Court to provide for restitution of wrongful, arbitrary action by executive: SC

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SC bench said it is equally incumbent upon the courts, as a secondary measure, to address the injurious consequences arising from arbitrary and illegal actions, while providing Rs one lakh compensation to a man who was denied appointment as teacher

The Supreme Court has on February 20, 2024 said when a citizen alleged arbitrariness in executive action, the High Court must examine the issue within the context of judicial restraint in academic matters and must provide for restitution of wrongful acts.


A bench of Justices P S Narasimha and Sandeep Mehta said while respecting flexibility in executive functioning, courts must not let arbitrary action pass through. 


"We are of the opinion that while the primary duty of constitutional courts remains the control of power, including setting aside of administrative actions that may be illegal or arbitrary, it must be acknowledged that such measures may not singularly address repercussions of abuse of power," the bench said.


The apex court emphasised that it is equally incumbent upon the courts, as a secondary measure, to address the injurious consequences arising from arbitrary and illegal actions. 


"This concomitant duty to take reasonable measures to restitute the injured is our overarching constitutional purpose," the bench said.


In its judgment, the bench set aside the action of Union government in denying appointment of appellant Manoj Kumar to the post of primary teacher in an institute as an "illegal and arbitrary" by not computing marks for his post graduation degree.


However, the bench said, "In view of closure of the school, we cannot direct the respondent Institute to employ the appellant as a primary school teacher. This is an unfortunate situation where the court finds that the action of the respondent was arbitrary, but the consequential remedy cannot be given due to subsequent developments. One stark reality of the situation is the time that has passed between the order of 2018 impugned herein and the judgment that we pronounce in 2024."


The bench said in public law proceedings, when it is realised that the prayer in the writ petition is unattainable due to passage of time, constitutional courts may not dismiss the writ proceedings on the ground of their perceived futility. 


"In the life of litigation, passage of time can stand both as an ally and adversary. Our duty is to transcend the constraints of time and perform the primary duty of a constitutional court to control and regulate the exercise of power or arbitrary action. By taking the first step, the primary purpose and object of public law proceedings will be subserved," the bench said.


The bench, however, said when it came to restitution, the court was faced with systemic issues inherent in the adversarial judicial process. 


The protracted timeline spanning from the filing of a writ petition, service of notice, filing of counter affidavits, final hearing, and then the eventual delivery of judgment, coupled with subsequent appellate procedures, exacerbates delays, the court said.


Noting that the delay in the instant case is not unusual, the bench said, "We see several such cases when our final hearing board moves. Appeals of more than two decades are awaiting consideration. It is distressing but certainly not beyond us. We must and we will find a solution to this problem. It is in this reality and prevailing circumstance that we must formulate an appropriate system for preserving the rights of the parties till the final determination takes place. In the alternative, we may also formulate a reasonable equivalent for restitution of the wrongful action."


The court directed the Institute to pay Rs one lakh as compensation with Rs 25,000 as cost to the appellant.


"We appreciate the spirit of the appellant who has steadfastly contested his case like the legendary Vikram (Against Betala, in the famous Vetalapancavimsati, the original being the Kathasaritsagara work of the 11th Century by Somadeva from the year 2017), when he was illegally denied the appointment by the executive order dated 22.05.2017, which we have set aside as being illegal and arbitrary," the bench said.