Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4254 OF 2022
(Arising out of S.L.P. (C.) No. 30438 of 2019)
THE STATE OF WEST BENGAL & ORS. …APPELLANT(S)
VERSUS
GITASHREE DUTTA (DEY) …RESPONDENT(S)
J U D G M E N T
S. ABDUL NAZEER, J.
Leave granted.
2. This appeal is directed against the judgment dated 06.03.2019
in M.A.T No.1341 of 2018 whereby the Division Bench of the High
Court of Calcutta has allowed the appeal and set aside the order of
the learned Single Judge in Writ Petition No. 661(W) of 2017. The
Signature Not Verified
Digitally signed by
Charanjeet kaur
Date: 2022.05.24
12:50:12 IST
Reason:
question for consideration in this appeal is whether the State of
West Bengal was justified in cancelling the declaration of FPS (Fair
1
Price Shop) vacancies in view of the implementation of National
Food Security Act, 2013 (for short ‘2013 Act’).
3. Shorn of details, by a Gazette Notification dated 30.01.2014,
the vacancy for FPS dealership was declared in the District of
Alipurduar. The respondent participated in the selection process
and was recommended as a first priority candidate in respect of the
said vacancy. However, no final order appointing the respondent
was issued by the State Authority. While the application of the
respondent was pending, a notification dated 17.08.2015 was
issued by the Food and Supplies Department of the State of West
Bengal cancelling the declaration of vacancies. This notification
was issued in the light of implementation of the 2013 Act, which is
as under:
“In view of the implementation of the National Food Secu
rity Act, 2013 in the State, the Governor is pleased to
cancel with immediate effect the FPS vacancies notified
vide Memo. Nos. 2480/FS/O/Sectt./CSS/7S16/2013
dated 26.08.2013, 3062FS/Sectt/Food/4M04/2013
dated 06.11.2013, 152FS/Sectt/Food/4M16/2013
dated 20.01.2014, 540FS/Sectt/Food/4M16/2013
dated 04.03.2014 and G295/FS/Sectt/Food/6F
19/2009 dated 08.01.2015. No further action will be
taken in connection with applications received against
such vacancies.”
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4. Being aggrieved by the cancellation of declaration of vacancies,
the respondent moved an application under Article 226 of the
Constitution before the High Court of Calcutta inter alia praying for
quashing of the Notification dated 17.08.2015. The State of West
Bengal contested the writ petition by filing affidavit in opposition
and the said writ petition was dismissed by the learned Single
Judge. The said judgment of the learned Single Judge was assailed
by the respondent before the Division bench of the Calcutta High
Court. This intra Court appeal along with three other matters were
taken up by the Division Bench simultaneously and decided finally
by a judgment dated 06.03.2019. The Division Bench while
deciding the said appeals held that the State of West Bengal has
failed to justify the decision to recall the vacancies and that it has
acted in an arbitrary and unreasonable manner, and hence,
quashed the Notification dated 17.08.2015. As noticed above, the
State of West Bengal and its functionaries have challenged the
legality and correctness of the said judgment in this appeal.
5. We have heard the learned counsel for the parties.
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6. The contention of the learned counsel for the appellants is that
the Notification dated 17.08.2015 was issued in public interest in
view of the 2013 Act. Therefore, the plea of legitimate expectation of
the respondent is without any basis. It is argued that there is no
estoppel against the statute. It is further argued that the Division
Bench failed to appreciate that due to the implementation of the
2013 Act, the number of beneficiaries has been reduced in the State
at that time after mapping of ration card holders, thus it was no
more viable to create or go through with the process of filling up of
vacancies. It is urged that the selection shown pursuant to the
Notice dated 30.01.2014 does not vest the respondent with any
justiciable right to agitate before the Writ Court.
7. However, the learned counsel for the respondent while
supporting the judgment of the Division Bench submits that the
respondent had participated in the selection process and became
successful thereat. The respondent altered the material position to
her prejudice, on the basis of the directions issued by the State in
terms of the said notification. The justification for cancellation given
in the impugned notification dated 17.08.2015 is the coming into
effect of the 2013 Act. The said Act was in force prior to the
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notification dated 30.01.2014. Therefore, the Authorities are
deemed to have taken into consideration the parameters laid down
in the 2013 Act while declaring vacancy on 30.01.2014. At this
stage, the Authorities cannot resile from their declared position.
8. We have carefully considered the submission of the learned
counsel made at the bar and perused the materials placed on
record.
9. The respondent has contended that she has legitimate
expectation to be treated fairly even if she may not have a vested
right in getting the appointment. It is the duty and the obligation of
the State to act fairly and not arbitrarily. A decision not to fill up
the vacancies must be bona fide and for justifiable and appropriate
reasons.
10. The doctrine of “legitimate expectation” has been developed in
the context of principles of natural justice. ‘Legitimate expectation’
is a public law right whereas ‘promissory estoppel’ is a private law
right. The doctrine of legitimate expectation in public law is based
on the principle of fairness and nonarbitrariness in governmental
actions.
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11. However, the doctrine of legitimate expectation ordinarily
would not have any application when the legislature has enacted
the statute. Further, the legitimate expectation cannot prevail over
a policy introduced by the Government, which does not suffer from
any perversity, unfairness or unreasonableness or which does not
violate any fundamental or other enforceable rights vested in the
respondent. When the decision of public body is in conformity with
law or is in public interest, the plea of legitimate expectation cannot
be sustained. In
Punjab Communications Ltd. v. Union of India
1
and Ors. this Court held that policy decision creating the
legitimate expectation which is normally binding on the decision
maker, can be changed by the decision maker in overriding public
interest. It was held as under:
“ 37. The above survey of cases shows that the doc
trine of legitimate expectation in the substantive
sense has been accepted as part of our law and that
the decisionmaker can normally be compelled to
give effect to his representation in regard to the ex
pectation based on previous practice or past con
duct unless some overriding public interest comes
in the way…….”
1 1999 (4) SCC 727
6
12. In Sethi Auto Service Station and Another v. Delhi
2
Development Authority and Others , this Court after referring to
various precedents observed as under:
“32. An examination of the aforenoted few decisions
shows that the golden thread running through all
these decisions is that a case for applicability of the
doctrine of legitimate expectation, now accepted in
the subjective sense as part of our legal jurispru
dence, arises when an administrative body by rea
son of a representation or by past practice or con
duct aroused an expectation which it would be
within its powers to fulfil unless some overriding
public interest comes in the way. However, a person
who bases his claim on the doctrine of legitimate ex
pectation, in the first instance, has to satisfy that he
has relied on the said representation and the denial
of that expectation has worked to his detriment. The
Court could interfere only if the decision taken by
the authority was found to be arbitrary, unreason
able or in gross abuse of power or in violation of
principles of natural justice and not taken in public
interest. But a claim based on mere legitimate ex
pectation without anything more cannot ipso facto
give a right to invoke these principles.
It is well settled that the concept of legitimate
33.
expectation has no role to play where the State ac
tion is as a public policy or in the public interest
unless the action taken amounts to an abuse of
power. The court must not usurp the discretion of
the public authority which is empowered to take the
decisions under law and the court is expected to ap
ply an objective standard which leaves to the decid
ing authority the full range of choice which the leg
islature is presumed to have intended. Even in a
2 (2009) 1 SCC 180
7
case where the decision is left entirely to the discre
tion of the deciding authority without any such legal
bounds and if the decision is taken fairly and objec
tively, the court will not interfere on the ground of
procedural fairness to a person whose interest
based on legitimate expectation might be affected.
Therefore, a legitimate expectation can at the most
be one of the grounds which may give rise to judi
cial review but the granting of relief is very much
limited. [Vide: Union of India v. Hindustan Devel
opment Corporation – (1993) 3 SCC 499] ”
3
13. In Union of India v. Lt. Col. P.K. Choudhary , this Court
held that the legitimate expectation, as an argument, cannot prevail
over the policy introduced by the Government which does not suffer
from any perversity, unfairness or unreasonableness or which does
not violate any fundamental or other enforceable rights vested in
the respondents.
14. There is a necessary interplay between the plea of legitimate
expectation and Article 14. For a decision to be nonarbitrary, the
reasonable/legitimate expectations of the claimant have to be
considered. However, to decide whether the expectation of the
claimant is reasonable or legitimate in the context, is a question of
fact in each case. Whenever the question arises, it is to be
determined not according to the claimant’s perception but in larger
3 2016 (4) SCC 236
8
public interest wherein other more important considerations may
outweigh what would otherwise have been the legitimate
expectation of the claimant. In
Food Corporation of India v. M/s
4
Kamdhenu Cattle Feed Industries , this Court has pointed out as
under:
“8 . The mere reasonable or legitimate expectation of
a citizen, in such a situation, may not by itself be a
distinct enforceable right, but failure to consider
and give due weight to it may render the decision
arbitrary, and this is how the requirement of due
consideration of a legitimate expectation forms part
of the principle of nonarbitrariness, a necessary
concomitant of the rule of law. Every legitimate ex
pectation is a relevant factor requiring due consider
ation in a fair decisionmaking process. Whether the
expectation of the claimant is reasonable or legiti
mate in the context is a question of fact in each
case. Whenever the question arises, it is to be deter
mined not according to the claimant’s perception
but in larger public interest wherein other more im
portant considerations may outweigh what would
otherwise have been the legitimate expectation of
the claimant. A bona fide decision of the public au
thority reached in this manner would satisfy the re
quirement of nonarbitrariness and withstand judi
cial scrutiny. The doctrine of legitimate expectation
gets assimilated in the rule of law and operates in
our legal system in this manner and to this extent.”
4 (1993) 1 SCC 71
9
15. Bearing in mind the above legal principles, let us examine the
present case. The 2013 Act was enacted to provide for food and
nutritional security in human life cycle approach, by ensuring
access to adequate quantity of quality food at affordable prices to
people to live a life with dignity and for matters connected therewith
or incidental thereto. It is beneficial to refer to the ‘Introduction’ to
the 2013 Act in order to understand the scope and purpose of the
Act:
“INTRODUCTION
Eradicating extreme poverty and hunger is one of
the goals under the Millennium Development Goals of the
United Nations. It casts responsibilities on all State
parties to recognize the right of everyone to adequate
food. Food security means availability of sufficient
foodgrains to meet the domestic demand as well as
access, at the individual level, to adequate quantities of
food at affordable prices.
Providing adequate food has always been focus of
the Government’s planning and policy. However, this
legislation marks a paradigm shift in addressing the
problem of food security from the current welfare
approach to a right based approach. This legislation
would confer legal rights on eligible beneficiaries to
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receive entitled quantities of foodgrains at highly
subsidized prices. Besides, it also confers legal rights on
women and children and other special groups such as
destitute, homeless, disaster and emergency affected
persons and persons living in starvation to receive meal
free of charge or at affordable price.”
| 16. The ‘Statement of Objects and Reasons’ of 2013 Act, inter alia,<br>states as follows: | ||
|---|---|---|
| “(i) progressively undertake necessary reforms<br>by the Central and State Governments in the<br>Targeted Public Distribution System in consonance<br>with the role envisaged for them in the proposed<br>legislation.” | ||
17. Section 3 of the 2013 Act provides for the right to receive
foodgrains at subsidized prices and Section 4 provides for
nutritional support to pregnant women and lactating mothers.
Similarly, Section 5 provides for the nutritional support to the
children. Section 6 provides for prevention and management of
child malnutrition.
18. Section 12 reposes a duty on the State to progressively
undertake reforms necessary in the Targeted Public Distribution
11
System and the same should be in consonance with the Act. The
same is reproduced as under:
“12. (1) The Central and State Governments shall
endeavour to progressively undertake necessary reforms
in the Targeted Public Distribution System in
consonance with the role envisaged for them in this Act.”
Further under Section 12(2)(e), the Act envisages power of the
State to undertake various steps in furtherance to reform the
system, which shall, , include that the state can give
inter alia
preference to any public bodies/panchayats/SHGs/cooperative
societies etc. The same has been reproduced herein :
“12. (2) The reforms shall, inter alia, include—
(e) preference to public institutions or public bodies such
as Panchayats, selfhelp groups, cooperatives, in
licensing of fair price shops and management of fair price
shops by women or their collectives;”
Subsection (23) of Section 2 defines the expression “Targeted
Public Distribution System” is as under:
“Targeted Public Distribution System” means the system
for distribution of essential commodities to the ration
card holders through fair price shops”.
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19. It is clear from the different provisions of the 2013 Act that
there is a paradigm shift in addressing the problem of food security
from the current welfare approach to a right based approach. The
Act confers legal right on the eligible beneficiaries to get the
essential commodities through fair price shops at a highly
subsidized price. The Act also envisages reforms necessary for
distribution of essential commodities to the ration card holders.
5
20. This Court in Swaraj Abhiyan v. Union of India & Ors. has
held that the 2013 Act is a social welfare legislation and its
provisions are mandatory. It is held thus:
| “42. The provisions in the NFS Act mentioned<br>above are mandatory and yet almost four years<br>down the line they have not been fully implemented<br>by some States. | ||
|---|---|---|
| XXXXX | ||
| 44. These questions have been troubling us since<br>this matter was listed on 24102016 subsequent to<br>our order dated 1352016 in Swaraj Abhiyan<br>(II) [Swaraj Abhiyan (2) v. Union of India, (2016) 7<br>SCC 498 : (2016) 7 SCC 534 : AIR 2016 SC 2953] .<br>We had expected the State Governments concerned<br>to implement the provisions of the NFS Act with all<br>due seriousness since it is a social welfare legisla<br>tion enacted by Parliament.” | ||
21. In the present case, upon scrutiny, it was found that
declaration of vacancies vide notification dated 30.01.2014 was not
5 (2018) 12 SCC 170
13
in conformity with the 2013 Act and thus, cancellation of the said
notification was necessary for the implementation of the provisions
of the said Act. In view of above, the plea of legitimate expectation
of the respondent is without having any basis.
22. We are also of the view that, in the instant case, no promise of
any kind was made to continue the existing policy on the part of the
State. Furthermore, Clause 4 of the Conditions of the Notification
dated 30.01.2014, calling for vacancies, provided that the State
could reject applications without ascertaining any reasons. T he
agency which initiated the selection process is entitled to recall it
upon reasonable grounds. Participation in the selection process or
being a selected candidate does not vest such candidate with the
right to direct the Authorities to give him appointment. Having
regard to the above, it cannot be said that the State has acted with
material irregularity in issuing the impugned notification dated
17.08.2015.
23. This Court in
Sarkari Sasta Anaj Vikreta Sangh v. State of
6
M.P. has held that no person can claim a right to run a fair price
shop as an agent of the government and he could only have a right
6 (1981) 4 SCC 471
14
to be considered for appointment. In this context, this Court
observed as follows:
“11. ……………… No one could claim a right to run
a fair price shop as an agent of the Government. All
that he could claim was a right to be considered to
be appointment to run a fair price shop. If the
Government took a policy decision to prefer
cooperative societies for appointment as their
agents to run fair price shops, in the light of the
frustrating and unfortunate experience gathered in
the last two decades, we do not see how we can
possibly hold that there was any discrimination.”
24. The appellant has contended that the State Government was
reposed with a responsibility for implementing the 2013 Act which,
inter alia , entrusted a responsibility to reform the existing Targeted
Distribution System. The respondent in an unfinalized selection
process has no vested right in his favour to seek continuation of the
notified vacancies. Hence, by recalling the vacancy notification, the
State endeavored to enforce the statute and that there can be no
estoppel against a statute.
25. It is trite law that there can be no estoppel against a statute.
This Court has settled this principle in a catena of judgments,
15
starting as early as 1955. A Constitution Bench of this Court in
7
held as follows:
Thakur Amar Singhji v. State of Rajasthan
“….We are unable on these facts to see any basis for
a plea of estoppel. The letter dated 28.11.1953 was
not addressed to the petitioner; nor does it amount
to any assurance or undertaking not to resume the
jagir. And even if such assurance had been given, it
would certainly not have been binding on the
Government, because its powers of resumption are
regulated by the statute, and must be exercised in
accordance with its provisions. The Act confers no
authority on the Government to grant exemption
from resumption, and an undertaking not to resume
will be invalid, and there can be no estoppel against
a statue”.
26. A Constitution of Bench of this Court in Electronics Corpn.
8
of India Ltd. v. Secy. Revenue Deptt., Govt. of A.P. also upheld
this principle and held as follows:
“21. There are two short answers to this contention.
In the first place, there can be no estoppel against a
statute…….”
27. This Court in A.P. Dairy Development Corpn. Federation v.
9
, has held that when the actions of the
B Narasimha Reddy
7 (1955) 2 SCR 303
8 (1999) 4 SCC 458
9 (2011) 9 SCC 286
16
government are not in conformity with law, the doctrine of estoppel
would not apply. This Court observed:
“40.….The State, being a continuing body can be
stopped from changing its stand in a given case, but
where after holding enquiry it came to the conclu
sion that action was not in conformity with law, the
doctrine of estoppel would not apply.”
28. It is clear that this Court in several judgments has also upheld
that the plea of promissory estoppel would stand negated when the
mandate of a statute is followed. This Court in A.P. Pollution Con
10
, held as under:
trol Board II v. Prof. M.V. Nayudu & ors.
“69. The learned Appellate Authority erred in
thinking that because of the approval of plan by the
Panchayat, or conversion of land use by the
Collector or grant of letter of intent by the Central
Government, a case for applying principle of
“promissory estoppel” applied to the facts of this
case. There could be no estoppel against the
statute….”
29. In the instant case, we have already noticed that the
appellants were reposed with a responsibility of implementing the
mandate of the 2013 Act, and more importantly, to bring about
reforms in the existing Public Distribution System as stipulated
under Section 12 of the said Act. The respondent herein being a
10 (2001) 2 SCC 62
17
mere applicant in an unfinalised selection process, has no vested
right in his favour to seek continuation of the notified vacancies,
when by recalling the vacancy notification, the appellants
endeavored to enforce the statute. Moreover, as discussed above,
there can be no estoppel against a statute. Even going by the
observations of the Division Bench in the impugned judgment, that
the State was aware of the 2013 Act while issuing the 30.01.2014
vacancy notification, the said notification cannot be sustained, be
ing contrary to the mandate of the National Food Security Act,
2013, more importantly of Section 12 thereof as held in
A.P. Dairy
Development Corpn. Federation (supra).
30. There is also no merit in the contention of the respondent that
the Authorities have taken into consideration the parameters laid
down in 2013 Act while declaring the vacancies on 30.01.2014.
There is nothing on record to suggest that when the vacancies were
declared on 30.01.2014, the Authorities kept in mind the provision
of the 2013 Act. The 2013 Act came into effect on 10.09.2013. The
vacancy notice is dated 30.01.2014. The vacancy notice does not
refer to the provisions of 2013 Act. In our view, it would be
18
improper to infer that the provisions of 2013 Act were kept in mind
while issuing vacancy notice dated 30.01.2014. The respondent
has not made out a case of arbitrariness or unreasonableness or
. In our view, the Division Bench ought to have held that
mala fide
the notification dated 17.08.2015 was issued to keep the public
distribution system in tune with the mandate of 2013 Act, more
specifically Section 12 which provides for reform in the public
distribution system.
31. Resultantly, the appeal succeeds and it is accordingly allowed.
The judgment of the Division Bench impugned herein is set aside
and the judgment of the learned Single Judge is restored. Parties
are directed to bear their respective costs.
32. All pending applications also stand disposed of.
…………………………………J.
(S. ABDUL NAZEER)
…………………………………J.
(VIKRAM NATH)
New Delhi;
April 20, 2022.
19
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4255 OF 2022
(Arising out of S.L.P. (C.) No. 30439 of 2019)
THE STATE OF WEST BENGAL & ORS. …APPELLANT(S)
VERSUS
PRADIP GUHA …RESPONDENT(S)
WITH
CIVIL APPEAL NO. 4257 OF 2022
(Arising out of S.L.P. (C.) No. 740 of 2020)
THE STATE OF WEST BENGAL & ORS. …APPELLANT(S)
VERSUS
KAMAL SARKAR …RESPONDENT(S)
WITH
CIVIL APPEAL NO.4256 OF 2022
(Arising out of S.L.P. (C.) No. 739 of 2020)
THE STATE OF WEST BENGAL & ORS. …APPELLANT(S)
VERSUS
ASIM SARKAR …RESPONDENT(S)
1
O R D E R
Leave granted.
(2) In terms of the order passed by this Court in Civil Appeal
No. 4254 of 2022 (Arising out of SLP(C)No.30438 of 2019)
th
dated 20 April, 2022, these appeals are also allowed and the
judgment(s) of the Division Bench impugned herein is set aside
and the judgment(s) of the learned Single Judge dated
24.08.2018 is restored. Parties are directed to bear their
respective costs.
All pending applications also stand disposed of.
…………………………………J.
(S. ABDUL NAZEER)
…………………………………J.
(VIKRAM NATH)
New Delhi;
April 20, 2022.
2