http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

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.