M. Katju, J.@mdashThese writ petitions and the bunch of connected writ petitions have challenged the validity of the petitioners'' allocation to the
State of Uttaranchal consequent upon the creation of the State of Uttaranchal by the U.P. Re-Organisation Act, 2000. All these petitions are being
disposed off by a common judgment.
2. We have heard the learned Counsel for the petitioners in all these connected petitions. We have also heard Sri B.N. Singh, learned Senior
Standing Counsel for the Central Government and the learned Standing Counsel for the State Government.
3. The petitioner in Writ Petition No. 52499 of 2002 was selected as an Officer in the Provincial Police Service in 1987 Batch. After completing
his training he joined the service on 3.3.1990 and was initially posted as Deputy Superintendent of Police at Rampur. Presently he is posted as
Additional Superintendent of Police, District Gautam Budh Nagar.
4. The U.P. Re-Organisation Act, 2000 was enacted by Parliament% which the State of U.P. was bifurcated and a new State called
''Uttaranchal1 Was created. Since a new State was being created obviously some U.P. Government employees had to be allocated to the State of
Uttaranchal.
5. The relevant provision in the U.P. Re-Organisation Act, 2000 with which we are concerned in these petitions are Sections 73, 75, 76 and 77 of
the Act. These provisions are as follows :--
73. Provisions relating to All India Services.--(1) Every persons who immediately before the appointed day is serving in connection with the
affairs of the existing State of Uttar Pradesh shall, on and from that day provisionally continue to serve in connection with the affairs of the State of
Uttar Pradesh unless he is required, by general or special order of the Central Government to serve provisionally in connection with the affairs of
the State of Uttaranchal:
Provided that every direction under this sub-section issued after the expiry of a period of one year from the appointed day shall be issued with the
consultation of the Governments of the successor States.
(2) As soon as may be after the appointed day, the Central Government shall, by general or special order, determine the successor State to which
every person referred to in Sub-section (1) shall be finally allotted for service and the date with effect from which such allotment shall take effect or
be deemed to have taken effect.
(3) Every person who is finally allotted under the provisions of Sub-section (2) to a successor State shall, if he is not already serving therein be
made available for serving in the successor State from such date as may be agreed upon between the Governments concerned or in default of such
agreement, as may be determined by the Central Government.
75. Provisions as to continuance of Officers in same post.--(1) Every person who, immediately before the appointed day is holding or discharging
the duties of any post or office in connection with the affairs of the existing State of Uttar Pradesh in any area which on that day falls within any of
the successor States shall continue to hold the same post or office in that successor State and shall be deemed, on and from that day, to have been
duly appointed to the post or office by the Government of or any other Appropriate Authority in that successor State :
Provided that nothing in this section shall be deemed to prevent a Competent Authority, on and from the appointed day, from passing in relation to
such person any order affecting the continuance in such post or office.
76. Advisory Committees.--(1) Central Government may, by order, establish one or more Advisory Committees for the purpose of assisting it in
regard to--
(a) the discharge of any of its functions under this part; and
(b) the ensuring of fair and equitable treatment to all persons affected by the provisions of this part and the proper consideration of any
representations made by such persons.
77. Power of Central Government to give directions.--The Central Government may give such directions to the State Government of Uttar
Pradesh and the State Government of Uttaranchal as may appear to it to be necessary for the purpose of giving to the foregoing provisions of this
part and the State Government shall comply with such directions.
6. u/s 73(1) a U.P. Government employee shall on and from the appointed date provisionally continue to serve in connection with the affairs of the
State of Uttaranchal unless he is required by general or special order of the Central Government to serve provisionally in connection with the affairs
of the State of Uttaranchal.
7. u/s 73(2) the Central Government by general or special order can determine the successor State to which every person mentioned in Sub-
section (1) shall be finally allotted for service and the date with effect from which the said allotment shall take effect.
8. It is obvious from Section 73(2) of the Act, that the final allotment for service in a successor State has to be made by the Central Government.
The expression ''successor'' State has been defined in Sub-section (2)(j) of the Act, to mean the State of U.P. or the State of Uttaranchal.
9. There is no challenge to the validity of any provision of the U.P. Re-Organisation Act, 2000, in this writ petition. What has been challenged is
the final allotment of the petitioner to the State of Uttaranchal u/s 73(2) and the principles of allotment.
10. The final allotment, as already mentioned above, has to be done by the Central Government u/s 73(2). u/s 76 the Central Government can
appoint an Advisory Committee for assisting it in discharge of its functions under Part-VIII of the Act and for ensuring fair and equitable treatment
to all persons likely to be affected and for proper consideration of any representation made by such persons. u/s 77 the Central Government can
give direction to the State Government as may appear to it to be necessary for the purpose of giving effect to the provisions of Part-VIII of the Act
and the State Government has to comply with such directions.
11. It appears that the Secretary, Ministry of Personnel, Public Grievances and Pensions, Government of India wrote a letter dated 13.9.2000 to
the Chief Secretary, U.P. Government, copy of which is Annexure-3 to the writ petition. This letter states that discussions had been held in the
meeting with the three Chief Secretaries of Bihar, Madhya Pradesh and U.P. on 6.9.2000 in the Chambers of Sri B.B. Tandon, Secretary,
Government of India, Ministry of Personnel, Public Grievance and Pensions regarding the principles to be followed for allocating personnel
belonging to the services other than All India Service to the new States in accordance with the provisions of the Act. Sri B.B. Tandon also sent
alongwith that letter copy of the guidelines containing the principles and modalities of handling the personnel and service matter which should be
followed by the State Government for all services other than All India Services. This letter also mentions nodal officers in the Central Government
who may by contacted by the State Government for any guidance and clarifications. Various principles are mentioned in the guidelines annexed to
the aforesaid letter. The Chief Secretary, U.P. formulated the policy of allocation of personnel in pursuance of the guidelines of the Central
Government dated 13.9.1990, in which the distribution of personnel had been laid down on the basis of three criteria, namely, (i) Optional; (ii)
domicile status; and (iii) deputation basis. True copy of the letter of the Chief Secretary dated 65.11.2000 is Annexure-4 to the writ petition.
12. It is alleged in Paragraph 10 of the writ petition that the State Advisory Committee was also constituted by the Central Government to deal
with such allocations which consisted of the Chief Secretaries, U.P. and Uttaranchal and Shri Vishwanath Anand, former Chief Secretary as
Chairman of the Committee. A true copy of the letter of Shri B.B. Tandon, Secretary, Government of India dated 21.12.2000/22.12.2000 to the
Chief Secretary, U.P. Government in this connection is Annexure-2 to the short counter-affidavit in Writ Petition No. 45201 (A) of 2002. This
letter states that after creation of the State of Uttaranchal the Central Government has decided to constitute a State Advisory Committee for
assisting it in discharging its functions in regard to State Government employees to ensure fair and equitable treatment and consideration of
representations. The guidelines to be borne in mind by the State Advisory Committee and its composition, were also mentioned in the said letter.
13. The first meeting of the State Advisory Committee was held at Delhi on 28.4.2001. The minuets, decisions and recommendations made in this
meeting are Annexure-8 to connected Writ Petition No. 47285 of 2002, Udai Raj Singh v. State of U.P..
14. A meeting of the State Advisory Committee was then held on 2.7.2002 at Nainital, Uttaranchal in which certain norms were laid down and
some previous policies were revised vide G.O. dated 6.11.2000. Copy of the minutes of the meeting of the State Advisory Committee held on
2.7.2002 at Nainital, Uttaranchal is Annexure-5 to the writ petition. The State Government issued a revised G.O. dated 15.7.2002 regarding final
allocation of personnel allegedly on the basis of the norms and guidelines laid down by the State Advisory Committee in its meeting dated
2.7.2002. True copy of the G.O. dated 15.7.2002 is Annexure 6 to the writ petition. A perusal of the same shows that the first two conditions for
allocating the personnel to Uttaranchal are (i) optional and (ii) domicile status. The remaining vacancies, if any, left thereafter shall be allocated as
per Clauses 3 to 8 in the G.O. dated 15.7.2002.
15. It is alleged in Paragraph 17 of the writ petition that the personnel of the Secretariat of the U.P. Government expressed deep anguish and
resentment of the guidelines dated 15.7.2002 by resorting to demonstrations. Consequently, the Principal Secretary, Secretariat Administration
Department informed the President of the U.P. Secretariat Association that the members of the Secretariat Association shall not be allocated to
Uttaranchal against their wish vide letter of the Principal Secretary dated 2.7.2002, Annexure-7 to the writ petition. It is alleged in Paragraph 17 of
the writ petition that this amounted to hostile discrimination against other employees who have been allotted Uttaranchal against their wish.
16. In Paragraph 22 of the writ petition it is alleged that the petitioner received notice dated 26.11.2002, alongwith copy of the tentative final
allocation list of the officers who are going to be allocated to the State of Uttaranchal. True copy of the tentative final allocation list dated
26.11.2002 of the P.P.S. Officers who are going to be allocated to the State of Uttaranchal is Annexure-9 to the writ petition. A perusal of this
letter shows that the persons who were given a tentative allotment were permitted to make a representation to the Chairman of the State Advisory
Committee by 12.12.2002. The representations received thereafter would not be considered.
17. In connected Civil Misc. Writ Petition No. 45201 of 2002, Vijay Kumar Yadav v. State of U.P., a short counter-affidavit has been filed by
the Central Government annexing copy of the letter of B.B. Tandon, Secretary to the Central Government dated 21/22.12.2000, addressed to the
Chief Secretary, U.P. Government. In this letter reference has been made to the earlier letter of Sri Tandon dated 13.9.2000 through which
guidelines for provisional allocation of State Government employees were circulated. In this letter dated 21/22.12.2000, Sri B.B. Tandon,
Secretary to the Central Government, Ministry of Personnel, Public Grievance and Pensions has written that with the provisional allocation order
having been issued by the Central Government and successor. States having come into existence the Central Government has decided to constitute
a State Advisory Committee for the purpose of assisting it in discharging its function with regard to the State Government employees with a view to
ensure their fair and equitable treatment including proper consideration of their representations.
18. The composition and objectives of the State Advisory Committee constituted by the Central Government including guidelines to be borne in
mind by the State Advisory Committee and the State Government has been enumerated in the annexure enclosed in that letter. Sri B.B. Tandon
requested the State Government to render all necessary assistance to the State Advisory Committee to enable it to function smoothly.
19. A perusal of the composition of the State Advisory Committee shows that the State Advisory Committee constituted by the Central
Government consisted of the following :--
(1) A senior retired Civil Servant of the rank of Chief Secretary or equivalent as Chairman.
(2) Chief Secretaries of the successor States or their nominees not below the rank of Secretary to the State Governments, representing the State
Governments as members of the Committee.
(3) Additional Secretary (Pension) or his nominee not below the rank of the Director to the Government of India, representing the Central
Government as member.
(4) An officer not below the rank of Secretary to the State Government coordinating the Re-organisation Cell in the State of Uttar Pradesh existing
immediately before the appointed day, as member Secretary.
20. Thus, the State Advisory Committee consisted of very senior and experienced Civil Servants.
21. The objectives of the State Advisory Committee was to assist the Central Government in regard to discharge of its function relating to State
Government employees under Part-VIII of the Act and to ensure fair and equitable treatment to the State Government employees affected by the
provisions of that part and for proper consideration of their representations. The State Advisory Committee circulated tentative final allocation list
to the respective successor State Government for information of their employees and for submission of representations. The State Advisory
Committee then considered the representations made by the employees against the tentative allocation list and forwarded its recommendations to
the Central Government for taking a final view in the matter. Based on the advice received from the Central Government on the recommendations
made by the State Advisory Committee, tentative allocation list was made final and on that basis the State Government issued final allocation
orders. Certain principles for final allocation have also been mentioned in the aforesaid letter.
22. By the subsequent letter of the Director in the Department of Personnel and Training, Central Government to the Chief Secretary, U.P. dated
26/27.9.2001, a modification had been made to the guidelines sent alongwith be letter dated 22.12.2000, vide Annexure-3 to the short counter-
affidavit in Writ Petition No. 45201 of 2002. Thereafter additional guidelines dated 21.11.2001 was issued vide Annexure-4 to the short counter-
affidavit.
23. It appears that a meeting of the State Advisory Committee constituted by the Central Government was held at Nainital, Uttaranchal on
2.7.2002 in which following officers attended--
____________________________________________________________________________________
Name Designation
____________________________________________________________________________________
Shri D.S. Bagga Chief Secretary, U.P.
Shri Madhukar Gupta Chief Secretary, Uttarancal
Shri R.S. Tolia Principal Secretary, Forest and Commissioner,
Rural Development, Uttaranchal
Shri Indu Pandey Principal Secretary, Finance, Uttaranchal
Shri N.S. Napalchyal Re-Organisation Commissioner, Uttaranchal
Shri Saurabh Chandra Secretary, Irrigation, U.P.
Shri Lav Verma Secretary, Uttaranchal Co-ordination
Shri Keshav Desiraju Secretary, Irrigation and Power, Uttaranchal
Shri Alok Jain Secretary, Karmik, Uttaranchal
Shri R.R. Prasad Director (S.R.), Government of India, Deptt. of
Personnel and Pension.
____________________________________________________________________________________
24. True copy of the minutes of the meeting of the State Advisory Committee held on 2.7.2002 is Annexure-5 to the Writ Petition No. 52499 of
2002. In this meeting the following criteria for allocation of personnel to Uttaranchal was suggested by the Chief Secretary, U.P. and was
accepted;
(1) The first of be allotted will be optees to Uttaranchal.
(2) Those whose home district as declared in service records lies within Uttaranchal, will be allotted to that State.
(3) If vacancies persist, the junior most as on the appointed day in the desired pay scale would be allotted.
(4) While carrying out the exercise care would be taken to observe the criteria regarding reservation of SCs/STs/OBCs and others. Care would
also be taken to allocate personnel pro rata according to the total strength of the batch, as far as possible.
(5) If both husband and wife are in service, allotment would be in accordance with the option of the senior with reference to the pay scale. In case
of officers finally allotted to Uttaranchal vide Government of India''s order dated 11.9.2001, the spouse would be allotted Uttaranchal only and not
Uttar Pradesh.
(6) Female employees would be allocated according to their options, subject to the condition that those whose spouses are covered by Point 2 or
Point 3 would be allotted Uttaranchal only and not Uttar Pradesh.
(7) Those employees who are due to retire within two years will be allotted as per their option.
(8) Handicapped employees, if not finally allotted to Uttaranchal vide orders dated 11.9.2001 issued by Government of India would be allotted as
per their options.
There was consensus on the adoption of these norms to govern the allocation of personnel.
25. In our opinion, the above 8 principles are objective criteria designed to avoid any complaint of pick and choose. These criteria, in our opinion,
cannot be regarded as arbitrary. They have been framed by senior, experienced administrators and hence the Court should defer to their opinion,
particularly since the Court does not have expertise in these matters.
26. The Chairman of the Committee also suggested that genuine and extreme hardship cases may be put up before the State Advisory Committee
for disposal.
27. On the basis of the aforesaid decision of the State Advisory Committee, the Chairman of the State Advisory Committee wrote a letter dated
15.7.2002 to all the Principal Secretaries and Heads of Department of U.P. Government, copy of which is Annexure-6 to the writ petition.
28. Sri Ashok Khare, learned Senior Counsel for the petitioners in some petitions submitted that the guidelines for final allocation have not been
framed by the Central Government as is the necessary requirement of the U.P. Reorganisation Act, 2000. He has submitted that the guidelines
have been framed by the State Advisory Committee on which no such power stands conferred. He has further submitted that there is nothing to
show that the criteria for allocation framed by the State Advisory Committee has ever been approved by the Central Government. We do not
accept this contention. It may be noted that the State Advisory Committee had been set up by the Central Government and hence it was acting on
the authority of the Central Government. There is no averment in the Writ Petition No. 52499 of 2002 or in Writ Petition No. 45201 of 2002 or
any other of these connected petitions that the recommendations of the State Advisory Committee had not been accepted or approved by the
Central Government. Hence the petition cannot urge that the recommendations of the State Advisory Committee had not been approved by the
Central Government when he has not even made pleadings in the writ petitions. We are of the opinion that the guidelines framed by the State
Advisory Committee will be deemed to be the guidelines of the Central Government since the Committee was set up by the Central Government
for this purpose. In fact the Central Government has made final allocation u/s 73(2) of the Act, vide order dated 22.4.2003 of the Director
(Personnel and Training), Central Government, copy of which has been produced before us by Sri B.N. Singh, learned Senior Standing Counsel
for the Central Government. The said copy of the order dated 22.4.2003 shall be kept on record in this case. Copy of the order date 22.4.2003
had also been given earlier to Sri Ashok Khare and Smt. Sadhana Upadhyay, learned Counsel for the petitioners by Sri B.N. Singh, Senior
Standing Counsel for Central Government, High Court alongwith his letter dated 11.11.2003.
29. A perusal of the order dated 22.4.2003 shows that the final allocation u/s 73(2) has been made by the Central Government by this order.
30. Annexed to the order dated 22.4.2003 is the list of persons who have been finally allocated to the State of U.P. or Uttaranchal u/s 73(2).
31. Since final allocation has been made by the Central Government u/s 73(2) of the Act, it can reasonably be concluded that this final allocation
u/s 73(2) was made on the recommendations of the State Advisory Committee set up by the Central Government u/s 76. Hence, it can be said
that the guidelines of the State Advisory Committee was accepted by the Central Government.
32. Sri Ashok Khare, then contended that the final allocation effects a change in the employer of the petitioner without the consent of the
employee. In our opinion, the legislature can change the employer of the employee in the circumstances of the case. Obviously, when the State of
Uttaranchal was created some of the U.P. Government employees have to be sent to Uttaranchal State, otherwise the State of Uttaranchal cannot
function. No doubt after few a years local recruitment will be done by the State of Uttaranchal but for sometime it will have to utilize the services of
the erstwhile U.P. Government employees otherwise there will be an administrative vacuum in the Uttaranchal State. We have to take a practical
view of the matter and not go by abstract theory. Learned Counsel for the petitioner has not been able to show any legal bar to the change of the
employer and hence his submission in this regard cannot be accepted.
33. Sri Ashok Khare then contended that Paragraph 2(b)(2) of the G.O. dated 15.7.2002 is violative of Article 16(2) of the Constitution.
Paragraph 2(b)(2) of the said G.O. states that the domiciles of Uttaranchal will be allotted Uttaranchal State. The domiciles will be regarded as
such persons in whose service record on 1.4.2000, it is mentioned that their home district is one of the 13 districts of Uttaranchal State.
34. We cannot accept this contention also. Article 16(2) of the Constitution states :
No citizen shall, on grounds only of religion, race, caste, sex, descent, place or birth, residence or any of them, be uneligible for, or discriminated
against in respect of, any employment or office under the State.
35. We do not see how Article 16(2) has been violated by the G.O. dated 15.7.2002. In our opinion, the G.O. dated 15.7.2002 does not
discriminate against the original residents/domiciles of the 13 districts included in Uttaranchal.
36. Learned Counsel for the petitioner has relied on the decision of the Supreme Court in Gazula Dasaratha Rama Rao Vs. The State of Andhra
Pradesh and Others, In that decision the validity of Section 6(1) of the Madras Hereditary Village Offices Act was challenged on the ground that it
violated Article 16(2) of the Constitution. Section 6(1) stated that in choosing the persons to fill the offices of Village Munsifs, the Collector shall
select the persons whom he may consider the best qualified from among the families of the last holders of the office. The Supreme Court held that
this provision violates Article 16(2) of the Constitution because the office of Village Munsif is an office under the State within the meaning of the
term in Article 16(1)(2) and hence it cannot be treated as a hereditary post. In our opinion, this decision is wholly distinguishable and cannot apply
to the facts of the present case.
37. In Kailash Chand Sharma v. State of Rajasthan AIR 2002 SCW 3276 , the Supreme Court considered the scope of Article 16(2) of the
Constitution. In that decision the Supreme Court held that the residence within a district or rural areas of that district could not be a valid basis for
classification for the purpose of public employment. In that case 10 bonus marks had been awarded for residence in the district concerned and five
marks for residents of rural areas of the concerned districts for selection to the post of Primary School Teachers by the Zila Parishad of various
districts in the State of Rajashtan. The Supreme Court referred to the Constitution Bench decision in A. V. S. Narasimha Rao and Others Vs. The
State of Andhra Pradesh and Another, where in connection with Article 16 it was observed :
The intention here is to make every office or employment open and available to every citizen and inter alia to make offices or employment in one
part of India open to citizens in all other parts of India
38. The Supreme Court also referred to its own decision in Dr. Pradeep Jain and Others Vs. Union of India (UOI) and Others, where it was
observed :
It will not noticed from the above discussion that though infra-State discrimination between persons resident in different districts or regions of a
State has by and large been frowned upon by the Court and struck down as invalid as in Minor P. Rajendran Vs. State of Madras and Others,
and Minor A. Peeriakaruppan and Sobha Joseph Vs. State of Tamil Nadu and Others, the Court has in D.N. Chanchala''s case and other similar
cases upheld institutional reservation effected through University-wise distribution of seats for admission to Medical Colleges. The Court has also
by its decision in D.P. Joshi Vs. The State of Madhya Bharat and Another, and N. Vasundara Vs. State of Mysore and Another, sustained the
constitutional validity of reservation based on residence requirement within a State for the purpose of admission to Medical College.
39. After discussing a catena of earlier decisions in Kailash Chand Sharma''s case (supra), the Supreme Court held that award of bonus marks to
the districts or rural areas of the districts amounts to impermissible discrimination as there is no rational basis for such preferential treatment.
40. In our opinion, the aforesaid decision is clearly distinguishable. We are here not concerned with any bonus marks or weightage given to people
of certain areas. We are concerned with the question whether there was a rational basis for allocating the employees whose domicile/place of birth
was in Uttaranchal to the State of Uttaranchal after its creation. We are of the opinion that such a decision to allocate such persons to Uttaranchal
cannot be said to be irrational. It may be that the Central Government and State Advisory Committee could have framed some other or different
criteria for allocating the employees to Uttaranchal, but it is not for this Court to decide whether this or that criteria was better from the point of
view of efficiency of administration or other such circumstances. The State is free to chose different methods and adopt different criteria and it is
not for this Court to say that any particular method or criteria should have been chosen.
41. In General Manager, Southern Railway v. Rangachari, AIR 1962 SC 36, the Supreme Court observed that Articles 16(1) and (2) really give
effect to the equality before law guaranteed by Article 14 and to prohibition of discrimination guaranteed by Article 15(1). Thus, Article 16 is really
a specie of the genus which is contained in Article 14. In other words, Article 16 is an instance of the application of the general rule of equality laid
down in Article 14 of the Constitution. Hence, the decisions on Article 14 may also be apposite.
42. It is well-settled that Article 14 does not prohibit reasonable classification for legitimate purpose vide The State of Bombay and Another Vs.
F.N. Balsara, ; Babulal Amthalal Mehta Vs. The Collector of Customs, Calcutta, ; Gopi Chand Vs. The Delhi Administration, In these decisions it
was held that differential treatment does not by itself constitute violation of Article 14 to the Constitution. It violates Article 14 when there is no
reasonable basis for the differentiation vide Ameerunnissa Begum and Others Vs. Mahboob Begum and Others, If a law deals equally with
members of a well defined class it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that there was no
application to other person vide State of Bombay v. Balsara (supra). No service rule can satisfy every employee vide Reserve Bank of India and
Others Vs. C.N. Sahasranaman and Others, (vide Para 58). If the State takes care to reasonably classify persons and if it deals equally with all
persons belonging to a well defined class it is not open to the charge of denial of equal protection on the ground that the law does not apply to the
other persons vide Sakhawat Ali Vs. The State of Orissa, (Vide Para 10); Chiranjit Lal Chowdhuri Vs. The Union of India (UOI) and Others, etc.
43. Of course, the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from
others left out of the group and that differentia must have a rational relation to the object sought to be achieved by the law vide Harakchand
Ratanchand Banthia and Others Vs. Union of India (UOI) and Others, (vide Para 26); Mohd. Hanif Quareshi and Others Vs. The State of Bihar,
Pathumma and Others Vs. State of Kerala and Others, (Para 41) etc. However, Article 14 does not insist that the classification should be
scientifically perfect or logically complete vide Kedar Nath Bajoria Vs. The State of West Bengal, (vide Para 8). The classification would be
justified if it is not palpably arbitrary vide In Re: The Special Courts Bill, 1978, (Para 72).
44. Hence when a law is challenged as denying equal protection, the question for determination by the Court is not whether it has resulted in
inequality, but whether there is some difference which bears a just and reasonable relation to the object of the classification vide Suraj Mall Mohta
and Co. Vs. A.V. Visvanatha Sastri and Another, When, therefore, a law is challenged as offending Article 14 of the Constitution the first duty of
the Court is to examine the purpose and policy of the Act and then to discover whether the classification made by the law has a reasonable relation
to the object which the Legislature seeks to achieve vide Kedar Nath v. State of West Bengal AIR 1953 SC 401 ; P.B. Roy Vs. Union of India
(UOI), etc.
45. The basis of classification may be geographical vide D.P. Joshi Vs. The State of Madhya Bharat and Another, The State of Punjab Vs. Ajaib
Singh and Another, ; Gopal Narain Vs. State of Uttar Pradesh and Another, State of Nagaland Vs. Ratan Singh, etc., , etc., provided there is a
nexus between the territorial basis of the classification and the objects ought to be achieved by the Act, vide Purshottam Govindji Halai Vs. Shree
B.M. Desai, Additional Collector of Bombay and Others, . Gopi Chand Vs. The Delhi Administration, Kangshari Haldar and Another Vs. The
State of West Bengal, ; Shri Kishan Singh and Others Vs. The State of Rajasthan and Others, ; Ram Chandra Palai and Others Vs. The State of
Orissa and Others, State of Maharashtra Vs. Raj Kumar, H.H. Shri Swamiji of Shri Amar Mutt and Others Vs. Commissioner, Hindu Religious
and Charitable Endowments Department and Others, (Para 25); State of Madhya Pradesh Vs. Bhopal Sugar Industries Ltd., etc.
46. Thus, a perusal of the above decisions shows that there can be classification provided there is a reasonable nexus with the object sought to be
achieved. From this angle the impugned G.O. dated 15.7.2002, in our opinion, does not violate Articles 14 and 16(2) of the Constitution. There is
rational classification by the impugned G.O. which has a nexus sought to be achieved namely to provide sufficient number of Civil Servants to the
newly created State of Uttaranchal to enable it to function. Domiciles of Uttaranchal are a well defined class and they can better serve the people
of Uttaranchal as they are likely to have some knowledge of the local conditions in Uttaranchal.
47. In our opinion, the impugned G.O. dated 15.7.2002 does not discriminate on the basis of descent or on the basis of place of birth or
residence. It may be noted that Paragraph 2(b)(2) of the G.O. dated 15.7.2002 does not discriminate inter se between the persons who are
domiciles of the 13 districts of Uttaranchal. All such persons have been allocated to Uttaranchal (with the exception of the persons mentioned in
the impugned G.O.). All that the aforesaid provision does is to make a classification between persons who are domiciles of Uttaranchal and those
whose are not. In our opinion, this is a reasonable classification which has a nexus to the object sought to be achieved. After all persons who are
domiciles of Uttaranchal are likely to have some connection with Uttaranchal and some knowledge about the people, environment and the situation
in Uttaranchal. Hence, they will be better able to serve the people of Uttaranchal having knowledge of local affairs as contrasted to persons whose
domicile was not Uttaranchal. Persons who are domiciles of Uttaranchal very often have their homes and their relatives there and would in all
likelihood have knowledge of local conditions there. Many of them often visit their home cities or villages even when they have lived for quite
sometimes in plains of U.P. Hence, most of them have some affiliation to the State of Uttaranchal and they often have relatives and friends there
whom they often visit. This is a matter of common knowledge and we can take judicial notice of this fact.
48. No doubt there may be some individual cases of hardship, since there could be some persons who may be domiciles of Uttaranchal technically
but may have never visited Uttaranchal. However, it is well-settled that a rule cannot be said to be unreasonable merely because in a given case it
operates harshly vide State of Gujarat Vs. Shantilal Mangaldas and Others, (vide Paragraph 52).
49. In Srinivasa Enterprises v. Union of India (1980) 4 SCC 507, the Supreme Court observed vide Paragraph 13 :
When a general evil is sought to be suppressed some martyrs may have to suffer, for the legislature cannot easily make meticulous exception and
has to proceed on broad categorization not singular individualizations.
50. Hence, even if some individual Government servants suffer by the said clause that would not make it invalid vide K.B. Hides v. State of U.P.
and Ors., Civil Misc. Writ Petition No. 2529 of 2002, decided on 1.12.2003.
51. Sri Ashok Khare, learned Senior Advocate for the petitioner submitted that under Paragraph 2(b)(3) a person whose home district is
mentioned in the service record as one of the 13 districts falling within the Uttaranchal on 1.4.2000 is to be treated as an original residential
domicile of Uttaranchal. He submitted that this norm is wholly unreasonable since normally the district mentioned in the service book finds
reflection from the details as mentioned in the application form while applying before the U.P. Public Service Commission. In the said application
form the residence of an applicant may be mentioned as one of the 13 districts falling in the State of Uttaranchal on account of several factors
including posting of parents or the applicant at the said point of time in one of the aforesaid districts in Uttaranchal. We have already stated that
merely on account of individual cases of hardships the Court cannot declare a rule as violative of Article 14 of the Constitution. Hence, even if we
accept the argument of Sri Ashok Khare, it only follows that there are individual cases of hardship but on that account the rule will not become
violative of Article 14 of the Constitution.
52. Smt. Sadhna Upadhyay, learned Counsel for the petitioner in some of the cases submitted that Clause 2(b)(3) of the G.O. dated 15.7.2002, is
also arbitrary because it provides that even after the application of Sub-clauses (1) and (2) if some posts remain vacant then the junior most in the
desired pay scale would be allotted to Uttaranchal. She submitted that Uttaranchal requires senior and experienced Civil servants also and not only
junior Government employees.
53. In our opinion, there is no merit in this submission also. It may be noted that Sub-clause (3) only comes into play after exhausting Sub-clause
(1) and (2) of Clause 2(b) of the G.O. dated 45.7.2002. Hence, obviously some senior and experienced persons who come within Sub-clauses
(1) and (2) are bound to be allotted to Uttaranchal and it is not that only junior persons will be allotted there. At any event this is a policy matter
and we cannot interfere with the same in writ jurisdiction.
54. It is well-settled that in policy matters this Court has very limited scope of interference vide Union of India (UOI) and Another Vs. International
Trading Co. and Another, (Para 17); State of Punjab v. Ram Lubhaya 1993 (4) SCC 117 ; Krishnan Kakkanth Vs. Government of Kerala and
ohters, ; G.B. Mahajan and others Vs. The Jalgaon Municipal Council and others, ; Federation of Railway Officers Association and Others Vs.
Union of India (UOI), etc.
55. In Union of India v. International Trading Co. 2003 (51) ALR 598, (vide Paragraph 17), the Supreme Court observed :
The Courts as observed in Union of India and others Vs. Hindustan Development Corpn. and others, , are kept out of the lush field of
administration policy except where the policy is inconsistent with the express or implied provision of a statute which creates the power to which the
policy relates or where a decision made in purported exercise of power is such that a repository of the power acting reasonably and in good faith
could not have made it. But, there has to be a word of caution. Something overwhelming must appear before the Court will intervene. That is and
ought to be a difficult onus of an applicant to discharge. The Courts are not very good at formulating or evaluating policy. Sometimes when the
Courts have intervened on policy grounds the Court''s view of the large of policies open under the statute or of what is unreasonable policy has not
got public acceptance. On the contrary, crucial views of policy have been subjected to stringent criticism.
As Professor Wade points out (in Administrative Law by H.W.R. Wade, 6th Edition), there is ample room within the legal boundaries for radical
differences of opinion in ;which neither side is unreasonable. The reasonableness in administrative law must, therefore, distinguish between proper
course and improper abuse of power. Nor is the test the Court''s own standard of reasonableness as it might conceive it in a given situation. The
point to note is that the thing is not unreasonable in the legal sense merely because the Court thinks it to be unwise.
56. In Tamil Nadu Education Department Ministerial and General Subordinate Services Association and Others Vs. State of Tamil Nadu and
Others, the Supreme Court while examining the scope of interference by the Courts in public policy held that the Court cannot strike down a
circular/Government Order or a policy merely ;because there is a variation or contradiction. The Court observed : ""Life is sometimes contradiction
and even inconsistency is not always a virtue. What is important is to know whether mala fides vitiates or irrational and extraneous factors fouls"". In
that decision the Court also observed :
Once, the principle is found to be rational, the fact that a few freak instances of hardship may arise on either side cannot be a ground to invalidate
the order or the policy. Every cause claims a martyr and however, unhappy we be to see the seniors of yesterdays becoming the juniors of today,
this is an area where, absent arbitrariness and irrationality, the Court has to adopt a hands-off policy.
57. In Maharashtra State Board of Secondary and Higher Secondary Education and Another Vs. Paritosh Bhupeshkumar Sheth and Others, the
Supreme Court considered the scope of judicial review in a case of policy decision and held as under :--
The Court cannot sit in judgment over the wisdom of the policy evolved by the Legislature and the subordinate regulation making body. It may be
a wise policy, which will fully effectuate the purpose of the enactment or it may be lacking in effectiveness and hence calling for revision and
improvement. But any drawbacks in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down
on the ground that in its opinion, it is not a wise or prudent policy but is even a foolish one and that it will not really serve to effectuate he purpose
of the Act. The legislature and its delegate are the sole repositories of the power to decide what policy should be pursued in relation to matters
covered by the Act and there is no scope for any interference by the Courts unless the particular provision impugned before it can be said to suffer
from any legal infirmity in the sense of its being wholly beyond the scope of the regulation-making power or it being inconsistent with any of the
provisions of the parent enactment or in violation of any of the limitations imposed by the Constitution.
58. A similar view has been reiterated in Delhi Science Forum and others Vs. Union of India and another, ; U.P. Kattha Factories Association Vs.
State of U.P. and others, ; and Rameshwar Prasad Vs. Managing Director U.P. Rajkiya Nirman Nigam Limited and Others,
59. In Netai Bag and Others Vs. The State of West Bengal and Others, (vide Para 20), the Supreme Court observed :
The Court cannot strike down a policy decision taken by the Government merely because it feels that another decision would have been fairer or
wiser or more scientific or logical.
60. The Government is entitled to make pragmatic adjustments and policy decision which may be necessary or called for under the prevalent
peculiar circumstances. While deciding the said case, the Court referred to and relied upon its earlier judgments in State of M.P. and Others Vs.
Nandlal Jaiswal and Others, and Shri Sachidanand Pandey and Another Vs. The State of West Bengal and Others, wherein the Court held that
judicial interference with policy decision is permissible only if the decision is shown to be patently arbitrary, discriminatory or mala fide.
61. A similar view has been reiterated in Union of India and Others Vs. Dinesh Engineering Corporation and Another etc., . In M/s. Ugar Sugar
Works Ltd. Vs. Delhi Administration and Others, , it has been held that in exercise of their powers of judicial review, the Courts do not ordinarily
interfere with policy decisions of the executive unless the policy can be faulted on the ground of mala fide, unreasonableness, arbitrariness or
unfairness etc. If the policy cannot be touched on any of these grounds, the mere fact that it may affect the interests of a party does not justify
invalidating the policy.
62. In State of Himachal Pradesh and Another Vs. Padam Devi and Others, , the Supreme Court held that unless a policy decision is
demonstrably capricious or arbitrary and not informed by any reason or discriminatory or infringing any statute or the Constitution it cannot be a
subject of judicial interference under the provisions of Articles 32, 226 and 136 of the Constitution. Similar view, has been reiterated in State of
Rajasthan and Others Vs. Lata Arun,
63. In Local Government Board v. Arlidge 1915 AC 120, the Lord Chancellor observed :
The Minister at the Head of the Board is directly responsible to Parliament like other Ministers. He is responsible not only for what he himself
does but for all that is done in his department. The volume of work entrusted to him is very great and he cannot do the great bulk of it himself. He
is expected to obtain his materials vicariously through his officials and he has discharged his duty if he sees that they obtain these materials for him
properly. To try to extend his duty beyond this and to insist that he and other members of the Board should do everything personally would be to
impair his efficiency. Unlike a Judge of a Court he is not only at liberty but is compelled to rely on the assistance of his staff.
64. In Board of Education v. Rice 1911 AC 179, the House of Lords observed :
A functionary who has to decide an administrative matter of the nature involved in this case, can obtain the material on which he is to act in such
manner as may be feasible and convenient, provided only that the affected party has a fair opportunity to correct or contradict any relevant and
prejudicial material.
65. In view of the above clear statement of the fundamental principles of administrative law the objection to the validity of the procedure adopted
by the Central Government for the final allocation of U.P. Government servants to Uttaranchal is without any substance and must be rejected. The
Central Government has constituted a State Advisory Committee consisting of very Senior Officers who have wide and long experience in the
administrative field and hence their decision, which has to be treated as the decision of the Central Government, cannot be faulted. Opportunity
was given to the officials likely to be affected by permitting representations against the tentative list. Hence, there was no arbitrariness on this
account.
66. This Court cannot ordinarily interfere in administrative matters, since the administrative authorities are specialists in matters relating to the
administration. The Court does not have the expertise in such matters and ordinarily should leave such matters to the discretion of the
Administrative Authorities. It is only in rare and exceptional cases, where the Wednesbury principle applies that the Court should interfere, vide
Tata Cellular v. Union of India (1994) 6 SCC 651; Om Kumar v. Union of India 2001 (2) SCC 386 . In U.P. Financial Corporation and Others
Vs. Naini Oxygen and Acetylene Gas Ltd. and Another, (vide Para 21), the Supreme Court observed :
However, we cannot lose sight of the fact that the Corporation is an independent autonomous statutory body having its own constitution and rules
to abide by and functions and obligations to discharge. As such, in the discharge of its function it is free to act according to its own light. The views
it forms and the decisions it takes are on the basis of the information in its possession and the advice it receives and according to its own
perspective and calculations. Unless its action is mala fide, even a wrong decision taken by it is not open to challenge. It is not for the Courts or a
third party to substitute its decision, however, more prudent, commercial or business like it may be, for the decision of the Corporation. Hence,
whatever the wisdom (or the lack of it) of the conduct of the Corporation, the same cannot be assailed by making the Corporation liable.
67. In Haryana Financial Corporation and Anr. v. Jagdamba Oil Mills and Anr. (2002) 1 UPLBEC 937 (vide Paragraph 10), the Supreme Court
observed :
if the High Court cannot sit as an Appellate Authority over the decisions and orders of quasi-judicial authorities, it follows equally that it cannot do
so in the case of Administrative Authorities. In the matter of administrative action, it is well known that more than one choice is available to the
Administrative Authorities. They have a certain amount of discretion available to them. They have ""a right to choose between more than one
possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred"", (per Lord
Diplock in Secretary of State for Education and Science v. Metropolitan Borough Counsel of Tameside 1977 AC 1014. The Court cannot
substitute its judgment for the judgment of Administrative Authorities in such cases. Only when the action of the Administrative Authority is so
unfair or unreasonable that no reasonable person would have taken that action, the Court can intervene. To quote the classic passage from the
judgment of Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation 1947 (2) All ER 680 :
It is true the discretion must be exercised reasonably. Now what does not mean ? Lawyers familiar with the phraseology commonly used in
relation to exercise of statutory discretions often use the word ''unreasonable'' in a rather comprehensive sense. It has frequently been used and is
frequently used as a general description of the things that must not be done. For instance, a person entrusted with the discretion must, so to speak,
direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration
matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said and often is said, to be acting
''unreasonably''. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the
authority.
68. In Tata Cellular Vs. Union of India, (vide Paragraph 113), the Supreme Court observed :--
(1) The modern trend points of judicial restraint in administrative action.
(2) The Court does not sit as a Court of Appeal over administrative decisions but merely reviews the manner in which the decision was made.
(3) The Court does not have the expertise to correct an administrative decision. If a review of the administrative decision is permitted it will be
substituting its own decision, without the necessary expertise, which itself may be fallible.
69. In the same decision the Supreme Court observed that judicial review is concerned with reviewing not the merits of the decision but the
decision making process (the Wednesbury principle). Seed also Pramod Kumar Misra Vs. Indian Oil Corporation Ltd. and Others, State of
Kerala v. Joseph Antony 1994 (1) SCC 658, etc.
As Lord Denning observed :
This power to overturn executive decisions must be exercised very carefully, because you have got to remember that the Executive and the Local
Authorities have their very own responsibilities and they have the right to make decisions. The Courts should be very wary about interfering and
only interfere in extreme cases, that is, cases where the Court is sure they have gone wrong in law or they have been utterly unreasonable.
Otherwise you would get a conflict between the Courts and the Government and the authorities, which would be most undesirable. The Courts
must act very warily in this matter."" (See ''Judging the World'' by Garry Sturgess Philip Chubb).
70. In our opinion Judges must maintain judicial self restraint while exercising the powers of judicial review of administrative or legislative decisions
:
In view of the complexities of modem society,"" wrote Justice Frankfurter, while Professor of Law at Harvard University, ""and the restricted scope
of any man''s experience, tolerance and humility in passing judgment on the worth of the experience and beliefs of others become crucial faculties in
the disposition of cases. The successful exercise of such judicial power calls for rare intellectual disinterestedness and penetration, lest limitation in
personal experience and imagination operate as limitations of the Constitution. These insights Mr. Justice Holmes applied in hundreds of cases and
expressed in memorable language:
It is misfortune if a Judge reads his conscious or unconscious sympathy with one side or the other prematurely into the law and forgets that what
seem to him to be first principles are believed by half his fellow men to be wrong.
(See Frankfurter''s ''Mr. Justice Holmes and the Supreme Court'').
71. In our opinion, the Administrative Authorities must be given freedom to do experimentations and in exercising powers, provided of course they
do not transgress the legal limits or act arbitrarily.
72. The function of a Judge has been described, thus, by Lawton LJ :
A Judge acts as a referee who can blow his judicial whistle when the ball goes out of play but when the game restarts he must neither take part in
it nor tell the players how to play"" vide Laker Airways Ltd. v. Department of Trade (1977) QB 643 (724).
73. In writing a biographical essay on the celebrated Justice Holmes of the U.S. Supreme Court in the dictionary of American Biography, Justice
Frankfurter wrote:
It was not for him (Holmes) to prescribe for society or to deny it the right of experimentation within very wide limits. That was to be left for
contest by the political forces in the state. The duty of the Court was to keep the ring free. He reached the democratic result by the philosophic
route of scepticism -- by his disbelief in ultimate answers to social questions. Thereby he exhibited the judicial function at its purest."" (See Essays
on Legal History in Honour of Felix Frankfurter, Edited by Morris D. Forkosh).
74. In the process of judging constitutional cases, Justice Frankfurther wrote :
The core of the difficulty is that there is hardly a question of any real difficulty before the Court that does not entail more than one so-called
principle. Anybody can decide a question if only a single principle is in controversy. Partisans and Advocates often case a question in that form, but
the form is deceptive. In a famous passage Mr. Justice Holmes has exposed this misconception : ''All rights tend to declare themselves absolute to
their logical extreme. Yet all in fact are limited by the neighbourhood of principles of policy which are other than those on which the particular right
is founded and which become strong enough to hold their own when a certain point is reached.
75. In our opinion, adjudication must be done within the system of historically validated restraints and conscious minimisation of the Judges
preferences. The Court must not embarass the Administrative Authorities and must realise the Administrative Authorities have expertise in the field
of administration while the Court does not. In the word of Chief Justice Neely :
I have very few illusions about my own limitations as a Judge. I am not an Accountant, Electrical Engineer, Financer, Banker, Stockbroker or
System Management Analyst. It is the height of folly to expect Judges intelligently to review a 5000 page record addressing the intricacies of a
public utility operation. It is not the function of a Judge to act as a super board or with the zeal of a pedantic school master substituting its judgment
for that of the administrator.
76. In administrative matters the Court should, therefore, ordinarily defer to the judgment of the administrative unless the decision is clearly illegal
or shockingly arbitrary.
77. In this connection Justice Frankfurter while Professor of Law, at Harvard University wrote in ''The Public and its Government''--
With the great men of the Supreme Court constitutional adjudication has always been statecraft. As a mere Judge, Marshall had his superiors
among his colleagues. His supremacy lay in his recognition of the practical needs of Government. The great Judges are those to whom the
Constitution is not primarily a text for interpretation but the means of ordering the life of a progressive people"".
78. In the same book Justice Frankfrurter also wrote--
In simple truth, the difficulties that Government encounters from law do not inhere in the Constitution. They are due to the Judges who interpret it.
That document has ample resources for imaginative statesmanship, if Judges have imagination for statesmanship.
79. In view of the above we are clearly of the view that the principles laid down in the G.O. dated 15.7.2002 cannot be said to be arbitrary or
violative of Articles 14 or 16 of the Constitution. These principles were laid down in meetings of very senior officers who were members of the
State Advisory Committee set up by the Central Government. These senior officers have long and wide experience of administrative matters and it
is not for this Court to sit in appeal over these decisions. It is evident from the documents placed before us that there was a detailed exercise
involving a large number of officials belonging to the Central Government, the State of U.P. and the State of Uttaranchal and only thereafter the
order dated 15.7.2002, as well as the final allocation dated 22.4.2003 were issued. The aforesaid orders were, therefore, based on due
application of mind by several very senior officers and the Court should defer to their judgment by exercising self restraint. The orders dated
15.7.2002 and 22.4.2003 are purely administrative in nature and not quasi-judicial. No doubt some hardships will ensue to some individual
employees but on that account we cannot strike down the orders dated 15.7.2003 and 22.4.2003.
80. We may mention that we have only considered the validity of the G.O. dated 15.7.2002 and the principles laid down therein which we have
found to be valid and constitutional. We have not considered in this bound of petitions any individual complaint where the Government employee
has complained of breach of the principles contained in the G.O. dated 15.7.2002. In fact the G.O. dated 15.7.2002, itself states (at the end) that
if there is any individual case of clear breach of the guidelines and principles mentioned in the G.O. dated 15.7.2002, it will be open to such
employee to make a representation to the State Advisory Committee which was nominated by the Central Government in this connection. In fact
many such representations were made and were considered and decided by the Committee. Hence, we cannot now interfere.
81. A submission has also been made regarding the criterion where both husband and wife are in U.P. Government service. It has been contended
that the criterion of allocating the spouse to the district where his/her senior in pay scale has been allocated is arbitrary and illegal. We are of the
opinion, that this submission also cannot be accepted. It has already been stated above that it is for the Administrative Authorities to decide the
criteria for allocation and unless the same is totally illegal or irrational in the Wednesbury sense the Court cannot interfere. Certainly seniority can
be one of the criteria for allocating husband and wife and we see nothing arbitrary in this.
82. As regards the submission that since U.P. Secretariat employees are not being allocated to Uttaranchal against their will, there is violation of
Article 14 of the Constitution, we find no substance in this plea. Secretariat employees are a well defined class and they may be needed by the
U.P. Government due to their experience in the Secretariat. Hence, the classification is not irrational.
83. As regards Section 75 this is obviously subject to the final allocation u/s 73(2).
84. It has also been submitted by the learned Counsels for the petitioners that Section 73(2) of the Act does not lay down any guiding principles
for the Central Government to make final allocations. In the absence of any policy, standards or legal principles in the Act, itself it is urged that the
impugned G.O. dated 15.7.2002, suffers from the vice of excessive delegation. Learned Counsel has relied on the decision of the Supreme Court
in The Registrar of Co-operative Societies, Trivandrum and Another Vs. K. Kunjabmu and Others, (vide Para 3).
85. We cannot accept this contention. It may be noted that the constitutional validity of Section 73(2) has not been challenged in these petitions,
but even if it had been challenged we are of the opinion that it is valid. It is well-settled that guidelines need not be mentioned in the statutory
provision itself and can be spelt out from the scheme of the Act, the subject matter or other surrounding circumstances, vide Registrar v. Kunjabmu
(supra), Vasantlal v. State of Bombay 1961 SCJ 394 ; State of Bhopal and Others Vs. Champalal and Others, etc.
86. Moreover, in our opinion, Section 73(2) has not delegated any legislative function at all. It has only empowered the Central Government to
exercise a certain executive function, viz., that of making final allocation of U.P. Government employees to the successor States.
87. It has lastly been contended by the petitioners that their representations have not been properly considered. In this connection it may be noted
that all U.P. Government employees who were proposed to be finally allocated to Uttaranchal had been given the right to make a representation to
the State Advisory Committee. The State Advisory Committee consists of very senior officials with wide experience and therefore, it has to be
presumed that the representations were properly considered. In our opinion, it was not incumbent on the Committee to give reasons while deciding
a representation since its decision was purely administrative and not quasi-judicial.
88. In His Holiness Kesavananda Bharati Sripadagalvaru Vs. State of Kerala, (vide Para 1547), Khanna J., observed:
In exercising the power of judicial review, the Courts cannot be oblivious of the practical needs of the Government. The door has to be left open
for trial and error.
89. In Indian Railway Construction Co. Limited v. Ajay Kumar (2003) 2 UPLBEC 1206 (vide Para 14), the Supreme Court observed that there
are three grounds on which administration action is subject to control by judicial review. The first ground is illegality, the second is irrationality and
the third is procedural impropriety. These principles were highlighted by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil
Service 1984 (3) All ER 935. The Supreme Court observed that the Court will be slow to interfere in such matters relating to administrative
functions unless the decision is tainted by any vulnerability enumerated above, like illegality, irrationality and procedural impropriety. The famous
case, commonly known as the ''Wednesbury''s case'', is treated as the landmark in laying down various principles relating to judicial review of
administrative or statutory discretion.
90. Lord Diplock explained irrationality as follows :
By irrationality, I mean what can be now be succinctly referred to as Wednesbury unreasonableness. It applies to a decision which is so
outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided
could have arrived at it.
91. From the above standpoint the impugned decisions of the Administrative Authorities in the present case cannot be faulted as they cannot be
said to be so outrageous in defiance of logic or accepted moral standards that no sensible person could have arrived at it. It may be that different
principles of allocation could have been adopted, but on this ground the impugned order cannot be said to be vitiated.
92. Before parting with this case we would like to briefly comment on the subject of judicial restraint while reviewing statutes or administrative
decisions. We feel justified in making these comments because the times which this country is passing through requires clarification of the role of the
judiciary vis-a-vis the executive and the legislature.
93. Under our Constitution the judiciary, the Legislature and the Executive have their own spheres of operation. It is important that these organs do
not entrench on each others proper spheres and confine themselves to their own, otherwise there will always be danger of a reaction. Of the three
organs of the State, it is only the judiciary which has the right to determine the limits of jurisdiction of all these three organs. This great power must,
therefore, be exercised by the judiciary with the utmost humility and self restraint.
94. The judiciary must, therefore, exercise self restraint and eschew the temptation to act as a super legislature or a Court of Appeal sitting over
the decisions of the Administrative Authorities. By exercising self-restraint it will enhance its own respect and prestige. Of course, if law clearly
violates some provision of the Constitution or is beyond its legislative competence, or if an administrative decision is clearly violative of some
statutory or constitutional provision or is shockingly arbitrary in the Wednesbury sense, it can be struck down, but otherwise it is not for this Court
to sit in appeal over the wisdom of the legislature or the executive.
95. The Court may feel that a better decision could have been taken or some other course of action could have been adopted by the legislature or
executive, but on this ground it cannot strike down the law or the administrative decision. The legislature and the executive authorities in their
wisdom are free to choose different methods of solving a problem and the Court cannot say that this or that method should have been adopted. As
Mr. Justice Cardozo of the U.S. Supreme Court observed in Anderson v. Wilson 289 U.S. 20 :
We do not pause to consider whether a statute differently conceived and framed would yield results more consonant with fairness and reason. We
take this statute as we find it.
96. In our opinion, the same principle will apply to administrative decisions also.
97. It must never be forgotten that the Administrative Authorities have wide experience in administrative matters. No Court should, therefore,
strike down an administrative decision solely because it is perceived by it to be unwise. A Judge cannot act on the belief that he knows better than
the executive on a question of policy, because he can never be justifiably certain that he is right. Judicial humility should, therefore, prevail over
judicial activism in this respect.
98. Judicial restraint is consistent with the complementary to the balance of power among the three independent branches of the State. It
accomplishes this in two ways. First, judicial restraint not only recognizes the equality of the other two branches with the judiciary, it also fosters
that equality by minimizing interbranch interference by the judiciary. In this analysis, judicial restraint may also be called judicial respect, that is,
respect by the judiciary for the other coequal branches. In contrast, judicial activism''s unpredictable results make the judiciary a moving target and
thus, decreases the ability to maintain equality with the co-branches. Restraint stabilizes the judiciary so that it may better function in a system of
interbranch equality.
99. Second, judicial restraint tends to protect the independence of the judiciary. When Courts encroach into the legislative or administrative fields
almost inevitably voters, legislators and other elected officials will conclude that the activities of Judges should be closely monitored. If Judges act
like legislators or administrators it follows that Judges should be elected like legislators or selected and trained like administrators. This is
counterproductive. The touchstone of an independent judiciary has been its removal from the political or administrative process. Even if this
removal has sometimes been less than complete, it is an ideal worthy of support and one that has had valuable effects.
100. The constitutional trade off for independence is that Judges must restrain themselves from the areas reserved to the other separate branches.
Thus, judicial restraint complements the twin, overarching values of the independence of the judiciary and the separation of powers.
101. The Court should always hesitate to declare statutes or policy decisions of the executive unconstitutional, unless it finds it clearly so. As
observed by the Supreme Court in M.H. Qureshi v. State of Bihar (supra), the Court must presume that the legislature understands and correctly
appreciates the need of its own people. The legislature is free to recognize degrees of harm and may confine its restrictions to those where the need
is deemed to be the clearest. In the same decision it was also observed that the legislature is the best Judge of what is good for the community on
whose suffrage it came into existence. In our opinion, the same principle will also apply to policy decisions taken by the Administrative Authorities.
102. In Lochner v. New York 198 U.S. 45 (1905), Mr. Justice Holmes of the U.S. Supreme Court in his dissenting judgment criticized the
majority of the Court for becoming a super legislature by inventing a ''liberty of contract'' theory, thereby enforcing its particular laissez -- faire
economic philosophy. Similarly, in his dissenting judgment in Griswold v. Connecticut, 381 U.S. 479, Mr. Justice Hugo Black warned that
unbounded judicial creativity would make this Court a day-today Constitutional Convention."" In The Nature of the Judicial Process, Justice
Cardozo remarked : ""The Judge is not a Knight errant, roaming at will in pursuit of his own ideal of beauty and goodness."" Justice Frankfurter has
pointed out that great Judges have constantly admonished their brethren of the need for discipline in observing their limitations (see Frankfurter''s
''Some Reflections on the Reading of Statutes'').
103. In this connection we may usefully refer to the well-known episode in the history of the U.S. Supreme Court when it dealt with the New Deal
Legislation of President Franklin Roosevelt. When President Rooseevelt took office in January, 1933, the country was passing through a terrible
economic crisis the Great Depression. To overcome this, President Roosevelt initiated a series of legislation called the New Deal, which were
mainly economic regulatory measures. When these were challenged in the U.S. Supreme Court the Court began striking them down on the ground
that they violated the due process clause in the U.S. Constitution. As a reaction, President Roosevelt proposed to reconstitute the Court with six
more Judges to be nominated by him. This threat was enough and it was not necessary to carry it out. The Court in 1937, suddenly changed its
approach and began upholding the laws. ''Economic due process'' met with a sudden demise.
104. The moral of this story is that if the judiciary does not exercise restraint and over-stretches its limits there is bound to be a reaction from
politicians and others. The politicians will then step in and curtail the powers or even the independence of the judiciary (in fact the mere threat may
do, as the above example demonstrate). The judiciary should, therefore, confine itself to its proper sphere, realizing that in a democracy many
matters and controversies are best resolved in a non-judicial setting.
105. We hasten to add that it is not our opinion, that Judges should never be ''activist''. Sometimes judicial activism is a useful adjunct to
democracy such as in the School Segregation and Human Rights decisions of the U.S. Supreme Court, vide Brown v. Board of Education 347
U.S. 483 (1954), Miranda v. Arizona 384 U.S. 436, Roe v. Wade 410 U.S. 113, etc. or the decisions of our own Supreme Court which
expanded the scope of Articles 14 and 21 of the Constitution. This, however, should be resorted to in exceptional circumstances when the
situation forcefully demands it in the interest of the nation, but always keeping in mind that ordinarily the task of legislation or making policy
decisions is for the legislature and the executive and not the judiciary.
106. In the present case, the impugned policy decision has been taken by the Central Government on the advice of the State Advisory Committee
set up by it consisting of very senior officers having wide and long experience of administration. The Committee held several meetings and has
considered the principles for allocation to Uttaranchal in great detail. This Court should, therefore, defer to the opinion of this Committee and the
Central Government, particularly since it does not have expertise in these matters and does not find any clear violation of any statutory or
constitutional principle nor any arbitrariness in the Wednesbury sense.
107. The petitioner are, therefore, dismissed. All other connected and/or similar petitions are also dismissed and interim orders are vacated.
108. Let a copy of this judgment be sent by the Registrar General of this Court to the Chief Secretary, U.P. and the Home and Law Secretaries,
Government of India and the Chief Secretary, Uttaranchal forthwith.