JUDGMENT
1. By the impugned order dated 26th September, 2003 [Annexure-1] the State Government in exercise of powers conferred under Section 6(3) of theU.P. Water Supply Sewerage Act, 1975 cancelled the order dated 26.7.2002 by means of which the State Government took a policy decision of fixing threeyears tenure for the post of Managing Director of U.P. Jal Nigam with effectfrom the date of its publication in the official Gazette. On the same day i.e.26.9.2003 the Secretary to the Government in Urban Development issued an order [Annexure-2] communicating the Chairman of the U.P. Jal Nigam and other authorities that period of three years fixed for the post of ManagingDirector has been cancelled and in the process the petitioner is relieved fromthe post of Managing Director of U.P. Jal Nigam with immediate effect. On thevery same day i.e. 26.9.2003, the Chairman of the U.P. Jal Nigam issued anoffice memorandum [Annexure-3] mentioning therein that the petitioner hasbeen relieved from the post of Managing Director in pursuance of the orderno. 4092/Nau-3-2003-18C/91 and the Chairman himself took the charge of thepost of Managing Director till further orders. On the next day i.e. 27.9.2003,the Chairman issued an office memorandum by which one Sri Ramesh Chandra Asthana, Chief Engineer, Level-I was given the additional charge ofthe post of the Managing Director, U.P. Jal Nigam.
2. The aforesaid orders have been challenged by the petitioner ArvindNath in writ petition no. 1309/SB/2004; primarily on the ground that theauthorities have acted arbitrarily and malafidly while passing the impugnedorders which have been passed just to give undue advantage to the oppositeparty no.5 and in total disregard of the principles of natural justice.Writ Petition No. 452/SB/2004 has been filed by Sri Devendra PalSharma and Sri Rajendra Kumar Khanna being aggrieved by the action of the opposite parties 1 to 3 in not making regular selection on the post of ManagingDirector of the U.P. Jal Nigam according to the procedure prescribed by U.P.Jal Nigam (Procedure for Selection to the post of Managing Director) Rules,2002[ hereinafter referred to as the Rules, 2002] and allowing the junior mostChief Engineer [Level-I], namely, Atul Krishna-[ opposite party no.4] toofficiate as Managing Director by an authority, who is incompetent to passsuch an order.
3. Sri Atul Krishna, Chief Engineer Level-I has also filed a writ petitionno. 468/SB/2004 for quashing the order dated 20th October 2003 and the orderdated 22nd October 2003 whereby the order appointing the petitioner on thepost of Managing Director has been kept in abeyance till further orders by theState Government.
4. Since in all the writ petitions, the controversy relates to theappointment on the post of Managing Director, all these writ petitions havebeen clubbed together and are being decided by a common judgment. According to the learned counsel appearing for petitioner- AtulKrishna, the petitioner after retirement of Sri Ramesh Chandra Asthana, wasthe only Chief Engineer, Level-I and he was fully eligible for being appointedon the post of the Managing Director. It is in this background that StateGovernment issued the order dated 30.9.2003 directing that the petitioner shalllook after the work of the post of Managing Director. The contention of thepetitioner is that he was appointed on the post of Managing Director by thecompetent authority after following the due procedure of law and he tookcharge of the said post on 19th October, 2003 and there was no impediment orrestriction in the appointment of the petitioner as such there was no power tokeep the order in abeyance. We would like to clarify here that the StateGovernment while issuing the order of appointment dated 19th October, 2003mentioned that the appointment of Sri Atul Krishna would be subject to theorders passed by the High Court in Writ Petition no.1309/SB/2003.Subsequently, the State Government issued another order dated 22nd October, 2003 stating therein that the matter regarding his continuance on the post ofManaging Director was reconsidered and decided to keep the same in abeyance till further orders.
5. Sri S.K. Kalia, Senior Advocate with Sri Upendra Nath Misra, Advocatesubmitted that earlier a policy decision was taken by the State Government toprovide stability of tenure to the incumbent who is to be appointed asManaging Director of the Jal Nigam. The purpose behind it was to givesufficient time to an incumbent to improve the working of the Jal Nigam andto complete various projects relating to essential public amenities like waterand sewerage system which in past could not be completed on account of short tenure of an incumbent as Managing Director. With this view and objecta Government Order dated 26.7.2002 was issued prescribing tenure postingfor a period of three years. Consequently, the State Government decided tomake special provisions for the selection on the post of Managing DirectorU.P. and section 4 of the U.P. Water Supply and Sewerage Act 1975 was amended and a separate rules for selection to the post of Managing Directorwere framed. These rules are known as "U.P. Jal Nigam (Procedure forSelection to the Post of Managing Director) Rules 2002" and were published inthe Notification dated 2.7.2002.
6. It has been brought to our knowledge by the petitioner's counsel thatthe process for selection on the post of Managing Director started in June/July 2002. Selection on the criteria of merit was held in which petitioner -Arvind Nath alongwith other Chief Engineer of Level-I appeared before theSelection Committee and the petitioner's name was recommended. Consequently, the petitioner was appointed on the post of Managing Directorof the Jal Nigam on 11.7.2002 and on the same day the petitioner took chargeof the post. The appointment order of the petitioner provides that he willcontinue on the post till he attains the age of superannuation or otherwisedetermined under Section 6(3) of the Act. Subsequently, in exercise of powersvested in it by Section 6(3) of the Act, the State Government issued an order on26th July, 2002 [Annexure-8] fixing a tenure of three years for the post ofManaging Director. As a consequence of the aforesaid order dated 26th July,2002, the orders dated 30.9.2002 and 23.10.2002 were issued by the StateGovernment and the Agriculture Production Commissioner clarifying thereinthat attaining the age of 58 years will not have any effect on the appointmentof petitioner as it would be deemed that the petitioner has been appointed fora period of three years on coming into force of the order dated 26th July, 2002.Learned Counsel for the first petitioner has contended that theimpugned order with respect to removal of the petitioner-Arvind Nath fromthe post of Managing Director have been passed with malafide intentionbecause of change of Government as would be evident from the fact that thethen Chief Secretary, who had earlier held the post of Chairman of the JalNigam, submitted a proposal to the Chief Minister on his own on 26.9.2003indicating that Sri Arvind Nath is continuing on the post of ManagingDirector even after attaining the age of superannuation. As a Consequencewhereof the first impugned order dated 26.9.2003 was passed canceling theorder dated 26.8.2002 which prescribes a fixed tenure of three years for thepost of Managing Director. This order was issued in the name of the Governorthough there was no necessary approval of the Chief Minister regardingcancellation/curtailment/abolition of tenure of the Managing Director.Learned Counsel for the petitioner [Arvind Nath] has further arguedthat all the orders impugned in the present writ petition have been passed inblatant disregard of the relevant Rules and further no opportunity in anymanner was afforded to the petitioner before passing the impugned order.The attitude and bias action of the authorities is established from the factthatthe authorities took all the actions at lightening pace as the orders containedinAnnexures 1 to 3 to the writ petition were passed on the same day i.e. firstlyan order was passed canceling the earlier notification which prescribed threeyears terms for the post of Managing Director, on the same day by anotherorder the petitioner was relieved from the post of Managing Director withimmediate effect without there being any authorization for the same by theState Government in the name of Governor and thirdly by another orderpassed on the same day the Chairman assumed the Charge of the post of Managing Director.
7. These acts reflect the arbitrary, illegal and colourable exercise ofpower.No cogent reasons have been given for the curtailment of tenure when theGovernment has taken a stand in earlier writ petition filed by one R.C.Asthana [ Writ Petition No. 1101/SB/02; Ramesh Chandra Asthana State ofU.P. and Ors.] that in view of the working and interest of the Nigam, a policydecision was taken for fixing 3 years tenure for the post of Managing Directorto enable the incumbent to get sufficient time to work and improve theworking of the Nigam in implementing its programmes for longer period.This Court upheld the stand of the State Government and now the presentGovernment, in order to circumvent the judicial verdict has passed theimpugned order under the garb of change of policy.
8. On the strength of decisions of the Hon'ble Supreme Court in Swaran Singh v. State of U.P.; 1998(4) SCC 75, Ugar Sugar Mills v. Delhi Administration; 2001(3) SCC 635, State of Rajasthan v. Sewa Nivrat Karnataka Karmchari Samiti; 1995(2) SCC 117, Association of Industrial and Electricity Users v. State of Andhra Pradesh and Ors.; 2002(2) SCC 711, Zipper Karamchari Union v. Union of India and Ors.; 2001(10 SCC 619, Narmada Bachao Andolan v. Union of India and Ors.; 2000(10) SCC 664 and Consumer Education and Research Society v. Union of India and Ors.; 2000(2) SCC 599, Sri S.K. Kalia argued that the Court is fully competent to interfere with thepolicy decision, if it is unreasonable, unfair, arbitrary and against the publicinterest. Moreover, the impugned order no. 4092 dated 26.9.2003 cannot besaid to be a policy decision as no necessary approval of the competentauthority was sought by the respondents while taking the impugned decision.Sri A.P. Singh while holding the Post of Chairman and Agriculture ProductionCommissioner had himself mooted the proposal for a fixed tenure of 3 years.Later on, when Sri A.P. Singh, I.A.S. became the Chief Secretary on cominginto power of a new Government, he on his own proposed otherwise and wrongly stated that the petitioner is continuing on the post of ManagingDirector even after his retirement.
9. Thus, the main question involved in these writ petitions is whether theorder no.4092/Nau-3-2003-18C/91 dated 26th September, 2003 cancelling the order no.2206/9-3-02-18C/91 TC dated 26th July, 2002 by which three yearsterm was fixed for the post of Managing Director, is a policy decision andwhether the decision dated 26th September, 2003 is unreasonable, malafide,arbitrary and against the public interest.
10. Learned Chief Standing Counsel stated that the State Government isfully competent to pass the impugned order in view of Rule 6(3) of the UttarPradesh Jal Nigam [Procedure for Selection to the post of Managing Director]Rules, 2002 which provides that a member shall hold office on such terms andconditions as the State Government, may by order, specify. Moreover, theState Government while appointing the petitioner, Arvind Nath on the post ofManaging Director in exercise of powers conferred under Section 4(2)(a) hasclearly mentioned that his appointment shall, unless by order issued underSection 6(3) of the Act is not otherwise, will be till his attaining the age ofretirement. Little later, an order dated 26.7.2002 was issued by the StateGovernment providing therein that the Managing Director of Uttar PradeshJal Nigam will hold office for a period of three years unless his tenure isterminated by the Government Notification. Thus the petitioner-Sri ArvindNath has no right to hold the post after attaining the age of superannuationand no illegality or wrong has been committed by the State Government whileissuing order no.4092/9-3-2003 18C/91 dated 26.9.2003 as it was issued by theGovernor in exercise of powers conferred under Section 6(3) of the Act and thesame was within the competence of the Governor in view of provisionscontained in Section 14 of the U.P. General Clauses Act.
11. Learned Chief Standing Counsel next argued that power to appointincludes power to terminate the tenure of the office in view of Section 16 oftheU.P. General Clauses Act which clearly lays down that the authority havingpower to make appointment shall also have the power to suspend, dismiss,remove or otherwise terminate the tenure of office of any person appointed,whether by itself or any other authority, in exercise of that power. Therefore,itcannot be said that the impugned order was issued with malafide intentionand ulterior motives.
12. As regard the change of policy dated 26.7.2002 by which three yearstenure was fixed for the post of Managing Director, learned State Counselsubmitted that the State Government reconsidered the aforesaid policy as itwas noticed by the State Government that in all Government Corporation theage of superannuation of the Managing Director alongwith other employees isfixed at 58 years and the only exception was the Managing Director of the U.P.Jal Nigam. Therefore, the State Government took a decision to bring overalluniformity for all Corporations in the State of Uttar Pradesh and it was alsodecided that Managing Director of the U.P. Jal Nigam will also retire from thepost on attaining the age of superannuation fixed for the Nigam.
13. While denying the allegations of malafide the learned State Counseladded that opposite party no.5 was given the additional charge of the post ofManaging Director on account of administrative exigency and on retirementof opposite party no.3 on 30.9.2003 at the age of 58 years, Sri Atul Krishna [petitioner in writ petition no. 468/SB/2004] was given the additional charge ofthe post of Managing Director for the time being vide order of the Chairmandated 30.9.2003. Therefore, it is wrong to say that impugned order was passedto give advantage to any particular person.
14. Sri Kapil Dev, Advocate appearing for the U.P. Jal Nigam argued thatthe validity of the Government Order dated 26.9.2003 cannot be challengedbecause the same is based on the policy decision taken by the StateGovernment in the interest of the Corporation as well as general public. TheState Government while reconsidering the matter found that it is neither inpublic interest nor in the interest of the Corporation to continue with thethreeyears term of Managing Director and, therefore, passed the impugned orderas a result thereof the petitioner was relieved vide order dated 26.9.2003.Further, no order was issued allowing Sri Arvind Nath to continue on the postof Managing Director for three years.
15. Elaborating further, Sri Kapil Dev invited our attention to paragraph 3of the Counter Affidavit wherein it has been indicated that the Chairman ofthe U.P. Jal Nigam was the new incumbent and there was problem of water logging and other related problem and as such, the Chairman issued the orderdated 27.9.2003 whereby Sri Ramesh Chandra Asthana, senior most Chief Engineer was given the additional charge of the post of Managing Director.Later on, when the post became vacant on account of retirement of Sri RameshChandra Asthana, petitioner of writ petition no.468/SB/04 Sri Atul Krishna,being the senior most Chief Engineer, Level-I was given the charge. Accordingto him, the Chairman was fully competent to issue consequential orders inpursuance of the order dated 26.9.2003 issued by the State Governmentcancelling the tenure of three years for the post of Managing Director.Much has been said by the learned State Counsel as also by Sri KapilDev, Counsel for the Jal Nigam, that the impugned decision is a policydecision and as such this Court is not competent to interfere in the policydecision in view of the proposition of law laid down by the Hon'ble SupremeCourt in umpteen decisions. We, therefore, deem it appropriate to refer themeaning of word "Policy" and "Public Policy" as defined in variouspronouncements by the Hon'ble Supreme Court:-
16. In Gherulal Parakh v. Mahadeodas Malya, AIR 1959 SC 781 the Supreme Court while defining the word "Public Policy" or the Policy of the Law" hasheld as under:-
"Public policy or the policy of the law is an illusiveconcept; it has been described as " untrustworthy guide","variable quality", " uncertain one", "unruly horse", etc.The primary duty of a Court of Law is to enforce a promisewhich the parties have made and to uphold the sanctity ofcontract which form the basis of society, but in certaincases, the Court may relieve them of their duty on a rulefounded on what is called the public policy; for want ofbetter words Lord Atkin describes that something donecontrary to public policy is a harmful thing, but thedoctrine is extended not only to harmful cases but also toharmful tendencies; this doctrine of public policy is only abranch of common law, and just like any other branch ofcommon law it is governed by precedents; the principleshave been crystallized under different heads and though itis permissible for courts to expound and apply them todifferent situations, it should only be invoked in clear andincontestable cases of harm to the public."
In Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly,(1986) 3 SCC 156 the Apex Court observed as under:-
"Public policy is not the policy of a particular government.It connotes some matter, which concerns the public goodand the public interest. The principles governing publicpolicy must be and are capable, on proper occasion, ofexpansion or modification. If there is no head of publicpolicy, which covers a case, then the court must inconsonance with public conscience and in keeping withpublic good and public interest declare such practice to beopposed to public policy. Above all, in deciding any cases,which may not be covered by authority, Courts should beguided by the Preamble to the Constitution and thePrinciples underlying the Fundamental Rights and theDirective Principles.
17. In Delhi Transport Corporation v. D.T.C.Mazdoor Congress, AIR 1991SC 101 while observing that there is no well recognized head of public policy, theSupreme Court held as under:-
" This Court also angulated the question from theperspective of public policy or contract being opposed topublic policy. The phrases " public policy", " opposed topublic policy" or " contrary to public policy" are incapable ofpr,cised definition. It is valued to meet the public good orthe public interest. What is public good or in the publicinterest or what would be injurious or harmful to the publicgood or the public interest vary from time to time with thechange of the circumstances. New concepts take place of oldones. The transactions, which were considered at one timeas against public policy, were held by the courts to be inpublic interest and were found to be enforceable. Therefore,this Court held in Borjo Nath case that " there has been nowell recognized head of public policy, the courts have notshirked from extending it to new transactions and changedcircumstances and have at times not even flinched frominventing a new head of public policy."
18. Thus it is clear that the term public policy however does not admit ofany definition and it cannot easily be explained. It may vary as the habits,opinions, and welfare of a people may vary, and what may be a policy of oneState may not be so in another State. The expression public policy is a verycertain one and it should not be carelessly extended to any case for what isthe policy of the public at one time may not be a sound public policy later on.One of the eminent Judges in England has defined the Public Policy as anunruly horse, and there are series of decisions divergent in character wherethe Court sometimes refused and on different occasions enforced anagreement.
19. The impugned order dated 26.9.2003 abolishing the period of threeyears, which is alleged to be a policy decision is to be scrutinized in light ofthe aforesaid principles.
20. The State Government on 26.7.2002 took a policy decision in exercise ofpowers under sub section 3 of Section 6 of the U.P. Water Supply andSewerage act, 1975 fixing the tenure of appointment of the Managing Directorof U.P. Jal Nigam for a period of three years in general. One Ramesh ChandraAsthana questioned the validity of this order by filing a writ petition no.1118/SB/2002 before this Hon'ble Court. In this writ petition, asupplementary affidavit was filed by one Sri Suresh Kumar Sharma, UnderSecretary, Nagar Vikas, on behalf of the State Government in which a definitestand was taken to the effect that the policy decision was taken in view ofgiving sufficient time to an incumbent to work for the betterment of theNigam and in implementing the long term policy decisions in the interest ofNigam. Paragraph 8 and 9 of the affidavit filed by the State Government inwrit petition no. 1118/SB/2002 reads as under:-
"8. That the State Government taken a policy decision inexercise of powers under sub Section 3 of Section 6 of theAct in the interest of Nigam and has fixed the tenure ofManaging Director for a period of three years, so that anyappointee may get a tenure of three years and he may getsufficient time to work for the betterment of the Nigam aswell as it will help him in taking and implementing thelong term policy decisions in the interest of the Nigam.
9. That the state Government while taking intoconsideration the fact that the U.P. Jal Nigam is aimportant corporation with respect to the Water andSewerage system of the Urban Development and if, the appointments are made for short terms then it willadversely effect the various projects and Nigam will not beable to work with the expected speed as well as achievethe desired targets/goals and accordingly, it was decidedto make appointment on the post of Managing Director fora term of three years as that of ex-officio Chairman of theNigam."
21. This Court while declining to interfere with the policy decisiondismissed the writ petition and approved the stand of the State Governmentthat fixing of 3 years tenure would be in the interest of the Corporation as itdeals with the essential public amenities. The judgment and order dated 25thJuly 2003 passed by this Court dismissing the writ petition of Sri RameshChandra Asthana, was challenged before the Hon'ble Supreme Court in S.L.P. No. 14978 of 2003 but the same was also dismissed.
22. It would be necessary to mention that the proposal for prescribingfixed tenure for the post of Managing Director was initiated by Sri A.P. Singh,who at that time was holding the post of Chairman, U.P. Jal Nigam. In hisproposal/letter dated 13.6.2002 indicated that persons who are appointed onthe post of Managing Director for a very short period and now when it hasbeen decided that an incumbent would be appointed on the basis of merit assuch it would be appropriate that a three years period is fixed as has beendecided in respect of State Livestock Board. In this letter it was alsoindicatedthat in the past this system was adopted while appointing Sri K.N. Dwivedi asManaging Director. The proposal made by Sri A.P. Singh, Chairman was considered and accepted by the State Government and consequently a policy decision dated 26.7.2002 has been taken prescribing three years term unlessotherwise terminated by the State Government by publishing it in the officialgazette.
23. It is in this background that the petitioner was appointed on 11.7.2002as Managing Director. It was indicated in the order that the petitioner shallcontinue to work as Managing Director till the period as determined by theState Government while exercising the powers conferred under Section 6(3) ofthe Act, or else till the age of his superannuation. Thereafter the Secretary tothe Government wrote a letter dated 30.9.2002 to the Chairman of the U.P. JalNigam indicating therein that order no.2206/9-3-02-8C/9TC dated 26th July,2002 is applicable on Sri Arvind Nath and there is no need of issuing anyseparate order regarding his tenure of three years. Consequent to the Orderdated 11.7.2002, the then Chairman of U.P. Jal Nigam /Agriculture ProductionCommissioner wrote a letter clarifying therein that in view of the GovernmentOrders it is clear that Sri Arvind Nath has been appointed for a period of threeyears from the date of taking over charge. It has also been indicated in theorder that completion of 58 years age by Sri Arvind Nath would not have anyeffect on his appointment. The fact aforesaid falsifies the contention of SriKapil Dev that no order was issued allowing Sri Arvind Nath to continue onthe post of Managing Director for three years.
24. In Dr L.P.Agarwal v. Union of India and Ors. [ AIR 1992 SC1872] the question for consideration before the Hon'ble Supreme Court wasthat whether an incumbent can be prematurely retired before the completionof his tenure? The Hon'ble Supreme Court while holding that appellant couldnot have been prematurely retired and that too without being put on anynotice whatsoever, observed as under:-
Tenure means a term during which an office is held. It is a conditionof holding the office. Once a person is appointed to a tenure post,his appointment to the said office begins when he joins and itcomes to an end on the completion of the tenure unless curtailedon justifiable grounds. Such a person does not superannuate, heonly goes out of the office on completion of his tenure. Thequestion of prematurely retiring him does not arise. concept ofsuperannuation which is well understood in the servicejurisprudence is alien to tenure appointments which have a fixed lifespan. The appellant could not therefore, have been prematurelyretired and that too without being put on any noticewhatsoever.
25. We are conscious of the fact that Constitution does not permit the Courtto direct or advice the executive in matters of policy or to sermonize qua anymatter which under the Constitution lies within the sphere of the legislatureor the executive provided these authorities do not transgress theirconstitutional limits or statutory powers i.e. do not act ultra vires. Further,there is no bar in changing the policy formulated earlier if there are good andweighty reasons for doing so. The authorities may stick to the earlier policy orgive it up but if it does change its policy it must do so fairly and should notgive the impression that it is acting by any ulterior criteria or arbitrarily.Needless to say that whatever policy is made subsequently should be done fairly and made known to those concerned.Keeping in mind the aforesaid facts, we are of the considered view thatthere is no blanket ban upon the courts in interfering with the policy decisiontaken by the Government. It is trite that it is mandatory upon the decisionmaking body to act fairly, in accordance with law and it should be free fromany influence. This Court can also show interference when it finds that thepowers are not exercised in accordance with the mandate of the legislatureand the court by such interference helps the good governance by constantlyreminding the Government and its officers that they should act within thefour corners of the statute. Even the policy decision taken by the StateGovernment has to pass the test of Articles 14 and 16 as held in KailashChandra Sharma v. State of Rajasthan and Ors., AIR 2002 SC 2877. Their Lordships observed in paragraph-12 as under;
"There can be little doubt that the impugned circular is theproduct of the policy-decision taken by the StateGovernment. Even then, as rightly pointed out by the HighCourt, such decision has to pass the test of Arts. 14 & 16 ofthe Constitution. If the policy-decision, which in thepresent case has the undoubted effect of deviating from thenormal and salutary rule of selection based on merit issubversive of the doctrine of equality, it cannot sustain. Itshould be free from the vice of arbitrariness and conform tothe well settled norms both positive and negativeunderlying Arts. 14 and 16, which together with Art. 15 formpart of the constitutional Code of equality."
26. Lastly, it has been also argued by the learned Counsel for the petitioner-Arvind Nath that before passing the impugned order dated 26.9.2003cancelling the tenure of three years and before relieving no opportunity of anykind was given to him as such the impugned order apart from beingunreasonable and arbitrary, is also against the principles of natural justice.In D.K. Yadav v. J.M.A.Industries Ltd. (1993) 3 SCC 259 the Hon'bleSupreme Court articulated that an order involving civil consequences must bemade consistently with the rules of natural justice but in the instant case itisan admitted fact that no opportunity whatsoever was given by the respondentbefore issuing the order dated 8th March, 1994.
27. In National Building Construction Corporation v. S. Raghunathan;(1998)7 SCC 66 it was observed by the Apex Court that a person is entitled tojudicial review, if he is able to show that the decision of the public authorityaffected him of some benefit or advantage which in the past he had beenpermitted to enjoy and which he legitimately expected to be permitted tocontinue to enjoy either until he is informed the reasons for withdrawal andthe opportunity to comment on such reasons. It is settled position of law thatan order involving civil consequences must be made consistently with therules of natural justice and that they have a duty to proceed in a mannerwhich is free from even the appearance of arbitrariness, unreasonableness orunfairness. ( See: D.K. Yadav v. J.M. A. Industries Ltd. 1993(3) SCC 259).From the records of this case, it clearly emerges out that no opportunity of any kindwas given to Sri Arvind Nath while terminating his tenure. On account of hisappointment for a assured period of three years, some rights having civilconsequences did accrue to Petitioner [Arvind Nath] as such the respondentsought to have given minimum opportunity prior to passing of the impugnedorder. In K.C. Arora; AIR 1987 SC 1858 it has been held that vested rightsacquired under existing laws cannot be taken arbitrarily so as to contravenefundamental rights. In the case of Dr. L.P. Agarawal (supra) the Hon'bleSupreme Court reiterated that giving notice to the person aggrieved isnecessary. Therefore, the contention of the State Counsel that there was nonecessity of affording any opportunity to the petitioner [Arvind Nath] as theimpugned order is a policy decision has no substance and is rejected.Furthermore, we are of the considered opinion that whenever an incumbent isappointed for assured tenure and time limit is prescribed by the StateGovernment in the back ground of public interest through a GovernmentPolicy, then the tenure can only be curtailed on justifiable grounds as laiddown in Dr L.P.Agarwal's case [supra].
28. It may be indicated here that the doctrine of "legitimate expectation"imposes in essence a duty on public authority to act fairly by taking intoconsideration all relevant facts relating to such expectation. Thus it wasincumbent upon the authority, which proposes to defeat a person's legitimateexpectation to afford an opportunity to make representations in the matter,which the respondents did not follow in the present case. Counsel for therespondents have failed to establish that any opportunity or show cause wasever given to the petitioner before passing the impugned order and on thisground too, the writ petition deserves to succeed.At this juncture, we deem it necessary to mention here that doctrine ofpromissory estoppel or equitable estoppel will also play role in the presentcase as the basis of the doctrine is that where any party has by his word orconduct made to the other party an unequivocal promise or representation byword or conduct, which is intended to create legal relations or effect a legalrelationship to arise in the future, knowing as well as intending that therepresentation, assurance or the promise would be acted upon by the otherparty and has infact been so acted upon by the other party, such promise,assurance or representation should be binding on the party making it and thatparty should not be permitted to go back upon it. This doctrine is applicableagainst the Government also particularly where it is necessary to preventfraud or manifest injustice. In case at hand, the petitioner was appointed onthe post of Managing Director of the Jal Nigam on 11.7.2002. By the orderdated 26th July, 2002 the state Government fixed a tenure of three years for thepost of Managing Director. Consequently, the State Government and theAgriculture Production Commissioner/Chairman, Jal Nigam issued the orders dated 30.9.2003 and 23.10.2002 clarifying therein that attaining the ageof 58 years will not have any effect on the appointment of the petitioner. Thusthe State Government cannot be permitted to go back and say that since thepetitioner has attained the age of 58 years as such he is relieved from the postof Managing Director.Before concluding, we would like to refer recent decision of Hon'bleSupreme Court in Onkar Lal Bajaj V.. Union of India, (2003)2 SCC 673,wherein the Hon'ble Supreme Court has laid emphasis that equity and fairplay are the essential ingredients of the principle of governance . Therelevantparagraph of the aforesaid judgement reads as under:
" The role model for governance and decision takenthereon should manifest equity, fair play and justice. Thecardinal principle of governance in a civilized society basedon rule of law not only has to base on transparency butalso must create an impression that the decision-makingwas motivated on the consideration of probity. Thegovernment has to rise above the nexus of vested interestsand nepotism and eschew window-dressing. The act of governance has to withstand the test of judiciousness andimpartiality and avoid arbitrary or capricious actions.Therefore, the principle of governance has to be tested onthe touchstone of justice, equity and fair play and if thedecision is not based on justice, equity and fair play andhas taken into consideration other matters, though on theface of it the decision may look legitimate but as a matter offact the reasons are not based on values but to achievepopular accolade, that decision cannot be allowed tooperate."
29. We are unable to understand as to what prompted the Chief Secretaryto write an office note stating therein that petitioner [ Arvind Nath] iscontinuing even after attaining the age of 58 years, when while acting asChairman of the U.P. Jal Nigam/Agriculture Production Commissioner, he himself has proposed for fixing three years terms and has stronglyrecommended for the same in the interest of the Corporation. Thereafter theState Government considering the public interest and significance of theCorporation decided to fix tenure of three years for the post of ManagingDirector. Not only this, as Chairman of the Jal Nigam, he himself hadrecommended in his letter dated 23.10.2002 that completion of 58 years byPetitioner- Arvind Nath would not be an impediment in his continuance asManaging Director because he has been appointed for three years. We also have an opportunity to examine the record produced by the StateGovernment, and we are of the view that learned Chief Standing Counsel haswrongly projected the impugned executive order to be a policy decision as noplausible reasons are available on record for deviating from the earlier policydecision which was taken looking to the working and importance of theprojects of the Corporation. Further, from the records it clearly comes out thatno opportunity was given prior to the passing of the order dated 26.9.2003and the subsequent orders.
30. Taking the holistic view of the matter, we have no hesitation in sayingthat the impugned order is not a policy decision but is the result of colourableexercise of power and has been passed under the garb of the policy decisionso as to prevent the Court from interfering the matter. Needless to say that allexecutive orders cannot be termed as a policy decision. Since we have come toa conclusion that the impugned order is an executive order and is not anorder passed in furtherance of the Government Policy, the petitioner isprotected by the Doctrine of Assured Tenure and as such the petitioner has aright to work as Managing Director for the remaining period of his fixedtenure.For the reasons aforesaid, the writ petition no.1309/SB/2003 isallowed. The impugned order dated 26.9.2003 cancelling the policy decisiondated 26.7.2002 prescribing the fixed tenure for the post of Managing Director,and the consequential orders dated 26.9.2003 relieving the petitioner from thepost of Managing Director are hereby quashed. The petitioner-Arvind Nathshall be allowed to function as Managing Director of the Jal Nigam for theremaining period of his tenure.
31. Writ Petition No. 452[SB] 2004; Devendra Pal Sharma and Anr. v. State of U.P. and Ors. and the Writ Petition No. 468[SB]2004; Atul Krishna v. State of U.P. and Ors. stand decided accordingly.
Dated: 9.9.2004 HM/
32. we find in the present case, under the garb of policy decision,the authority have acted arbitrarily and have failed to givecogent and reasonable reasons for altering the earlier policydecision which was implemented a year ago for the reasons enumerated hereinabove.