Category Archives: Administrative Law

“Legitimate Expectation” – An Administrative Whip

Posted on by
6

By Gururaj Saswadkar 

Introduction: 

The theory of Legitimate Expectation is a branch of Administrative Law. It is the newest enroll to the long list of concepts fashioned by the Courts for the review of administrative actions. It has been accepted by the English, Irish and Indian Courts but has been outrightly rejected in Australia and Canada.    

Meaning and Explanation:  

The theory of Legitimate Expectation marches into operation when there is an express promise from any Public Authority / Official that there is a regular practice of a certain thing, which the claimant can reasonably expect to continue. In other words, it consists of either inculcating anticipation in the citizen, or assuring him that under certain rules and schemes he would continue to reap certain benefits of which he would not be deprived unless there is some overriding public interest.   

Lord Diplock, in the English case Council of Civil Service Union v. Minister for Civil Service, has explained the doctrine, both in procedural and substantive contexts.  

Procedural: The procedural part of it relates to a representation that a hearing or other appropriate procedure will be afforded before any decision is made. 

Substantive: The substantive part of the theory is that if a representation has been expressly made that a benefit of a substantive nature will be granted or if any person is already in receipt of any benefit, it will be continued and will not be substantially varied to the disadvantage of the recipient.  

The representation should be on the lines of an express promise, or an established past action or settled conduct. It must be clear and unambiguous. It can be to an individual or to a class of persons. 

Thus, to cut a long story short, Legitimate Expectation concerns the relationship between Public Administration and an individual. The principle means that expectations raised by administrative conduct have to be respected and fulfilled lest public interest and betterment demands otherwise. Non-fulfillment can have legal consequences. The role of the Courts in the entire transaction is to safeguard the individual’s expectations in the face of change of policy. They have to ensure that the individual’s expectations are fulfilled mutatis mutandis the Governmental Policies. The theory is an enlargement of principles of Natural Justice. Precisely speaking, the Government and its Departments, in administering the affairs of the country are expected to honour their statements of policy or intention. The policy statement cannot be disregarded unfairly. Unfairness and arbitrariness are akin to violation of principles of natural justice.  

In Food Corporation of India v. Kamdhenu Cattle Feed Industries Ltd. [AIR 1993 SC 1601], the Supreme Court has observed that the doctrine of legitimate expectation falls within the purview of the principle of non-arbitrariness as incorporated under Article 14 of the Constitution. It becomes an enforceable right when the Government instrumentality fails to give due weight to it.  

However, as per the observations of the Supreme Court in Assistant Excise Commissioner v. Issac Peter (1994) 4 SCC 104, the doctrine of legitimate expectation cannot be invoked to alter the terms of a contract of a statutory nature.  

Similarly, in Howrah Municipal Corporation v. Ganges Road Company Ltd (2004) 1 SCC 663 it has been held that no right can be claimed on the basis of legitimate expectation when it is contrary to statutory provisions which have been enforced in public interest.  

In Madras City Wine Merchants Association v. State of Tamil Nadu (1994) 5 SCC 509 the doctrine of legitimate expectation was held to become inoperative when there was a change in public policy or in public interest.    

In Union of India v. Hindustan Development Corporation [AIR 1994 SC 988], the Supreme Court has elaborately considered the reverence of this theory. In the estimation of the Apex Court, the doctrine does not contain any crystallized right. It gives to the applicant a sufficient ground to seek judicial review and the principle is mostly confined to the right to a fair hearing before any decision is given. 

It was held in Navjyoti Co-op Group Housing Society v. Union of India [AIR 1993 SC 155] that the doctrine of legitimate expectation imposes in essence a duty on the public authorities to act fairly by taking into consideration all the relevant factors bearing a nexus to such legitimate expectation. The concerned authority cannot act arbitrarily so as to defeat the expectation, unless demanded by over-riding reasons of public policy. 

Further, in another landmark judgment, M.P. Oil Extraction Co v. State of Madhya Pradesh (1997) 7 SCC 592, the Supreme Court was dealing with the license renewal claims of certain industries. It was held in this case that extending an invitation, on behalf of the State, was not arbitrary and the selected industry had a legitimate expectation of renewal of license under the renewal claims. 

Lastly, in National Building Constructions Corporation v. S Raghunathan [AIR 1998 SC 2776], it was held that legitimate expectation is a source of both, procedural and substantive rights. The person seeking to invoke the doctrine must be aggrieved and must have altered his position. The doctrine of legitimate expectation assures fair play in administrative action and can always be enforced as a substantive right. Whether or not an expectation is legitimate is a question of fact.    

Conclusion: 

The emerged concept of Legitimate Expectation is gradually gaining importance. The substance of the doctrine is honouring implied commitments without hampering express policies. The doctrine invokes to enforce regularity, predictability and certainty in Government’s dealings vis –a – vis the masses.

(Gururaj is a student of law at ILS Law College, Pune)

Govt. Officer Not Paid Extra for Extra Duties

Posted on by
Reply

In the case of C N Vasudevan v. Union of India decided on May 7, 2008, a Bench of the Supreme Court comprising Justices Sema and Katju denied a Government Officer any honorarium or remuneration for taking on additional duties which could be performed within his normal working hours.

The issue in this case was whether C N Vasudevan, a Regional Passport Officer was entitled to the grant of honorarium/remuneration for the period he worked as Protector of Emigrants over and above his salary as Regional Passport Officer, Ahmedabad.

He had prayed to the Central Administrative Tribunal an honorarium for working as the Protector of Emigrants since the responsibilities of the Regional Passport Officer and are quite different. His prayer was allowed by the Tribunal. The High Court, by its impugned order, affirmed the order of the tribunal.

Hence, this appeal was made by special leave to the Supreme Court.

The counter affidavit filed on behalf of the Regional Passport Officer, Ahmedabad before the Tribunal states that in all 14 Passport Officers were authorised to perform the functions of Protector of Emigrants so as to decide whether a person intending to depart from India is an emigrant or not for the purpose of Emigration Act, 1983. The duties of Protector of Emigrant were part of the normal duty of the Regional Passport Officer and were to be performed by the Regional Passport Officer during the normal office hours on working days only.

The Supreme Court agreed with this contention. It then gave an analogous example: the District Magistrate/Collector of a district is often also the prescribed authority under various State and Central Acts for discharging functions under the said Acts. This does not entitle the District Magistrate/Collector to any extra remuneration over and above his normal salary.

(This post is an edited extract of the judgment.)

No Arbitrary Punishments to Employees

Posted on by
Reply

A (State) employer cannot award an arbitrary, unfair and unreasonable punishment to an employee ruled a Bench of the Supreme Court comprising Justices S. B. Sinha and Lokeshwar Singh Panta in the case of Man Singh v. State of Haryana & Ors. on May 1, 2008.

Man Singh was serving as Sub-Inspector in Police Department, Rohtak. In July 1996, he was deputed as Incharge of a police party comprising of ASI Sucha Singh, HC Suraj Bhan and HC Vijay Pal for taking two Government vehicles from Chandigarh to Hyderabad (Andhra Pradesh) for repair.

HC Vijay Pal who was driving one of the vehicles purchased 12 bottles of Indian-Made Foreign Liquor at Kota (Rajasthan) and concealed them in the dickey of the car without the knowledge and consent of Man Singh.

On checking of the vehicles by the Excise Staff of Adilabad in the State of Andhra Pradesh, 12 bottles of alcohol were recovered from the luggage boot of the car being driven by HC Vijay Pal, which gave rise to the registration of a case against him for transporting liquor in violation of prohibitory orders of the State Government.

The Superintendent of Police, Sonepat, ordered a departmental inquiry against Man Singh and HC Vijay Pal, charging Man Singh with improper control over his subordinates which amounts to dereliction of duties and for the lapses of indiscipline as Police Officer.

The Inquiry Officer found Man Singh guilty of the charge on the basis of summary of allegations. He was punished with the stoppage of two annual future increments with permanent effect

Vijay Pal was, however, exonerated primarily because he was not convicted in the criminal case filed against him and after exoneration, he was promoted to the higher post, whereas the appeal and the revision filed by Man Singh against the order of punishment were rejected on the technical ground that he did not exercise proper and effective control over HC Vijay Pal at the time of commission of the Excise offence by him in the State of Andhra Pradesh.

The matter ultimately reached the Supreme Court which said that Man Singh’s employers cannot be permitted to resort to selective treatment to Man Singh and HC Vijay Pal.

It is a settled position of law for the benefit of the administrative authorities that any act of the repository of power whether legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair minded authority could ever have made it.

The concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extend to an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. Equals are to be treated equally even in the matter of executive or administrative action. As a matter of fact, the doctrine of equality is now turned as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action. The administrative action is to be just on the test of ‘fair play’ and reasonableness.

The principle is the same, namely, that there should be no discrimination between Man Singh and HC Vijay Pal as regards the criteria of punishment of similar nature in departmental proceedings. Man Singh and HC Vijay Pal were both similarly situated, in fact, HC Vijay Pal was the real culprit who, besides departmental proceedings, was an accused in the excise case filed against him by the Excise Staff of Andhra Pradesh for violating the Excise Prohibition Orders operating in the State.

The Supreme Court held that the order of the disciplinary authority imposing punishment upon Man Singh for exhibiting slackness in the discharge of duties during his visit to Hyderabad when HC Vijay Pal was found involved in Excise offence, as also the orders of the appellate and revisional authorities confirming the said order were unfair, arbitrary, unreasonable, unjustified and also against the doctrine of equality.

Man Singh deserved to be treated equally in the matter of departmental punishment initiated against him for the acts of omission and commission vis-à-vis HC Vijay Pal.

Although the Supreme Court said it would, in normal course, have remitted the case to the High Court for a fresh decision to be taken, it exercised its extraordinary jurisdiction under Article 142 of the Constitution of India and decided the case on merits to avoid further delay.

The punishment awarded to Man Singh was set aside.

(This article is an edited extract of the judgment.)

Ram Jawaya

Posted on by
Reply

In Ram Jawaya’s case, the procedure which was framed by the State of Punjab prior to May 1950 for selection and approval of text books for use in schools was that the State Government used to invite publishers and authors to submit their books for examination and approval by the Education Department and the State Government after scrutiny selected out of them a certain number of text books, any one of them could be used by the schools. This procedure was slightly altered in May 1950 and under the altered procedure, the State Government took upon itself the monopoly of publishing text books in some of the subjects and with regard to the rest, the State Government selected and approved text books–not several as before but only one on each subject-out of those submitted by the publishers and authors and reserved for itself a certain royalty on the sale proceeds of such approved text books.

In 1952, however, changes of a far more drastic character were introduced by a notification dated 9th August, 1952 issued by the State Government. By this notification the State Government took over the publishing, printing and selling of text books exclusively in its own hands and the private publishers were altogether ousted from this business. The petitioners who were a firm carrying on the business of preparing, printing, publishing and selling text books there–upon moved this Court under Art. 32 of the Constitution praying for writs of mandamus directing the State Government to withdraw the notifications of 1950 and 1952 on the ground that they contravened the fundamental right of the petitioners under Art. 19(1) (g). This Court, however, took the view that no fundamental right of the petitioners to carry on their business of preparing,-printing, publishing and selling text books was infringed by the notifications issued by the State Government in furtherance of their policy of nationalisation of text books for students and the petitioners were, therefore, not entitled to any relief under Art. 32 of the Constitution.

Mukherjea, C. J., speaking on behalf of a unanimous Court, pointed out:

“The procedure hitherto followed was that the Government used to invite publishers and authors to submit their books for examination and approval by the Education Department and after selection was made by the Government, the size, contents as well as the prices of the books were fixed and it was left to the publishers or authors to print and publish them and offer them for sale to the pupils. So long as this system was in vogue the only right which publishers, like the petitioners had, was to offer their books for inspection and approval by the Government. They had no right to insist on any of their books being accepted as text books.

So the utmost that could be said is that there was merely a chance or prospect of any or some of their books being approved as text books by the Government. Such chances are incidental to all trades and businesses and there is no fundamental right guaranteeing them. A trader might be lucky in securing a particular market for his goods but if he loses that field because the particular customers for some reason or other do not choose to buy goods from him, it is not open to him to say that it was his fundamental right to have his old customers for ever.

On the one hand, therefore, there was nothing but a chance or prospect which the publishers had of having their books approved by the Government, on the ‘other hand the Government had the undisputed right to adopt any method of selection they liked and if they ultimately decided that after approving the text books they would purchase the copyright in them from the authors and others provided the latter were willing to transfer the same to the Government on certain terms, we fail to see what right of the publishers to carry on their trade or business is affected by it. Nobody is taking away the publishers’ right to print and publish any books they like and to offer them for sale but if they have no right that their books should be approved as text books by the Government it is immaterial so far as they are concerned whether the Government approves of text books submitted by other persons who are willing to sell their copyrights in the books to them, or choose to engage authors for the purpose of preparing the text books which they take up on themselves to print and publish The action of the Government-does not amount to an infraction of the fundamental right guaranteed by Article 19(1) (g) of the Constitution.”

Source:
Naraindas Indurkhya v. The State of Madhya Pradesh and Others
Date of Judgment: 18/03/1974
Bench: Bhagwati P N, Ray A N (CJ); Khanna H R; Matthew K K; Alagiriswami A
Citation: 1974 AIR 1232; 1974 SCR (3) 624; 1974 SCC (4) 788