(Mrs.) Chanchal Goyal Vs. State of Rajasthan  Insc 100 (18
V. Patil & Arijit Pasayat. Arijit Pasayat J.
only point involved in this appeal is whether the appellant's termination from
service is in order. Factual scenario which is almost undisputed is as follows:-
The appellant was appointed by the Local Self- Government Department,
Government of Rajasthan by order of appointment dated 27.11.1974, and posted as
Lady Doctor under the Municipal Council, Ganganagar. There was a stipulation in
the order of appointment that she was being posted purely on temporary basis
for the period of six months or till the candidate selected by the Rajasthan
Public Service Commission (hereinafter referred to as 'the Service Commission')
is available, whichever is earlier.
working period of the appellant continued to be extended. The appointment was
made in exercise of powers conferred under Section 308 of the Rajasthan
Municipalities Act, 1959 (in short 'the Act) read with Rules 26 and 27 of the
Rajasthan Municipal Service Rules, 1963 (in short 'the Rules'). Though the
appellant was selected by the Service Commission in October 1976 and August
1982 she did not join pursuant to such selection and continued on the basis of
the orders of extension issued by the Local Self-Government Department of the
Government. On 1.10.1988 appellant's services were terminated on the ground
that the candidate selected by the Service Commission was available.
such dismissal, appellant filed a writ petition bearing no. 3739 of 1988 before
the Rajasthan High Court.
order of stay was passed on 12.10.1988 by the High Court with the direction
that the appellant was not to be relieved from her post if she was not already
the interim order was made absolute by order dated 21.3.1989. By judgment dated
5.3.1993, learned Single Judge held that termination of appellant's services
was illegal since order was passed ignoring of the fact that she had put in 14
years of service. The authorities were directed to adjudge her suitability
within a period of one month and regularize her services with all benefits
available to a substantively appointed member of the service. The State of Rajasthan filed appeal before the Division
Bench of the Rajasthan High Court. In terms of interim orders, the appellant
was allowed to continue in the service. But by the impugned judgment dated
11.4.1997, it was held by the Division Bench that the appellant continued
merely as a temporary employee on the basis of appointment made under Rule 27
as she had not been selected by the Service Commission in accordance with the
Rules. She had no right to hold the post. As noted supra the judgment is under
challenge in this appeal.
counsel for the appellant submitted that by now she had put in 28 years of
service; 14 years by the time the order of termination was passed and 14 years
on the basis of interim directions given by the High Court and this Court.
her appointment initially was conditional, in view of the long period of
service rendered by her, it had assumed permanency and learned Single Judge was
justified directing regularization of appointment on a substantial basis. The
Division Bench overlooked the salient features and held that the temporary
appointment originally made continued to hold field. Reliance was placed on
Director, Institute of Management Development, U.P. vs. Pushpa Srivastava (Smt.)
(1992  SCC 33), Ashwani Kumar & Ors. vs. State of Bihar & Ors. (JT
1997  SC 243), Daily Rated Casual Labour Employed under P&T Department
through Bhartiya Dak Tar Mazdoor Manch vs. Union
of India and Ors. (1988  SCC 122), Narender
Chadha and Ors. vs. Union of India and Ors. (1986  SCC 157), State of Haryana and Anr. vs.
Ram Diya (1990  SCR 431), State of U.P. and Ors. vs. Dr. Deep Narain Tripathi
and Ors. (1996  SCC 454) to substantiate the plea. It was contended that in
all these cases this Court took note of the long period of service rendered and
the consequences and the benefits available to the concerned employee who had
rendered such service without any blemish.
also submitted that the principles of legitimate expectation are squarely
it was submitted that the appellant has been given the privileges available
under the Gratuity and Pension Fund Benefit Schemes available under Rajasthan
Municipal Services (Pension) Rules, 1989 (in short 'Pension Rules'). She has
applied for voluntary retirement nearly two years back and no final decision has
been taken. These benefits cannot be denied to her.
counsel for the respondent on the other hand submitted that the appointment
admittedly was on temporary basis with a clear condition that if a candidate
selected by the Service Commission was available then even before the expiry of
the period indicated, service would be terminated.
cannot take advantage of the fortuitous circumstance that she continued for 14
years. She has, for reasons best known to her, not joined when she was selected
twice; once in 1976 and again in 1982 by the Service Commission. Merely because
she has continued for a long time, that has not crystalised into any
cannot claim lien over the post.
we advert to the legal issues, it is necessary to take note of Rules which
undisputedly are applicable.
VI of the Rules relates to Appointment, Probation and Confirmation. Power of
appointments is indicated in Rule
Rule 27 deals with temporary or officiating appointments. It reads as follows:
or officiating appointments
vacancy in the service may be temporarily filled] by the Appointing Authority
by appointing thereto in an officiating capacity an officer whose name is
included in the list prepared under Rule 21 or in the lists under Rule 25:
that till the preparation of the first list or in case the list is exhausted, a
vacant post may be filled by the Appointing Authority by appointing thereto a
[person] eligible for appointment to the post by promotion or by appointing
thereto temporarily a person eligible for appointment by direct recruitment to
the service under the provision of these Rules;
further that if all the officers in the grade or category from which
appointment by promotion can be made under these rules, have already been
promoted and no Officer is available from that grade or category the appointing
authority may fill such vacancy by promotion from the grade or category next
below such grade.]
appointment made under sub-rule (1) shall be continued beyond a period of [one
year] without referring it to the Commission for their concurrence and shall be
terminated immediately on their refusal to concur."
29 and 31 deal with Probation and Confirmation respectively. As the initial
order of appointment dated 27.11.1974 shows appellant was appointed in terms of
Rules 26 and 27. It was clearly indicated that the appointment was made on a
temporary basis with further condition that if candidate selected by the
Service Commission is available, the employment was to come to end
automatically. Sub-rule (2) of Rule 27 is of considerable importance. It
specifically lays down no appointment made under sub-rule (1) shall be
continued beyond a period of one year without referring to the Commission for
their concurrence and shall be terminated immediately on their refusal to
Single Judge was swayed by the fact that for a longer period the concurrence
was not sought for from the Commission and held that the inaction gave an
undefeatable right to the appellant. The view was rightly set at naught by the
Division Bench. The nature of employment and the authority with whose
concurrence the continuation could be made are clearly spelt out in sub-rule
(2) of Rule 27. There is no scope for taking a view that there is automatic
extension once the period of one year is over in case reference was not made to
the Commission. The appointment to the post of Lady Doctor in the Municipal
Council is required to be made by selection through the medium of the Service
Commission. That undisputedly has not been done.
is no scope of regularization unless the appointment was on regular basis.
Considerable emphasis has been laid down by the appellant to the position that
even for temporary appointment there was a selection. That is really of no
consequence. Another plea of the appellant needs to be noted. With reference to
the extension granted it was contended that a presumption of the Service
Commission's concurrence can be drawn, when extensions were granted from time
to time. This plea is without any substance. As noted above, there is no scope
for drawing a presumption about such concurrence in terms of sub-rule (2) of
Rule 27. After one year, currency of appointment is lost.
extension orders operated only during the period of effectiveness.
decisions relied upon by the learned counsel for the appellant were rendered in
different factual background.
decision is an authority for what it decides and not for what could be inferred
from the conclusion.
the initial recruitment is regularized through a prescribed agency, there is no
scope for a demand for regularization. It is true that an ad-hoc appointee
cannot be replaced by another ad-hoc appointee; only a legally selected
candidate can replace the ad-hoc or temporary appointee. In this case it was
clearly stipulated in the initial order of appointment that the appellant was
required to make room once a candidate selected by the Service Commission is
fact, a candidate selected by the Service Commission was to replace the
appellant, even if it is accepted as contended by the learned counsel for the
appellant that the selected candidate did not join. That is really of no
assistance to the appellant. The fact remains that a person has been selected
and the Service Commission has drawn up a list of selected candidates. If the
person, who was to replace the appellant, did not join for some reason,
obviously another selected person can be posted. Non-joining of the selected
candidate does not confer any right on the appellant. As the initial order
dated 27.11.1974 shows, what is required is the availability of a candidate
selected by the Service Commission, and not the joining of the selected
& K Public Service Commission and Ors. vs. Dr. Narinder Mohan and Ors.(1994
(2) SCC 630), it was, inter alia, observed that it cannot be laid down as
general rules that in every category of ad-hoc appointment if the ad-hoc
appointee continued for longer period, rules of recruitment should be relaxed
and the appointment by regularization be made. In the said case in paragraph 11
the position was summed up as under:
Court in Dr. A.K. Jain v. Union of India (1987 Supp. SCC 497) gave directions
under Article 142 to regularize the services of the ad hoc doctors appointed on
or before October 1, 1984. It is a direction under Article 142 on the peculiar
facts and circumstances therein. Therefore, the High Court is not right in
placing reliance on the judgment as a ratio to give the direction to the PSC to
consider the cases of the respondents. Article 142 power is confided only to
this Court. The ratio in Dr. P.P.C. Rawani v. Union of India (1992) 1 SCC 331
is also not an authority under Article 141.
the orders issued by this Court under Article 32 of the Constitution to
regularize the ad hoc appointments had become final.
contempt petition was filed for non- implementation, the Union had come forward with an application expressing its
difficulty to give effect to the orders of this Court.
that behalf, while appreciating the difficulties expressed by the Union in implementation, this Court gave further direction
to implement the order issued under Article 32 of the Constitution. Therefore,
it is more in the nature of an execution and not a ratio under Article 141. In Union of India v. Dr. Gyan
Prakash Singh 1994 Supp. (1) SCC 306 this Court by a Bench of three Judges
considered the effect of the order in A.K. Jain case (supra) and held that the
doctors appointed on ad hoc basis and taken charge after October 1, 1984 have
no automatic right for confirmation and they have to take their chance by
appearing before the PSC for recruitment. In H.C. Puttaswamy v. Hon'ble Chief
Justice of Karnataka 1991 Supp. (2) SCC 421, this Court while holding that the
appointment to the posts of clerk etc. in the subordinate courts in Karnataka
State without consultation of the PSC are not valid appointments, exercising
the power under Article 142, directed that their appointments as a regular, on
humanitarian grounds, since they have put in more than 10 years' service. It is
to be noted that the recruitment was only for clerical grade (Class-III post)
and it is not a ratio under Article 141. In State of Haryana v. Piara Singh (1992) 4 SCC 118
this Court noted that the normal rule is recruitment through the prescribed
agency but due to administrative exigencies, an ad hoc or temporary appointment
may be made. In such a situation, this Court held that efforts should always be
made to replace such ad hoc or temporary employees by regularly selected
employees, as early as possible. The temporary employees also would get liberty
to compete along with others for regular selection but if he is not selected,
he must give way to the regularly selected candidates. Appointment of the
regularly selected candidate cannot be withheld or kept in abeyance for the
sake of such an ad hoc or temporary employee. Ad hoc or temporary employee
should not be replaced by another ad hoc or temporary employee. He must be
replaced only by regularly selected employee.
hoc appointment should not be a device to circumvent the rule of reservation.
If a temporary or ad hoc employee continued for a fairly long spell, the
authorities must consider his case for regularization provided he is eligible
and qualified according to the rules and his service record is satisfactory and
his appointment does not run counter to the reservation policy of the State. It
is to be remembered that in that case, the appointments are only to Class-III
or Class- IV posts and the selection made was by subordinate selection
committee. Therefore, this Court did not appear to have intended to lay down as
a general rule that in every category of ad hoc appointment, if the ad hoc appointee
continued for long period, the rules of recruitment should be relaxed and the
appointment by regularization be made.
considered, we have no hesitation to hold that the direction of the Division
Bench is clearly illegal and the learned Single Judge is right in directing the
State Government to notify the vacancies to the PSC and the PSC should
advertise and make recruitment of the candidates in accordance with the
In Union of India and Ors.
vs. Harish Balkrishna Mahajan (1997  SCC 194), the position was again
reiterated with reference to Dr. Narain's case (supra).
the challenge to the order of dismissal on the ground of long continuance as ad
hoc/temporary employee is without substance.
remains to be considered is the plea of legitimate expectation. The principle
of 'legitimate expectation' is still at a stage of evolution as pointed out in
De Smith Administrative Law (5th Edn. Para
8.038). The principle is at the root of the rule of law and requires
regularity, predictability and certainty in governments' dealings with the
public. Adverting to the basis of legitimate expectation its procedural and
substantive aspects, Lord Steyn in Pierson v. Secretary of State for the Home
Department (1997 (3) All ER 577, at p.606)(HL) goes back to Dicey's description
of the rule of law in his "Introduction to the study of the Law of the
Constitution" (10th Edn. 1968 p.203) as containing principles of enduring
value in the work of a great jurist. Dicey said that the constitutional rights
have roots in the common law. He said:
'rule of law', lastly, may be used as a formula for expressing the fact that
with us, the law of constitution, the rules which in foreign countries
naturally form part of a constitutional code, are not the source but the
consequence of the rights of individuals, as defined and enforced by the
courts; that, in short, the principles of private law have with us been by the
action of the courts and Parliament so extended as to determine the position of
the Crown and its servants; thus the constitution is the result of the ordinary
law of the land".
says Lord Steyn, is the pivot of Dicey's discussion of rights to personal
freedom and to freedom of association and of public meeting and that it is
clear that Dicey regards the rule of law as having both procedural and
substantive effects. "The rule of law enforces minimum standards of
fairness, both substantive and procedural". On the facts in Pierson, the
majority held that the Secretary of State could not have maintained a higher
tariff of sentence that recommended by the judiciary when admittedly no
aggravating circumstances existed. The State could not also increase the tariff
with retrospective effect.
basic principles in this branch relating to 'legitimate expectation' were
enunciated by Lord Diplock in Council of Civil Service Unions and Ors. v.
Minister for the Civil Service (1985 AC 374 (408-409) (Commonly known as CCSU
case). It was observed in that case 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 either
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
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.
procedural part of it 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 already in
receipt of the benefit that it will be continued and not be substantially
varied, then the same could be enforced. In the above case, Lord Fraser
accepted that the civil servants had a legitimate expectation that they would
be consulted before their trade union membership was withdrawn because prior
consultation in the past was the standard practice whenever conditions of
service were significantly altered. Lord Diplock went a little further, when he
said that they had a legitimate expectation that they would continue to enjoy
the benefits of the trade union membership, the interest in regard to which was
expectation could be based on an express promise or representation or by
established past action or settled conduct. The representation must be clear
could be a representation to the individual or generally to class of persons.
principle of a substantive legitimate expectation, that is, expectation of favourable
decision of one kind or another, has been accepted as part of the English Law
in several cases. (De Smith, Administrative Law, 5th Ed.) (Para 13.030), (See also Wade, Administrative Laws, 7th
Ed.) (pp. 418-419). According to Wade, the doctrine of substantive legitimate
expectation has been "rejected" by the High Court of Australia in
Attorney General for N.S.W. vs. Quin (1990) 93 ALL E.R. 1 (But see Teon's case
referred to later) and that the principle was also rejected in Canada in Reference Re Canada Assistance
Plan (1991) 83 DLR (4th 297, but favoured in Ireland: Canon vs. Minister for the Marine 1991(1) I.R. 82. The European Court goes further and permits the Court
to apply proportionality and go into the balancing of legitimate expectation
and the Public interest.
so, it has been held under English law that the decision maker's freedom to
change the policy in public interest, cannot be fettered by the application of
the principle of substantive legitimate expectation.
in earlier cases project a more inflexible rule than is in vogue presently. In
R. v. IRC, ex p Preston (1985 AC 835) the House of Lords rejected the plea that
the altered policy relating to parole for certain categories of prisoners
required prior consultation with the prisoner, Lord Scarman observed:
what was their legitimate expectation. Given the substance and purpose of the
legislative provisions governing parole, the most that a convicted prisoner can
legitimately expect is that his case be examined individually in the light of
whatever policy the Secretary of State sees fit to adopt provided always that
the adopted policy is a lawful exercise of the discretion conferred upon him by
the statute. Any other view would entail the conclusion that the unfettered
discretion conferred by statute upon the minister can in some cases by restricted
so as to hamper or even to prevent changes of policy." To a like effect
are the observations of Lord Diplock in Hughes vs. Department of Health and
Social Security (HL) 1985 AC 776 (788):
policies may change with changing circumstances, including changes in the
political complexion of governments. The liberty to make such changes is
something that is inherent in our constitutional form of government." (See
in this connection Mr. Detan's article "Why Administrators should be bound
by their policies" (Vol. 17) 1997 Oxford Journal of Legal Studies, p. 23).
But today the rigidity of the above decisions appears to have been somewhat
relaxed to the extent of application of Wednesbury rule, whenever there is a
change in policy and we shall be referring to those aspects presently.
we do so, we shall refer to some of the important decisions of this Court to
find out the extent to which the principle of substantive legitimate
expectation is accepted in our country. In Navjyoti Co-op. Group Housing
Society vs. Union of India (1992 (4) SCC 477), the principle of procedural
fairness was applied. In that case the seniority as per the existence list of
co-operative housing societies for allotment of land was altered by subsequent
decision. The previous policy was that the seniority amongst housing societies
in regard to allotment of land was to be based on the date of registration of
the society with the Registrar. But on 20.1.1990, the policy was changed by
reckoning seniority as based upon the date of approval of the final list by the
Registrar. This altered the existing seniority of the societies for allotment
of land. This Court held that the societies were entitled to a 'legitimate
expectation' that the past consistent practice in the matter of allotment will
be followed even if there was no right in private law for such allotment. The
authority was not entitled to defeat the legitimate expectation of the
societies as per the previous seniority list without some overriding reason of
public policy as to justify change in the criterion. No such overriding public
interest was shown. According to the principle of 'legitimate expectation', if
the authority proposed to defeat a person's legitimate expectation, it should
afford him an opportunity to make a representation in the matter. Reference was
made to Halsbury's Laws of England (p.151, Vol.1 (1) (4th Ed. re-issue) and to
the CCSU case. It was held that the doctrine imposed, in essence, a duty on
public authority to act fairly by taking into consideration all relevant
factors, relating to such legitimate expectation. Within the contours of fair
dealing, the reasonable opportunity to make representation against change of
policy came in.
next case in which the principle of 'legitimate expectation' was considered is
the case in Food Corporation of India vs. M/s Kamdhenu Cattle Feed Industries, (1993 (1) SCC 71). There the
Food Corporation of India invited tenders for sale of stocks
of damaged food grains and the respondent's bid was the highest. All tenderers
were invited for negotiation, but the respondent did not raise his bid during negotiation
while others did. The respondent filed a writ petition claiming that it had a
legitimate expectation of acceptance of its bid, which was the highest.
High Court allowed the writ petition. Reversing the judgment, this Court
referred to CCSU case and to R. v. IRC ex p Preston (1985 AC 835). It was held that though the respondent's bid was the
highest, still it had no right to have it accepted. No doubt, its tender could
not be arbitrarily rejected, but if the Corporation reasonably felt that the
amount offered by the respondent was inadequate as per the factors operating in
the commercial field, the non- acceptance of bid could not be faulted. The
procedure of negotiation itself involved the giving due weight to the
legitimate expectation of the highest bidder and this was sufficient.
Court considered the question elaborately in Union of India and Ors. vs.
Hindustan Development Corporation and Ors. (1993 (3) SCC 499). There tenders
were called for supply of cast-steel bogies to the railways. The three big
manufacturers quoted less than the smaller manufacturers.
Railways then adopted a dual pricing policy giving counter offers at a lower
rate to the bigger manufacturers who allegedly formed a cartel and a higher
offer to others so as to enable a healthy competition. This was challenged by
the three big manufacturers complaining that they were also entitled to a
higher rate and a large number of bogies.
Court held that the change into a dual pricing policy was not vitiated and was
based on 'rational and reasonable' grounds. In that context, reference was made
to Halsbury's Laws of England (4th Ed.) (Vol.1 (I) p.151), Schmidt vs.
Secretary to State for Home Affairs (1969 (2) Ch 149) which required an
opportunity to be given to an alien if the leave given to him to stay in UK was
being revoked before expiry of the time and to Attorney-General of Hong Kong.
vs. Ng Yuen Shiu (1983 (2) AC 629) which required the Government of Hong Kong
to honour its undertaking to treat each deportation case on its merits, and CCSU's
case (supra) which related to alteration of conditions relating to membership
of trade unions and the need to consult the unions in case of change of policy
as was the practice in the past, and to Food Corporation of India's case
(supra) and Navjyoti Co-op. Group Housing Society's case (supra). It was then
observed that legitimate expectation was not the same thing as anticipation. It
was also different from a mere wish to desire or hope; nor was it a claim or
demand based on a right. A mere disappointment would not given rise to legal
consequence. The position was indicated as follows:
legitimacy of an expectation can be inferred only if it is founded on the
sanction of law or custom or an established procedure followed in regular and
natural sequence. Such expectation should be justifiably legitimate and protectable."
After quoting Wade/Administrative Law (6th Ed.) (p.424, 522), reference was
also made to the judgment of the Australian High Court in Attorney General for New
South Wales vs. Quin (1990) 64 Aust. LJR 327) in which the principle itself,
according to Wade, did not find acceptance. In that case a Stipendiary
Magistrate incharge of a Court of Petty Sessions under the old court system was
refused appointment to the system of local courts which replaced the previous
system of Petty Sessions Courts. In 1987, the Attorney General who was hitherto
recommending former magistrates on the ground of 'fitness' for appointment to
the new local courts, deviated from that policy and decided to go by assessment
of merit of the competing applicants. The Court of Appeal had directed that the
case of Mr. Quin must be considered separately and not in competition with
other applicants, but it was reversed by the majority of the High Court of
Australia (Mason, CJ, Brennan & Dawson, JJ.) (Deans and Toobey, JJ
CJ held that the Court could not fetter the executive discretion to adopt a
different policy which was better calculated to serve the administration of
justice and make it more effective. The grant of substantive relief in such a
case would effectively prevent the executive from giving effect to the new
policy which it wished to pursue in relation to the appointment of magistrates.
very clearly that the notion of legitimate expectation (falling short of a
legal right) was too nebulous to form a basis for invalidating the exercise of
power. He said that such a principle would "set the courts adrift on a
featureless sea of pragmatism." Dawson, J.
that the contention of the respondent exceeded the bound of procedural fairness
and intruded upon the freedom of the executive. In Hindustan Development
Corporation's case (supra) R. vs. Secretary of State for the Home Department ex
parte Ruddock (1987 2 All E.R. 518) and Findlay vs. Secretary of State for the Home Department (1984) 3 All E.R. 801)
and Breen vs. Amalgamated Engineering Union, (1971) 1 All. E.R. 1148 were
considered. It was accepted that the principle of legitimate expectation gave
the applicant sufficient locus standi to seek judicial review and that the
doctrine was confined mostly to a right to fair hearing before a decision which
resulted in negativing a promise or withdrawing an undertaking, was taken. It
did not involve any crystallized right. The protection of such legitimate
expectation did not require the fulfillment of the expectation where an
overriding public interest required otherwise. However, the burden lay on the
decision maker to show such an overriding public interest. A case of
substantive legitimate expectation would arise when a body by representation or
by past practice aroused expectation which it would be within its powers to
fulfill. The Court could interfere only if the decision taken by the authority
was arbitrary, unreasonable or not taken in public interest. If it is
established that a legitimate expectation has been improperly denied on the
application of the above principles, the question of giving opportunity can
arise if failure of justice is shown. The Court must follow an objective method
by which the decision- making authority is given the full range of choice which
the legislature is presumed to have intended. If the decision is reached fairly
and objectively, it cannot be interfered with on the ground of procedural
fairness. An example was given that if a renewal was given to an existing licence
holder, a new applicant cannot claim an opportunity based on natural justice.
On facts, it was held that legitimate expectation was denied on the basis of reasonable
next case in which the question was considered is Madras city Wine Merchants' Association
vs. State of Tamil Nadu, 1994 (5) SCC 509. In that case the
rules relating to renewal of liquor licences were statutorily altered by repealing
existing rules. It was held that the repeal being the result of a change in the
policy by legislation, the principle of non-arbitrariness was not invocable.
M.P. Oil Extraction vs. State of M.P.
(1997 (7) SCC 592) the question was again considered. In that case, it was held
that the State's policy to extend renewal of an agreement to selected
industries which came to be located in Madhya Pradesh on invitation of State,
as against other local industries was not arbitrary and the said selected industries
had a legitimate expectation of renewal under renewal claims which should be
given effect to according to past practice unless there was any special reasons
not to adhere to the practice. It was clearly held that the principle of
substantive legitimate expectation was accepted by the Court earlier. Reference
was made to Food Corporation's case (supra), Navjyoti Co-op. Group Housing
Society's case (supra) and to Hindustan Development Corporation's case (supra).
we come to the three judge judgment in National Building Construction
Corporation vs. S. Raghunathan & Others. (1998 (7) SCC 66). This case has
more relevance to the present case, as it was also a service matter. The
respondents were appointed in CPWD and they went on deputation to the NBCC in Iraq and they opted to draw, while on deputation, their
grade pay in CPWD plus deputation allowance. Besides that, the NBCC granted
them Foreign Allowance at 125% of the basic pay. Meanwhile their Basic Pay in
CPWD was revised w.e.f. 1.1.1986 on the recommendation of the 4th Pay
Commission. They contended that the abovesaid increase of 125% should be given
by NBCC on their revised scales. This was not accepted by NBCC by orders dated
15.10.1990. The contention of the respondents based on legitimate expectation
was rejected in view of the peculiar conditions under which NBCC was working in
observed that the doctrine of 'legitimate expectation' had both substantive and
Court laid down a clear principle that claims on legitimate expectation
required reliance on representation and resultant detriment in the same way as
claims based on promissory estoppel. The principle was developed in the context
of 'reasonableness' and in the context of 'natural justice'. Reference was made
to IRC exp. Preston's case (supra); Food Corporation's case (supra); Hindustan
Development Corporation's case (supra); the Australian Case in Quin (1990) 64 Aust.
IJR 327; M.P. Oil Extraction's case (supra), CCSU's case (supra) and Navjyoti's
facts of the case delineated above, the principle of legitimate expectation has
no application. It has not been shown as to how any act was done by the
authorities which created an impression that the conditions attached in the
original appointment order were waived.
continuance does not imply such waiver. No legitimate expectation can be
founded on such unfounded impressions.
not even indicated as to who, if any and with what authority created such
impression. No waiver which would be against requisite compliances can be
countenanced. Whether an expectation exists is, self-evidently, a question of
fact. Clear statutory words override any expectation, however, founded. (See Regina v. Director of Public Prosecutions,
Ex parte Kebilene and Ors. (1999) 3 WLR 972 (H.L).
inevitable conclusion is that Division Bench judgment is on terra firma and
needs no interference.
one factor needs to be noted before we part with the case. The appellant has
already put in 28 years of service, has participated in the provident fund,
pension and gratuity schemes, and additionally she has applied for voluntary
retirement. We hope that the Government would appropriately consider the
prayers made by her for extending the benefits of the schemes and accepting the
prayer for voluntary retirement in the proper perspective early, uninfluenced
by the dismissal of the appeal.
dismissed. Costs made easy.