{"id":258305,"date":"2003-03-12T00:00:00","date_gmt":"2003-03-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/j-p-bansal-vs-state-of-rajasthan-anr-on-12-march-2003"},"modified":"2016-02-05T19:28:40","modified_gmt":"2016-02-05T13:58:40","slug":"j-p-bansal-vs-state-of-rajasthan-anr-on-12-march-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/j-p-bansal-vs-state-of-rajasthan-anr-on-12-march-2003","title":{"rendered":"J.P. Bansal vs State Of Rajasthan & Anr on 12 March, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
J.P. Bansal vs State Of Rajasthan & Anr on 12 March, 2003<\/div>\n
Author: J Arijit Pasayat<\/div>\n
Bench: Shivaraj V. Patil, Arijit Pasayat.<\/div>\n
           CASE NO.:\nAppeal (civil)  5982 of 2001\n\nPETITIONER:\nJ.P. Bansal\n\nRESPONDENT:\nState of Rajasthan & Anr.\n\nDATE OF JUDGMENT: 12\/03\/2003\n\nBENCH:\nSHIVARAJ V. PATIL & ARIJIT PASAYAT.\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
ARIJIT PASAYAT,J<\/p>\n
\tAppellant’s prayer for issuing a writ of mandamus to
\nthe State of Rajasthan to pay compensation on cessation of
\nfunctioning as Chairman of the abolished Rajasthan Taxation
\nand Tribunal (in short ‘the Tribunal’) having been turned
\ndown by learned Single Judge and Division Bench of the
\nRajasthan High Court, this appeal has been preferred.  As
\nthe core question involved is pristinely legal, it is
\nunnecessary to enter into the factual aspects in detail.\n<\/p>\n
\tFactual panorama in a nutshell is as follows:\n<\/p>\n
\tAppellant was appointed as Judicial Member of the
\nTribunal in terms of notification dated 16.9.1995 issued by
\nthe Finance Department (Taxation Division) of the Government
\nof Rajasthan. Appointment of the appellant was made by the
\nGovernor in exercise of the powers conferred by clause (a)
\nof sub-section (2) of Section 3 of the Rajasthan Taxes and
\nTribunal Act<\/a> 1995 (in short ‘the Act’).\t By the notification
\ndated 16.9.1995 referred to above, Chairman and the
\ntechnical member were also appointed. Subsequently, he was
\nappointed to discharge functions of Chairman of the Tribunal
\ntill appointment of regular Chairman. This contingency arose
\non the previous Chairman attaining the age of 65 years.
\nState Government vide notification dated 27.2.1999 issued an
\nOrdinance No.1\/1999 styled The Rajasthan Taxation Tribunal
\n(Repeal) Ordinance, 1999 (in short ‘the Ordinance’). The
\nsame became operative w.e.f. the date of notification i.e.
\n27.2.1999. By the above Ordinance under Section 5<\/a> matters
\nand proceedings pending before Tribunal on the date of
\ncommencement of the Ordinance stood automatically
\ntransferred to the High Court for disposal. As a consequence
\nof Tribunal being abolished, continuance of appellant as
\nChairman automatically came to an end. Appellant claimed
\ncompensation of Rs.5,35,648\/- with interest @ 15% per annum
\nby filing a writ petition on the ground that his tenure
\nappointment was to continue up to 18.9.2000. Since there was
\na premature termination of the tenure appointment, claim of
\ncompensation for the balance period from the date of
\ntermination of the appointment till 18.9.2000 (which
\naccording to him was the last date of the period of tenure
\nappointment) was made. The writ application was filed before
\nthe Rajasthan High Court at Jaipur Bench.  The stand of the
\nappellant before the learned Single Judge was that there was
\na Cabinet decision taken to release salary to the appellant
\nfor the balance period which was to be paid.  As the tenure
\nof the appellant could not have been curtailed, he was
\nentitled to compensation.  By judgment dated 27.9.1999 in SB
\nCivil Writ Petition No.4379 of 1999 the writ petition was
\ndismissed by learned Single Judge.  It was noted that the
\nvalidity of the Ordinance was not challenged.  Since the
\nTribunal itself was abolished and all cases pending before
\nit have been transferred to the High Court, no interference
\nwas called for.\t It was noted that the exact amount of
\ncompensation can only be decided by a competent court after
\ntaking evidence of the parties.\t So far as implementation of
\nthe Cabinet decision is concerned, it was noted that the
\nsame was a matter of discretion of the Government and it was
\nopen to the appellant to make a representation to the
\nconcerned authorities.\tIt was not open to the High Court to
\nenforce the Cabinet decision.  The matter was carried in
\nappeal before the Division Bench which dismissed the same
\nholding that the learned Single Judge has pronounced a well-
\nreasoned judgment and no interference is called for.\n<\/p>\n
\tLearned counsel for the appellant primarily took three
\nstands in support of the appeal.  Firstly, it was submitted
\nthat the decision of the Cabinet was enforceable.  In the
\nmeeting of the Cabinet four decisions were taken.  They
\nrelated to: (1) Promulgation of Ordinance, (2) repatriation
\nof the Technical Member to his parent department (3)
\nabsorption of the members of the staff and (4) payment of
\ncompensation to the appellant. While the first three
\ndecisions were implemented; only the last one relating to
\npayment of compensation was not implemented.  The stand
\ntaken by the State Government cannot partake the character
\nof Government order under Article 166<\/a> of the Constitution of
\nIndia, 1950 (in short ‘the Constitution’) is not tenable.
\nSecondly, clause (2) of Article 310<\/a> of the Constitution
\ndeals with payment of compensation on premature cessation of
\na tenure appointment on the basis of contract to that
\neffect. Even though there was no contractual prescription
\nfor payment of compensation, that has to be taken as inbuilt
\nrequirement in the spirit of clause (2) of Article 310.<\/a>
\nThere has to be interpretation of the provisions for giving
\neffect to constitutional mandates. The decision taken by the
\nCabinet was in line with the said provision and, therefore,
\nthe High Court was not justified in refusing the grant of
\ncompensation. Finally, since there has been violation of the
\nlegitimate expectation of the appellant to continue till the
\nend of tenure period, by application of the principle of
\nlegitimate expectation the State Government was bound to pay
\ncompensation irrespective of whether there was any Cabinet
\ndecision earlier or not and that would not make any
\ndifference. Section 4(b)<\/a> of the Ordinance also has relevance
\nin that context. Any obligation or liability accrued or
\nincurred under the Act repealed are not be affected by the
\nrepeal.\n<\/p>\n
In support of the stands reliance was placed on
\nfollowing decisions: (L.G. Chaudhari, vs. The Secretary,
\nL.S.G. Dept., Govt. of Bihar and Others<\/a> AIR 1980 SC 383,
\nState of Himachal Pradesh and Anr. vs. Kailash Chand Mahajan
\nand Ors<\/a>. 1992 Supp (2) SCC 351, R. Rajendran and Ors. etc.
\netc. vs. State of Tamil Nadu and Ors. AIR 1982 SC 1107,
\nState of A.P. and Ors. vs. Bollapragada Suryanarayana and
\nOrs<\/a>. 1997 (6) SCC 258, Dr. L.P. Agarwal vs. Union of India
\nand Ors<\/a>. AIR 1992 SC 1872, Sri Justice S.K. Ray, vs. State
\nof Orissa and Ors. JT<\/a> 2003 (1) SC 166).\n<\/p>\n
\tIn response, learned counsel for the State of Rajasthan
\nsubmitted that there was no Cabinet decision in the line
\nsubmitted by the appellant. Even if there would have been
\nany such Cabinet decision, it cannot meet the requirement of
\nGovernment order, as envisaged under Article 166<\/a> of the
\nConstitution. Further the termination of the appointment
\ncame to be effectuated on the basis of legislative action.
\nTherefore, there is no scope for grant of any compensation.
\nThe decisions relied upon have no application as there were
\nspecific provisions for payment of compensation in the
\nconcerned statutes. The principles of legitimate expectation
\nhave no application to the facts of the case, as are the
\nprovisions of Section 4(b)<\/a> of the Ordinance.
\n\tThere is no dispute that under sub-section (5) of
\nSection 3<\/a> of the Act, a Judicial Member was to hold office
\nfor a term of five years from the date on which he enters
\nupon the office or till he attains the age of sixty two
\nyears, whichever is later.  In view of this undisputed
\nposition, the controversy lies within the very narrow
\ncompass.\n<\/p>\n
Article 166<\/a> of the Constitution deals with the conduct
\nof Government business.\t The said provision reads as
\nfollows:\n<\/p>\n
“166. Conduct of business of the Government
\nof a State.  (1) All executive action of
\nthe Government of a State shall be expressed
\nto be taken in the name of the Governor.\n<\/p>\n
(2) Orders and other instruments made and
\nexecuted in the name of the Governor shall
\nbe authenticated in such manner as may be
\nspecified in rules to be made by the
\nGovernor, and the validity of an order or
\ninstrument which is so authenticated shall
\nnot be called in question on the ground that
\nit is not an order or instrument made or
\nexecuted by the Governor.\n<\/p>\n
(3)\tThe Governor shall make rules for the
\nmore convenient transaction of the business
\nof the Government of the State, and for the
\nallocation among Ministers of the said
\nbusiness in so far as it is not business
\nwith respect to which the Governor is by or
\nunder this Constitution required to act in
\nhis discretion.”\n<\/p>\n
Clause (1) requires that all executive action of the State
\nGovernment shall have to be taken in the name of the
\nGovernor. Further there is no particular formula of words
\nrequired for compliance with Article 166(1).<\/a> What the Court
\nhas to see is whether the substance of its requirement has
\nbeen complied with.  A Constitution Bench in R. Chitralekha
\netc. vs. State of Mysore and Ors. (AIR 1964 1823) held that
\nthe provisions of the Article were only directory and not
\nmandatory in character and if they were not complied with
\nit could still be established as a question of fact that
\nthe impugned order was issued in fact by the State
\nGovernment or the Governor. Clause (1) does not prescribe
\nhow an executive action of the Government is to be
\nperformed, it only prescribes the mode under which such act
\nis to be expressed. While clause (1) in relation to the
\nmode of expression, clause (2) lays down the ways in which
\nthe order is to be authenticated. Whether there is any
\nGovernment order in terms of Article 166<\/a>, has to be
\nadjudicated from the factual background of each case.
\nStrong reliance was placed by learned counsel for the
\nappellant on L.G. Chaudhari (supra) to contend that for all
\npracticable purposes the decision of Cabinet has to be
\nconstrued as a Government order, because three of the
\ndecisions taken by the Cabinet have been implemented.  As
\nnoted above, learned counsel for the State took the stand
\nthat neither in the writ petition nor before the High
\nCourt, the Cabinet decision itself was produced.  In fact,
\nthe Cabinet memorandum and the order of the Cabinet show
\nthat no decision was taken to pay any compensation.  In
\nthis connection reference is made to the Cabinet memorandum
\ndated 18.3.1993 and the decision No. 57 of 1999.  It was
\nfurther submitted that even if it is conceded for the sake
\nof argument that such decision was taken, the same cannot
\nbe enforced by a writ petition.\n<\/p>\n
\tWe need not delve into the disputed question as to
\nwhether there was any Cabinet decision, as it has not been
\nestablished that there was any Government order in terms of
\nArticle 166<\/a> of the Constitution. The Constitution requires
\nthat action must be taken by the authority concerned in the
\nname of the Governor. It is not till this formality is
\nobserved that the action can be regarded as that of the
\nState.\tConstitutionally speaking the Council of Ministers
\nare advisors and as the head of the State, the Governor is
\nto act with the aid or advice of the Council of Ministers.
\nTherefore, till the advice is accepted by the Governor,
\nviews of the Council of Ministers does not get crystalised
\ninto action of the State. (See: The State of Punjab vs.
\nSodhi Sukhdev Singh<\/a> AIR 1961 SC 493, Bachhittar Singh vs.
\nState of Punjab and Anr<\/a>. AIR 1963 SC 395).  That being so,
\nthe first plea of the appellant is rejected.\n<\/p>\n
Coming to the plea relating to clause (2) of Article
\n310<\/a>, it has to be noted that compensation is payable for
\npremature termination of contractual service. The clause is
\nonly an enabling provision which empowers the Governor to
\nenter into the contract with specially qualified person(s)
\nproviding for payment of compensation where no compensation
\nis payable under the doctrine “service at the pleasure of
\nthe State”.  In the absence of any specific term regarding
\ncompensation, it cannot be countenanced that the intention
\nwas to pay it.\tHad there been an inbuilt requirement to
\npay compensation as contended by the appellant, there was
\nno necessity for specifically incorporating a provision in
\nthat regard.  A bare reading of clause (2) makes it clear
\nthat there can be a stipulation for payment of compensation
\nin the contract to a person who is holding a civil post
\nunder the Union or a State, if before the expiry of an
\nagreed period that post is abolished or he is, for reasons
\nnot connected with any misconduct on his part, required to
\nvacate the post.  Being an enabling provision in the matter
\nof payment of compensation on the basis of a contractual
\nobligation, it cannot be said that even when there is no
\nstipulation in a contract of employment, the same is
\nimplicit.\n<\/p>\n
Submission of learned counsel that such a provision is
\ninbuilt and has to be read into the Act and the Ordinance
\nis clearly unacceptable.\n<\/p>\n
\tIt is said that a statute is an edict of the
\nlegislature. The elementary principle of interpreting or
\nconstruing a statute is to gather the mens or sententia
\nlegis of the legislature.\n<\/p>\n
\tInterpretation postulates the search for the true
\nmeaning of the words used in the statute as a medium of
\nexpression to communicate a particular thought. The task is
\nnot easy as the “language” is often misunderstood even in
\nordinary conversation or correspondence. The tragedy is that
\nalthough in the matter of correspondence or conversation the
\nperson who has spoken the words or used the language can be
\napproached for clarification, the legislature cannot be
\napproached as the legislature, after enacting a law or Act,
\nbecomes functus officio so far as that particular Act is
\nconcerned and it cannot itself interpret it. No doubt, the
\nlegislature retains the power to amend or repeal the law so
\nmade and can also declare its meaning, but that can be done
\nonly by making another law or statute after undertaking the
\nwhole process of law-making.\n<\/p>\n
\tStatute being an edict of the legislature, it is
\nnecessary that it is expressed in clear and unambiguous
\nlanguage. In spite of Courts saying so, the draftsmen have
\npaid little attention and they still boast of the old
\nBritish jingle “I am the parliamentary draftsman. I compose
\nthe country’s laws. And of half of the litigation, I am
\nundoubtedly the cause”, which was referred to by this Court
\nin Palace Admn. Board v. Rama Varma Bharathan  Thampuran<\/a>
\n(AIR 1980 SC 1187 at. P.1195). In Kirby v. Leather (1965 (2)
\nAll ER 441) the draftsmen were severely criticized in regard
\nto Section 22(2)(b) of the (UK) Limitation Act, 1939, as it
\nwas said that the section was so obscure that the draftsmen
\nmust have been of unsound mind.\n<\/p>\n
\tWhere, however, the words were clear, there is no
\nobscurity, there is no ambiguity and the intention of the
\nlegislature is clearly conveyed, there is no scope for the
\ncourt to innovate or take upon itself the task of amending
\nor altering the statutory provisions. In that situation the
\nJudges should not proclaim that they are playing the role of
\na law-maker merely for an exhibition of judicial valour.
\nThey have to remember that there is a line, though thin,
\nwhich separates adjudication from legislation. That line
\nshould not be crossed or erased. This can be vouchsafed by
\n“an alert recognition of the necessity not to cross it and
\ninstinctive, as well as trained reluctance to do so”. (See:
\nFrankfurter, Some Reflections on the Reading of Statutes in
\n“Essays on Jurisprudence”, Columbia Law Review, P.51.)<\/p>\n
\tIt is true that this Court in interpreting the
\nConstitution enjoys a freedom which is not available in
\ninterpreting a statute and, therefore, it will be useful at
\nthis stage to reproduce what Lord Diplock said in Duport
\nSteels Ltd. v. Sirs (1980 (1) ALL ER 529, at p. 542):\n<\/p>\n
\t“It endangers continued public
\nconfidence in the political impartiality of
\nthe judiciary, which is essential to the
\ncontinuance of the rule of law, if Judges,
\nunder the guise of interpretation, provide
\ntheir own preferred amendments to statutes
\nwhich experience of their operation has
\nshown to have had consequences that members
\nof the court before whom the matter comes
\nconsider to be injurious to public
\ninterest.”\n<\/p>\n
Where, therefore, the “language” is clear, the
\nintention of the legislature is to be gathered from the
\nlanguage used. What is to be borne in mind is as to what
\nhas been said in the statute as also what has not been
\nsaid. A construction which requires, for its support,
\naddition or substitution of words or which results in
\nrejection of words, has to be avoided, unless it is covered
\nby the rule of exception, including that of necessity,
\nwhich is not the case here. (See: Gwalior Rayons Silk Mfg.
\n(Wvg.) Co. Ltd. v. Custodian of Vested Forests<\/a> (AIR 1990 SC
\n1747 at p. 1752); Shyam Kishori Devi v. Patna Municipal
\nCorpn<\/a>. (AIR 1966 SC 1678 at p. 1682); A.R. Antulay v.
\nRamdas Sriniwas Nayak<\/a> (1984 (2) SCC 500, at pp. 518, 519)].
\nIndeed, the Court cannot reframe the legislation as it has
\nno power to legislate. [See State of Kerala v. Mathai
\nVerghese<\/a> (1986 (4) SCC 746, at p. 749); Union of India v.
\nDeoki Nandan Aggarwal<\/a> (AIR 1992 SC 96 at p.101)<\/p>\n
The decision in Dr. L.P. Agarwal  (supra) is also of
\nno assistance to the appellant because the issues involved
\nwas whether in respect of tenure post concept of
\nsuperannuation is applicable and the consequences of
\npremature retirement. In that context direction was given
\nfor payment of arrears of salary etc.  The issues were
\nentirely different and, therefore, that decision has no
\napplication.\n<\/p>\n
\tThe decision in R. Rajendran and Ors. etc. etc.
\n(supra) revolves around altogether different controversy.
\nThat related to doctrine of pleasure incorporated under
\nArticle 310.<\/a> It was, inter alia, observed in the said case
\nthat the power to abolish a civil post is inherent in the
\nright to create it.  The Government has power subject of
\ncourse to the constitutional provisions to reorganize a
\ndepartment to provide efficiencies and to bring about
\neconomy. It can abolish an office in good faith.  It was
\nfurther held in that case that the abolition of the post of
\nvillage officers was sought to be achieved by a piece of
\nlegislation passed by the State legislature.  Want of good
\nfaith or modalities cannot be attributed to a legislature.
\nThe only question to be considered was whether the
\nlegislature is a colorable one lacking in legislative
\ncompetence or whether it transgresses any of the
\nconstitutional limitations. The plea that there was
\nviolation of Article 19(1)(g)<\/a> of the Constitution was
\nnegatived as the Act did not affect right of any of the
\nincumbent of the posts to carry on any occupation of their
\nchoice, even though they may not be able to stick on to the
\npost which they were holding.\n<\/p>\n
\tSo far as Kailash Chand Mahajan and Ors. (supra) is
\nconcerned, there was a specific provision regarding payment
\nof compensation in the said case.  That makes a great deal
\nof difference.\n<\/p>\n
\tThe decision in State of A.P. and Ors. vs.
\nBollapragada Suryanarayana and Ors<\/a>. (supra) does not in any
\nway assist the appellant and, in fact, is one which goes
\nagainst him. That case related to abolition of posts by
\nlegislation.  In the said case also there was a provision
\nfor compensation specifically indicated in Section 5 of the
\nA.P. Abolition of Posts of Part-time Village Officers Act,
\n1985. As indicated in the case of Kailash Chand Mahajan and
\nOrs. (supra) clear stipulation in the Act makes a
\ndifference.  There is no specific provision for payment of
\ncompensation in the present case.\n<\/p>\n
\tThe relevant observations appeared at paragraph 5 of
\nthe judgment in Bollapragada’s case  reads as follows:\n<\/p>\n
\t“It is contended by the State that the
\nrespondents are not entitled to gratuity or
\nthe benefit of the Family Benefit Scheme
\nbecause the posts of part-time Village
\nOfficers have been abolished under the said
\nAct. The Gratuity Scheme under GOMs dated
\n18.4.1980 provides, inter alia, for payment
\nof gratuity to the Village Officer at the
\ntime of demitting office after attaining the
\nage of 58 years after giving notice to the
\nappointing authority. Therefore, the
\nGratuity Scheme expressly provides for the
\nmanner of demitting office on attaining the
\nage of 58 years, or 60 years, as the case
\nmay be. It is only when the office is
\ndemitted in the manner set out in the Scheme
\nthat gratuity under the said GOMs becomes
\npayable. The office is required to be
\ndemitted by the holder concerned after
\ngiving a notice to the appointing authority.
\nThis clearly contemplates a voluntary
\nrelinguishment of office on attaining the
\nspecified age. There is no retirement age
\nfor this office. This provision would not
\napply when, by legislation, the posts are
\nabolished. In such a situation there is no
\nquestion of voluntary demitting of office
\nafter notice. The provisions of the said
\nGOMs, therefore, cannot be attracted when
\nthe posts are abolished by legislation. This
\nis precisely the reason why under Section 5<\/a>
\nof the said Act, a provision for
\ncompensation has been made, which the
\nrespondents have received.”\n<\/p>\n
\tOne of the pleas of the appellant was with reference to
\nSection 4(b)<\/a> of the Ordinance, which reads as under:\n<\/p>\n
“4. Savings  The repeal made under Section
\n3<\/a> shall not affect<\/p>\n
(a) the previous operation of the Act so
\nrepealed or anything duly done or suffered
\nthereunder; or<\/p>\n
(b) any obligation or liability accrued or
\nincurred under the Act so repealed; or<\/p>\n
\txxx\t\t\txxx\t\t\txxx”\n<\/p>\n
\tThe said provision also does not in any way assist the
\nappellant because there is no obligation or liability
\naccrued or incurred under the repealed Act to pay
\ncompensation. There was no obligation or liability fixed
\nunder the Act for payment of compensation.\n<\/p>\n
The decision in Sri Justice S.K.Ray vs. State of Orissa
\nand Ors. (JT<\/a> 2003 (1) SC 166) is also distinguishable on
\nfacts.\tIn that case under the scheme of the enactment under
\nwhich the appellant was appointed, there was a bar on the
\nappointee to hold any office of trust or profit and also
\nthere was bar on his acting as a member of the legislature,
\nCentral or State or any other position which may come in
\nconflict with the office of Lokpal. There was provision also
\nthat he cannot hold any office even after he ceases to hold
\nthe office of Lokpal. There were these disabilities attached
\nto him for all time to come after ceasing to hold office.
\nIn the instant case there is no such provision, and on the
\ncontrary in the Ordinance Section 6<\/a> provides as follows:\n<\/p>\n
“6. FURTHER EMPLOYMENT OF CHAIRMAN AND
\nMEMBER, –\n<\/p>\n
Notwithstanding anything contained in sub-
\nsection (7) of Section 3<\/a> of the repealed
\nAct, the Chairman or any other member of the
\nTribunal shall not be ineligible for further
\nemployment under the State Government or
\nunder any local authority or under any
\ncorporation owned or controlled by the State
\nGovernment.”\n<\/p>\n
\tWhat remains to be considered is the plea of legitimate
\nexpectation. The principle of ‘legitimate expectation’ is
\nstill at a stage of evolution as pointed out in De Smith
\nAdministrative Law (5th Edn. Para 8.038). The principle is
\nat the root of the rule of law and requires regularity,
\npredictability and certainty in governments’ dealings with
\nthe public. Adverting to the basis of legitimate expectation
\nits procedural and substantive aspects, Lord Steyn in
\nPierson v. Secretary of State for the Home Department (1997
\n(3) All ER 577, at p.606)(HL) goes back to Dicey’s
\ndescription of the rule of law in his “Introduction to the
\nstudy of the Law of the Constitution” (10th Edn. 1968
\np.203) as containing principles of enduring value in the
\nwork of a great jurist. Dicey said that the constitutional
\nrights have roots in the common law. He said:\n<\/p>\n
\t“The ‘rule of law’, lastly, may be used
\nas a formula for expressing the fact that
\nwith us, the law of constitution, the rules
\nwhich in foreign countries naturally form
\npart of a constitutional code, are not the
\nsource but the consequence of the rights of
\nindividuals, as defined and enforced by the
\ncourts; that, in short, the principles of
\nprivate law have with us been by the action
\nof the courts and Parliament so extended as
\nto determine the position of the Crown and
\nits servants; thus the constitution is the
\nresult of the ordinary law of the land”.\n<\/p>\n
This, says Lord Steyn, is the pivot of Dicey’s discussion of
\nrights to personal freedom and to freedom of association and
\nof public meeting and that it is clear that Dicey regards
\nthe rule of law as having both procedural and substantive
\neffects. “The rule of law enforces minimum standards of
\nfairness, both substantive and procedural”. On the facts in
\nPierson, the majority held that the Secretary of State could
\nnot have maintained a higher tariff of sentence that
\nrecommended by the judiciary when admittedly no aggravating
\ncircumstances existed. The State could not also increase the
\ntariff with retrospective effect.\n<\/p>\n
\tThe basic principles in this branch relating to
\n‘legitimate expectation’ were enunciated by Lord Diplock in
\nCouncil of Civil Service Unions and Ors. v. Minister for the
\nCivil Service (1985 AC 374 (408-409) (Commonly known as CCSU
\ncase). It was observed in that case that for a legitimate
\nexpectation to arise, the decisions of the administrative
\nauthority must affect the person by depriving him of some
\nbenefit or advantage which either (i) he had in the past
\nbeen permitted by the decision-maker to enjoy and which he
\ncan legitimately expect to be permitted to continue to do
\nuntil there has been communicated to him some rational
\ngrounds for withdrawing it on which he has been given an
\nopportunity to comment; or (ii) he has received assurance
\nfrom the decision-maker that they will not be withdrawn
\nwithout giving him first an opportunity of advancing reasons
\nfor contending that they should not be withdrawn. The
\nprocedural part of it relates to a representation that a
\nhearing or other appropriate procedure will be afforded
\nbefore the decision is made. The substantive part of the
\nprinciple is that if a representation is made that a benefit
\nof a substantive nature will be granted or if the person is
\nalready in receipt of the benefit that it will be continued
\nand not be substantially varied, then the same could be
\nenforced.  In the above case, Lord Fraser accepted that the
\ncivil servants had a legitimate expectation that they would
\nbe consulted before their trade union membership was
\nwithdrawn because prior consultation in the past was the
\nstandard practice whenever conditions of service were
\nsignificantly altered.\tLord Diplock went a little further,
\nwhen he said that they had a legitimate expectation that
\nthey would continue to enjoy the benefits of the trade union
\nmembership, the interest in regard to which was protectable.
\nAn expectation could be based on an express promise or
\nrepresentation or by established past action or settled
\nconduct. The representation must be clear and unambiguous.
\nIt could be a representation to the individual or generally
\nto class of persons.\n<\/p>\n
Even so, it has been held under English law that the
\ndecision maker’s freedom to change the policy in public
\ninterest, cannot be fettered by the application of the
\nprinciple of substantive legitimate expectation.
\nObservations in earlier cases project a more inflexible rule
\nthan is in vogue presently.  In R. v. IRC, ex p Preston
\n(1985 AC 835) the House of Lords rejected the plea that the
\naltered policy relating to parole for certain categories of
\nprisoners required prior consultation with the prisoner,
\nLord Scarman observed:\n<\/p>\n
\t“But what was their legitimate
\nexpectation. Given the substance and purpose
\nof the legislative provisions governing
\nparole, the most that a convicted prisoner
\ncan legitimately expect is that his case be
\nexamined individually in the light of
\nwhatever policy the Secretary of State sees
\nfit to adopt provided always that the adopted
\npolicy is a lawful exercise of the discretion
\nconferred upon him by the statute.  Any other
\nview would entail the conclusion that the
\nunfettered discretion conferred by statute
\nupon the minister can in some cases by
\nrestricted so as to hamper or even to prevent
\nchanges of policy.”\n<\/p>\n
To a like effect are the observations of Lord Diplock
\nin Hughes vs. Department of Health and Social Security (HL)
\n1985 AC 776 (788):\n<\/p>\n
“Administrative policies may change with
\nchanging circumstances, including changes in
\nthe political complexion of governments.  The
\nliberty to make such changes is something
\nthat is inherent in our constitutional form
\nof government.”\n<\/p>\n
Before we do so, we shall refer to some of the
\nimportant decisions of this Court to find out the extent to
\nwhich the principle of substantive legitimate expectation is
\naccepted in our country.  In Navjyoti Co-op. Group Housing
\nSociety vs. Union of India<\/a> (1992 (4) SCC 477), the principle
\nof procedural fairness was applied. In that case the
\nseniority as per the existence list of co-operative housing
\nsocieties for allotment of land was altered by subsequent
\ndecision. The previous policy was that the seniority amongst
\nhousing societies in regard to allotment of land was to be
\nbased on the date of registration of the society with the
\nRegistrar. But on 20.1.1990, the policy was changed by
\nreckoning seniority as based upon the date of approval of
\nthe final list by the Registrar. This altered the existing
\nseniority of the societies for allotment of land. This Court
\nheld that the societies were entitled to a ‘legitimate
\nexpectation’ that the past consistent practice in the matter
\nof allotment will be followed even if there was no right in
\nprivate law for such allotment.\t The authority was not
\nentitled to defeat the legitimate expectation of the
\nsocieties as per the previous seniority list without some
\noverriding reason of public policy as to justify change in
\nthe criterion.\tNo such overriding public interest was
\nshown. According to the principle of ‘legitimate
\nexpectation’, if the authority proposed to defeat a person’s
\nlegitimate expectation, it should afford him an opportunity
\nto make a representation in the matter.\t Reference was made
\nto Halsbury’s Laws of England (p.151, Vol.1 (1) (4th Ed.
\nre-issue) and to the CCSU case. It was held that the
\ndoctrine imposed, in essence, a duty on public authority to
\nact fairly by taking into consideration all relevant
\nfactors, relating to such legitimate expectation.  Within
\nthe contours of fair dealing, the reasonable opportunity to
\nmake representation against change of policy came in.\n<\/p>\n
Lastly we come to the three-judge Bench judgment in
\nNational Building Construction Corporation vs. S.
\nRaghunathan & Others<\/a>. (1998 (7) SCC 66). This case has more
\nrelevance to the present case, as it was also a service
\nmatter.\t The respondents were appointed in CPWD and they
\nwent on deputation to the NBCC in Iraq and they opted to
\ndraw, while on deputation, their grade pay in CPWD plus
\ndeputation allowance. Besides that, the NBCC granted them
\nForeign Allowance at 125% of the basic pay.  Meanwhile their
\nBasic Pay in CPWD was revised w.e.f. 1.1.1986 on the
\nrecommendation of the 4th Pay Commission.  They contended
\nthat the above-said increase of 125% should be given by NBCC
\non their revised scales.  This was not accepted by NBCC by
\norders dated 15.10.1990.  The contention of the respondents
\nbased on legitimate expectation was rejected in view of the
\npeculiar conditions under which NBCC was working in Iraq.
\nIt was observed that the doctrine of ‘legitimate
\nexpectation’ had both substantive and procedural aspects.
\nThis Court laid down a clear principle that claims on
\nlegitimate expectation required reliance on representation
\nand resultant detriment in the same way as claims based on
\npromissory estoppel.  The principle was developed in the
\ncontext of ‘reasonableness’ and in the context of ‘natural
\njustice’.\n<\/p>\n
\tThe principles of legitimate expectation have no
\napplication to the facts of the present case.\n<\/p>\n
\tLooking at from any angle the appeal is devoid of any
\nmerit and deserves dismissal, which we direct.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India J.P. Bansal vs State Of Rajasthan & Anr on 12 March, 2003 Author: J Arijit Pasayat Bench: Shivaraj V. Patil, Arijit Pasayat. CASE NO.: Appeal (civil) 5982 of 2001 PETITIONER: J.P. Bansal RESPONDENT: State of Rajasthan & Anr. DATE OF JUDGMENT: 12\/03\/2003 BENCH: SHIVARAJ V. PATIL & ARIJIT PASAYAT. JUDGMENT: J […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-258305","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nJ.P. 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