Kumar Maheshwari Vs. State of U.P. & Anr  INSC 22 (14 January 1998)
Ahmad, D.P. Wadhwa S. Saghir Ahmad, J.
promises are always to be suspected" is an adage which was forgotten by
the appellant and his colleagues who not only believed such a promise but
approached the Court for its enforcement in writ proceedings which have since
reached this Court requiring us to decide whether the doctrine of
"Promissory Estoppel" can be invoked for the enforcement of a
"promise" made contrary to law.
appellant is a Demonstrator in the Pharmacy Department of S.N. Medical College,
Agra where he was appointed or 11.01.73
and his services on that post were regularised on 28.6.76.
appellant and five of his other colleagues, working as Demonstrators in various
Government Medical Colleges in U.P., filed a Writ Petition in the Allahabad
High Court that the State Government as also the Director, Medical Education
and Training, may be directed not to fill the posts of Lecturers in Pharmacy by
direct recruitment and the same may be filled up, at least to he extent of
fifty per cent, by promotion of Demonstrators working in the Department as is
done in other Departments where posts of Readers are filled up, to the extent of
fifty per cent by promoting the Lecturers, while the posts of Professors are
filled up, to that extent, by promoting the Readers. It was pleaded before the
High Court that the High Court that the Government, by its Order dated 31.1.77
and 23.12.77, had provided, in respect of all posts of Readers and Professors
in the Government Medical Colleges, that they shall be filled up by direct
recruitment to the extent of fifty per cent, and remaining fifty per cent would
be filled up by promotion from amongst persons working as Lecturers in the
Department provided they are qualified for the post. It was contended that the
Government has not made bay provision for filling up the posts of Lecturers in
the Department of Pharmacy by promotion from amongst the Demonstrators and that
the Government had not passed any specific order to that effect although such
an order should have been passed particularly in view of the fact that in all
other Government services, avenue of promotion has been provided for. It was
also claimed that the Government, by its Order dated 24.6.86 had made provision
for time bound promotions of the teachers of Government Medical Colleges as it
was provided that a Lecturer, on completing a particular period of service,
would become entitled to the scale of pay admissible for Readers and Readers
would become entitled to be paid salary in the pay scale applicable to
Professors. It was claimed that these benefits should also be made applicable
to the persons working as Demonstrators in the Various Government Medical
Colleges and they should also be provided an avenue of promotion by providing,
as is done in the other Departments, that the post of Lecturer in the
Department of Pharmacy would be filled up, to the extent of fifty per cent, by
promotion from amongst the Demonstrators.
was, also claimed that in 1980 when 4 posts of Lecturers were filled up by the
respondents, namely the State Government and the Director, Medical Education
and Training, by direct recruitment, the appellant and his Other colleagues
made representations to the Director, and it was on this representation that
the respondents accured them that the remaining posts would be filled up by
promoting. It was for this reason that a seniority list of Demonstrators,
working in the Pharmacy Department of various Government Medical Colleges, was
drawn up. Since the State Government did not, thereafter, issue any instruction
or order for promotion of Demonstrators to the posts of Lecturers in the
Pharmacy Department, the petitioner filed the Writ petition in the High Court
which, by the impugned judgment dated January 1, 1990 was dismissed with the
findings that there were neither any statutory rules nor were any executive
instructions ever issued by the Government that fifty per cent posts of
Lecturers in the Pharmacy Department in various Government Medical Colleges
would be filled up by promotion of Demonstrators, working therein, and that the
case that any of the respondent had promised that petitioner or any of his
colleague would be promoted as Lecturer was not made out.
counsel for the appellant has raised, as was done in the High Court, the plea
of Promissory Estoppel before us and has contended that the Government having
itself assured the appellant and his other colleagues that they would be
promoted as Lecturers and having itself taken steps to prepare the seniority
list of Demonstrators, working in various Government Medical Colleges, was
bound by its promise and, therefore, ought to have issued the necessary
notification that the posts of Lecturers in the Department of Pharmacy would be
Filled up to promotion of Demonstrators. Since this was not done the high court
should itself have commanded the Government to issue such a notification so
that the promise, which was made to the appellant, was fulfilled. It is
contended that the Government had already issued such Notification in respect
of the posts of Professors and Readers by providing that they would be filled
up, to the extent of fifty per cent, by promotion of Readers and Lecturers and,
therefore, in respect of the Department of Pharmacy, the same policy should
have been adopted.
not disputed that the posts of Lecturers in the Department of Pharmacy as also
in other Departments of Pharmacy as also in other Departments of the Medical
Colleges are filed up by direct recruitment. It is also not disputed that so
far as Demonstrators are concerned, there are no rules, statutory or otherwise,
which provide that they would be promoted to the posts to Lecturers. The High
Court has also considered this aspect of the matter and has recorded a finding
that medical education in Government Medical Colleges is a three-tier system
consisting of the posts of Professors, Readers and Lecturers. While these posts
were, earlier, filled up by direct recruitment by the two Government
Notifications, issued in 1977, it was provided that the posts of Professors and
Readers would be filled up, to the extent of fifty per cent, by promotion of
Readers and Lecturers and the remaining fifty per cent would be filled up by
direct recruitment. The scheme of personal promotion was also introduced under
which a Lecturer of Reader who had put in service for a specified period, was
to be automatically promoted to next higher grade available to the Readers or
Professors, as the case may be. No such provision was made for the promotion of
Demonstrators not was the scheme of personal promotion made applicable to them.
The High Court has also found it as a fact that the respondents, or any of
them, had not given any assurance to the appellant or other Demonstrators that
they would be promoted to the posts of Lecturers. In view of these findings,
which are findings, of fact, we need not enter into the factual dispute once
however, that any such assurance was given to the appellant either by the State
Government of by the Director that the appellant or any of this colleague who
had joined him in filing the Writ Petition, would be promoted as Lecturers, let
us examine whether the Rule of Promissory Estoppel could be invoked in the
particular circumstances of the case.
of "Promissory Estoppel" has been evolved by the courts, on the
principles of equity, to avoid injustice.
in Black's Law Dictionary, is indicated to mean that a party is prevented by
his own acts from claiming a right to the detriment of other party who was
entitled to rely on such conduct and has acted accordingly. Section 115 of the
Indian Evidence Act is also, more or less, couched in a language which conveys
the same expression.
Estoppel" is defined as in Black's Law Dictionary as "an estoppel
which arises when there is a promise which promisor should reasonably expect to
induce action or forbearance of a definite and substantial character on the
part of promisee, and which does induce such action or forbearance, and such
promise is binding if injustice can be avoided only by enforcement of
promise." These definitions in Black's Law Dictionary which are based on
decided cases, indicate that before that Rule of "Promissory Estoppel"
can be invoked, it has to be shown that there was a declaration or promise made
which induced the party to whom the promise was made to alter its position to
this backdrop, let us travel a little distance into the past to understand the
evolution of the Doctrine of "Promissory Estoppel." Dixon, J., an Australian Jurist, in Grundt
v. The Great Boulder Pty. Gold Mines Ltd. (1938) 59 CLR 641, laid down as under
:- "It is often said simply that he party asserting the estoppel must have
been induced to act to his detriment. Although substantially such a statement
is correct a ns leads to misunderstanding, it does not bring out clearly the
basal purpose to the doctrine, That purpose is to avoid or prevent a detriment
to the party asserting the estoppel by compelling the opposite party to adhere
to the assumption upon which the former act or abstained from acting. This
means that the real detriment harm from which the law seeks to given protection
is that which would flow from the change of position if the assumption were
deserted that led to it." The principle, set out above, was reiterated by
Lord Denning in Central London Properties Ltd. v. High Trees House Ltd. 1947 KB
130, when he stated a sunder :- "A promise intended to be binding,
intended to be acted upon, and in fact acted upon is binding...." Lord
Denning approved the decision of Dixon, J. (supra) in Central Newbury Car Auctions Ltd. v. Unity Finance Ltd. (1956)
3 ALL ER 905. Apart from propounding the above principle on judicial side, Lord
Denning wrote out an article, a classic in legal literature, on "Recent
Developments in the Doctrine of Consideration", Modern Law Review, Vol.
15, in which he expressed as under :- "A man should keep his word. All the
more so when the promises is not a bare promise but is made with the intention
that the other party should act upon it. Just a contract is different from tort
and from estoppel, so also in the sphere now under discussion promises may give
rise to a different equity from other conduct.
difference may lie in the necessity of showing "detriment".
one party deliberately promises to waive, modify or discharge his strict legal
rights, intending the other party to act on the faith of promise, and the other
party actually does act on it, then it is contrary, not only to equity but also
to good faith, to allow the promisor to go back on his promise. It should not
be necessary for the other party to show that he acted to his detriment in
reliance on the promise. It should be sufficient that he acted on it." So
far as this Court is concerned, it invoked the doctrine in Union of India vs.
Indo-Afghan Agencies & Ors. AIR 1968 SC 718 = (1968) 2 SCR 366, in which it
was, inter alia, laid down that even though the case would not fail within the
terms of Section 115 of the Evidence Act which enacts the Rule of Estoppel, it
would still be open to a party who had acted on a representation made by the
Government to claim that the Government should be bound to carry out the promise
made by it even though the promise was nor recorded in the form of a formal
contract as required by Article 299 of the Constitution. To the same effect are
the decisions in Century Spinning Co. vs. Ulhasnagar Municipal Council, AIR
1971 SC 1021 an d Radhakrishna vs. State of Bihar, AIR 1977 SC 1496.
Padampat Sugar Mills Co. Ltd. vs. State of U.P (1979) 2 SCR 641 = 1979 (2) SCC
409 = AIR 1979 SC 621, while r eiterating the above principles and quoting with
approval the passage of Dixon, J., extracted above, it was observed as under :-
"We do not think that in order to invoke the doctrine of promissory estoppel
it is necessary for the promisee to show that he suffered detriment as a result
of acting in reliance on the promise. But we may make it clear that if by
detriment we mean injustice to the promisee which could result if the promisor
were to recede from his promise then detriment would certainly come in as a
necessary ingredient, The detriment in such a case is not some prejudice
suffered by the promisee by acting on the promise, but he prejudice which would
be caused to the promisees, if the promisor were allowed to go back on the
promise." Thereafter, in successive cases, as for example, Union of India
vs. Godfrey Philips India Ltd. (1985) 4 SCC 369 = 1985 Supp (3) SCR 123 = AIR
1986 SC 806; Delhi Cloth & General Mills Ltd. vs. Union of India & Ors.
(1995) 1 SCC 274; Darshan Oil (P) Ltd. vs. Union of India & Ors (1995) 1
SCC 245; Shabi Construction Co. Ltd. vs. City & Industrial Development
Corporation & Anr. (1995) 4 SCC 301; Shrijee Sales Corporation vs. U.O.I,
(1997) 3 SCC 398; Pawan Allovs & Castings (P) Ltd. vs. U.P. State
Electricity Board (1997) 7 SCC 251. the Rule of "Promissory Estoppel"
was discussed, explained and elaborated.
are may aspects of "Promissory Estoppel", but in the instant case we
are concerned only with one aspect which is to the effect that if any
"promise" has been made contrary to law, can it still be enforced by
involving this rule.
basic principle is that the plea of estoppel cannot be raised to defeat the
provisions of a Statute. (See: G.H.C. Ariff vs. Jadunath Majumdar Bahadur AIR
1931 PC 70;
Parshad & Sons vs. State of Punjab & Ors. AIR 1962 SC 745; Rishabh
Kumar vs. State of U.P. AIR 1987 SC 1576 = 1987 (Supp.) SCC
principle was reiterated in Union of India vs. R.C. D'Souza AIR 1987 SC 1172 =
(1987) 2 SCC 211, where a retired army officer was recruited as Assistant
Commandant on temporary basis and was called upon to exercise his option for regularisation
contrary to the statutory rules.
held that it would not amount to estoppel against the Department.
a Promissory Estoppel, which is based on a 'promise' contrary to law can be
invoked has already been considered by this Court in Kasinka Trading & Anr.
vs. Union of India & Ors (1995) 1 SCC 274 as also in Shabi Construction Co.
Ltd vs. City & Industrial Development Corporation & Anr. (1995) 4 SCC
301 wherein it is laid down that the Rule of "Promissory Estoppel" a
'declaration' which is contrary to law or outside the authority or power of the
Government or the person making that promise.
th eabove principles to the instant case, even if it is accepted that the State
Government or the Director, Medical Education & Training, assured the
appellant or any of his colleagues that they would be promoted to the posts of
Lecturer, such a ' promise' cannot be enforced against the respondents as the
avenue of promotion for Demonstrators to the post of Lecturers was not provided
either under the Statute or any executive instruction. Moreover, if the post of
Lecturer was filled up by promotion of Demonstrator, it would defeat the
existing mode of recruitment, namely, that it can be filled up by direct
recruitment only and not by promotion. It may also be stated that the appellant
did not make any clear, sound and positive averment as to which officer of the
Government, when and in what manner gave the assurance to the appellant or any
of his colleague that hey would be promoted as Lecturers. It was also not
stated that he appellant had, at any time, acting upon the promise, altered his
position, in any manner, specially to his detriment. Bald Pleadings cannot be
made the foundation for involving the Doctrine of Promissory Estoppel.
appeal being without merits has to be dismissed reminding the appellant that a
mind, conscious of integrity, scorns to say more then it means to perform and
the Government and Director were not of the material. No costs.