdom of any choice may be disputed or  condemned. Mere errors of government are not subject to our  judicial review.  

       The conclusions of the High Court for granting relief,  so far as relevant are as follows:

"4. Very patiently we have heard the  contentions made by the petitioners and the  learned Government Advocate appearing in  support of the contentions of the opposite  parties. The scarcity of house accommodation  is not in doubt or dispute.  The policy to  allot quarters only for three years is  whether pragmatic, fair and rational we are  to examine judicially. It is not appreciated  by us as to why if there is scarcity of  quarters, the allotment must be made  serially and as would be made available,  taking into consideration the eligibility  criteria and such allotment to be for a  limited period notwithstanding the  continuity of the posting of the person  concerned at the same place.  A person may  be transferred, he may immediately be asked  to vacate the quarters.  A person retires  and/or his service ceases, it may be  appreciated that he should immediately  vacate the quarters.  But when a person  remains posted, to vacate the quarters after  three years notwithstanding his continuity,  is certainly not fair, justifiable or  rational.  On repeated query no satisfactory  explanation has been given to us.  What is  the ultimate goal behind this policy is in  order to avoid discontentment or to please  very body. Such a policy does not fulfil the  test of fair play and justness.

5. Having gone through the detailed  averments and also considering the  allegations and counter allegations, we find  that the grievance of the petitioners is  genuine.  If the petitioners remain posted  at Cuttack and if they are provided with the  quarters after considering their  eligibility, they cannot be asked to vacate  their quarter, unless their services cease  or they are transferred elsewhere. This  rotation allotment appears to be contrary to  and inconsistent with the justness and fair  play."                                                                

       Considering in the background of the legal principles  set out above, the conclusions of the High Court do not

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appear to be defensible, muchless for the reasons indicated  by the High Court.

       In the circumstances, the judgment of the High Court is  set aside.  If there has been any change in the policy  decision, notwithstanding the present decision, same shall  be operative.     

       The appeals are allowed with no order as to costs.