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PETITIONER: U.P.STATE ROAD TRANSPORT CORPORATION AND ANR.

       Vs.

RESPONDENT: MOHD. ISMAIL AND ORS.

DATE OF JUDGMENT11/04/1991

BENCH: SHETTY, K.J. (J) BENCH: SHETTY, K.J. (J) VERMA, JAGDISH SARAN (J) RAMASWAMI, V. (J) II

CITATION:  1991 AIR 1099            1991 SCR  (2) 274  1991 SCC  (3) 239        JT 1991 (2)   292  1991 SCALE  (1)734

ACT:     U.P.State  Road Transport Corporation Employees  (other than Officers) Service Regulations, 1981: Regulations  17(2) and  17(3)--Drivers--Medically  examined--Found   unsuitable because of ill health or poor eye-sight-Whether services  to be  dispensed  with  or to  be  offered  alternative  jobs-- Discretion vested in the Corporation--Exercise thereof.

HEADNOTE:      The  respondents  were  employed  as  drivers  in   the U.P.State  Road Transport Corporation. The  Corporation  has framed  the U.P.State Road Transport  Corporation  Employees (other than Officers) Service Regulations, 1981, Regulations 17(2)  inter  alia requires the drivers to  undergo  medical test   particularly  vision  test  every  year   and   under Regulation 17(3) services of those drivers who fail to  pass the fitness test are to be dispensed with, with the  proviso that such drivers may, in the discretion of the Corporation, be offered alternative jobs. Pursuant to these  Regulations, the   Managing  Director  of  the  Corporation  issued   two circulars  dated  December  19,  1986  and  March  12,  1987 directing the Regional Managers to terminate the Services of the  drivers  who  are medically found unfit  to  drive  the vehicles with the further direction that such drivers should be  paid  benefits  like  retrenchment  compensation   under Section 6(N) of the U.P.Industrial Disputes Act.      The  respondents were subjected to medical  examination and  it  was  found that their  eye-sights  were  defective. Consequently,  the  Corporation discharged  the  respondents with  immediate  effect by paying them one month  salary  in lieu of notice and also retrenchment compensation under  the U.P.  Industrial  Disputes Act. The  respondents  challenged their  retrenchment  by means of writ petitions  before  the High  Court.  The  High Court  allowed  the  writ  petitions directing  the Corporation to offer alternative jobs to  the respondents. Being aggrieved, the Corporation has  preferred these appeals to this Court.      Allowing the appeals, the Court,                                                          275      HELD:  1.  Regulation 17(2) requires that  the  drivers

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have to undergo medical test particularly vision test  every year,  or  at  such intervals as may be  prescribed  by  the General Manager of the Corporation. Regulation 17(3) has two branches. The first branch provides power to the Corporation to remove the driver from the service who fails to pass  the medical  test. The second branch of Regulation 17(3)  though styled   as  proviso  is  an  independent  and   substantive provision  providing discretion to the Corporation to  offer an alternative job to the retrenched driver. [278B-D]      2. The discretion conferred by Regulation 17(3) confers no  vested  right  on  the  retrenched  workmen  to  get  an alternative job in the Corporation. Like all other statutory discretion  in  the  administrative  law,  Regulation  17(3) creates  no legal right in favour of a person in respect  of whom the discretion is required to be exercised other than a right   to  have  his  case  honestly  considered   for   an alternative job by the Corporation. [279B]      3.    The  High  Court was in error  in  directing  the Corporation  to  offer alternative jobs to  the  respondents because  the Court cannot direct the statutory authority  to exercise the discretion in a particular manner not expressly required by law and that it could only command the statutory authority  by  a  writ of mandamus to perform  its  duty  by exercising the discretion according to law. The Court cannot command   the  Corporation  to  exercise  discretion  in   a particular manner and in favour of a particular person. That would be beyond the jurisdiction of the Court. [279E]      In the instant case, the Corporation has denied  itself the  discretion  to  offer  an  alternative  job  which  the regulation  requires it to exercise in individual  cases  of retrenchment.  Although it is open to an authority to  which discretion has been entrusted to lay down the norms or rules to  regulate exercise of discretion, it cannot however  deny itself  the  discretion  which the statute  requires  it  to exercise in individual cases. The concerned authority of the Corporation therefore are required to consider the cases  of retrenched drivers for alternative jobs.[279F-G;280A]      4.1  There  are  two aspects to be  borne  in  mind  in exercising  the discretion. Firstly, there  are  constraints with  which the Corporation has to exercise  its  discretion and  perform its task. The Corporation is a  public  utility organisation  where  mediating  motion  is  efficiency   and effectiveness    of   public   service.    Efficiency    and effectiveness of public                                                          276 service are the basic concepts which cannot be sacrificed in public  administration  by any  statutory  corporation.  The Corporation  has  to render this public service  within  the resource use and allocation.[280D]      4.2  The second aspect relates to the manner  in  which the   statutory  discretion  is  to  be   exercised.   Every discretion conferred by statute on a holder of public office must  be  exercised  in  furtherance  of  accomplishment  of purpose of the power. [280E-G]    Sharp v. Wakefield, [1891] AC 173 at 179, referred to.      5.   The Corporation therefore cannot act mechanically. The  discretion  should not be exercised according  to  him, caprice  and  ritual.  The discretion  should  be  exercised reasonably and rationally. It should be exercised faithfully and impartially. There should be proper value judgment  with fairness and equity. [280H]      Therefore,  it would not be improper if the  discretion is  exercised  with  greater  concern  for  and  sympathetic outlook  to  the disabled drivers subject of course  to  the paramount    consideration    of    good    and    efficient

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administration. [281A-B]

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal  Nos.1756-59 of 1991.      From  the  Judgment and Order dated  17.1.1990  of  the Allahabad High Court in C.M.W.P. Nos.10962,10901, 10902  and 10903 of 1987.      Raju Rama Chandran for the Appellants.      Prem Malhotra for the Respondents.      The Judgment of the Court was delivered by      K.JAGANNATHA  SHETTY,J.   We grant  Special  Leave  and proceed to dispose of these appeals.      These  appeals  preferred against the decision  of  the Allahabad High Court raise common questions as to the  scope of  Regulations  17(2)  and 17(3) of  the  U.P.  State  Road Transport   Corporation  Employees  (Other  than   officers) Service Regulations, 1981 (‘the Regulations’).                                                          277      The  respondents  were  appointed  as  drivers  in  the erstwhile  U.P. Government Roadways. Upon the  formation  of the  U.P.State  Road Transport  Corporation  (‘Corporation’) they  were absorbed in the services of the Corporation.  The Corporation   has   framed  the   Regulations   inter   alia prescribing  medical  test  to drivers every  year  for  the purpose of assessing their suitability for the job. Pursuant to   these  Regulations,  the  Managing  Director   of   the Corporation issued a circular dated December 19,1986 stating that  all  drivers should be medically  examined  and  those found  unsuitable either because of ill health or poor  eye- sight,  be  not given duty and their services  be  dispensed with. This was followed by another circular dated March  12, 1987  by which the Managing Director directed  the  Regional Managers  to terminate the services of the drivers  who  are medically  found  unfit to drive the vehicles. It  was  also directed in the circular that such employees whose  services are dispensed with should be paid benefits like retrenchment compensation under Section 6(N) of the U.P. Industrial Act.      In  the  beginning of 1987, all  the  respondents  were subjected to medical examination and it was found that their eye-sights  were defective. In view of the  medical  report, the  Corporation  discharged them with immediate  effect  by paying  them  one month salary in lieu of  notice  and  also retrenchment compensation under the Industrial Disputes Act.      The respondents challenged their retrenchment by  means of writ petitions before the Allahabad High Court. The  High Court   has  allowed  the  writ  petitions   directing   the Corporation to offer alternative jobs to the respondents.      The Corporation being aggrieved by the decision of  the High Court has appealed to this Court.           Regulations 17(2) and 17(3) read as follows:           "17(2) A person, appointed to the post of  driver,           will   be  required  to  undergo   medical   test,           particularly  vision test, every year or  at  such           intervals  as  may be prescribed  by  the  General           Manager from time to time.           17(3)  The service of a person who fails  to  pass           the   fitness  test,  referred  to  in  the   sub-           regulation (2), may be dispensed with:                                                          278           Provided  that the persons, whose services are  so           dispensed  with  may,  in the  discretion  of  the           Corporation, be offered alternative job."

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    Regulation  17(2)  requires that the  drivers  have  to undergo medical test particularly vision test every year, or at  such  intervals  as may be  prescribed  by  the  General Manager  of  the  Corporation.  Regulation  17(3)  has   two branches. The first branch provides power to the Corporation to remove the driver from the service who fails to pass  the medical  test. The second branch of Regulation 17(3)  though styled as proviso also appears to be an independent  branch. It  is  not proviso. The proviso ordinarily  carves  out  an exception  from  the  general  rule  enacted  in  the   main provision. However, sometimes the insertion of a proviso  by the draftsman is not strictly adhered to its legitimate  use and it may be in substance a substantive provision adding to and not merely excepting something out of or qualifying what goes  before it. The proviso with which we are concerned  in Regulation  17(3) does not carve out an exception  from  the general  rule  contained  in  the first  branch.  It  is  an independent  and substantive provision providing  discretion to  the  Corporation  to offer an  alternative  job  to  the retrenched  driver.  This  offer is to  be  made  after  the exercise  of  power  under the first  branch  of  Regulation 17(3).  There is therefore, no doubt that the second  branch of  Regulation 17(3) is a substantive provision and  not  in the nature of a proviso to first branch thereof.      The  first branch of Regulation 17(3) appears to be  in the public interest. The driver who is found medically unfit to drive the vehicle on the public road certainly cannot  be permitted  to continue as a driver. His driving  licence  is liable  to  be  revoked. His continuance  as  driver  would, perhaps  be  perilous  to the interests  of  passengers  and pedestrians.  The Corporation therefore, has been  empowered to remove him from service as driver. At the same time,  the second  branch  to Regulation 17(3) shows  concern  for  the person who has been removed from service for want of medical fitness.  It confers discretion on the Corporation to  offer him an alternative job.      What  does this mean in practical terms? Does  it  mean that  the retrenched driver has a statutory right to get  an alternative  job?  Is it obligatory for the  Corporation  to offer  an alternative job to the driver who is certified  to be medically unfit for the driver’s job? The High Court  has expressed  the view that the Corporation before  terminating the  service  of a driver who fails to satisfy  the  medical test,  is obliged to offer him an alternative job  and  that offer shall be in writing. In other                                                          279 words,  the High Court seems to be of the opinion  that  the proviso  to  Regulation 17(3) imposes an obligation  on  the Corporation to offer an alternative job to all those who are found  medically  unfit  to carry on  their  duties  in  the existing jobs.      The  view  taken  by  the  High  Court  appears  to  be fallacious.  The  discretion conferred by  Regulation  17(3) confers no vested right on the retrenched workmen to get  an alternative job in the Corporation. Like all other statutory discretion  in  the  administrative  law,  Regulation  17(3) creates  no legal right in favour of a person in respect  of whom the discretion is required to be exercised other than a right   to  have  his  case  honestly  considered   for   an alternative job by the Corporation.      The  High Court was equally in error in  directing  the Corporation  to  offer alternative job to  drivers  who  are found  to  be medically unfit before dispensing  with  their services.  The  Court  cannot dictate the  decision  of  the statutory authority that ought to be made in the exercise of

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discretion  in  a given case. The Court  cannot  direct  the statutory   authority  to  exercise  the  discretion  in   a particular  manner not expressly required by law. The  Court could  only  command the statutory authority by  a  writ  of mandamus  to perform its duty by exercising  the  discretion according  to law. Whether alternative job is to be  offered or  not is a matter left to the discretion of the  competent authority  of  the Corporation and the  Corporation  has  to exercise  the  discretion  in individual  cases.  The  Court cannot  command the Corporation to exercise discretion in  a particular manner and in favour of a particular person. That would be beyond the jurisdiction of the Court.      In the instant case, the Corporation has denied  itself the  discretion  to  offer  an  alternative  job  which  the regulation  requires it to exercise in individual  cases  of retrenchment.  As earlier stated, the Managing Director  has issued  two circulars: (i) dated December 19, 1986 and  (ii) dated  March  12  1987 directing the  Regional  Managers  to dispense  with the services of the drivers who are found  to be medically unfit to drive the vehicles. It is directed  in the circulars that such drivers should be paid benefits like retrenchment  compensation which they are entitled to  under the U.P.Industrial Disputes Act. The circulars thus leave no scope  for exercising discretion to consider the  individual cases of retrenched drivers for any alternative job. It  may be stated that the statutory  discretion cannot be  fettered by  self-created rules or policy. Although it is open to  an authority to which discretion has been entrusted to lay down the norms or rules to regulate exercise                                                          280 of discretion it cannot, however, deny itself the discretion which  the  statute requires it to  exercise  in  individual cases. The concerned authority of the Corporation therefore, notwithstanding the said circulars are required to  consider the cases of retrenched drivers for alternative jobs.      Counsel  for the respondents argued that the object  of Regulation  17(3)  was to rehabilitate the drivers  who  are found  to  be medically unfit to drive vehicles  and  it  is therefore,  obligatory for the authority or Officer  of  the Corporation to exercise discretion in favour of such drivers by  offering  them  alternative jobs. But  counsel  for  the Corporation  considers that it is an absolute discretion  of the Corporation to offer or not to offer an alternative  job to such drivers and there is no compulsion in the matter.      These  are, in our opinion, extreme  contentions  which are  not sustainable under law. There are two aspects to  be borne  in mind in exercising the discretion. Firstly,  there are constraints within which the Corporation has to exercise its   discretion.  The  Corporation  is  a  public   utility organisation  where  medicating  motion  is  efficiency  and effectiveness    of   public   service.    Efficiency    and effectiveness of public service are the basic concepts which cannot  be  sacrificed  in  public  administration  by   any statutory  corporation. The Corporation has to  render  this public service within the resource use and allocation. It is within these constraints the Corporation has to exercise its discretion  and perform its task. The second aspect  relates to  the  manner in which the statutory discretion is  to  be exercised.  The  discretion allowed by the  statute  to  the holder  of an office, as Lord Halsbury observed in Sharp  v. Wakefield, [1891] AC 173 at 179 is intended to be  exercised "according to the rules of reason and justice, not according to private opinion; according to law and not humor. It is to be, no arbitrary, vague and fanciful but legal and  regular. And  it  must  be exercised within the limits  to  which  an

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honest man competent to the discharge of his office ought to confine himself." Every discretion conferred by statute on a holder of public office must be exercised in furtherance  of accomplishment  of  purpose  of the power.  The  purpose  of discretionary  decision  making under Regulation  17(3)  was intended to rehabilitate the disabled drivers to the  extent possible   and  within  the  above  said  constraints.   The Corporation   therefore,   cannot  act   mechanically.   The discretion  should  not  be  exercised  according  to  whim, caprice  or  ritual.  The  discretion  should  be  exercised reasonably and rationally. It should be exercised faithfully and impartially. There should be proper value judgment  with fairness and equity. Those drivers would have served                                                          281 the  Corporation  till their superannuation  but  for  their unfortunate medical unfitness to carry on the driver’s  job. Therefore,  it  would not be improper if the  discretion  is exercised  with greater concern for and sympathetic  outlook to  the disabled drivers subject of course to the  paramount consideration  of good and efficient  administration.  These are  some  of the relevant factors to be borne  in  mind  in exercising  the discretion vested in the  Corporation  under Regulation 17(3).      In  the result we allow these appeals. In  reversal  of the judgment of the High Court, we direct the Corporation to consider  the  cases  of respondents in  the  light  of  the observations made.      In  the circumstances of the case, however, we make  no order as to costs. D.R.L.                                      Appeals allowed.                                                          282