Unauthorised distribution of favours
Often it transpires that a decision on behalf of the Government is announced with great fanfare by a minister although it is on a matter requiring prior Cabinet approval. This has happened recently in the matter of OBC quota in institutions of excellence like the IITs, IIMs, AIIMS, etc. Human Resources Minister Arjun Singh announced the proposed quota without any Cabinet approval. This led to great public turmoil, especially amongst medicos in Delhi.india Updated: May 15, 2006 00:48 IST
Often it transpires that a decision on behalf of the Government is announced with great fanfare by a minister although it is on a matter requiring prior Cabinet approval. This has happened recently in the matter of OBC quota in institutions of excellence like the IITs, IIMs, AIIMS, etc. Human Resources Minister Arjun Singh announced the proposed quota without any Cabinet approval. This led to great public turmoil, especially amongst medicos in Delhi.
In UP and other states, the local governments have already been enforcing the quotas not only in admissions to MBBS but even to MD/M.Sc./M.Ch and in appointments of teachers at Medical and Engineering Colleges and Universities and everyone has now quietly submitted to it. As far as IITs, IIMs etc are concerned, they have obtained world recognition and their students are being picked up through campus placements by top companies and even multinationals with fabulous salaries and perks.
There are innumerable matters in which the government has to take decisions. Constitutionally, all decisions emanate from the President or Governor. If everything were to be referred to the Rashtrapati/Raj Bhawan then, all executive machinery will come to a standstill. So the Constitution provides for framing of Rules of Business, vide Article 77 and 166 i.e.: Centre and states respectively.
Such rules were framed during Sardar Patel’s tenure as Home Minister and adopted by the States too. They have stood the test of time.
Only marginal changes have been made, very rarely, by some PMs or CMs. Under those rules, normally every minister is considered competent to take decisions on behalf of the government in relation to matters allocated to his Ministry except in matters, which are specifically provided as requiring approval of PM/CM or Cabinet or even President/Governor.
Matters in which the Finance Ministry or Law Ministry are required to be consulted or other concerned departments/ministries must have concurred before obtaining higher orders or before issuance of orders are also separately listed.
It is also provided that if a formal order has been issued duly authenticated by the Secretary/additional/ joint/deputy Secretary of the competent department then it will be presumed that due procedure has been followed before issuance of the order.
But these days hardly anything remains secret and information is leaked by someone or other to interested persons. If they find that the order relied on was unauthorised they even question its validity in Court.
Sometimes, they even rely on a decision on the Secretariat file, which has not seen the light of the day. In such cases courts have insisted on the due compliance with the rules of business and unless such compliance is confirmed the courts refuse to recognise the order.
Thus, in Bachittar Singh’s case (1963), the Supreme Court refused to give relief to a petitioner who had claimed it on the basis of the CM’s decision on the file which was revised even before an authenticated order could be issued.
Courts have not insisted on the order stating on its face ‘By order (of President/Governor’). Even in its absence, if the rules of business are found to have been duly complied with, the lack of mention of ‘By order’ has been held not to affect the validity of the order.
Sometimes, a Private Secretary or OSD to a Minister or even a Minister may write informally to an interested person allotting to him some plot or house or granting him other official favour. Courts have refused to grant relief to that person on its basis. The equitable principle of promisory estopel or of legitimate expectations does not apply to an unauthorised order or letter.
In a recent case decided on January 3, 2006, the Supreme Court found that the Bihar Government ministers and officers had decided about several hundred private rural schools under a Project Uchcha Vidya, stating that the same pay -cales would be given to their teachers as that to teachers of official schools. But there was confusion and discrepancies even about the exact number of teachers showing that many must have been fictitious
In a circular, the government had even stated that the schools were “being taken over”! Most teachers did not have the requisite educational qualifications and many were recruited without any regard to age. In view of several such discrepancies, the Cabinet itself decided to retract. However, the teachers’ association tried to get the original order enforced by the courts. The Supreme Court refused to help the teachers. It found that the word “takeover” had been losely used. No acquisition of property was involved.
The circular only envisaged taking over the management and not of the schools. No proper decision had been taken by the government in accordance with Articles 162 and 166, hence the circular did not have any legal sanction.
The equitable principle of estopel has no application where a Constitutional violation is found. The court held that the government could withdraw such circular and review the matter fairly.