Association vs Union

1. Since the issues involved in both these writ petitions are identical, they were heard together and are disposed of by this common judgment.

2. Both these petitions challenge the communication dated 6th January, 2012 of the respondent No.2 - Regional Passport Officer whereby the petitioners have been informed that the submission of passport applications from travel agents under the old system would be available till 31st January, 2012 and that an applicant who has difficulty in filling up/online filling up of passport application, and status enquiry of application, may seek assistance from travel agents in the new Passport Seva Project (PSP). For the sake of convenience, reference is made to the facts as stated in Special Civil Application No.917 of 2012.

3. Each of the two petitioners is an "Association of Recognised Passport Agents in Gujarat". The members of the petitioners have been recognised by the Ministry of External Affairs, Consular, Visa and Passport Division, the respondent No.1 herein to deal with the offices of the respondent No.1 and the Regional Passport Officer, respondent No.2 herein, in the matter of preparation and submission of passport applications on behalf of the applicants and to represent the said applicants before the respondent authorities. A recognised agent is an individual who has been authorised by respondent No.1 to fill up passport applications of all natures, submit them online and represent his/her clients, that is, the passport applicants before the Regional Passport Officer. According to the petitioners, some of the passport agents have been granted recognition as many as fifty years ago. It is further the case of the petitioners that recognition involves scrupulous adherence to fulfillment of rules and procedures laid down by the Ministry of External Affairs. In order to get recognition, such agent has to submit an affidavit of declaration stating down the details set out in paragraph 3.3 of the petition. After providing the said information and material, upon the conditions for grant of recognition, being found to have been strictly complied with, the respondent No.1 through the respondent No.2 conducts site inspection through police verification of the applicant - agent. Police inquiry/verification is made not only of the agent intending to be recognised, but also of the staff members who would be assisting such recognised agent in carrying out his activities. It is after satisfying site inspection and receipt of clear police report that an application to act as recognised passport agent would be granted and certificate (licence) to this effect would be issued.

3.1 A recognised agent is recognised by the respondent No.1 to deal with the respondent authorities and does all that is necessary in the course of his activities as a recognised agent, whenever an applicant, intending passport holder, approaches him and is desirous of availing expert services of authorised and qualified service provider, viz., recognised passport agent. According to the petitioners, in the year 2001-2002, radical changes were effected by the respondent authorities in the matter of submission and processing of passport applications through the use of computer and internet and the members of the petitioner associations welcomed the change and adapted themselves and their setups to fall in line with the technological advancement. As a part of the process, a recognised agent is given a separate 'agent login ID' with password and access code through which the recognised agent submits the data in the form of completed application form and is stored in the Central Data Pool maintained by the respondent No.1 through National Informatics Centre (NIC). It is the said data information which has been submitted by the recognised agent through web submission, for which he has collected all data from the applicant, verified it and formatted it to suit the application format which is submitted through him and form part of the system maintained by the respondent No.1. Lastly, it is the duty of the agent to capture the applicant's photo on a web camera, which is connected with the Central Server maintained by NIC, through its software, whereby the said image/photo captured of the applicant is loaded alongwith the other information in the data pool maintained by the respondent No.1 with the help of NIC. According to the petitioners, it is the primary responsibility of the said agent to verify the contents of application and the supporting documents. On the basis of the said information/data supplied by the recognised agent under his individual login, the passport will be issued in the name of his client, that is, the passport applicant, subject to any verification by the concerned officer. In case there is any discrepancy in the application, the same are attended to by the recognised agent for addressing the said issues. The recognised agent also categorises the application under the relevant category so as to facilitate data entry under proper category at the end of the concerned officer.

3.2 It appears that a recognised agent makes between 25-50 applications on a given day/time as the case may be and there is a cap on the total submission by the agent depending upon the Regional Passport Office concerned. It is the recognised agent who submits the applications of his clients to the Regional Passport Officer which are verified by the Verifying Officer and fee receipts are issued.

3.3 It is the case of the petitioners that the recognised passport agents have been discharging their duties as such agents from the past 50 years during which period various scrupulous procedures have been made to be followed by the respondent authorities through the said recognised agents, inter alia, requiring a particular kind of office setup, requisite and qualified staff, installation of necessary devices such as computers, cameras, safe deposit vaults etc. Thus, the act of the respondent authorities in continuous recognition of the rights of the members of the petitioner associations in preparing and submitting passport applications and representing their clients before passport authorities, unequivocally show that the said agents were always treated and considered part and parcel of the system. That the volume of applications processed and submitted through the members of the petitioner associations is a bare indication of indispensability of such recognised passport agents in the whole system of preparation, submission and issuance of matters of passport.

3.4 The respondent No.1 under the National e-Governance Plan announced a Passport Seva Project. For the implementation of the said project, the respondent No.1 entered into a contract with the third respondent, Tata Consultancy Services, for end-to-end management of the said project. Under the said project, about 77 passport filing centres, that is, Passport Seva Kendras (PSKs) were to be opened. The project required the applicant to visit the Passport Seva Kendra to complete the application formalities like form submission, fee payment, photograph and fingerprint capture and verification of documents.

3.5 It is the case of the petitioners that when they came to learn about introduction of the Passport Seva Project, a letter dated 4th January, 2012 came to be addressed to the respondent No.2 inquiring about the said project. However, the petitioner associations, by the impugned communications were informed by the respondent No.2 that recognised agents do not have place in the new Passport Seva Project and that submission of passport applications through agents will be available only till 31st January, 2012 and that the same will be terminated thereafter. Being aggrieved, the petitioners have filed the present petitions seeking the following substantive reliefs:

"18.

The petitioner therefore, prays that:

Hon'ble Court be pleased to issue an appropriate writ, order or direction, quashing the impugned decision of 6.1.2012 issued by the Acting Regional Passport Officer, respondent no.2 herein;

Hon'ble Court be pleased to issue a writ of mandamus or writ in nature of mandamus or any other appropriate writ, order or direction, directing the respondents to allow the members of petitioner association to continue to work as recognized agents by representing their clients i.e. passport applicants at Passport Seva Kendras and/or Regional Passport Offices, by permitting them access in the system with their individual login and by accepting the applications so uploaded on the system under their individual login and further permitting them to represent their clients in Passport Seva Kendras and/or Regional Passport Offices, either by setting up exclusive separate counters for the members of petitioner association to submit such applications and/or making such other alternative arrangement so as to accommodate members of petitioner association in discharge of their activities as recognized agents."

4. In response to the petitions, the respondent No.2 has filed affidavits-in-reply controverting the averments made in the petitions. It has been submitted that to bring the benefits of Information and Communications Technology (ICT) at the last mile to ensure transparent, timely and hassle-free delivery of citizens' services, the Government of India has initiated e-Governance programme in the country in the late 1990s. Online services under the National e-Governance Plan takes into its sweep passport/visa. The National e-Governance Plan of the Government seeks to lay the foundation and provide the impetus for long term growth of e-Governance within the country. The Plan seeks to create the right governance and institutional mechanisms, set up the core infrastructure and policies and implement a number of mission mode projects at the centre, state and integrated service level to create a citizen-centric and business-centric environment for governance. It is averred that in exercise of powers conferred by clause (i) of sub-section (2) of section 24 of the Passports Act, 1967, the Central Government has framed rules named the Passports Application (Facilitation and Processing) Rules, 2010. It is further averred that the Government of India in public private partnership with Tata Consultancy Services Ltd. has implemented the Passport Seva Projects all over India and accordingly the Passport Seva Kendras have commenced under the jurisdiction of fifteen passport offices in India and at present the Gujarat Passport Seva Kendra is functioning at Ahmedabad (2 PSKs), Baroda, Rajkot and Surat to facilitate citizens and serve them properly. It is submitted that the design of this Project ensures that only support functions like improving citizens interface, managing technology backbone, the call centres, training and change management are provided by Tata Consultancy Services, and the Government will continue to exercise all sovereign and security related functions in the passport issuance process. The security aspects have been fully taken care of with all strategic assets including the data centre, database and application software to be owned by the Government. The e-Governance plan is for the betterment of public and for easy access of Government services by the common public. It is further averred that the Ministry of External Affairs has started issuing E-Passports also known as Biometric Passport in the Diplomatic and Official categories since June, 2008 with full roll-out of E-Passport in the ordinary passport categories. E-Passports will be much safer against forgery and will further facilitate the movement of their holders through the border points equipped with Passport Reading Machines at its full implementation. According to the respondent No.2, a policy decision has been taken by the Government of India to evolve a project with public private partnership in order to expedite the issuance of passport to serve the public interest. The policy decision is in public interest. Towards the step of having a Biometric Passport, the applicant is required to submit the passport application himself so that his/her photograph and fingerprints can be taken, as for the proper implementation of Passport Seva Project through the Passport Seva Kendras. Under the Passport Seva Project, the application for passport is to be submitted at the Passport Seva Kendra and the passport offices are excluded from receiving passport applications except Tatkal Passport applications and the applications received under orders passed by courts. It is further submitted that under the said project, the Passport Seva Kendras have started functioning with effect from 16th January, 2012 so far as the Ahmedabad and Surat Passport Seva Kendras are concerned within the State of Gujarat, whereas in fifteen passport offices throughout the nation, the said policy decision has been implemented and therefore to avoid any hardship to the authorised travel agents, the impugned communications have been issued.

5. The petitioners filed affidavits-in-rejoinder to the aforesaid affidavits-in-reply controverting the averments made therein. It is stated that the respondent No.1 for the reasons best known to it, has chosen not to defend its policy decision if any, by way of an affidavit before this court. It is contended that what is the policy decision of the respondent No.1 is not coming forth in so many words or otherwise and it is nowhere stated categorically that the respondent No.1 has taken a conscious policy decision to completely eliminate the role of the recognised agents and discontinue, for all times to come, the practice of preparation and submission of passport applications by the recognised passport agents and representation of the applicants before the passport authorities by the said agents. It is further stated that it was never envisaged under the National e-Governance Plan, at any stage, be it at the stage of conceptualization, or implementation thereof to eliminate the recognised agents. On the contrary, under the Passport Seva Project, the recognised agents, who are an extended arm of the respondent authorities in the matters of facilitated preparation and submission of passport applications, were to be considered as an integral part of the Passport Seva Project.

6. The respondent No.2 has filed additional affidavits dated 7th February, 2012 inter alia stating that the registration of travel agent and recognition of travel agents was to afford an alternative to the citizens regulated by administrative orders only. It is contended that these orders have no statutory status and are thus liable to be amended, modified or withdrawn as per policy of the Government from time to time. It is further stated that with a view to achieve the objectives as stated in paragraph II(b) of the affidavit, the recommendation of the National Institute of Smart Governance was examined by the Ministry and after consultation with the Ministry of Finance, Ministry of Home, Department of Information Technology and Department of Personnel and Training, a proposal came to be submitted to the Union Cabinet to outsource front end activities of passport issuance system and inter alia setting up Passport Seva Kendras all over the country. The Union Cabinet approved the proposal in September, 2007. After following an open bidding two stage process, the respondent No.3 was selected as a private partner to implement the Passport Seva Project. Subsequently, an agreement was signed between the Ministry and the respondent No.3 on 13th October, 2008. It is further stated that national security and transparency constitute the basic philosophy of the Passport Seva Project (PSP) which envisions "to deliver all Passport-related services to the citizens in a timely, transparent, more accessible, reliable manner and in a comfortable environment through streamlined processes and committed, trained and motivated workforce." The new measures and procedures have been introduced in the interest of national security to deny issue of passports to ineligible persons or those who may even be abroad as well as those who try to obtain passport service fraudulently on false pretence and particulars. It is essential now for the applicant to present himself/herself at the Passport Seva Kendra (PSK) to enable the Passport Issuing Authority to obtain photograph and fingerprints. The applicant gets full opportunity to see and affirm his/her personal particulars to be entered in the passport to avoid unnecessary correspondence later. The illiterate or infirm applicants can bring along someone for assistance. In re-issue cases or where no police verification is required, the applicant, subject to satisfactory production of requisite documents, is informed about the 'granting' of passport at his/her very first visit to the PSK. The Exist Slip mentions the status of the application. The online system ensures that there is no queue jumping. The LCD screens at the PSKs vividly guide the applicants to respective counters. The Customer Service Executives, deployed at the PSK, are also available to guide the applicants. The PSKs also have the facility of a touch screen for guidance of the applicants besides a photocopier and rest rooms etc. Thus, the Government is striving to provide passport related services in a convenient, comfortable and transparent manner.

6.1 It is further averred that the decision to implement PSP is a well-thought out initiative of the Government of India taken after due diligence in keeping with its e-Governance policy decisions and not an act of arbitrary manner by the Ministry of External Affairs. The role of the travel agents in the Passport Seva System has been curtailed as it is now mandatory for the applicant to present himself/herself for fingerprints and photograph etc. as detailed above. It is reiterated that personal appearance of the applicant, fingerprint and digital photograph measures are required in the interest of national security. It is also averred that in the past, many fraudulent applications were received through some travel agents and touts masquerading as travel agents. Government has been receiving many appeals from applicants who at the behest of unscrupulous elements indulged in passport forgery, obtaining multiple passports by suppression of facts and with wrong names and particulars. Majority of these applicants informed the Government that they were misguided and helped by travel agencies in their dubious acts.

6.2 It is further stated that the measures introduced in the Passport Seva Project include among other things steps to reduce police verification time (the personal particulars form will be generated and transmitted through computer to Police authorities who will be equipped with necessary computer terminal). Police authorities can also upload verification results in the Passport Office's computer system which will substantially reduce time. Thus, the Passport Seva Project is a project being executed under sovereign functions of the Government for the benefit of the citizens and in the interest of national security. It is stated that the travel agents can still play a role to the extent that an applicant who has difficulty in filling up/online filling up of passport application and ascertaining status enquiry of application may seek assistance from travel agents in the new Passport Seva Project. Therefore, travel agents may still play a role to that extent in the new Passport Seva System. However, such applicant has to come to the Passport Seva Kendra for submission of application, fingerprint and digitization of photograph requirements and the travel agents will have no role in that process. It is stated that there is no 'derecognition' of travel agents as they are still free to assist the applicants as mentioned above. It is entirely upto the applicant whether he/she applies for passport services online on his/her own or through any internet cafe or through any other person capable of applying online or through any travel agent. The field for the applicant is now wider. It is further stated that the log-in IDs were given under the previous system which was maintained by NIC. With the launch of PSP, the login IDs will no longer be usable in the NIC system. In any case, allotting log-in IDs does not add any value as travel agents like any other citizen are free to create as many log-in IDs as they wish, to assist the applicants.

7. The petitioner has filed affidavits-in-rejoinder to the additional affidavits filed by the respondent No.2 controverting the averments made in the additional affidavits.

8. On behalf of the respondent No.1, the respondent No.2 has filed affidavits-in-reply dated 17th February, 2012 more or less reiterating what is stated in the additional affidavits filed by the respondent No.2. It is further stated therein that travel agents since were assisting the applicants on a commercial basis, that is, were charging a fee directly from the applicants for the services rendered, had acquainted themselves with the rules and procedures for their own use and not for the benefit of either the passport issuance system or for the benefit of the citizens. It is stated that the claim of the petitioner that under the old system, their members were uploading the photograph of the applicant in the central server is out rightly misleading as the web camera photograph was only taken as a token proof that the applicant visited the travel agent's office for submission of his form to control the ghost or in-absentia submissions. Further, this system was evolved by the Regional Passport Office to suit its requirements. It is clarified that the said photograph was never uploaded in the database of the Regional Passport Office.

9. The respondent No.3 has filed affidavit-in-reply setting out the steps to be followed by the person applying for passport through the website of the respondent No.1 - Union of India. It is further stated that so far as the respondent No.3 is concerned, only the technical administrative support is provided to the officers of Regional Passport Office in issuing the passport inasmuch as the same falls within the scope of the work awarded to respondent No.3. The whole process from receipt of passport applications till the final issuance of passport to the applicant is managed through the application software developed and implemented by respondent No.3 and respondent No.3 merely ensures that the applicant's details and documents are available in the system for Government staff to carry out the sovereign functions of verification and issuance of passport to the applicant. However, the staff of respondent No.3 has no authority to decide as to whether the concerned person is to be issued passport or not. The officers of respondent No.3 at Passport Seva Kendras are simply concerned with preliminary physical verification of the documents and the time slot allotted to the concerned person. This is simply to ensure that administration of Passport Seva Kendras is run efficiently. If the person has reported in time and with the complete set of documents, the officer of respondent No.3 has to permit further access to the person by issuing token without undertaking the exercise as to whether the documents are genuine or not. The genuineness or otherwise of the documents will be examined by the officers of the Regional Passport Office stationed at the Passport Seva Kendra.

10. Mr.

K.B. Trivedi, learned senior advocate appearing with Mr. Tejas Barot, learned advocate for the petitioners in both the petitions submitted that neither the policy decision nor change in the system is immune from challenge under Articles 14 and 19 of the Constitution of India. According to the learned counsel, the respondents are bound by the doctrine of due process of law and fairness of action. It was submitted that the actions of the respondents are not guided by due process of law and fairness in action; hence, the claim based upon legitimate expectation is required to be entertained. It was argued that the policy maker namely, the Union of India has not filed an affidavit justifying its action of eliminating passport agents from the system of issuance of passports. It was submitted that in effect and substance, what has been done is that the work being done by 94 passport agents who have been given login facilities will be transferred to three Passport Seva Kendras who are private individuals. It was argued that the new system does not, in any manner, obviate the hardship to the citizens. It was contended that if the reasons for change in the policy are not sufficient and the reason therefore, is not rational, the policy can be set aside by this court. According to the learned counsel in the facts of the present case, overriding interest for change in policy has not been made out.

10.1 It was submitted that various questions raised by the petitioners still remain unanswered by the respondents No.1 and 2 namely, (1) what exactly is the policy decision in question? (2) what is the basis of the said decision and what is the decision making process undertaken for this purpose? (3) what is the policy document containing such a decision? (4) why has the respondent No.1 who is the decision maker, not filed any affidavit-in-reply? (5) what is the overriding reason of public interest to justify such framing of a well-established 50 year long practice of recognised passport agents? (6) why no explanation is coming forth from the respondents No.1 and 2 as to how the new Passport Seva Kendra will expedite the issuance of passport? and (7) though as per the impugned policy, recognised passport agents were to be considered as an integral part of Passport Seva Project as announced vide communications dated 27th July, 2010 and 15th May, 2010, why such proposed amendment is not coming forth?

10.2 Next, it was submitted that it is true that there is no legislative enactment providing for appointment of recognised passport agents but it was the Central Government which wanted to create a system of agents. Referring to the format for making application for recognition as a passport agent (Annexure 'E' to the petition), it was pointed out that agents were required to comply with stringent conditions for the purpose of being granted recognition by the Ministry of External Affairs. Referring to the communication dated 27th October, 2005 addressed by the Regional Passport Officer, Ahmedabad to the proprietors of authorised travel agents (at page 104), it was pointed that the passport agents are categorised on the basis of their performance. It was urged that there is a well-defined mechanism in place which has worked to the satisfaction of all concerned, hence there was no need to deviate from the said policy whereby the bulk of the activity of the passport agent will come to an end. Referring to the National e-Governance Plan (Annexure R-1) to the affidavit-in-reply filed by the respondent No.2, it was submitted that the same is not a policy document in respect of the present policy. It was further submitted that the Passport Seva Kendras are not Regional Passport Offices and that private parties will run these seva kendras. It was urged that even under the new system, the members of the petitioner Association can be integrated, inasmuch as earlier the members of the petitioner associations were taking photographs of the applicants through web camera which was transferred to the central server of the Regional Passport Office whereas under the new system, in addition to photographs, fingerprints are also required to be taken. The learned counsel drew the attention to a machine for taking fingerprints to point out that it was a small equipment and that the members of the petitioner associations are ready and willing to invest in the same for taking fingerprints and as such, there is no impediment even under the new policy if the members of the petitioner associations are permitted to submit applications after taking photographs and fingerprints of their clients.

10.3 Emphasis was laid upon the letter dated 27th July, 2010 (Annexure II to the affidavit-in-reply filed by the petitioners) addressed by the Director (PV) & Project Director (PSP) to the Chairman, M/s. Traveller's Choice Pvt. Ltd., Bangalore stating that they are now ready for the next phase of the project, namely, the gradual integration of the new system with the travel agents. For this, they would be providing login IDs and passwords to accredited travel agents in Bengaluru on a trial basis before August 15, 2010. After operating this for four weeks, they would take the feedback from travel agents and improve the system further, before the full roll out. It is also stated that they would like to have a half day workshop with TAAI and the service provider to discuss the rules, responsibilities and requirements of all sides. Equal emphasis was laid on the letter dated 19th May, 2010 of the Regional passport Officer, Bangalore addressed to the Chairman, TAAI - Karnataka Chapter and the Chairman, TAFI - Karnataka Chapter, Bangalore, wherein it has been stated that the Ministry of External Affairs, New Delhi has decided to operationalise Passport Seva Kendras with effect from 21st May, 2010. Accordingly, the said office will stop accepting applications in the office with effect from 21st May, 2010. It is further stated therein that they may like to submit their clients' applications at Passport Seva Kendras by taking individual appointments and a separate user ID and password will be given to the recognised travel agents as and when the new system stabilizes. The learned counsel submitted that thus, it was the intention of the policy makers to integrate the passport agents in the new system. However, the respondents are totally silent as regards the same which shows a paradox. It was submitted that the Passport Seva Kendra is an extended office of the Regional Passport Office and what the petitioners were doing has been outsourced to respondent No.3.

10.4 Reliance was placed upon the decision of the Supreme Court in the case of Navjyoti Coop.

Group Housing Society and others vs. Union of India and others, (1992) 4 SCC 477, wherein a new criterion of allotment was given by the memorandum impugned therein, prior to which priority in the matter of allotment to Group Housing Societies had all along been made with reference to the date of registration. The court held that since prior to the new guideline contained in the memorandum of January 20, 1990, the principle of allotment had always been on the basis of date of registration and not the date of approval of the list of members, the Group Housing Societies were entitled to 'legitimate expectation' of following consistent past practice in the matter of allotment, even though they may not have any legal right in private law to receive such treatment. It was held that the doctrine of 'legitimate expectation' imposes in essence a duty on the public authority to act fairly by taking into consideration all relevant factors relating to such 'legitimate expectation'. The existence of 'legitimate expectation' may have a number of different consequences and one of such consequences is that the authority ought not to act to defeat the 'legitimate expectation' without some overriding reason of public policy to justify its doing so. Adverting to the facts of the present case, the learned counsel submitted that the petitioners had a 'legitimate expectation' that they would be integrated in any system in relation to issuance of passports and that it was the duty of the respondents to act fairly; that the respondents ought not to have acted to defeat their 'legitimate expectation' without any overriding reasons. It was submitted that from the stand adopted by the respondents in the affidavits-in-reply filed by them, no compelling reasons are borne out for making a departure from the existing system and eliminating the passport agents from the system of issuance of passports and that prior to introduction of the new system, the passport agents should have been taken into confidence. In support of his submission, the learned counsel placed reliance upon the decision of the Supreme Court in the case of Mahabir Auto Stores and others vs. Indian Oil Corporation and others, (1990) 3 SCC 752 wherein it has been held thus:

"18. Having considered the facts and circumstances of the case and the nature of the contentions and the dealing between the parties and in view of the present state of law, we are of the opinion that decision of the State/public authority under Article 298 of the Constitution, is an administrative decision and can be impeached on the ground that the decision is arbitrary or violative of Article 14 of the Constitution of India on any of the grounds available in public law field. It appears to us that in respect of corporation like IOC when without informing the parties concerned, as in the case of the appellant-firm herein on alleged change of policy and on that basis action to seek to bring to an end the course of transaction over 18 years involving large amounts of money is not fair action, especially in view of the monopolistic nature of the power of the respondent in this field. Therefore, it is necessary to reiterate that even in the field of public law, the relevant persons concerned or to be affected, should be taken into confidence. Whether and in what circumstances that confidence should be taken into consideration cannot be laid down on any straight-jacket basis. It depends on the nature of the right involved and nature of the power sought to be exercised in a particular situation. It is true that there is discrimination between power and right but whether the State or the instrumentality of a State has the right to function in public field or private field is a matter which, in our opinion, depends upon the facts and circumstances of the situation, but such exercise of power cannot be dealt with by the State or the instrumentality of the State without informing and taking into confidence, the party whose rights and powers are affected or sought to be affected, into confidence. In such situations most often people feel aggrieved by exclusion of knowledge if not taken into confidence.

19. Such transaction should continue as an administrative decision with the organ of the State. It may be contractual or statutory but in a situation of transaction between the parties for nearly two decades, such procedure should be followed which will be reasonable, fair and just, that is, the process which normally be accepted (sic is expected) to be followed by an organ of the State and that process must be conscious and all those affected should be taken into confidence.

20. Having regard to the nature of the transaction, we are of the opinion that it would be appropriate to state that in cases where the instrumentality of the state enters the contractual field, it should be governed by the incidence of the contract. It is true that it may not be necessary to give reasons but, in our opinion, in the field of this nature fairness must be there to the parties concerned, and having regard to the large number or the long period and the nature of the dealings between the parties, the appellant should have been taken into confidence. Equality and fairness at least demands this much from an instrumentality of the State dealing with a right of the State not to treat the contract as subsisting. We must, however, evolve such process which will work."

10.5 The decision of the Supreme Court in the case of M.P. Oil Extraction and another vs. State of M.P. and others, (1997) 7 SCC 592, was cited for the proposition that the doctrine of "legitimate expectation" operates in the domain of public law and in an appropriate case, constitutes a substantive and enforceable right. Reference was made to the decision of the Supreme Court in the case of Kumari Shrilekha Vidyarthi and others vs. State of U.P. And others, (1991) 1 SCC 212 with emphasis on the following observations made by the Supreme Court:-

"44. Conferment of the power together with the discretion which goes with it to enable proper exercise of the power is coupled with the duty to shun arbitrariness in its exercise and to promote the object for which the power is conferred, which undoubtedly is public interest and not individual or private gain, whim or caprice of any individual. All persons entrusted with any such power have to bear in mind its necessary concomitant which alone justifies conferment of power under the rule of law. This was apparently lost sight of in the present case while issuing the impugned circular.

45. xxx xxx xxx

46. Viewed in any manner, the impugned circular dated February 6, 1990 is arbitrary. It terminates all the appointments of Government Counsel in the districts of the State of Uttar Pradesh by an omnibus order, even though these appointments were all individual. No common reason applicable to all of them justifying their termination in one stroke on a reasonable ground has been shown. The submission on behalf of the State of Uttar Pradesh at the hearing that many of them were likely to be re-appointed is by itself ample proof of the fact that there was total non-application of mind to the individual cases before issuing the general order terminating all the appointments. This was done in spite of the clear provisions in the L.R. Manual laying down detailed procedure for appointment, termination and renewal of tenure and the requirement to first consider the existing incumbent for renewal of his tenure and to take steps for a fresh appointment in his place only if the existing incumbent is not found suitable in comparison to more suitable persons available for appointment at the time of renewal. In the case of existing appointees, a decision has to be first reached about their non-suitability for renewal before deciding to take steps for making fresh appointments to replace them. None of these steps were taken and no material has been produced to show that any existing incumbent was found unsuitable for the office on objective assessment before the decision to replace all by fresh appointees was taken. The prescribed procedure laid down in the L.R. Manual which has to regulate exercise of this power was totally ignored. In short, nothing worthwhile has been shown on behalf of the State of U.P. to support the impugned action as reasonable and non-arbitrary. The impugned circular must, therefore, perish on the ground of arbitrariness which is an available ground for judicial review in such a situation."

It was accordingly submitted that prior to eliminating the passport agents from the system of issuance of passports, the Government ought to have first reached to a decision about their non-suitability on objective assessment before introducing the new system and totally eliminating them therefrom.

10.6 Reliance was also placed upon the decision of the Supreme Court in the case of Official Liquidator vs. Dayanand and Others, (2008) 10 SCC 1 and more particularly to the following observations made therein:

"102.

The concept of "due process of law" has played a major role in the development of administrative law. It ensures fairness in public administration. The administrative authorities who are entrusted with the task of deciding lis between the parties or adjudicating upon the rights of the individuals are duty-bound to comply with the rules of natural justice, which are multifaceted. The absence of bias in the decision-making process and compliance with audi alteram partem are two of these facets. The doctrine of legitimate expectation is a nascent addition to the rules of natural justice. It goes beyond statutory rights by serving as another device for rendering justice. At the root of the principle of legitimate expectation is the constitutional principle of rule of law, which requires regularity, predictability and certainty in Government's dealings with the public - J. Rax, the Authority of Law [(1979) Chapter 11]. The "legal certainty" is also a basic principle of European community. European law is based upon the concept of vertrauensschutz (the honouring of a trust or confidence). It is for these reasons that the existence of a legitimate expectation may even in the absence of a right of private law, justify its recognition in public law.

103. In Halsbury's Laws of England (4th Edn.), the doctrine of legitimate expectation has been described in the following words:

"A person may have a legitimate expectation of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment. The expectation may arise either from a representation or promise made by the authority, including an implied representation, or from consistent past practice."

It was submitted that under the circumstances, from the consistent past practice prevailing over fifty years, an expectation had arisen that the petitioners would be included in the system of issuance of passports and accordingly, the petitioners had a legitimate expectation of being treated as a part of the system. According to the learned counsel, the decision making process should be examined to ascertain as to whether the decision making process says that the present system of passport agents is not up to the mark.

10.7 As regards the decision of the Madras High Court in the case of M/s. United Visa Services Pvt. Ltd. vs. Union of India rendered in Writ Petition No. 21787/2011 and other cognate matters on 8th December, 2011 which finds reference in the affidavit-in-reply filed by the respondent No.2, it was submitted that before the Madras High Court, the propositions canvassed by the petitioners before this court, more particularly invocation of the doctrine of legitimate expectation, have not been canvassed, hence the said court did not have any occasion to deal with the same. It was urged that there has to be a basis for the policy decision and the change therein, whereas none is coming forth in the present case. It was, accordingly, urged that the petitions deserve to be admitted and that the interim relief as prayed for deserves to be granted.

11. Opposing the petition, Mr. P.S. Champaneri, learned Assistant Solicitor General drew the attention of the court to the averments made in the affidavit-in-reply as well as additional affidavit filed by the respondent No.2 and the affidavit filed on behalf of the respondent No.1 in each of the petitions. Inviting attention to the provisions of section 5 of the Passports Act, 1967, it was submitted that issuance of passport is a statutory sovereign function. Upon receipt of an application for issue of passport under the Act, the passport authority after making such inquiry as may be necessary may issue or refuse to issue the passport to the applicant. Inviting attention to the averments made in the affidavit-in-reply filed on behalf of the respondent No.1, it was pointed out that under the National e-Governance Plan, various mission mode projects have been identified. Accordingly one such mission mode project focuses on transparent passport issuance system in India. The mission mode project of passports names PSPs aims at providing all the passport related services to citizens in a speedy, convenient and transparent manner.

11.1 It was pointed out that the National Institute of Smart Governance (NISG) was consulted in this behalf and had given its recommendations as set out in paragraph 6 of the said affidavit. Attention was also invited to the set of objectives to be achieved through the project. Referring to section 24 of the Act, it was submitted that the said provision empowers the Central Government by notification in the Official Gazette to make rules for carrying out the purposes of the Act. Under Clause (i) of sub-section (2) of section 24, the Central Government is empowered to make rules in respect of any other matter which is to be or may be prescribed or in respect of which the Act makes no provision or makes insufficient provision and provision is, in the opinion of the Central Government, necessary for the proper implementation of the Act. Accordingly, in exercise of powers under Clause (i) of sub-section (2) of section 24, the Central Government has by notification in the Official Gazette, made rules called "The Passports Application (Facilitation and Processing) Rules, 2010". The attention of the court was drawn to rule 2(c) of the Rules, which defines Passport Seva Kendra to mean a passport application processing centre under the Passport Seva Project as well as rule 3 of the said Rules which makes provision for setting up of Passport Seva Kendras under the Passport Seva Project by the service provider with the approval of the Central Government. It was urged that the policy of introducing new passport issuance system is fair and transparent and is based on 'first in first out' principle in rendering services to the citizens in a timely, transparent and more accessible, reliable manner in comfortable environment through streamlined processes to facilitate citizens. It was submitted that the new system of issuance of passports seeks to remove certain deficiencies, resulting in intractable problems, like long queues, inconvenience to applicants who may not have complete knowledge of the rules and procedures in delivery of passport. It was urged that the new measures have been introduced in the interest of national security to deny issue of passport to ineligible persons and also to those who try to obtain the passport services fraudulently on false pretence and particulars.

11.2 Mr. Champaneri further submitted that the petitioner associations are trying to intervene in the implementation of the project of the Ministry of External Affairs under the Government's sovereign function envisaged for the benefit of the citizens and in the interest of national security. According to the learned counsel it is not as if the travel agents have been totally eliminated from this system as is sought to be contended on behalf of the petitioners. The role of the travel agents has merely been curtailed as it is now mandatory for the applicant to present himself/herself for fingerprint and photograph. However, the travel agents can still play a role to the extent that an applicant who has difficulty in filling up/online filling up of passport application and ascertaining status inquiry may seek assistance from travel agents in the new Passport Seva Project.

11.3 In support of his submissions, the learned counsel placed reliance upon the decision of the Madras High Court in the case of M/s. United Visa Services Pvt. Ltd. vs. Union of India (supra) wherein the court had repelled the contention of the petitioners therein (who were similarly situated to the petitioners), that as a matter of right, they were entitled to accompany the applicant to the Passport Seva Kendra and remain with them throughout for the purpose of obtaining passport. It was submitted that the view taken by the Madras High Court is the correct view and there is no warrant for this court to take a different view.

11.4 As regards the contention that the respondent No.1 decision maker has not filed any affidavit-in-reply, it was pointed out that in the additional affidavit-in-reply filed by the respondent No.2, it has been categorically averred that the affidavit is filed on the basis of the instructions received from the Ministry of External Affairs, Government of India, New Delhi. It was further submitted that subsequently the respondent No.1 has also filed an affidavit through the respondent No.2. It was accordingly submitted that no case has been made out so as to call for grant of any of the reliefs prayed for in the petitions and that the petitions being devoid of merits deserve to be dismissed.

12. Mr.

Dhaval Dave, learned senior advocate with Mr. Jigar Patel, learned advocate for the respondent No.3 invited attention to the affidavit-in-reply filed on behalf of the respondent No.3 and more particularly to the process for applying for passport as summarised therein to submit that the nature of the activities carried out by the respondent No.3 are in the nature of ministerial work, and that only the technical administrative support is provided to the officers of the Regional Passport Office in issuing passport inasmuch as the same falls within the scope of the work awarded to respondent No.3. It was submitted that the whole process from receipt of passport application till the final issuance to the applicant is managed through the application software developed and implemented by the respondent No.3 and respondent No.3 merely ensures that the applicant's details and documents are available in the system for Government staff to carry out the sovereign function of verification and issuance of passport to the applicant. It was pointed out that the physical presence of the person applying for passport is a sine qua non at the Passport Seva Kendra under the system for the purpose of fingerprints as per the policy laid down by the respondent No.1 - Union of India. Inviting attention to the reliefs claimed in the petitions, it was submitted that the prayer sought for by the petitioner has the effect of dispensing with the said requirement.

12.1 In support of his submission, the learned counsel placed reliance upon the decision of the Supreme Court in the case of M/s. Bajaj Hindustan Ltd. vs. Sir Shadi Lal Enterprises Ltd. (2011) 1 SCC 640, for the proposition that it is settled law that in the areas of economics and commerce, there is far greater latitude available to the executive than in other matters. The court cannot sit in judgment over the wisdom of the policy of the Legislature or the Executive. The executive authority of the State must be held to be within its competence to frame a policy for the administration of the State. Unless the policy framed is absolutely capricious and, not being informed by any reason whatsoever, can be clearly held to be arbitrary and founded on mere ipse dixit of the executive functionaries thereby offending Article 14 of the Constitution or such policy offends other constitutional provisions or comes into conflict with any other statutory provision, the court cannot outstep its limit and tinker with the policy decision of the executive functionary of the State. Reliance was also placed upon the decision of the Supreme Court in the case of Syed Ashwaq Ahmed vs. Joint Secretary and Chief Passport Officer and another, AIR 2010 SC 3310, wherein the court in the facts of the said case had observed that the new policy adopted by the Government was not questioned by the petitioner therein whose grievance was confined to his exclusion from the scheme which came into operation in August, 2000. It was submitted that in the present case also, the petitioners have not challenged the passport policy. What is challenged is their exclusion. It was submitted that the prayer to permit the members of the petitioner association to submit applications on behalf of the clients is not permissible under the new system of issuance of passport and if permitted would have the effect of reviving the old system. It was argued that nothing has been stated in the petitions to show that the action of the respondents in introducing the new system is malafide or contrary to law. It was contended it is a well settled position of law that the power to lay policy by executive decisions or by legislation includes power to withdraw the same, unless it is by malafide exercise of powers or the decision or action taken is in abuse of power. The doctrine of legitimate expectation plays no role when the appropriate authority is empowered to take a decision by an executive policy or under law. The court leaves the authority to decide its full range of choice within the executive or legislative powers.

12.2 As regards the decisions on which reliance has been placed on behalf of the petitioners, it was submitted that each of the decisions pertains to individual contracts which were sought to be terminated without reasonable cause. The said cases relate to termination of contract and not change of policy. It was, accordingly, urged that the petitions being devoid of merits deserve to be dismissed.

13. In rejoinder, Mr. K.B. Trivedi, learned counsel for the petitioners submitted that the decision in the case of M/s. Bajaj Hindustan Ltd. vs. Sir Shadi Lal (supra), would not be applicable to the facts of the present case inasmuch as the said decision pertains to economic policy whereas the present case does not relate to economic policy. Insofar as the decision of the Supreme Court in the case of Syed Ashwaq Ahmed vs. The joint Secretary and Chief Passport Officer and another (supra) is concerned, it was pointed out that the said decision does not throw any light on the controversy in issue before this court. It was submitted that the said decision was rendered in the light of a scheme which was found to be proper by the Supreme Court. It was submitted that in the present case, there is total lack of fair play and that there being no overriding reasons for change in policy and for eliminating the members of the petitioner associations from the system of issuance of passports, the action of the respondents is bad in law and is violative of the fundamental rights of the petitioners.

14. It is an undisputed position that the members of the petitioner associations are recognised passport agents of Gujarat. The recognised passport agents have been granted recognition which involves scrupulous adherence to and fulfillment of rules and procedure laid down by the Ministry of External Affairs. It appears that the aforesaid system has been continuing for a period of almost 50 years. There is a system of keeping a check on the recognised passport agents and they are categorised in accordance with the quality of work rendered by them as is evident from the communication dated 27th October, 2005 issued by the Regional Passport Officer, Ahmedabad to the proprietor of authorised travel agents which classifies travel agents into three groups, Group A, Group B and Group C. It appears that initially, the passport agents not only submitted the applications but also received the passport from the passport authority on behalf of their clients. Subsequently, by virtue of a Circular issued on 24th July, 1992, the facility provided to the recognised travel agents for receiving the passport for and on behalf of their clients was withdrawn. However, the said matter is not relevant for the present purpose. Presently, the entire system of issuance of passports has been changed by introduction of Passport Seva Kendras whereby the role of the members of the petitioner Association has been curtailed. According to the respondents the decision for introducing passport issuance system has been taken after considering the recommendation and study conducted by the National Institute of Smart Governance, a Government entity, which had given the following key recommendations pursuant to the study conducted by it:

Establishing 77 Passport Seva Kendras (PSKs) across the country for delivering all front-end citizen services.

Converting existing Passport Offices into Passport Back Offices (PBO) for all back-end processing.

Creation of on-line Passport Portal for offering Passport services.

Providing links to designated points in Police department.

Establishing a Central Passport Printing Facility (CPPF) for handling extra load of passport printing.

Outsourcing of Dispatch process to Postal Department.

Introduction of a multi-modal Information and Grievance handling system.

Creating a centralized IT system linking all PSK's, PBO's, Police and Postal Departments.

Introducing productivity linked incentive scheme for Government employees.

Establishing a proper Program Governance Structure for managing the implementation and operation of all the above.

15. Thus, under a mission mode project under the National e-Governance Plan "Comprehensive Reform of the Passport Issuance System (Passport Seva Project)" was approved by the External Affairs Ministry and the policy introducing reform in the passport issuing system was placed for its consideration before the Cabinet. The Cabinet Secretariat in its meeting held on 6th September, 2007 considered the note containing the decision on the policy of introducing a "Comprehensive Reform of Passport Issuance System" and approved the same. In view of the International Civil Aviation Organisation (ICAO) guidelines to incorporate biometric data in the Machine Readable Travel Documents (MRTDs), the Government of India decided to upgrade its existing passports to electronics category of e-passports. The said policy (Passport Seva Project) aims at delivery of passport related services to citizens in a timely, transparent, more accessible, reliable manner and in a comfortable environment through streamlined processes and committed, trained and motivated workforce. In the implementation of the said policy, the Government of India has envisaged setting up 77 Passport Seva Kendras across the country and the Passport Seva Project is being implemented in a public private partnership model where under only non-sovereign and non-security and non-sensitive functions have been outsourced to a private service provider. This function includes token issuance, initial scrutiny of application forms, accepting of fee, scanning of documents and taking of photographs and biometrics. This front office function under the new system is outsourced, whereas the verification of original documents alongwith scanned documents including re-verification of the photograph and all other functions leading to issuance of passport is carried out by the Government official deputed by the Regional Passport Office and the Passport Seva Kendra is headed by an Assistant Passport Officer level Officer of the Central Passport Organisation of Ministry of External Affairs.

16. From the process as delineated in the affidavit-in-reply of the respondent No.3, it is clear that the role of the respondent No.3 private party is limited to acceptance of applications, preliminary physical verification of the documents and the time slot allotted to the concerned person. If the person has reported in time with the complete set of documents, the officer of the respondent No.3 has to permit further access to the person by issuing token without undertaking the exercise as to whether documents are genuine or not. All other functions subsequent thereto are to be discharged by the officers of the Regional Passport Office stationed at the Passport Seva Kendra.

17. The contentions of the petitioners may be tested in the aforesaid factual background. A perusal of the reliefs claimed in the petitions shows that what is challenged therein are the communication dated 6th January, 2012 of the Regional Passport Officer, RPO, Ahmedabad and the undated communication of the Assistant Passport Officer (Admn), Surat, respectively, addressed to all authorised travel agents informing them that the submission of passport applications from travel agents under the old system would be available till 31st January, 2012. An applicant, who has difficulty in filling up/online filling up of passport application, and status enquiry of application, may seek assistance from travel agents in the new Passport Seva Project. Therefore, travel agents may still play role to that extent in the new Passport Seva Project. However, such an applicant has to come to Passport Seva Kendra for submission of application, fingerprint and digitization of photograph, and travel agents will have no role in this process. Thus, insofar as the impugned communications are concerned, the same merely state the position as prevailing upon the implementation of the new system of issuance of passport.

18. The petitioners have also prayed for a direction to the respondents to allow the members of the petitioner association to continue to work as recognised agents by representing their clients, that is, passport applicants at Passport Seva Kendras and/or Regional Passport Office, by permitting them access in the system with their individual login and by accepting the applications so uploaded on their system under their individual login and further permitting them to represent their clients in Passport Seva Kendras and/or Regional Passport Office, either by setting up exclusive separate counter for the members of the petitioner association to submit such applications and/or making such other alternative arrangement so as to accommodate members of the petitioner association in discharge of their activities as recognised agents.

19. The issuance of passport is regulated by the Passports Act, 1967, which has been enacted to provide for issue of passports and travel documents, to regulate departure from India of citizens of India and other persons and for matters incidental and ancillary thereto. Section 5 of the Act makes provision for applications for passports, travel documents, etc., and orders thereon and reads thus:-

5. Applications for passports, travel documents, etc., and orders thereon.- (1) An application for the issue of a passport under this Act for visiting such foreign country or countries (not being a named foreign country) as may be specified in the application may be made to the passport authority and shall be accompanied by such fee as may be prescribed to meet the expenses incurred on special security paper, printing, lamination and other connected miscellaneous services in issuing passports and other travel documents.

Explanation.-

In this section, "named foreign country" means such foreign country as the Central Government may, by rules made under this Act, specify in this behalf.

(1A) An application for the issue of-

a passport under this Act for visiting a named foreign country; or a travel document under this Act, for visiting such foreign country or countries (including a named foreign country) as may be specified in the application or for an endorsement on the passport or travel document referred to in this section, may be made to the passport authority and shall be accompanied by such fee (if any) not exceeding rupees fifty, as may be prescribed.

(1B) Every application under this section shall be in such form and contain such particulars as may be prescribed.

On receipt of an application under this section, the passport authority, after making such inquiry, if any, as it may consider necessary, shall, subject to the other provisions of this Act, by order in writing,-

issue the passport or travel document with endorsement, or, as the case may be, make on the passport or travel document the endorsement, in respect of the foreign country or countries specified in the application; or issue the passport or travel document with endorsement, or, as the case may be, make on the passport or travel document the endorsement, in respect of one or more of the foreign countries specified in the application and refuse to make an endorsement in respect of the other country or countries; or refuse to issue the passport or travel document or, as the case may be, refuse to make on the passport or travel document any endorsement.

Where the passport authority makes an order under clause (b) or clause (c) of sub-section (2) on the application of any person, it shall record in writing a brief statement of its reasons for making such order and furnish to that person on demand a copy of the same unless in any case the passport authority is of the opinion that it will not be in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country or in the interests of the general public to furnish such copy.

20. Thus, what is envisaged under section 5 of the Act is making of an application and submission of the same to the passport authority in such form and containing such particulars as may be prescribed. On receipt of an application, the passport authority after making such inquiry as it may consider necessary, either issue or refuse to issue a passport. Neither section 5 nor any other provision in the Act envisages any role on the part of the passport agent in the process of issuance of passport. It also does not contemplate the Central Government appointing agents to perform any of the functions in relation to passports issued under the Act. There is no provision in the Act for allowing any agent appointed by individuals to deal with the passport office and on whom any rights have been conferred by any of the provisions of the Act.

21. In the backdrop of the aforesaid statutory position as well as from the facts and contentions noted hereinabove, it is apparent that the claim of the petitioners is not based on any statutory or contractual rights, but is based upon the doctrine of legitimate expectation. The plea of legitimate expectation would be required to be considered in terms of the earlier policy and the impact of the change of the policy under the Passport Seva Project.

22. Before adverting to the facts of the case, it may be necessary to refer to the position of law in this regard. The law in respect of the doctrine of legitimate expectation has been succinctly discussed by the Supreme Court in Sethi Auto Service Station and another vs. Delhi Development Authority and others, (2009) 1 SCC 180, after taking into consideration various earlier decisions in this regard, as follows:

"23. We may, now, consider the plea relating to the legitimate expectation of the appellants in terms of DDA's policy dated 14-10-1999 and the impact of change of the policy in June 2003 thereon.

24. The protection of legitimate expectations, as pointed out in De Smith's Judicial Review (6th Edn.), (Para 12-001), is at the root of the constitutional principle of the rule of law, which requires regularity, predictability, and certainty in the Government's dealings with the public. The doctrine of legitimate expectation and its impact in the administrative law has been considered by this Court in a catena of decisions but for the sake of brevity we do not propose to refer to all these cases. Nevertheless, in order to appreciate the concept, we shall refer to a few decisions.

25. At this juncture, we deem it necessary to refer to a decision by the House of Lords in Council of Civil Service Unions v. Minister for Civil Service, (1985) AC 374, a locus classicus on the subject, wherein for the first time an attempt was made to give a comprehensive definition to the principle of legitimate expectation. Enunciating the basic principles relating to legitimate expectation, Lord Diplock observed that for a legitimate expectation to arise, the decision of the administrative authority must affect such person either (a) by altering rights or obligations of that person which are enforceable by or against him in private law, or (b) by depriving him of some benefit or advantage which either: (i) he has in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until some rational ground for withdrawing it has been communicated to him and he has been given an opportunity to comment thereon, or (ii) he has received assurance from the decision-maker that they will not be withdrawn without first giving him an opportunity of advancing reasons for contending that they should be withdrawn.

26. In Attorney General of Hong Kong v. Ng Yuen Shiu, (1983) 2 AC 374, a leading case on the subject, Lord Fraser said:

"... when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty."

27. Explaining the nature and scope of the doctrine of legitimate expectation, in Food Corporation of India v. Kamdhenu Cattle Feed Industries, (1993) 1 SCC 71, a three-Judge Bench of this Court had observed thus:

"8. The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent."

28. The concept of legitimate expectation again came up for consideration in Union of India v. Hindustan Development Corpn.(1993) 3 SCC 499 Referring to a large number of foreign and Indian decisions, including in Council of Civil Service Unions and Kamdhenu Cattle Feed Industries and elaborately explaining the concept of legitimate expectation, it was observed as under:

"35. ... If a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power or violation of principles of natural justice, the same can be questioned on the well-known grounds attracting Article 14 but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. It can be one of the grounds to consider but the court must lift the veil and see whether the decision is violative of these principles warranting interference. It depends very much on the facts and the recognised general principles of administrative law applicable to such facts and the concept of legitimate expectation which is the latest recruit to a long list of concepts fashioned by the courts for the review of administrative action, must be restricted to the general legal limitations applicable and binding the manner of the future exercise of administrative power in a particular case. It follows that the concept of legitimate expectation is 'not the key which unlocks the treasury of natural justice and it ought not to unlock the gates which shuts the court out of review on the merits', particularly when the element of speculation and uncertainty is inherent in that very concept."

Taking note of the observations of the Australian High Court in Attorney General for New South Wales Vs. Quinn, (1990) 64 Aust LJR 327, that "to strike down the exercise of administrative power solely on the ground of avoiding the disappointment of the legitimate expectations of an individual would be to set the courts adrift on a featureless sea of pragmatism", speaking for the Bench, K. Jayachandra Reddy, J. said that there are stronger reasons as to why the legitimate expectation should not be substantively protected than the reasons as to why it should be protected. The caution sounded in the said Australian case that the Courts should restrain themselves and restrict such claims duly to the legal limitations was also endorsed.

29. Then again in National Buildings Construction Corpn. v. S. Raghunathan, (1998) 7 SCC 66, a three-Judge Bench of this Court observed as under:

"18. The doctrine of 'legitimate expectation' has its genesis in the field of administrative law. The Government and its departments, in administering the affairs of the country, are expected to honour their statements of policy or intention and treat the citizens with full personal consideration without any iota of abuse of discretion. The policy statements cannot be disregarded unfairly or applied selectively. Unfairness in the form of unreasonableness is akin to violation of natural justice. It was in this context that the doctrine of 'legitimate expectation' was evolved which has today become a source of substantive as well as procedural rights. But claims based on 'legitimate expectation' have been held to require reliance on representations and resulting detriment to the claimant in the same way as claims based on promissory estoppel."

30. This Court in Punjab Communications Ltd. v. Union of India, (1999) 4 SCC 727, referring to a large number of authorities on the question, observed that a change in policy can defeat a substantive legitimate expectation if it can be justified on "Wednesbury" reasonableness. The decision-maker has the choice in the balancing of the pros and cons relevant to the change in policy. Therefore, the choice of the policy is for the decision-maker and not for the court. The legitimate substantive expectation merely permits the court to find out if the change in policy which is the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made. (Also see Bannari Amman Sugars Ltd. v. CTO, (2005) 1 SCC 625).

31. Very recently in Jitendra Kumar v. State of Haryana, (2008) 2 SCC 161, it has been reiterated that a legitimate expectation is not the same thing as an anticipation. It is distinct and different from a desire and hope. It is based on a right. It is grounded in the rule of law as requiring regularity, predictability and certainty in the Government's dealings with the public and the doctrine of legitimate expectation operates both in procedural and substantive matters.

32. An examination of the aforenoted few decisions shows that the golden thread running through all these decisions is that a case for applicability of the doctrine of legitimate expectation, now accepted in the subjective sense as part of our legal jurisprudence, arises when an administrative body by reason of a representation or by past practice or conduct aroused an expectation which it would be within its powers to fulfill unless some overriding public interest comes in the way. However, a person who bases his claim on the doctrine of legitimate expectation, in the first instance, has to satisfy that he has relied on the said representation and the denial of that expectation has worked to his detriment. The Court could interfere only if the decision taken by the authority was found to be arbitrary, unreasonable or in gross abuse of power or in violation or principles of natural justice and not taken in public interest. But a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles.

33. It is well settled that the concept of legitimate expectation has no role to play where the State action is as a public policy or in the public interest unless the action taken amounts to an abuse of power. The court must not usurp the discretion of the public authority which is empowered to take the decisions under law and the court is expected to apply an objective standard which leaves to the deciding authority the full range of choice which the legislature is presumed to have intended. Even in a case where the decision is left entirely to the discretion of the deciding authority without any such legal bounds and if the decision is taken fairly and objectively, the court will not interfere on the ground of procedural fairness to a person whose interest based on legitimate expectation might be affected. Therefore, a legitimate expectation can at the most be one of the grounds which may give rise to judicial review but the granting of relief is very much limited. ([Vide Hindustan Development Corpn.)"

23. Bearing in mind the aforesaid legal position, the facts of the case may be adverted to. The short question that arises for determination is whether by curtailment of the role of the members of the petitioner associations in the issuance of passport under the Passport Seva Project, their substantive legitimate expectation of being continued under the earlier system or being integrated in the new system has been defeated. In order to adjudicate upon the controversy, it would be necessary to refer to the two policies which are being pressed into service by the rival parties.

24. Under the earlier system, a recognised agent was recognised by the respondent No.1 to deal with the respondent authority and did all that is necessary in the course of his activities as a recognised agent, whenever an applicant, intending passport holder, approached him and was desirous of availing expert services of authorised and qualified service provider, that is, recognised passport agent. Upon ascertaining the nature of application, namely whether the same is for a fresh passport, renewal of passport etc., the passport agent would collect further necessary information and material, that is, birth certificate, school leaving certificate, proof of residence, marriage registration etc. and ensure that the information and material supplied to him by his client are complete in all respects. He would, thereafter proceed to prepare and fill up passport application in his office which has the necessary and required setup, installation of devices and qualified staff as required by the respondent authorities. In the year 2001-2002, radical changes were effected by the respondent authorities in the matter of submission and processing of passport application through the use of computer and internet. As a part of the process, a recognised agent was given a separate 'agent login ID' with password and access code through which the recognised agent submitted the data in the form of completed application form which was stored in the Central Data Pool maintained by the respondent No.1 through National Informatics Centre (NIC). The said data information which was submitted by the recognised agent through web submission formed part of the system maintained by the respondent No.1. The passport agent as a part of his duty would also capture the applicant's photo on a web camera, which was connected with the Central Server maintained by NIC, through its software, whereby the said image/photo captured of the applicant was loaded alongwith the other information in the data pool maintained by the respondent No.1 with the help of NIC. According to the petitioners, it was the primary responsibility of the said agent to verify the contents of application and the supporting documents. On the basis of the said information/data supplied by the recognised agent under his individual login, the passport would be issued in the name of his client, that is, the passport applicant, subject to any verification by the concerned officer. In case there was any discrepancy in the application, the same would be attended to by the recognised agent for addressing the said issues. The recognised agent, apart from the aforesaid, would categorise the application under the relevant category so as to facilitate data entry under proper category at the end of the concerned officer. A recognised agent would make between 25-50 applications on a given day/time as the case may be and there was a cap on the total submission by the agent depending upon the Regional Passport Office concerned. It was the recognised agent who submitted the applications to the Regional Passport Officer which were verified by the Verifying Officer and fee receipts were issued.

25. Under the new system, with the establishment of Passport Seva Kendras, the person intending to have passport issued or renewed, as the case may be, has to apply for passport online by logging in to the website of the respondent No.1 - Union of India. The steps to be followed by the person applying for passport through the aforesaid website, as summarised in tabular form by the respondent No.3, is reproduced herein below:

1st step The person has to generate user name and password for getting an access to the concerned part of the web site for the purpose of filling up application form for issuance/renewal of passport.

2nd step After the generation of user name and password, the person has to fill up an application form online. Upon filling up the application form, the person will get application reference number.

3rd step With the help of the application reference number, the person has to select online the concerned Pass Port Seva Kendra depending upon the area of his/her residence.

4th step Thereafter, the person has to seek an appointment online for visiting the concerned Pass Port Seva Kendra by selecting particular day and time. After the request of the person for securing the appointment for particular day and time is accepted, he will be given online an appointment for the particular day with specified time.

5th step On securing appointment, the person has to take out a print of the appointment form. On the form, details of the applicant along with the date and time for visiting the Pass Port Seva Kendra are mentioned.

6th step The person will have to present himself before the specified Passport Seva Kendra on a day and at a time printed on the aforesaid appointment form with the supporting documents in original and required copies.

7th step The person has to enter the Pass Port Seva Kendra with the supporting documents.

The processing in the Passport Seva Kendra consists of three stages, called Sections A (Pre-processing Zone), B (Verification Zone) and C (Granting Zone).

8th step The person has to enter Section A of Passport Seva Kendra, where officer of Respondent no.3 will simply check as to whether the person has come with supporting documents at the appointed day and time or not. On being prima facie satisfied that the person has come with supporting documents, the officer of Respondent No.3 will issue a token to the person. The token will permit the person an access to the waiting lounge. Thereafter, when the turn of the person is announced, the person will have to report at the concerned desk, where the officer of Respondent no.3 will take the digital photograph, signature and thumb impression of the person and get the same uploaded in the system along with the requisite documents.

9th step After the afore-said formalities are over, the person will be taken to Section B of Passport Seva Kendra, where verifying officers of Regional Pass Port Office will finally verify the application form and supporting documents. If everything is found to be in order, the person will be taken to Section C.

10th step The officers of regional passport office occupy Section C. These officers will take a final call as to whether the passport needs to be issued to the person or not. If the officer at Section C is satisfied and decides to proceed to issue a passport in favour of the person, he will also decide upon the mode of police verification (Pre, Post or no-verification) and immediately electronically the personal particular along with the necessary documents reach the respective District police headquarters.

The staff of concerned District police Headquarter is trained for operating the system installed by Respondent no.3 and download the required details with the help of user Id and password and further dispatch the same for physical verification to respective police station and once the updated Personal is received back at District Police Headquarter, it is uploaded in the system and authenticated and a electronic request is directly sent to Regional Passport Office for printing of the passport and further dispatch the same by India Post.

26. Thus, under the earlier system, the applicants could apply for passport either directly or through recognised passport agents. The registered travel agents were free to deposit passport application forms in the passport offices like any other individual, but with authorization letter from the applicant subject to the guidelines issued by the Central Government. A travel agents role was thus limited to mere deposit of a limited number of application forms in the Passport Office on behalf of the applicants, insofar as fresh and reissue of passports were concerned. To facilitate submission of applications, registered travel agencies were given individual login IDs. Under the new system, insofar as the role of the passport agent is concerned, it is curtailed as it is now mandatory for the applicant to present himself/herself for fingerprints and photograph etc. Personal appearance of the applicant, finger prints and digital photograph measures are required in the interest of national security. Under the new system the role of the passport agent is limited to the extent that the passport agent can assist an applicant who has difficulty in filling up/online filling up a passport application and status enquiry of application. Thus, passport agents have no role in the process of submission of application, fingerprint and digitization of photograph. Thus, if the second relief prayed for in the present petitions were to be accepted, it would not be possible to operate the new system in the present form as the physical presence of the person applying for passport is a sine qua non at the Passport Seva Kendra under the new system for the purpose of fingerprint as well as for digitalization of photograph.

27. The respondent No.3 has set out the distinction between the old process and the new process in a process flow chart annexed at Exhibit-III to its affidavit-in-reply. The main distinction between the old process and the new process appears to be that under the old process, the applicant's presence was optional whereas under the new process, it is mandatory. Under the old process, physical photo of the applicant was pasted on the form in three copies and the photograph was uploaded after scanning the same during the processing, whereas under the new process the photograph is instantly clicked at the time of processing and directly uploaded in the system, similarly signatures are also collected instantly in the applicant's presence and directly uploaded. Under the old process, fingerprint capture was not required whereas it is mandatory under the new process. Under the old process, processing of all applications happened at the back end (verification and granting) which the applicant could not see, whereas under the new process all the processing happens in front of the applicant, and even the draft of the passport with relevant details is seen before the final verification and granting of the case. Under the old system, an acknowledgment receipt for submission used to be issued, whereas under the new system an exit letter is issued which shows the status of application (granted or hold), police verification mode and list of documents submitted. Under the old system, there was no system of feedback whereas the same is mandatory under the new process.

28. As is apparent from the affidavits-in-reply filed on behalf of the respondents, the new policy has been taken in the interest of national security as it has come to the notice of the Government of India that persons with false names and false addresses had obtained passports under the earlier system. Several criminal prosecutions have been launched and in order to block the loopholes in the earlier system, the Passport Seva Project system has been introduced in which, citizens have to apply online and come to the Passport Seva Kendra on the appointed day with the relevant documents for verification and for taking fingerprint and digitalization of photograph. Further, under the new scheme, no one can enter the Passport Seva Kendra except the citizens who apply for passport and the role of third party is minimized. The travel agents can assist citizens outside the Passport Seva Kendra to fill up applications online and get a date of appointment for interview, and above all, national security is given paramount importance in the new system, which eliminates middlemen.

29. Having considered the facts of the case and the policies in question, namely the earlier policy and the new policy, in the opinion of the court, the doctrine of legitimate expectation is not attracted in the instant case. It is manifest that the earlier policy giving recognition to the members of the petitioner associations as recognised passport agents does not cause any obligation on the respondents to continue with the same system of issuance of passports, nor does it create any vested right in favour of the members of the petitioner associations to continue submitting applications on behalf of their clients under the earlier system. Under the earlier system, it was possible to integrate the members of the petitioner associations in the system of issuance of passports to a large extent. However, under the new policy which has been framed in public interest as well as in the interest of national security, the role of the members of the petitioner association has been curtailed. It is true that under the new system, whether a person is a recognised agent or not, may lose significance, as the members of the petitioner associations would no longer be entitled to special facilities like agent login ID with password and access code etc. nor would they be entitled to capture the applicant's photograph on a web camera which is connected with the central server maintained by the NIC, as according to the respondent No.2, the previous system of uploading the photograph captured by the members of petitioner associations in the central server of NIC has been discontinued and will come to an end on 1st March, 2012. In the present system, the photograph as well as the fingerprints will be taken at the Passport Seva Kendra where the applicant is required to remain personally present for the purpose of verification by the passport authorities. Thus, the passport authority would be in a position to verify that the person who has made the application and is photographed is the same person who has appeared before him and would also be in a position to obtain any clarifications if necessary from the applicant in person, which would not be possible in cases where applications are submitted through the passport agents. This would eliminate waste of time in obtaining clarifications/explanations in case of any discrepancy.

30. As regards the contention that ninety-four passport agents are being replaced by three Passport Seva Kendras run by a single private party, in the opinion of this court, the said submission suffers from a basic fallacy that the Passport Seva Kendras belong to and are run by the respondent No.3. As is apparent from the averments made in the affidavit-in-reply filed on behalf of the respondent No.3, the ownership of the Passport Seva Kendras vests in the respondent No.1 - Union of India. In other words the Passport Seva Kendras are extended wings of the Ministry of External Affairs meant for the purpose of discharging the function of issuing passports to the citizens of India in an expeditious manner by following the newly introduced procedure for the same. The work of the respondent No.3 is to establish the Passport Seva Kendra with requisite infrastructure, adequately equipped to issue passports in biometric format. Thereafter the respondent No.3 is required to render technical and administrative support in running and maintaining the Passport Seva Kendra without in any manner interfering with the sovereign function of issuing passport. Thus, insofar as issuance of passport is concerned, the function of the respondent No.3 extends only to issuance of token, initial scrutiny of application forms, acceptance of fee, scanning of documents and taking of photograph and biometrics. All the remaining functions are discharged by the Government Officials deputed by the Regional Passport Office at the Passport Seva Kendra, which is also headed by an officer of the level of Assistant Passport Officer of the Central Passport Organisation of the Ministry of External Affairs. Thus, the contention that the Passport Seva Kendras are run by private parties is misconceived inasmuch as the same are run in public private partnership, wherein the non-sovereign functions are discharged by the respondent No.3 and the sovereign functions are discharged by the officers of the Government.

31. At this juncture, it may be pertinent to notice the decision of the Madras High Court in the case of M/s.

United Visa Services Ltd. vs. Union of India (supra) wherein the court, on the basis of the counter affidavit filed by the Government, has observed that the decision taken by the Government of India to make a new regulation was with a view to make it universally applicable and non-discriminatory so that the applicant who requires assistance may approach any travel agency to seek assistance for online registration/inquiry under the Passport Seva Project. Under the new regulation, no new category of travel agency is being created as all travel agencies are equal and no special login ID is required from the passport office or Ministry of External Affairs. Further, it has been stated that the policy decision has been taken in the interest of national security as it has come to the notice of the Government of India that persons with false names and false addresses had obtained passports under the earlier system. Several criminal prosecutions have been launched and in order to block the loopholes in the earlier system, the Passport Seva Project system has been introduced, in which citizens have to apply online and come to the Passport Seva Kendra on the appointed day with relevant documents for verification and for taking fingerprint and digitalization of photo. Further, under the new scheme, no one can enter the Passport Seva Kendra except the citizens who apply for passport and role of third party is minimised, the travel agents can assist the citizens outside the Passport Seva Kendra to fill up applications online and to get the date of appointment as national security is given paramount importance in the new system which eliminates middlemen. The court referred to its earlier decision wherein it has been observed: "The Passports Act does not provide for recognition of travel agents to whom the Government owes any obligation. If for the purposes of convenience, the Government in the past allowed certain travel agents to deal with the Passport Office on behalf of those applying for passports, such past dealings do not create in those agents a right to continue as such agents for ever, nor does it create in them a right to insist on a particular scheme being preserved for all time to come. It also does not clothe them with any right to object to the modification that any be effected in the scheme with regard to the manner in which the passports would be delivered to all applicants. It is necessary to stress what is already obvious that the rule framed by the Government with regard to the mode of delivery of the passport is not a rule intended for any particular section of the citizens or for any group of travel agents with whom it would deal. It is a rule on general application. It applies to each and every applicant for a passport and every applicant for a passport may receive the passport only in the mode prescribed by the Government, namely, the passport being sent to the applicant by way of registered post with acknowledgment due or delivered to the applicants in person." In the light of the legal position stated in the aforesaid decision, the court held that the Passports Act having not provided for recognition of any travel agents and if for the convenience of the public, certain circulars were issued in the past, there is no reason as to why the same cannot be altered, modified to suit the present requirements. The court was of the view that the petitioners who were travel agents could not be heard to state that, as a matter of right, they are entitled to accompany the applicant to the Passport Seva Kendra and remain with them throughout for the purpose of obtaining passport, and accordingly dismissed the writ petitions.

32. The aforesaid decision which has been rendered in similar facts would be squarely applicable to the facts of the present case.

33. While basing their claim principally on the doctrine of "legitimate expectation" the petitioners have placed reliance upon various decisions of the Supreme Court. In the case of Navjyoti Coop. Group Housing Society and others vs. Union of India and others (supra), wherein a new criterion of allotment was given by the memorandum impugned therein, prior to which priority in the matter of allotment to Group Housing Societies had all along been made with reference to the date of registration. The court held that since prior to the new guideline contained in the memo of January, 1990, the principle of allotment had always been on the basis of date of registration and not date of approval of the list of members, the Group Housing Societies were entitled to legitimate expectation of following consistent past practice in the matter of allotment, even though they may not have any legal right in private law to receive such treatment. It was held that the doctrine of legitimate expectation imposed in essence a duty on public authority to act fairly by taking into consideration all relevant factors relating to such legitimate expectation. The existence of legitimate expectation may have a number of different consequences and one of such consequences is that the authority ought not to act to defeat the legitimate expectation without some overriding reason of public policy to justify its doing so.

34. Reverting to the facts of the present case, the overriding reason of public policy is writ large on the face of the policy itself which is made in the public interest and in the interest of national security. Thus, where the state action is as a public policy or is in public interest unless the action taken amounts to an abuse of power, the concept of legitimate expectation would have no role to play.

35. In Mahabir Auto Stores v. Indian Oil Corporation (supra), the Indian Oil Corporation had supplied large quantity of lubricants to the appellant therein and suddenly without any intimation discontinued the supply. The Supreme Court held that the action of a corporation like the IOC of bringing an end to a course of transaction of over eighteen years involving large amounts of money without informing the affected party, viz., the appellant firm, on the alleged change of policy is not a fair action especially in view of the monopolistic nature of the power of the respondent in this field. It is apparent that the said case did not involve any issue as regards public policy or national interest. In the circumstances, the said decision would not be applicable to the facts of the present case.

36. In M.P. Oil Extraction vs. State of M.P.

(supra), the Supreme Court held thus:

"41. After giving our careful consideration to the facts and circumstances of the case and to the submissions made by the learned counsel for the parties, it appears to us that the Industrial Policy of 1979 which was subsequently revised from time to time cannot be held to be arbitrary and based on no reason whatsoever but founded on mere ipse dixit of the State Government of M.P. The executive authority of the State must be held to be within its competence to frame a policy for the administration of the State. Unless the policy framed is absolutely capricious and, not being informed by any reason whatsoever, can be clearly held to be arbitrary and founded on mere ipse dixit of the executive functionaries thereby offending Article 14 of the Constitution or such policy offends other constitutional provisions or comes into conflict with any statutory provision, the Court cannot and should not outstep its limit and tinker with the policy decision of the executive functionary of the State. This Court, in no uncertain terms, has sounded a note of caution by indicating that policy decision is in the domain of the executive authority of the State and the Court should not embark on the unchartered ocean of public policy and should not question the efficacy or otherwise of such policy so long the same does not offend any provision of the statute or the Constitution of India. The supremacy of each of the three organs of the State i.e. legislature, executive and judiciary in their respective fields of operation needs to be emphasised. The power of judicial review of the executive and legislative action must be kept within the bounds of constitutional scheme so that there may not be any occasion to entertain misgivings about the role of judiciary in outstepping its limit by unwarranted judicial activism being very often talked of in these days. The democratic set-up to which the policy is so deeply committed cannot function properly unless each of the three organs appreciate the need for mutual respect and supremacy in their respective fields."

37. Adverting to the facts of the present case, as can be seen from the facts noted hereinabove, the new policy/system has been introduced on the basis of the recommendation of an expert body after an in-depth study of the subject matter. The policy which has been made in the larger public interest and in the interest of national security, cannot be said to be capricious and, not being informed by any reason whatsoever, nor can it be clearly held to be arbitrary and founded on mere ipse dixit of the executive functionaries nor does the same offend other constitutional provisions or come into conflict with any statutory provisions. In the circumstances, there is no warrant for interference with the policy decision of the executive functionary of the State.

38. The decision of the Supreme Court in the case of Official Liquidator vs. Dayanand (supra) also does not carry the case of the petitioners any further.

39. In the light of the above discussion, this court is of the view that the petitioners are not entitled to any of the reliefs claimed in the petitions. However, it may be noted that basically the petitioners are not against the introduction of a new system of issuance of passport by setting up Passport Seva Kendras. Their grievance is that they ought to have been integrated in the new system, which was also the intention of the respondents as reflected in the communications dated 27th July, 2010 and 19th May, 2010 referred to hereinabove. As to whether or not the members of the petitioner associations can be integrated within the system can only be decided by the respondent No.1. However, it was, and is always open to the petitioners to make a representation to the respondent No.1 in this regard, as the respondent No.1 being the policy maker would best be in a position to say as to whether or not the members of the petitioner associations can be integrated in the new system. It is an admitted position that so far the petitioners have not made any representation to the respondent No.1 for redressal of their grievances. In the circumstances, it goes without saying that if the petitioners do make a representation to the respondent No.1, the same shall be considered sympathetically and expeditiously keeping in view the longstanding relationship between them.

40. Subject to the aforesaid, the petitions fail and are accordingly dismissed. Notice is discharged in each of the petitions with no order as to costs. The interim relief granted earlier shall stand vacated.

41. At this stage, Mr. Manubhai Barot, learned advocate for Mr. Tejas Barot, learned advocate for the petitioners has requested that the interim relief granted earlier be continued for a further period of two weeks. Considering the nature of the interim relief granted earlier, the request is turned down.

( Harsha Devani, J. ) hki Top