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

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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) A N D  

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)

J U D G M E N T

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

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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.  

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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

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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

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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  Bihar5 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

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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  

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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

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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   

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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 Services10, 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

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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

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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

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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

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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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