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TMI Blog2003 (2) TMI 554X X X X Extracts X X X X X X X X Extracts X X X X ..... palities 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. Challenging such dismissal, appellant filed a writ petition bearing No. 3739 of 1988 before the Rajasthan High Court. Interim 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 relieved. Subsequently 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 regular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retirement nearly two years back and no final decision has been taken. These benefits cannot be denied to her. 5. Learned 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. Appellant cannot take advantage of the fortuitous circumstance that she continued for 14 years. She has, for reasons best know 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 crystallized into any enforceable right. She cannot claim lien over the post. 6. Before we advert to the legal issues, it is necessary to take note of Rules which undisputedly are applicable. Part VI of the Rules relates to Appointment, Probation and Confirmation. Power of appointments is indicated in Rule 26. Rule 27 deals with temporary or officiating appointments. It reads as follows: Temporary or officiating appointments - (1) [A vacancy in the service may be temporarily filled] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unicipal Council is required to be made by selection through the medium of the Service Commission. That undisputedly has not been done. 8. There 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. The extension orders operated only during the period of effectiveness. 9. The decisions relied upon by the learned counsel for the appellant were rendered in different factual background. A decision is an authority for what it decides and not for what could be inferred from the conclusion. 10. Unless the initial recruitment is regularized through a prescribed agency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me forward with an application expressing its difficulty to give effect to the orders of this Court. In that behalf, while appreciating the difficulties expressed by the Union in implementation, this Court gave further direction to implement to 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)ILLJ632SC 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 AIR1991SC295 , 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 14. What 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 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 foots in the common law. He said: The '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 princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 protectable. An expectation could be based on an express promise or representation or by established past action or settled conduct. The representation must be clear and unambiguous. It could be a representation to the individual or generally to class or persons. 17. The 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. v. 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 297 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of India AIR1993SC155 , 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& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 v. 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, v. (sic) 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 invoice any crystallized right. The protection of such legitimate expectation did not require the fulfilment 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 fulfil. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cepted 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 Iraq. It was observed that the doctrine of 'legitimate expectation' had both substantive and procedural aspects. This 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 the IRC exc. Preston's case (supra): Food Corporation's case (supra); Hindustan Development Corporations case (supra); the Australian Case in Quin (1990) 64 IJR 327: M.P. Oil Extraction's case (supra), CCSU's case (supra) and Navjyoti's case (supra) 28. On the 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. Mer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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