Allowed

Sant Ram v. State of Hp

Himachal Pradesh HC6 Sept 2022CWPOA/3562/2019

Case brief

AI extract

What is this about?

Petitioners working as daily wage labourers for over 16 years in government-funded watershed projects sought regularization and work charge status. The Court held that denying benefits to them while regularizing similarly situated employees violated Article 14, upholding their claim based on legitimate expectation.

What did the court decide?

Petitioners entitled to work charge status after eight years and regularization with consequential benefits at par with other State employees; monetary benefits granted for three years preceding filin

Sant Ram Vs State of Hp — Labour and Industrial Disputes | Himachal Pradesh HC (2022)

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REPORTABLE/NON-REPORTABLE

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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ON THE 6^th DAY OF SEPTEMBER, 2022

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BEFORE

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HON’BLE MR. JUSTICE SATYEN VAIDYA.

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CIVIL WRIT PETITION (ORIGINAL APPLICATION) No. 3562 OF 2019.

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Between:-

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1. SH. SANT RAM S/O LATE SH. DIWAKER, R/O VILLAGE DHUNDAN, POST OFFICE ALSINDI, TEHSIL KARSOG, DISTRICT MANDI, HIMACHAL PRADESH.

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2. SH. RAI SINGH S/O SH. DUNI CHAND, R/O VILLAGE AND POST OFFICE BARMA PAPRI, TEHSIL NAHAN, DISTRICT SIRMOUR, HIMACHAL PRADESH.

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…PETITIONERS

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(BY MR. DEVENDER K. SHARMA, ADVOCATE VICE MR. C.N. SINGH, ADVOCATE.)

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AND

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1. STATE OF HIMACHAL PRADESH THROUGH SECRETARY (FOREST) TO THE GOVT. OF HIMACHAL PRADESH, SHIMLA-171002.

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2. THE CHIEF CONSERVATOR OF FOREST, FOREST DEPARTMENT, TALLAND, DISTRICT, SHIMLA (HP).

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3. CHIEF PROJECT DIRECTOR, (H.P. MID HIMALAYAN WATERSHED DEVELOPMENT PROJECT) SOLAN, DISTRICT SOLAN, HIMACHAL PRADESH.

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4. DIVISIONAL FOREST OFFICER, FOREST DIVISION, NAHAN, DISTRICT SIRMAUR, (HP).

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5. REGIONAL PROJECT DIRECTOR, H.P. MID HIMALAYAN WATERSHED DEVELOPMENT PROJECT, BILASPUR, DISTRICT BILASPUR, HIMACHAL PRADESH.

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6. DIVISIONAL WATERSHED DEVELOPMENT OFFICER, H.P. MID HIMALAYAN WATERSHED DEVELOPMENT PROJECT, NAHAN, DISTRICT SIRMAUR, HIMACHAL PRADESH.

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….RESPONDENTS.

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(BY MR. DESH RAJ THAKUR, ADDL. A.G. WITH MR. NARENDER THAKUR, DY. A.G. AND MR. MANOJ BAGGA, ASST. A.G.)

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RESERVED ON: 29^th AUGUST, 2022. DECIDED ON: 6^th SEPTEMBER, 2022.

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This petition coming on for hearing this day, the

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Court, passed the following:

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O R D E R

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By way of instant petition, the petitioners have

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prayed for following substantive reliefs:-

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“(I) Issue a writ on Mandamus or other appropriate writ order or direction directing the respondents to grant the work charge status after completion of eight years of regular daily wage service i.e. 1.1.2005 and regularized the service of petitioners with all consequential benefits.

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(II) Issue a writ of Mandamus or other appropriate writ order or direction directing the respondents to regularise the service of petitioners after completion of eight years of regular daily wage service by observing the petitioner permanently in the department or in the project as done in the past.”

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The case as pleaded by the petitioners is that they were engaged on daily wage basis as Class-IV employees in the Integrated Watershed Development Project, Kandi (Hills) (for short “IWD Project”) in the year 1996. The project was part and parcel of the forest department. In the year 2005, IWD Project came to an end and a new project namely Mid Himalayan Watershed Development Project (for short “Mid Himalayan Project”) was started by the forest department. The services of the petitioners were continued in Mid Himalayan Project also.

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As per petitioners, some of the employees of

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the IWD Project were adjusted in various departments of the State Government and others including the petitioners were taken in the Mid Himalayan Project. Both the projects were funded by the forest department.

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Petitioners completed 240 days in each calendar year w.e.f. 1997 and became entitled for conferment of work charge status after completion of eight years of continuous service on daily wages.

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Petitioners further alleged that persons similarly situated to the petitioners in the above noted projects were regularized by respondent department/project authority by adopting pick and choose policy. Some of the persons were adjusted in Horticulture Department and others namely S/Sh. Shayam Lal, Yog Raj, Ram Krishan, Ram Lal, Devender Singh and Liyakat Ali etc., all Class IV employees were regularised either in the government departments or in the project itself. Petitioners also claimed

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regularization in parity with other projects such as Him Urja

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Project, Indo Germin Changer Project, Palmpur etc.,

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Grievance of the petitioners is that despite having continued for more than 16 years on daily wage basis neither work charge status was conferred upon them nor regularized. The inaction of respondents has been assailed as violative of Articles 14 and 16 of the Constitution of India. Petitioners claimed the work charge status as also regularization on the premise of legitimate expectations. Their further grievance is that similarly situated persons have been granted the benefit of regularization, whereas petitioners have been left out.

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Respondents have contested the claim of the petitioners. It is submitted that the projects were functioning with the financial aid of the World Bank in which the share of the government was 20% only. Such projects were functioning under a society registered under the name and style of Himachal Pradesh Natural Resources Management Society. The forest department is only a nodal

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agency, whereas Animal Husbandry Department, Horticulture, Agricultural and Rural Development Departments of the State were the line departments. It has further been submitted that there was provision in the Project Implementation Plan for deployment of regular staff from department of forest and line departments and also to engage staff on contract basis. There were no posts of daily wagers, however, depending upon requirement and there past performance, the intake of daily wagers of earlier project had been preferred in pursuance to a decision of the Executive Committee of the Society. Broadly, the claim of the petitioners has been contested on the ground that the petitioners were employees under a specific project and as such they cannot claim either the work charge status or regularization. The factum of adjustment of certain other employees by regularization, who were employed under the aforesaid projects has not been denied.

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I have heard Mr. Devender K. Sharma, Advocate, for the petitioners and Mr. Desh Raj Thakur,

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learned Additional Advocate General for the State and have also gone through the record carefully.

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As far as the factum of engagement of petitioners initially in IWD Project on daily wage w.e.f. 1996 and thereafter their continuation in Mid Himalayan Project after 2005 is not denied. It is also not denied that petitioners have worked continuously for 240 days in each calender year since 01.01.1997. Another fact which has been admitted by the respondents in their reply is that some of the persons initially employed in the aforesaid projects were adjusted and regularised either in the project or other departments. The respondents, however, have denied the existence of any right in favour of the petitioners to claim either work charge status or regularization solely on the ground that their job is co-terminus with the project.

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The questions, thus, arises as to whether the petitioners have acquired any right to claim the work charge status or/and regularization?

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As per the respondents, above noted projects were funded by World Bank to the extent of 80% and the

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share of the State Government in funding the project is to the extent of 20%. Be that as it may, the fact that these projects are government projects cannot be disputed.

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Petitioners have been working in the projects for more than 16 years continuously. They definitely must have lost the chances of employment elsewhere. The longevity of projects and their objective has not come to an end. It is not the case of the respondents that the objective for which these projects were started has been achieved.

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Once the projects have considerable long life and the respondents have allowed the petitioners to work on daily wage basis for more than 16 years, it does not lie in the mouth of the respondents to say now that the petitioners can be thrown on the road at their option. In a welfare State such plea may not be available to the State authorities. There cannot be any worst example of exploitation than the case in hand.

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Petitioners also contend to have acquired right

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to be conferred work charge status or/and regularization having entertained legitimate expectations. The claims based on “legitimate expectation” have been held to require reliance on representations and resulting detriment to the claimant in the same way as claims based on promissory estoppel. It is settled that for proving the claim on legitimate expectations the petitioners need not to prove pre-existing right in their favour.

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The Hon’ble Supreme Court in State of

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Jharkhand and others Vs Brahmputra Mettalics Ltd.

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2020 (13) SCALE 500 has expounded in detail the concept

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of legitimate expectation in the context of India law as under:

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“40. Under Indian Law, there is often a conflation between the doctrines of promissory estoppel and legitimate expectation. This has been described in Jain and Jain's well known treatise, Principles of Administrative Law^: :

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“At times, the expressions ‘legitimate expectation’ and ‘promissory estoppel’ are used interchangeably, but that is not a correct usage because ‘legitimate

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expectation’ is a concept much broader in scope than ‘promissory estoppel’.

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…

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A reading of the relevant Indian cases, however, exhibit some confusion of ideas. It seems that the judicial thinking has not as yet crystallised as regards the nature and scope of the doctrine. At times, it has been referred to as merely a procedural doctrine; at times, it has been treated interchangeably as promissory estoppel. However both these ideas are incorrect. As stated above, legitimate expectation is a substantive doctrine as well and has much broader scope than promissory estoppel.

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…

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In Punjab Communications Ltd. v. Union of India, the Supreme Court has observed in relation to the doctrine of legitimate expectation:

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“the doctrine of legitimate expectation in the substantive sense has been accepted as part of our law and that the decision maker can normally be compelled to give effect to his representation in regard to the expectation based on previous practice or past conduct unless some overriding public interest comes in the way Reliance must have been placed on the said representation and the representee must have thereby suffered detriment.”

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It is suggested that this formulation of the doctrine of legitimate expectation is not correct as it makes “legitimate expectation” practically synonymous with promissory estoppel. Legitimate expectation may arise

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from conduct of the authority; a promise is not always necessary for the purpose.”

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41. While this doctrinal confusion has the unfortunate consequence of making the law unclear, citizens have been the victims. Representations by public authorities need to be held to scrupulous standards, since citizens continue to live their lives based on the trust they repose in the State. In the commercial world also, certainty and consistency are essential to planning the affairs of business. When public authorities fail to adhere to their representations without providing an adequate reason to the citizens for this failure, it violates the trust reposed by citizens in the State. The generation of a business friendly climate for investment and trade is conditioned by the faith which can be reposed in government to fulfil the expectations which it generates. Professors Jain and Deshpande characterize the consequences of this doctrinal confusion in the following terms:

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“Thus, in India, the characterization of legitimate expectations is on a weaker footing, than in jurisdictions like UK where the courts are now willing to recognize the capacity of public law to absorb the moral values underlying the notion of estoppel in the light of the evolution of doctrines like LE [Legitimate Expectations] and abuse of power. If the Supreme Court of India has shown its creativity in transforming the notion of promissory estoppel from the limitations of private law, then it does not stand to reason as to why it should also not articulate and evolve the doctrine of LE for judicial review of resilement of administrative authorities from policies and longstanding practices. If such a notion of LE is adopted, then not only would the Court be able to do away with the artificial hierarchy between promissory estoppel and legitimate expectation, but, it would also be able to hold the administrative authorities to account on the footing of public law outside the zone of promises on a stronger and principled anvil. Presently, in the absence of a like doctrine to that of promissory estoppel outside the

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promissory zone, the administrative law adjudication of resilement of policies stands on a shaky public law foundation.”

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42. We shall therefore attempt to provide a cogent basis for the doctrine of legitimate expectation, which is not merely grounded on analogy with the doctrine of promissory estoppel. The need for this doctrine to have an independent existence was articulated by Justice Frankfurter of the United State Supreme Court in Vitarelli v. Seton:

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“An executive agency must be rigorously held to the standards by which it professes its action to be judged. Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword.”

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43. However, before we do this, it is important to clarify the understanding of the doctrine of legitimate expectation in previous judgments of this Court. In National Buildings Construction Corporation v. S. Raghunathan (“National Buildings Construction Corpn.”), a three Judge bench of this Court, speaking through Justice S. Saghir Ahmad, held that:

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“18. The doctrine of “legitimate expectation” has its genesis in the field of administrative law. The Government and its departments, in administering the affairs of the country, are expected to honour their statements of policy or intention and treat the citizens with full personal consideration without any iota of abuse of discretion. The policy statements cannot be disregarded unfairly or applied selectively. Unfairness in the form of unreasonableness is akin to violation of natural justice. It was in this context that

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the doctrine of “legitimate expectation” was evolved which has today become a source of substantive as well as procedural rights. But claims based on “legitimate expectation” have been held to require reliance on representations and resulting detriment to the claimant in the same way as claims based on promissory estoppel.”

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(emphasis supplied)

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44. However, it is important to note that this observation was made by this Court while discussing the ambit of the doctrine of legitimate expectation under English Law, as it stood then. As we have discussed earlier, there was a substantial conflation or overlap between the doctrines of legitimate expectation and promissory estoppel even under English Law since the former was often invoked as being analogous to the latter. However, since then and since the judgment of this Court in National Buildings Construction Corporation (supra), the English Law in relation to the doctrine of legitimate expectation has evolved. More specifically, it has actively tried to separate the two doctrines and to situate the doctrine of legitimate expectations on a broader footing. In Regina (Reprotech (Pebsham) Ltd) v. East Sussex County Council³⁰ , the House of Lords has held thus:

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“33 In any case, I think that it is unhelpful to introduce private law concepts of estoppel into planning law. As Lord Scarman pointed out in Newbury District Council v. Secretary of State for the Environment [1981] A.C. 578, 616, estoppels bind individuals on the ground that it would be unconscionable for them to deny what they have represented or agreed. But these concepts of private law should not be extended into “the public law of planning control, which binds everyone”. (See also Dyson J in R v. Leicester City Council, Ex p Powergen UK Ltd. [2000] JPL 629, 637.)

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34 There is of course an analogy between a private law estoppel and the public law concept of a legitimate

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expectation created by a public authority, the denial of which may amount to an abuse of power… But it is no more than an analogy because remedies against public authorities also have to take into account the interests of the general public which the authority exists to promote. Public law can also take into account the hierarchy of individual rights which exist under the Human Rights Act 1998, so that, for example, the individual's right to a home is accorded a high degree of protection (see Coughlan's case, at pp 254-255) while ordinary property rights are in general far more limited by considerations of public interest : see R ( Alconbury Developments Ltd) v. Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389.

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35 It is true that in early cases such as the Wells case [1967] 1 WLR 1000 and Lever Finance Ltd. v. Westminster (City) London Borough Council [1971] 1 Q.B. 222, Lord Denning MR used the language of estoppel in relation to planning law. At that time the public law concepts of abuse of power and legitimate expectation were very undeveloped and no doubt the analogy of estoppel seemed useful…..It seems to me that in this area, public law has already absorbed whatever is useful from the moral values which underlie the private law concept of estoppel and the time has come for it to stand upon its own two feet.”

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(emphasis supplied)

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45. In a concurring opinion in Monnet Ispat and Energy Ltd. v. Union of India (“Monnet Ispat”), Justice H.L. Gokhale highlighted the different considerations that underlie the doctrines of promissory estoppel and legitimate expectation. The learned judge held that for the application of the doctrine of promissory estoppel, there has to be a promise, based on which the promisee has acted to its prejudice. In contrast, while applying the doctrine of legitimate expectation, the primary considerations are reasonableness and fairness of the State action. He observed thus:

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“Promissory Estoppel and Legitimate Expectations

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As we have seen earlier, for invoking the principle of promissory estoppel there has to be a promise, and on that basis the party concerned must have acted to its prejudice. In the instant case it was only a proposal, and it was very much made clear that it was to be approved by the Central Government, prior whereto it could not be construed as containing a promise. Besides, equity cannot be used against a statutory provision or notification.

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290…..In any case, in the absence of any promise, the Appellants including Aadhunik cannot claim promissory estoppel in the teeth of the notifications issued under the relevant statutory powers. Alternatively, the Appellants are trying to make a case under the doctrine of legitimate expectations. The basis of this doctrine is in reasonableness and fairness. However, it can also not be invoked where the decision of the public authority is founded in a provision of law, and is in consonance with public interest.”

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(emphasis supplied)

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46. In Union of India v. Lt. Col. P.K. Choudhary, speaking through Chief Justice T.S. Thakur, the Court discussed the decision in Monnet Ispat (supra) and noted its reliance on the judgment in Attorney General for New South Wales v. Quinn. It then observed:

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“This Court went on to hold that if denial of legitimate expectation in a given case amounts to denial of a right that is guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power or in violation of principles of natural justice, the same can be questioned on the wellknown grounds attracting Article 14 of the Constitution but a claim based on mere legitimate expectation without

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anything more cannot ipso facto give a right to invoke these principles.”

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47. Thus, the Court held that the doctrine of legitimate expectation cannot be claimed as a right in itself, but can be used only when the denial of a legitimate expectation leads to the violation of Article 14 of the Constitution.

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48. As regards the relationship between Article 14 and the doctrine of legitimate expectation, a three judge Bench in Food Corporation of India v. Kamdhenu Cattle Feed Industries, speaking through Justice J.S. Verma, held thus:

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“7. In contractual sphere as in all other State actions, the State and all its instrumentalities have to conform to Article 14 of the Constitution of which non-arbitrariness is a significant facet. There is no unfettered discretion in public law : A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is ‘fairplay in action’. Due observance of this obligation as a part of good administration raises a reasonable or legitimate expectation in every citizen to be treated fairly in his interaction with the State and its instrumentalities, with this element forming a necessary component of the decision-making process in all State actions. To satisfy this requirement of non-arbitrariness in a State action, it is, therefore, necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision or else that unfairness in the exercise of the power may amount to an abuse or excess of power apart from affecting the bona fides of the decision in a given case. The decision so made would be exposed to challenge on the ground of arbitrariness. Rule of law does not completely eliminate discretion in the exercise of power, as it is unrealistic, but provides for control of its exercise by judicial review.

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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 non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. 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 public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial 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.”

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(emphasis supplied)

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49. More recently, in NOIDA Entrepreneurs Assn. v. NOIDA, a two-judge bench of this Court, speaking through Justice B.S. Chauhan, elaborated on this relationship in the following terms:

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“39. State actions are required to be non-arbitrary and justified on the touchstone of Article 14 of the Constitution. Action of the State or its instrumentality must be in conformity with some principle which meets the test of reason and relevance. Functioning of a “democratic form of Government demands equality and absence of arbitrariness and discrimination”. The rule of law prohibits arbitrary action and commands the authority concerned to act in accordance with law.

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Every action of the State or its instrumentalities should neither be suggestive of discrimination, nor even apparently give an impression of bias, favouritism and nepotism. If a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law.

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…

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Power vested by the State in a public authority should be viewed as a trust coupled with duty to be exercised in larger public and social interest. Power is to be exercised strictly adhering to the statutory provisions and fact situation of a case. “Public authorities cannot play fast and loose with the powers vested in them.” A decision taken in an arbitrary manner contradicts the principle of legitimate expectation. An authority is under a legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for which power stood conferred. In this context, “in good faith” means “for legitimate reasons”. It must be exercised bona fide for the purpose and for none other...]”

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(emphasis supplied)

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50. As such, we can see that the doctrine of substantive legitimate expectation is one of the ways in which the guarantee of non-arbitrariness enshrined under Article 14 finds concrete expression.”

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Adverting again to the facts of the instant petition, the factual position is more or less admitted. The initial recruitment of the petitioners on daily wage basis,

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longevity of their continuous service, considerations and decisions at the end of the respondents to grant similarly situated persons continuity of service either by merger or regularization are the facts which admittedly have taken place. The respondents have not specifically denied that the similarly situated person in other government departments were not conferred with the benefit of work charge status and regularization after the policies were framed in that respect from time to time. Merely because the petitioners were employed under project, the denial of the similar benefits to them is wholly unjustifiable.

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Indisputably, the State Government has resorted to the mode of recruitment through contract employment since long. It also cannot be denied that the State Government from time to time has formulated policies whereunder the employees initially employed on daily wage basis were conferred work charge status in the first instance and then regularized.

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Initial recruitment of the petitioners was though under specific project, nevertheless, the project was for a specific purpose and object and was an initiative of the government itself. Merely, the funding of project to the larger extent was by the World Bank, it cannot be said that the project was alien to the State Government as it was under the aegis of State Government that the projects have worked.

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Once the respondents had regularized the services of various other employees initially employed under the projects, the petitioners could not be singled out to be discriminated. The State Government had regularized the services of the employees working in special projects like Sarv Siksha Abhiyan, subsequently converted into District Primary Education Programme and Rashtriya Madhayamik Siksha Abhiyan and Samagar Siksha Abhiyan etc.

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The State Government has to act as a model employer in a welfare State. It cannot have different yardstick for different persons. Conceptually, the executive

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authorities have the onerous duty to work for the benefit of the public at large. As far as the mode and manner in which the Government has to achieve its purpose is to be chosen by the Government itself, however, with caveat that the same cannot be irrational, unreasonable or arbitrary. In a State where rule of law prevails, the Government is no exception. Right of equality being one of the fundamental traits of the Constitution, the same cannot be denied at the whims and fencies of the authorities.

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Thus in view of the above discussion, there is

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no hesitation to hold that the petitioners have acquired a right for grant of work charge status or/and regularization by application of principle of legitimate expectations and such rights are to be conferred upon them on the same parameter on which other employees of the State government have been conferred with such benefits.

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In result, the petition is allowed and the respondents are directed to grant the work charge status to the petitioners on completion of eight years of continuous

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daily wage service commencing from 01.01.1997 and further to regularize their services with all consequential benefits at par with similarly situated persons in other departments of the State government. However, it is clarified that the petitioners are held entitled for monetary benefits only for three years from the date immediately preceding the date of filing of the petition. Petition is accordingly disposed of, so also, the pending applications, if any.

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6^th September, 2022 (Satyen Vaidya) (jai) Judge

Sant Ram v. State of Hp

Case brief

What is this about?

What did the court decide?

Sant Ram v. State of Hp

Case brief

What is this about?

What did the court decide?

What the court decided

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