caselaws

Supreme Court of India
Kerala State Beverages (M And M) … vs P P Suresh And Ors. Etc. Etc. on 4 October, 2019Author: L. Nageswara Rao

Bench: L. Nageswara Rao, Hemant Gupta

Reportable

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

Civil Appeal Nos.7804-7813 of 2019
Special Leave Petition (C) Nos. 5550-5559 of 2016

Kerala State Beverages (M and M) Corporation Limited
…. Petitioner (s)
Versus

P.P. Suresh & Ors, Etc. Etc. & Ors. ….Respondent (s)

WITH

Civil Appeal Nos.7814-7832 of 2019
Special Leave Petition (C) Nos.33452-33470 of 2016

Kerala State and Ors. Etc. Etc. ….
Petitioner (s)

Versus

The Managing Director Kerala State Beverages (M and
M)
Corporation Limited & Ors, Etc.Etc. & Ors.
….Respondent (s)

Civil Appeal No.7833 of 2019
Special Leave Petition (C) No.6757 of 2017

Kerala State and Ors. …. Petitioner
(s)
Versus

1 | Page
C.C. John & Ors. ….Respondent
(s)

Civil Appeal No. 7834 of 2019
Special Leave Petition (C) No.12573 of 2017

Kerala State …. Petitioner (s)
Versus

N.I. Issac ….Respondent (s)
AND

Contempt Petition (C) No.638 of 2019
In
Special Leave Petition (C) Nos.5550-5559 of 2016

Babu M.K. ….
Petitioner (s)
Versus

The Managing Director Kerala State Beverages (M and
M)
Corporation Limited
….Respondent (s)

JUDGMENT

L. NAGESWARA RAO, J.

Leave granted.

1. Rehabilitation of Abkari workers is the core issue that

arises in the Appeals above. Displaced workers who lost

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employment due to the ban of arrack in the State of Kerala,

were successful in the Writ Petition filed by them. The

Appeals filed by the State of Kerala and the Kerala State

Beverages Corporation Limited (for short, ‘ the Corporation’)

were dismissed by a Division Bench of the Kerala High Court.

Thus, the above Appeals.

2. Retail outlets for sale of arrack were started by the

Corporation in the year 1995, in view of the decision taken by

the Government of Kerala to abolish arrack shops which were

hitherto run by private parties. Thereafter, on 01.04.1996,

arrack was banned in the State of Kerala. Consequentially,

12,500 arrack workers were deprived of their livelihood.

Since it was not possible to provide re-employment to the

displaced arrack workers, the State Government paid

compensation of Rs. 30,000/- each to the arrack workers in

lieu of rehabilitation. In addition, an ex gratia of Rs.2000/-

was also disbursed by the Government, apart from the

provident fund pension and DCRG. Dissatisfied with the

decision of the Government in not providing re-employment,

the arrack workers launched an agitation demanding

rehabilitation. Pursuant to an agreement between the arrack

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workers and the Government, G.O.(Rt) No.81/2002/TD dated

20.02.2002 was issued. The Government ordered that 25%

of all daily wage employment vacancies which would arise in

the Corporation in future shall stand reserved to be filled up

by displaced workers who were members of the Abkari

Workers Welfare Fund Board and whose services were

terminated due to the ban of arrack.

3. The criteria for rehabilitation of arrack workers was

altered by G.O.(Rt) No. 567/2004/TD dated 07.08.2004. Vide

this Order, 25% of all daily wage employment vacancies likely

to arise in the Corporation, were directed to be earmarked for

the dependent sons of arrack workers who had perished

consequent to the loss of employment, due to the ban on

arrack in the State. In case the claimants exceeded the

number of available vacancies, employment would be

provided after a selection. The eligibility for seeking re-

employment was that the dependent sons of deceased arrack

workers should not have completed 38 years of age.

4. In the meanwhile, Rules 4(2) and 9(10)(b) were

introduced in the Kerala Abkari Shops Disposal Rules, 2002

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(for short “the Rules”). The said Rules provided for

absorption of arrack workers who lost employment due to the

abolition of the Abkari shops. The said Rules were declared

ultra vires the Abkari Act enacted in the year, 1902 (for short

“the Act”), by a judgment of this Court in Civil Appeal

No.1732 of 2006 dated 24.03.2006. [See: Kerala

Samsthana Chethu Thozhilali Union v. State of Kerala

& Ors.1]

5. A list of 265 persons, who were the dependent sons of

deceased arrack workers, was prepared pursuant to the

Government Order dated 07.08.2004. They approached the

High Court by filing a Writ Petition in which a direction was

sought to the Appellant/ State to provide employment to

them. The High Court directed implementation of the

Government Order dated 07.08.2004, by appointing the

dependent sons of the deceased arrack workers within a

period of six weeks from the date of the judgment. Further,

the High Court by its judgment dated 03.03.2009 directed the

Government to reconsider the Order dated 07.08.2004 by

which the benefit of rehabilitation was not given to all the

1(2006) 4 SCC 327

5 | Page
arrack workers who remained unemployed pursuant to the

ban of arrack. G.O. (Rt.) No.399/09/TD was issued by the

Government on 30.04.2009 implementing the direction

issued in Writ Petition (C) No.26878 of 2007 by appointing all

265 persons whose names were included in the list of

dependent sons of deceased arrack workers. No relief was

given to those workers who were jobless pursuant to the ban

on arrack. G.O.(Rt) No. 562/09/TD dated 22.06.2009 was

issued, citing practical difficulties in implementation of

Government Order dated 20.02.2002, such as want of

vacancies, fixing suitable criteria to accommodate them, etc.

6. The legality and validity of the Government Orders

dated 07.08.2004 and 22.06.2009 was challenged by the

displaced arrack workers. They sought implementation of the

Order passed by the Government on 20.02.2002 by which the

benefit of rehabilitation was given to all the arrack workers

who remained unemployed pursuant to the ban. By a

judgment dated 29.05.2015, the learned Single Judge of the

High Court of Kerala allowed the Writ Petitions and directed

the State Government to implement G.O.(Rt) No.81/2002/TD

dated 20.02.2002 within a period of two months from the

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date of the judgment. The learned Single Judge was of the

view that the displaced workmen had a legitimate

expectation of continued employment, which they could

claim. The justification of the Government that the change of

policy was on account of overriding public interest, was not

accepted by the learned Single Judge.

7. In the Appeals preferred by the Appellants, the Division

Bench of the High Court observed that the Government Order

dated 20.02.2002 created legitimate expectation in the

workers that they would be entitled for an appointment, as of

right. Any change in policy should have been preceded by a

suitable opportunity of hearing being given to the arrack

workers. In view of the said findings, the Division Bench held

that the implementation of the Government Order dated

07.08.2004 is arbitrary and violative of Article 14 of the

Constitution of India (for short “the Constitution”). As the

matter pertained to the loss of employment resulting in

deprivation of livelihood of the arrack workers, the High Court

was of the opinion that the Government Order dated

07.08.2004 was also violative of Article 21 of the

Constitution. The Government Order dated 07.08.2004 was

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only in modification of the earlier Order dated 20.02.2002

and not in supersession, according to the High Court. Apart

from providing employment to the dependent sons of the

deceased arrack workers, the obligation cast on the

Government to provide employment to displaced Abkari

workers, by Order dated 20.02.2002, continued to exist. The

Division Bench of the High Court referred to the Directive

Principles, especially Articles 38 to 43 of the Constitution to

hold that the policy decision taken by the Government to

provide rehabilitation was for the purpose of achieving social

objectives. Concluding that the Government Order dated

07.08.2004 suffers from the vice of arbitrariness and

unreasonableness, the Division Bench upheld the judgment

of the learned Single Judge by which the displaced arrack

workers were directed to be provided employment in the

Corporation.

8. Before this Court, it was contended on behalf of the

State that the Government Order dated 07.08.2004

modifying the earlier Government Order dated 20.02.2002

was due to overriding public interest. The Government found

it very difficult to implement the decision to provide

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employment to the displaced Abkari workers in the

Corporation. The number of vacancies available for daily

wage workers in the year 2002 was only 51. After a detailed

discussion with the stakeholders, a decision was taken to

modify the Government Order dated 20.02.2002 and to

provide employment only to the dependent sons of displaced

Abkari workers who died after the ban on arrack. According

to the State, there was no vested right in the displaced Abkari

workers to claim public employment. As the decision to

modify/ alter the Government Order dated 20.02.2002 was in

overriding public interest, the Respondents could not claim

that they had legitimate expectation. It was submitted on

behalf of the State that the decision to modify the

Government Order dated 20.02.2002 was pursuant to a

policy decision of the State which should not normally be

interfered with. Learned senior counsel for the State

submitted that loss of employment of the displaced workers

was more than 20 years ago and the Respondents could not

claim employment now. He further stated that the

Respondents who lost their livelihood due to ban on arrack

were suitably compensated in the year 1996 itself and it was

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not possible to assume that they were unemployed even

after a lapse of 23 years since losing their jobs. Fixing

suitable criteria to accommodate 12,500 persons against 51

vacancies was a challenge for the Government. A meeting

was held on 22.10.2003 by the Chief Minister to work out the

modalities of implementation of the Government Order dated

20.02.2002. It was decided in the said meeting that only the

dependent sons of the deceased displaced workers who had

not completed 38 years of age would be eligible for

appointment in the Corporation. A list of such persons was

prepared. In all, 265 persons figured in the list and were

given appointment. These appointments were made

pursuant to the Government Order dated 07.08.2004. The

Corporation contended that the appointment to all posts in

the Corporation is done through the Kerala State Public

Service Commission. Learned senior counsel for the

Corporation also submitted that providing employment to the

displaced Abkari workers was detrimental to other eligible

candidates who would lose an opportunity of appointment.

9. The learned counsel appearing on behalf of the

Respondents justified the judgment of the High Court by

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arguing that the decision to modify the Government Order

dated 20.02.2002 was arbitrary and unreasonable. They

submitted that the assurance given by the Government in the

year 2002 that the displaced Abkari workers would be

considered against 25% of the daily wage vacancies in the

Corporation, created a vested right. They argued that the

Respondents had a legitimate expectation in assuming that

the State would act in fairness. It was contended on behalf of

some of the Respondents that providing employment only to

the dependent sons of deceased abkari workers was an

invitation to the displaced workers to commit suicide.

Reliance was placed by learned counsel for the Respondents

on the judgment of the High Court in Writ Petition (Civil)

No.26878 of 2007 to submit that the issue pertaining to the

correctness of the Government Order dated 07.08.2004 had

attained finality. It was argued on behalf of the Respondents

that long and several number of years had been spent by

them in litigation and the majority of displaced abkari

workers were still unemployed. If they could not be re-

employed, they submitted that they should be monetarily

compensated, at least.

11 | P a g e
10. The points that arise for our consideration in these

Appeals are:

(a) Whether the displaced abkari workers had a vested

right of rehabilitation pursuant to the Government Order

dated 20.02.2002;

(b) Whether modification/ alteration of the Government

Order dated 20.02.2002 is vitiated due to unfairness,

arbitrariness and unreasonableness.

(c) The scope of the legitimate expectation of the

Respondents; and

(d) Whether the Respondents are entitled to any relief

after the passage of 23 years since they lost their jobs due to

ban on arrack.

A. Vested Right of Employment

11. There is no dispute that a number of abkari workers lost

their livelihood due to the ban on arrack in the State, in the

year 1996. Dissatisfied with the monetary compensation

provided to them, they demanded employment in the

12 | P a g e
Corporation. The agitation turned violent and to find an

immediate solution to the law and order problem, the

Government took a decision to provide employment to

displaced abkari workers, adjusting them against 25% of the

daily wage vacancies that would arise in the Corporation.

There was no assurance given to all the displaced abkari

workers that they would be re-employed. The assurance

given by the Government was to reserve 25% of daily wage

vacancies that would arise in future for the displaced abkari

workers. It cannot be said that a vested right accrued to all

the abkari workers to claim employment in retail outlets in

the Corporation. We do not agree with the submission of the

Respondents that a vested right was created by the

Government Order dated 20.02.2002 and that it was

indefeasible. There was no unequivocal promise that all the

displaced workers would be provided re-employment.

12. The assurance given to the abkari workers that they

would be considered for employment in 25% of the daily

wage vacancies that would arise in the Corporation,

according to the Government, had to be altered due to

administrative exigencies. The implementation of the

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decision to provide employment to displaced abkari workers

was not possible in view of the fact that the number of

vacancies of daily wage employees after the year 2002 were

very less whereas there was a large number of displaced

abkari workers to be accommodated. In view of the

difficulties faced by the Government in implementation of the

Government Order dated 20.02.2002, the Government found

it fit to modify the policy decision by a Government Order

dated 07.08.2004. It came to the notice of the Government

that several displaced abkari workers perished after 1996.

Their families had to be provided immediate succur. To give

priority to the families in immediate need, the Government

decided that dependent sons of the deceased abkari workers

who died after the year 1996 would be provided employment

against the 25% daily wage vacancies in the Corporation.

The said decision cannot be termed as unreasonable or

arbitrary as it was taken in light of overriding public interest.

Relevant considerations were taken into account by the

Government to alter the Government Order dated

20.02.2002.

B. Legitimate Expectation

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13. The main argument on behalf of the Respondents was

that the Government was bound by its promise and could not

have resiled from it. They had an indefeasible legitimate

expectation of continued employment, stemming from the

Government Order dated 20.02.2002 which could not have

been withdrawn. It was further submitted on behalf of the

Respondents that they were not given an opportunity before

the benefit that was promised, was taken away. To appreciate

this contention of the Respondents, it is necessary to

understand the concept of legitimate expectation.

14. The principle of legitimate expectation has been

recognized by this Court in Union of India v. Hindustan

Development Corporation & Ors.2 If the promise made by

an authority is clear, unequivocal and unambiguous, a person

can claim that the authority in all fairness should not act

contrary to the promise.

15. M. Jagannadha Rao, J. elaborately elucidated on

legitimate expectation in Punjab Communications Ltd. v.

Union of India & Ors.3 He referred to the judgment in

2 (1993) 3 SCC 499
3 (1999) 4 SCC 727

15 | P a g e
Council of Civil Service Unions and Ors. v. Minister for

the Civil Service4 in which Lord Diplock had observed that

for a legitimate expectation to arise, the decisions of the

administrative authority must affect the person by depriving

him of some benefit or advantage which,

(i) he had 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 there has

been communicated to him some rational grounds

for withdrawing it on which he has been given an

opportunity to comment; or
(ii) he has received assurance from the decision-maker

that they will not be withdrawn without giving him

first an opportunity of advancing reasons for

contending that they should not be withdrawn.

Rao, J. observed in this case, that the procedural part of

legitimate expectation relates to a representation that a

hearing or other appropriate procedure will be afforded

before the decision is made. The substantive part of the

principle is that if a representation is made that a benefit of

a substantive nature will be granted or if the person is

4 1985 AC 374 : (1984) 3 All ER 935

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already in receipt of the benefit, that it will be continued and

not be substantially varied, then the same could be

enforced.

16. It has been held by R. V. Raveendran, J. in Ram

Pravesh Singh v. State of Bihar 5 that legitimate

expectation is not a legal right. Not being a right, it is not

enforceable as such. It may entitle an expectant:

(a) to an opportunity to show cause before the

expectation is dashed; or

(b) to an explanation as to the cause of denial. In

appropriate cases, the Courts may grant a direction requiring

the authority to follow the promised procedure or established

practice.

Substantive Legitimate Expectation

17. An expectation entertained by a person may not be

found to be legitimate due to the existence of some

countervailing consideration of policy or law. 6 Administrative

policies may change with changing circumstances, including

changes in the political complexion of governments. The

5 (2006) 8 SCC 381
6 Administrative Law, Eleventh Edition, H.W.R. Wade & C.F. Forsyth

17 | P a g e
liberty to make such changes is something that is inherent in

our constitutional form of government. 7

18. The decision makers’ freedom to change the policy in

public interest cannot be fettered by applying the principle of

substantive legitimate expectation. 8 So long as the

Government does not act in an arbitrary or in an

unreasonable manner, the change in policy does not call for

interference by judicial review on the ground of a legitimate

expectation of an individual or a group of individuals being

defeated.

19. The assurance given to the Respondents that they

would be considered for appointment in the future vacancies

of daily wage workers, according to the Respondents, gives

rise to a claim of legitimate expectation. The Respondents

contend that there is no valid reason for the Government to

resile from the promise made to them. We are in agreement

with the explanation given by the State Government that the

change in policy due was to the difficulty in implementation

of the Government order dated 20.02.2002. Due deference

has to be given to the discretion exercised by the State
7 Hughes v. Deptt. of Health and Social Security, AC at p. 788
8 Findlay v. Secy. Of State of Home Deptt. (1984) 3 All ER 801

18 | P a g e
Government. As the decision of the Government to the

change policy was to balance the interests of the displaced

Abkari workers and a large number of unemployed youth in

the State of Kerala, the decision taken on 07.08.2004 cannot

be said to be contrary to public interest. We are convinced

that the overriding public interest which was the reason for

change in policy has to be given due weight while considering

the claim of the Respondents regarding legitimate

expectation. We hold that the expectation of the

Respondents for consideration against the 25 per cent of the

future vacancies in daily wage workers in the Corporation is

not legitimate.

Procedural Legitimate Expectation

20. The other contention of the Respondents which found

favour with the High Court was that they were entitled for an

opportunity before the assurance of rehabilitation given to

them was withdrawn. There is no dispute that each of the

displaced abkari workers was not given an opportunity before

the assurance was altered. However, the Government

contended that the displaced abkari workers were consulted

19 | P a g e
through their representatives before passing the Government

Order dated 07.08.2004. The requirement of an opportunity

to be given before altering the policy by which an assurance

is given to a large number of individuals has to be examined.

21. In case of a complaint that an administrative authority

has reneged from a promise without giving an opportunity of

hearing which was the past practice, a claim of legitimate

expectation can be raised. In other words, if the policy or

practice was to give an opportunity before the benefit is

withdrawn, the non-compliance of such a practice would

result in defeating the legitimate expectation of an individual

or group of individuals. In Attorney General of Hong

Kong v. Ng Yuen Shiu9, the Privy Council was concerned

with a dispute relating to an assertion of legitimate

expectation of hearing, by an illegal immigrant. The

Respondent in that case entered Hong Kong illegally and

remained for a long period of time without being detected.

He became part owner of a factory which employed several

workers. A change in immigration policy was announced

whereby illegal immigrants would be interviewed in due

9 [1983] 2 All ER 346

20 | P a g e
course, but no guarantee was given that they would not be

removed from Hong Kong. The Respondent approached the

immigration authorities for interview and after being

interviewed he was detained until a removal order was made

by the Director of Immigration. His appeal was dismissed by

the Immigration Tribunal. The Court of Appeal of Hong Kong

granted the Respondent an order of prohibition till an

opportunity was given to him to explain the circumstances of

his case before the Director. The Appeal filed by the Attorney

General of Hong Kong was dismissed by the Privy Council.

The only question raised by the Respondent in the Appeal

was whether he was entitled to have a fair inquiry under

common law, before a removal order was made against him.

Without expressing any opinion on violation of principles of

natural justice, the right of hearing of the Respondent in the

peculiar facts of the case was adjudicated upon. It was held

that the Respondent had a ‘legitimate expectation’ of being

accorded a hearing before an order of removal was passed.

22. We have referred to the above judgment to demonstrate

that there can be situation where the very claim made can be

with regard to an opportunity not being given before

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withdrawing a promise which results in defeating the

‘legitimate expectation’.

23. The principle of procedural legitimate expectation would

apply to cases where a promise is made and is withdrawn

without affording an opportunity to the person affected. The

imminent requirement of fairness in administrative action is

to give an opportunity to the person who is deprived of a past

benefit. In our opinion, there is an exception to the said rule.

If an announcement is made by the Government of a policy

conferring benefit on a large number of people, but

subsequently, due to overriding public interest, the benefits

that were announced earlier are withdrawn, it is not

expedient to provide individual opportunities to such

innominate number of persons. In other words, in such

cases, an opportunity to each individual to explain the

circumstances of his case need not be given. In Union of

India v. Hindustan Development Corporation and Ors.

(supra) it was held that in cases involving an interest based

on legitimate expectation, the Court will not interfere on

grounds of procedural fairness and natural justice, if the

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deciding authority has been allotted a full range of choice

and the decision is taken fairly and objectively.

C. Judicial Review and Proportionality

24. The challenge to the order dated 07.08.2004 by which

the Respondents were deprived of an opportunity of being

considered for employment is on the ground of violation of

Articles 14, 19 and 21 of the Constitution of India. Lord

Diplock in Council of Civil Service Unions and Ors. v.

Minister for the Civil Services 10, held that the interference

with an administrative action could be on the grounds of

‘illegality’, ‘irrationality’ and ‘procedural impropriety’. He was

of the opinion that ‘proportionality’ could be an additional

ground of review in the future. Interference with an

administrative decision by applying the Wednesbury’s

principles is restricted only to decisions which are outrageous

in its defiance of logic or of accepted moral standards that no

sensible person who applied his mind to the question to be

decided could have arrived at it.

10 Infra n. 22

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25. Traditionally, the principle of proportionality has been

applied for protection of rights guaranteed under the

European Convention for the Protection of Human Rights and

Fundamental Freedoms, 1950.

26. In Om Kumar v. Union of India11, this Court held as

follows:

“By ‘proportionality’, we mean the question
whether, while regulating exercise of
fundamental rights, the appropriate or least
restrictive choice of measures has been made
by the legislature or the administrator so as to
achieve the object of the legislation or the
purpose of the administrative order, as the
case may be. Under the principle, the Court
will see that the legislature and the
administrative authority ‘maintain a proper
balance between the adverse effects which
the legislation or the administrative order may
have on the rights, liberties or interests of
persons keeping in mind the purpose which
they were intended to serve’. The legislature
and the administrative authority are, however,
given an area of discretion or a range of
choices but as to whether the choice made
infringes the rights excessively or not, is for

11 AIR 2000 SC 3689

24 | P a g e
the Court. That is what is meant by
proportionality.”

In this case, M. Jagannadha Rao, J. examined the

development of principles of proportionality for review of

administrative decision in England and in India. After

referring to several judgments, it was held that the

proportionality test is applied by the Court as a primary

reviewing authority in cases where there is a violation of

Articles 19 and 21. The proportionality test can also be

applied by the Court in reviewing a decision where the

challenge to administrative action is on the ground that it

was discriminatory and therefore violative of Article 14. It was

clarified that the principles of Wednesbury have to be

followed when an administrative action is challenged as

being arbitrary and therefore violative of Article 14 of the

Constitution of India. In such a case, the Court would be

doing a secondary review.

27. While exercising primary review, the Court is entitled to

ask the State to justify the policy and whether there was an

imminent need for restricting the fundamental rights of the

25 | P a g e
claimants. In secondary review, the Court shows deference

to the decision of the executive.

28. Proportionality involves ‘balancing test’ and ‘necessity

test’.12 Whereas the balancing test permits scrutiny of

excessive and onerous penalties or infringement of rights or

interests and a manifest imbalance of relevant

considerations, the necessity test requires infringement of

human rights to be through the least restrictive alternatives. 13

29. An administrative decision can be said to be

proportionate if:

(a) The objective with which a decision is made to

curtail fundamental rights is important;

(b) The measures taken to achieve the objective have

a rational connection with the objective; and

(c) The means that impair the rights of individuals are

no more than necessary.

30. In the instant case, the Respondents challenged the

order dated 07.08.2004, as being violative of Articles 14, 19

12 Coimbatore District Central Co-operative Bank v. Coimbatore District Central Co-
operative Bank Employees Association & Anr. (2007) 4 SCC 669
13 Judicial Review of Administrative Action (1955) and Wade & Forsyth: Administrative
Law (2005) (2007) 4 SCC 669

26 | P a g e
and 21. The High Court accepted the submissions made by

the Respondents and held that the Order dated 07.08.2004 is

vitiated as it suffers from the vice of arbitrariness and

unreasonableness. However, in view of the challenge to the

decision of the Government being on the ground of violation

of Articles 14, 19 and 21, the test of proportionality should be

applied to review the impugned decision of the Government.

31. The contention of the Respondents was firstly, that their

fundamental rights have been violated by

modification/alteration of the earlier assurance by the

Government. Secondly, that the Respondents lost an

opportunity of being employed which resulted in deprivation

of their life and livelihood in violation of Article 21 of the

Constitution. It was further submitted that the decision is

arbitrary and hence violative of Article 14 of the Constitution.

The contention of the Government was that modification of

the assurance given for employment to the displaced Abkari

workers was unavoidable. It was contended on behalf of the

State that there is a rational connection between the

measures taken to modify and the objective with which the

policy was altered. The Government justified the decision by

27 | P a g e
submitting that the means adopted for impairment of the

rights of the Respondents were not excessive.

32. The promise held out by the Government to provide

employment to the displaced Abkari workers had become an

impossible task in view of the non-availability of vacancies in

the Corporation. The decision taken by the Government in

overriding public interest was a measure to strike a balance

between the competing interest of the displaced Abkari

workers and unemployed youth in the State of Kerala. The

impairment of the fundamental rights of the Respondents due

to the change in policy cannot be said to be excessive.

Hence, it cannot be said that the change in policy regarding

re-employment of displaced abkari workers is

disproportionate.

33. Another contention of Respondents which found favour

with the High Court was that the Order dated 07.08.2004 was

found illegal in Writ Petition (C) No.26878 of 2007 and that

the said judgment has become final. Aggrieved by their non-

appointment in spite of inclusion in the list of 265 dependent

sons of the deceased displaced workers, they filed a Writ

28 | P a g e
Petition seeking a direction to the Government to appoint

them. The High Court directed the Government to appoint

those persons who were included in the list, pursuant to the

Order dated 07.08.2004 within a period of six weeks. The

High Court further observed that the Order dated 20.02.2002

should not have been altered and directed the Government to

reconsider the order dated 07.08.2004. The Government

complied with the direction of the High Court in the Writ

Petition above and issued a Government Order dated

30.04.2009 by which employment was provided to 265

dependent sons of deceased Abkari workers. Therefore, it

cannot be said that the validity of the order dated 07.08.2004

has been finally decided in Writ Petition (C) No.26878 of

2007.

34. We are not in agreement with the findings recorded by

the High Court that a right of appointment accrued to the

Respondents and it matured into a Right to Life as provided in

Article 21 of the Constitution. We disapprove the opinion of

the High Court that the Order dated 07.08.2004 is in

continuation of the Order dated 20.02.2002 in view of the

Order dated 20.02.2002 not being superceded. The Order

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dated 07.08.2004 was issued in modification of the Order

dated 20.02.2002. A close scrutiny of both the Orders would

indicate that the Order dated 07.08.2004 replaces the Order

dated 20.02.2002 in view of a fresh decision taken to provide

employment only to the dependent sons of deceased Abkari

workers.

35. For the aforementioned reasons, the Appeals are

allowed.

..……………………………..J.
[L.
NAGESWARA RAO]

..……………………………..J.
[HEMANT
GUPTA]

New Delhi,
October 04, 2019.

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