Cabinet Has No Right To Do What It Pleases: HC

SRINAGAR — Observing that arbitrariness is antithetic to equality, the J&K High Court on Thursday quashed an order by the cabinet of erstwhile PDP-BJP government with Chief Minister Mehbooba Mufti in the chair, appointing Saima Rashid and leaving out Javid Chowdhary as Principal of Government Medical College Srinagar.

 “We are constrained to intervene in the matter and therefore hold the Cabinet Decision and consequential Government order, impugned in the writ petition, bad in the eye of law and not sustainable,” a bench of Justices Ali Mohammad Magrey and Sanjeev Kumar said while allowing an appeal filed by senior-most professor Javid Chowdhary, challenging the appointment of Saima Rashid as the principal of the medical college.

“We have examined the whole record carefully and do not find any reason worth the name that has been recorded by the Cabinet in any corner of the contemporaneous record. The two-line decision to appoint respondent no.6 (Dr Saima Rashid) cannot be justified on any count, particularly when the Establishment-cum-Selection Committee, appointed by it, had on evaluation of whole record, recommended the appellant (Javid Chowdhary) for appointment as Principal, GMC, Srinagar,” the court said.

 “The writ petition (SWP no.894/2017) is allowed and Cabinet Decision no.50/04/2017 dated 28th April 2017 and Government Order no.252-HME of 2017 dated 8th May 2017, impugned in the writ petition, are quashed,” the court with a direction to the authorities to place the whole material, consisting of minutes of the decision of the Establishment-cum-Selection Committee, before the Cabinet/State Administrative Council (SAC), as the case may be, for its reconsideration.

“Let the Cabinet/SAC take appropriate decision as may be warranted in light of the observations made by us herein above, within a period of four weeks from the date certified copy of this order becomes available to the respondents.”

Till such decision was taken by the Cabinet/SAC, the court said it shall be open to the Government to make the incharge or temporary arrangement to run the day to day affairs of the office of the Principal, Government Medical College Srinagar.

The court reiterated that it was not for a minute holding or suggesting that the Cabinet could not have taken a decision independent of the recommendations of the Establishment-cum-Selection Committee, but, in doing so, it was constitutionally obliged to record its reasons for dissent with the recommendations of the Committee and for taking a decision independently on the basis of record placed before it.

In a 13-page judgement, the high court made strong observations, underling that any decision, which is arbitrary, violates the equality clause, the soul of rule of law.

“We are in 21st century. Things were different in 19th century, when feudal setup had unfettered power and discretion of the crown and such concept was not alien. However, in a democracy, governed by rule of law, where arbitrariness in any form is eschewed, no Government or authority including the Cabinet has a right to do what it pleases,” the court said.

The Constitution does not give any licence to the Cabinet to act arbitrarily, capriciously or whimsically, the court observed.

“It is presumed that discretionary powers conferred in absolute and unfettered terms on any public authority, will necessarily and obviously be exercised reasonably and for public good,” the court said.

Chowdhary had contended that Saima Rashid was the junior-most professor in the panel of five submitted by the establishment committee.

“No authority is envisaged under the Constitution, which possesses the powers, the exercise whereof is not questionable in the court of law. True it is, that the recommendations of the Establishment-cum-Selection Committee made in favour of the appellant were not binding on the Cabinet, but the Cabinet could not have differed with the recommendations and taken a decision different from the one recommended by the Establishment-cum-Selection Committee without assigning any reason,” the division bench said, adding, “We are conscious of the fact that while embarking upon the judicial review of the Cabinet decision, we may not go into sufficiency of the reasons or even correctness of the said decision. But, nonetheless, if the Court finds that the decision is totally arbitrary, whimsical and fanciful, it would step in and quash such decision. It does not matter whether such decision is made by the Cabinet or some authority higher than that of the Cabinet. All decisions of the Cabinet must conform to the provisions of Article 14 and 16 of the Constitution.”

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