(CIVIL APPELLATE JURISDICTION)
|Mr. A.B.M. Khairul Haque, CJ.
Mr.Md.Muzammel Hossain. J
Mr. S. K. Sinha, J..
1st and 2nd February, 2011
|Government ofBangladeshand others.
(In All the Appeals)
Md. Jahangir alam and others.
Abdul Malek and others.
Md. Abu Taher Bhuiyan and others.
Md. Nazmul Ahsan and others.
Constitution of Bangladesh, 1972
Legitimate expectation of work-charged employ-yees of PWD to be transferred to regular establishment in phases has become a right – Following the principles enunciated in the Memo dated 28.03.1969 and other subsequent memo-randums till 1987, 6,654 work-charged employ-yees were transferred in phases to regular establishment at the rate of 50% of the leftover work-charged employees. There are still 1906 work-charged employees left in the PWD and the authorities of the PWD sent a proposal to the Ministry of Establishment for regular-isation of 951 work-charged employees which is 50% of the left-over 1906 work-charged employ-yees. This step was taken in accordance with the long standing practice based on the various office-Memorandums since 1969. But in the meantime, the Memorandum dated 31.10.2006 made a departure from the earlier practice and intro-duced a new criteria, such as, that transfer of 50% of the total work-charged employees to the regular establishment, can be done once only. As a matter of public law, it is expected that the concerned authority shall always act reason-ably in the circumstances and not arbitrarily. It must observe the rules of natural justice and act fairly in carrying out their decision making process. An expectation may be crystallized into a reality from the representations expre-ssed on behalf of the concerned authority or from their consistent conduct and regular practice which is expected to continue unab-ated.
The authorities cannot abruptly without any rhyme or reason, change their consistent policy adopted since 1969 till the year 2002. The public interest demands that after putting so many years of service, they should be transf-erred into regular establishment. No reason was assigned for introducing such a new condi-tion. It is rather unfair on the part of the said committee to introduce such a new condition in breach of a long standing and consistent practice to regularise the rest of the work-charged employees in phases. This unfair conduct on the part of the committee tantam-ounts to misuse of power. It is apparent that because of the various memorandums and specially due to the decision of the standing committee on 17.12.1987, an expectation for regularisation in the service arose in the minds of the work-charged employees, employed before 23.01.1986. Their such expectation was crystalised into a legitimate one, giving rise to a right, because of the actual regularisation of 6,654 work-charged employees since 1987 till 2002 in phases, in almost every year. The concerned authorities can not now deviate from their consistent policy pursued since 1969, specially when there is no overwhelming reason to do otherwise. The introduction of a new condition, by the memo dated 31.10.2006 under the circumstances, is not only unfair but it is arbitrary also. It cannot be allowed to stand.
…(59 to 61, 63, 67 and 69 to 71)
Evidence Act (I of 1872)
If a public authority promises to follow certain procedure and which is actually acted upon, for years together, it should follow the said proce-dure, unless of course, some legal impediment has been created against it. …(61)
Schmidt V. Secretary of State for Home Affairs (1969) 2 Ch 149; O’Reilly V. Mackman (1983)2 AC 237; Attorney General of Hong Kong V. Ng Yuen Shiu (1983)2 AC 629; Waite V. Government Communications Headquarters (1983) 2 AC 714; Council of Civil Service Unions V. Minister for the Civil Service (1985) AC 374; Regina V. North and East Devon Health Authority, ex parte Coughlan (2001) QB 213; Food Corporation of India v. M/S Kamdhenu cattle Feed Industries AIR 1993 SC 1601; Bangladesh Soya-Protein Project Ltd. V. Secretary, Ministry of Disaster Mana-gement and Relief 22 BLD (2000)HCD 378; The Chairman, Bangladesh Textile Mills Corporation V. Nasir Ahmed Chow-dhury 22 BLD (AD) (2002) 199; Golam Mostafa V. Bangladesh 2007 (XV) BLT (HCD) 128; Reg. V. Liverpool Corporation ex-parte Liverpool Taxi Fleet Operators’ Association (1972) 2 QB 299, Hughes V. D.H.S.S (1985) 1 AC 776, Findlay V. Secretary of State (1984) 3 All ER 801, Navjyoti Coo-Group Housing Society V. Union of India AIR 1993 SC 155, Union of India V. Hindustan Development Corporation AIR 1994 SC 988, Attorney General for New South Wales V. Quin (1990) 64 Australian LJR 327, Madras City Wine Merchants’ Association V. State of T.N. (1994 5 SCC 509, Punjab Communic-ations Ltd. V. Union of Indio AIR 1999 SC 1813, Managing Director, Dhaka WASA V. Superior Buildings and Engineers Ltd. 51 DLR AD 1999. R.V. Secretary of State for the Home Department, Ex P. Hargreaves (1997) 1 WLR 906. Dr. Chanchal Goyal V. State ofRajasthan(2003) 3 SCC 485.HowrahMunicipal Corpn. V. Ganges Rope Co. Ltd. (2004)1 SCC 663. Kuldeep Singh V. Govt. of NCT ofDelhi(2006) 5 SCC 702.RamPraveshSinghV.StateofBihar(2006) 8 SCC 381. Jitendra Kumar V. State of Haryana (2008) 2 SCC 161 ref.
Mr. Mojibur Rahman Miah, Deputy Attorney General
….For the Appellants.
(In all the Appeals)
Mr. Mahmudul Islam, Senior Advocate,
A.B.M. Khairul Hague, CJ. :
These appeals are all heard together and disposed of by a single judgment since those involved similar questions of fact and law.
- 2. These appeals involve the question as to whether the work-charged temporary employees of Housing and Public Works Department of the Government of Bangladesh who have been working for the last nearly 20 years or more, have any legitimate expectation to be made permanent or not.
- 3. It appears that a huge number of employees were in Public Works Department, firstly, under master roll and then were brought under the Work-charged Establishment mostly during the period from 1977 to 1984, prior to 1986 (Annexure-A series to the Writ Petition No.4040 of 2007). The matter of their regularisation came to the notice of the concerned authorities in 1986 and the Government by its Memo dated 28.07.1986, set up a standing committee to deal with the issue of regularisation of the service of work-charged employees, serving under different Ministries/ Divisions (Annexure-G to the Writ Petition No.4040 of 2007). Therefore, a number of committees discussed and resolved the issue of regularisation of the work-charged employees of Housing and Public Works Department.
- 4. It appears that the total number of work-charged employees in Public Works Directorate were 9,143 up to 1986 and out of those the services of 6,654 work-charged employees were regularised till 2002, leaving the rest 1906 employees. It is contended on behalf of those employees that at least 50% of those, which is 951 employees, should be regularised as permanent employees.
- 5. A Committee of the Establishment Division in its meeting held on 19.2.2007, resolved on the basis of the Memo No. Òmg (wewa-3/2006-32 31.10.2006, issued by the Establishment Division, Government of Bangladesh (Annexure-P to the Writ Petition No. 4040 of 2007) that although since 50% of the total number of 9143 work-charged employees till 1986 comes to 4572 but instead, 6,654 were already regularised, apparen-tly, an excess of 2,182 employees were regular-ized. As such, the committee concluded that there is no scope for regularising any other employee as permanent (Annexure-Q to the Writ Petition No. 4040 of 2007).
- 6. Being aggrieved, the writ-petitioners issued a Notice Demanding Justice on 16.04.2007, upon the appellants, requesting them to withdraw/ rescind/cancel the above decision taken in the meeting held on 19.02.2007, but without any response from them.
- 7. As such, the aggrieved work-charged employees filed 4 (four) Writ Petitions, namely, W.P. No. 4040 of 2007, W.P. No. 7081 of 2007, W.P. No. 7963 of 2007 and W.P. No. 8880 of 2007, challenging the legality of the decision of the Scrutiny Committee in its meeting held on 19.2.2007.
- 8. In due Course, Rules were issued in all the Writ Petitions. The rule in W.P. No. 4040 of 2007 was issued in the following terms:
“Let a Rule Nisi issue calling upon the respondents to show cause as to why the impugned decision taken in the meeting dated 19.02.2007 presided by respondent No. 4 should not be declared to have been made without lawful authority and is of no legal effect and/or such other or further order or orders passed as to this Court may seem fit and proper.
The Rule is made returnable within 4 (four) weeks from date.”
- 9. Similar Rules were issued in other writ petitions also.
- 10. The High Court Division heard all the Rules together and found that all the petitioners are working for the last 20 to 30 years and Annexure A to P show that the Government is implementing the decision of absorption of 50% employees at a time, phase by phase on regular basis, as such, the petitioners have got the legitimate expectation to be so absorbed. The Court found that there is no rational basis for the decision taken in the meeting held on 31.10.2006 that absorption of 50% employees can be done only once. On these findings, the Court held that the decision taken by the writ respondents dated 19.2.2007 based on the memo dated 31.10.2006, is not in accordance with law and directed them to take necessary steps to absorb the Writ Petitioners in regular establish-ment in accordance with law. With these findings and direction, all the Rule were made absolute.
- 11. Being aggrieved the writ-respondents filed civil petitions for leave to appeal in respect of the Judgment and Order passed in all the writ petitions. Leave was granted to consider the subm-issions raised on behalf of the writ-respondents that the work-charged employees are not entitled to be absorbed as a matter of right , that admittedly more than 50% of the total work-charged employ-ees had already been regularized from 1987 to 2002 and that the inter ministerial correspondence and recommendations for regularizations of the appointment of the work charged temporary empl-oyyees have no force of law and those do not constitute any promissory estoppel on the part of the writ-respondents to absorb them as permanent employees in the government departments.
- 12. Mr. Mojibur Rahman Miah, Deputy Attorney General, at the time of hearing the appeal, harped on the aforesaid submissions.
- 13. On our quiry he, however, admitted that the work-charged employees are working for many years and to his knowledge, there is no allegation of inefficiency against them, that their services are still required, that the work-charged employees transferred to the regular establishment although far exceeded the limit of 50% of the total number of 9, 143 employees, the rest of the work-charged employees are still in the service of the PWD.
- 14. It is very true that a number of Office Memorandums issued since 1969 on the service of work charged employees, are not law and no legal right can be based on those. Those are mere administrative guide lines and no legal right can be founded on the office memorandums.
- 15. It is contended on behalf of the respondents that this long standing practice based on the principles enunciated in various office-Memorandums, creates a legitimate expectation for the rest 1906 work-charged employees that as before since 1987, they all will be regularised every year, from time to time, at the rate of 50% of the leftover work-charged employees.
- 16. The decision taken in the meeting held on 19.02.2007, was based on the Memorandum dated 31.10.2006 which evoked all these writ petitions.
- 17. We would first consider the legitimate expectation of the work-charged employees employed from time to time since 1977 (Annexure-A series to the Writ Petition No. 4040 of 2007), to be transferred to regular establishm-ent. We would also consider the legality of the Memorandum dated 31.10.2006 issued by the Ministry of Establishment (Annexure-P to the Writ Petition No. 4040 of 2007).
- 18. The word legitimate expectation’ was first coined by Lord Denning M.R. in the case of Schmidt V. Secretary of State for Home Affairs (1969) 2 Ch 149, a case of immigration. The point, among others, was whether there is any ground for saying that the Home Secretary did not observe the precepts of natural justice.
Lord Denning M.R. agreed that (Page-170 CD):
“Where a public officer has power to deprive a person of his liberty or his property, the general principle is that it is not to be done without his being given an opportunity of being heard and of making representations on his own behalf.”
- 19. Referring to the case of Ridge V. Baldwin, Lord Denning said (Page-170 EF):
“The speeches in Ridge v. Baldwin (1964) A.C. 40 show that an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right or interest, or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say.”
- 20. Although Lord Denning baptised the principle of legitimate expectation in this manner but he was cautious and kept its ambit within the strict legal limit of the incumbent. In the case of Schmidt, a foreign alien, he said (Page-171 AB):
“He has no right to enter this country except by leave: and, if he is given leave to come for a limited period, he has no right to stay for a day longer than the permitted time. If his permit is revoked before the time limit expires. he ought , I think, to be given an opportunity of making representation: for he would have a legitimate expectation of being allowed to stay for the permitted time.”
- 21. With the passage of time the principle of legitimate expectation was further developed and liberalised and it can be invoked even without any legal right, as such, in its strict sense.
- 22. This principle was propounded in the case of O’Reilly V. Mackman (1983)2 AC 237. There were certain incidents of riots atHull prison and a number prisoners were charged with offences of breach of discipline and they were variously punished. An allegation of bias was raised and their punishments were challenged. Lord Diplock in holding the legitimate expectation of the prisoners, said (Page.275 C-F):
“It is not, and it could not be, contended that the decision of the board awarding him forfeiture of remission had infringed or threatened to infringe any right of the appellant derived from private law, whether a common law right or one created by statute. Under the Prison Rules remission of sentence is not a matter of right but of indulgence. So far as private law is concerned all that each appellant had was a legitimate expectation, based upon his knowledge of what is the general practice, that he would be granted the maximum remission, permitted by rule 5(2) of the Prison Rules, of one third of his sentence if by that time no disciplinary award of forfeiture of remission had been made against him. So the second thing to be noted is that none of the appellants had any remedy in private law.
In public law, as distinguished from private law, however, such legitimate expectation gave to each appellant a sufficient interest to challenge the legality of the adverse disciplinary award made against him by the board on the ground that in one way or another the board in reaching its decision had acted outwith the powers conferred upon it by the legislation under which it was acting; and such grounds would include the boards failure to observe the rules of natural justice: which means no more than to act fairly towards him in carrying out their decision-making process, and I prefer so to put it.”
- 23. In the case of Attorney General of Hong Kong V. Ng Yuen Shiu (1983)2 AC 629, one of the questions, inter alia, was whether an alien inHong Kong had a legitimate expectation for a fair hearing. Lord Eraser held (P.636 DG):
“The narrower proposition for which the applicant contended was that a person is entitled to a fair hearing before a
decision adversely affecting his interests is made by a public official or body, if he has “a legitimate expectation” of being
accorded such a hearing
Accordingly “legitimate expectations” in this context are capable of including expectations which go beyond enforcea-ble legal rights, provided they have some reasonable basis: see Reg. V. Criminal Injuries Compensation Board, Ex parte Lain  2 Q.B. 864. So it was held in Reg. V. Board of Visitors of Hull Prison, Ex parte St. Germain (No. 2)  1 W.L.R. 1041 that a prisoner is entitled to challenge, by judicial review, a decision by a prison board of visitors, awarding him loss of remission of sentence, although he has no legal right to remission, but only a reasonable expectation of receiving it.”
Lord Eraser in explaining the principle held (P.638 EG) :
“Their Lordships see no reason why the principle should not be applicable when the person who will be affected by the decision is an alien, just as much as when he is a British subject. The justification for it is primarily that, when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty. The principle is also justified by the further consideration that, when the promise was made, the authority must have considered that it would be assisted in discharging its duty fairly by any representations from interested parties and as a general rule that is correct.
In the opinion of their Lordships, the principle that a public authority is bound by its undertakings as to the procedure it will follow, provided they do not conflict with its duty, is applicable to the undertaking given by the Government of Hong Kong to the applicant “
- 24. In the case of Waite V. Government Communi-cations Headquarters (1983) 2 AC 714, the question of retiring age was at issue. Lord Fraser upheld the expectation for retiring age (P.724 CD):
“The proper test is in my view not merely statistical. It is to ascertain what would be the reasonable expectation or understand-ding of the employees holding that position at the relevant time. The contrac-tual retiring age will prima facie be the normal, but it may be displaced by evidence that it is regularly departed from in practice. The evidence may show that the contractual retirement age has been superseded by some definite higher age, and, if so, that will have become the normal retiring age.”
- 25. The principle of legitimate expectation was elaborately considered in the case of Council of Civil Service Unions V. Minister for the Civil Service (1985) AC 374. In that case, in December, 1983, the Minister for Civil Service gave instructions that the staff employed with the Government Communications Headquarters (GCHQ) would no longer be permitted to belong to national trade unions but without consultation with trade unions as was the long standing practice in case of alterations of important terms and conditions of their service. The House of Lords found that although the employees did not have a legal right to prior consultation but in principle accepted the contention that they have legitimate expectation that the unions and the employees ought to have been consulted but on merit dismissed their appeal on the ground of over whelming public interest that such consultation would imperil national security.
- 26. Propounding the principle of legitimate expectation, Lord Fraser held (P. 401 A-E):
“But even where a person claiming some benefit or privilege has no legal right to it, as a matter of private law, he may have a legitimate expectation of receiving the benefit or privilege, and, if so, the courts will protect his expectation by judicial review as a matter of public law Legitimate, or reasonable, expectation may arise either from an express promise given on behalf of a public authority or from the existence of regular practice which the claimant can reasonably expect to continue The test of that is whether the practice of prior consultation of the staff on significant changes in their conditions of service was so well established by 1983 that it would be unfair or inconsistent with good administration for the Government to depart from the practice in this case. Legitimate expectations such as are now under consideration will always relate to a benefit or privilege to which the claimant has no right in private law, and it may even be to one which conflicts with his private law rights.”
- 27. Enunciating the principles leading to legitimate expectation, Lord Diplock held (P.408 F-H, 409A): “To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker, although it may affect him too. It must affect such other person either :
(a) by altering rights or obligations of that person which are enforceable by or against him in private law; or
(b) by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opport-unity to comment; or (ii) he has received assurance from the decision-maker will riot be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn. (I prefer to continue to call the kind of expectation that qualifies a decision for inclusion in class (b) a ‘legitimate expectation” rather than a ‘reasonable expectation” in order thereby to indicate that it has consequences to which effect will be given in public law, whereas an expectation or hope that some benefit or advantage would continue to be enjoyed, although in might well be entertained by a ” reasonable” man, would not necessarily have such consequences )”
Lord Roskill also considered the principle in the same case (P. 415 D, F):
“The particular manifestation of the duty to act fairly which is presently involved is that part of the recent evolution of our administrative law which may enable an aggrieved party to evoke judicial review if he can show that he had “a reasonable expectation” of some occurrence or action preceding the decision complained of and that “reasonable expectation” was not in the event fulfilled. The principle may now be said to be firmly entrenched in this branch of the law.”
- 28. In the case of Regina V. North and East Devon Health Authority, ex parte Coughlan (2001) QB 213, the concept of substantive legitimate expectation was considered by the Court of Appeal inEngland in a broader perspective. In this case Ms. Coughlan being seriously injured in a road accident in 1971, was moved along with seven others from a hospital to Mardon House in 1993, on the assurance of the Health Authority that they could live there ‘for as long as they chose’ but in 1998, the concerned Authority decided to close down Mardon House. This was the immediate cause for the said litigation. Hidden J. granted an order of certiorari quashing the closure decision. On appeal, the Court of Appeal sought to strike a fair balance between the public interest in one hand and the interests of the individuals on the other, having expectations based upon statements or consistent practice of the concerned authorities. All three members of the Bench, namely, Lord Wolf M.R., Mummery and Sedley L. JJ., contributed in the judgment.
- 29. In considering the Court’s role when the plea of legitimate expectation is raised, the Court held at para 56 to 58 (P.241):
“56. What is still the subject of some controversy is the court’s role when a member of the public, as a result of a promise or other conduct, has a legitimate expectation that he will be treated in one way and the public body wishes to treat him or her in a different way. Here the starting point has to be to ask what in the circumstances the member of the public could legitimately expect. In the words of Lord Scarman in In re Findlay (1985) AC 318, 338, “But what was their legitimate expectation ?” Where there is a dispute as to this, the dispute has to be determined by the court, as happened in In re Findlay. This can involve a detailed examination of the precise terms of the promise or representation made, the circumstances in which the promise was made and the nature of the statutory or other discretion.
57. There are at least three possible outcomes, (a) The court may decide that the public authority is only required to bear in mind its previous policy or other representation, giving it the weight it thinks right, but no more, before deciding whether to change course. Here the court is confined to reviewing the decision on Wednesbury grounds (Associated Provincial Picture Houses Ltd. v. Wedne-sbury Corpn (1948) I KB 223). This has been held to be the effect of changes of policy in cases involving the early release of prisoners: see In re Findlay (1985) AC 318; R v Secretary of State for the Home Department, Ex p Hargreaves (1997) I WLR 906. (b) On the other hand, the court may decide that the promise or practice induces a legitimate expectation of, for example, being consulted before a particular decision is taken. Here it is uncontentious that the court itself will require the opportunity for consultation to be given unless there is an overriding reason to resile from it (see Attorney General of Hong Kong v Ng Yuen Shiu (1983) 2 AC 629) in which case the court will itself judge the adequacy of the reason advanced for the change of policy, taking into account what fairness requires, (c) where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.
58. The court having decided which of the categories is appropriate, the court’s role in the case of the second and third categories is different from that in the first. In the case of the first, the court is restricted to reviewing the decision on conventional grounds. The test will be rationality and whether the public body has given proper weight to the implications of not fulfilling the promise. In the case of the second category the court’s task is the conventional one of determining whether the decision was procedurally fair. In the case of the third, the court has when necessary to determine whether there is a sufficient overriding interest to justify a departure from what has been previously promised.
81. For our part, in relation to this category of legitimate expectation, we do not consider it necessary to explain the modern doctrine in Wednesbury terms, helpful though this is iri terms of received jurisprudence (cf Dunn LJ in R v Secretary of State for the Home Department, Ex p Asif Mahmood Khan (1984) I WLR 1337, 1352 : “an unfair action can seldom be a reasonable one”). We would prefer to regard the wednes-bury categories themselves as the major instances (not necessarily the sole ones : see Council of Civil Service Unions v Minister for the for the Civil Service (1985) AC 374, 410, per Lord Diplock) of how public power may be misused. Once it is recognised that conduct which is an abuse of power is contrary to law its existence must be for the court to determine.
82. The court’s task-and this is not always understood-is then limited to asking whether the application of the policy to an individual who has been led to expect something different is a just exercise of power. In many cases the authority will already have considered this and made appropriate exceptions (as was envisaged in British Oxygen Co Ltd v Board to Trade (1971) AC 610 and as had happened in Ex p Hambel (Offshore) Fisheries Ltd (1995) 2 All ER 714), or resolved to pay compensation where money alone will suffice. But where no such accommodation is made, it is for the court to say whether the consequent frustration of the individual’s expectation is so unfair as to be a misuse of the authority’s power.”
- 30. The Court of Appeal explained how fairness and the overriding public interest are to be considered (P.251) :
“83 What matters is that, having taken it all into account, the health authority voted for closure in spite of the promise. The propriety of such an exercise of power should be tested by asking whether the need which the health authority judged to exist to move Miss Coughlan to local authority facility was such as to outweigh its promise that Mardon House would be her home for life.”
On the merit of the case, the Court held (P.254):
“89. We have no hesitation in concluding that the decision, to move Miss Coughlan against her will and in breach of the health authority’s own promise was in the circumstances unfair. It was unfair because it frustrated her legitimate expectation of having a home for life in Mardon House. There was no overriding public interest which justified it. In drawing the balance of conflicting interests the court will not only accept the policy change without demur but will pay the closest attention to the assessment made by the public body itself. Here, however, as we have already indicated, the health authority failed to weigh the conflicting interests correctly.”
- 31. In conclusion, the Court found that there was a breach of clear promise by the concerned health authority (P.260) :
“(c) .. . . . . . . ..
(iii) the decision was an unjustified breach of a clear promise given by the health authority’s predecessor to Miss Coughlan that she should have a home for life at Mardon House. This constituted unfairn-ess amounting to an abuse of power by the health authority. It would be a breach of article 8 of the European convention of Human Rights.”
- 32. In the case of Food Corporation ofIndia v. M/S Kamdhenu cattle Feed Industries AIR 1993 SC 1601, the Supreme Court of India expounded the principle of legitimate expectation in considering the denial of the highest tenderer’s right to have his tender accepted. J.S. Verma, J. held (P. 1604) :
“7. In contractual sphere as in all other State actions, the State and all its instrumentalities have to conform to Art. 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.
8. The mere reasonable or legitimate expectation 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 considerations 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.”
- 33. In the case of Sethi Auto Service Station V. Delhi Development Authority (2009) 1 SCC 180, the Supreme Court of India, explained the applicability of the principle of legitimate expectation (P. 190-91):
32………………….a case for applicability of the doctrine of legitimate expectation, now accepted in the subjective sense as part of our legal juris-prudence, arises when an administrative body by reason of a representation or by past practice or conduct aroused an expectation which it would be within its powers to fulfill unless some overriding public interest comes in the way. However, a person who bases his claim on the doctrine of legitimate expectation, 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, unreasonable 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 expectation without anything more cannot ipso facto give a right to invoke these principles.
33…………… It is well settled that the concept of legitimate expectation has no role to play where the State action 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 apply an objective standard which leaves to the deciding authority the full range of choice which the legislature is presumed to have intended. Even in a case where the decision is left entirely to the discretion of the deciding authority without any such legal bounds and if the decision is taken fairly and objectively, 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 expecta-tion can at the most be one of the grounds which may give rise to judicial review but the grating of relief is very much limited.”
- 34. Let us now look at our jurisdiction. In the case ofBangladesh Soya-Protein Project Ltd. V. Secretary, Ministry of Disaster Management and Relief 22 BLD (2000)HCD 378, the High Court Division examined the principle of legitimate expectation:
“32. From the discussion of the above noted cases, I would conclude that the expression ‘legitimate expectation’ first used by Lord Denning M.R. in the case of Schmidt in 1969 opened a new vista and has by now established as a principle of law. This principle as I understand in essence imposes a duty to act fairly and requires of the concerned authorities to act reasonably in dealing with the rights and interest of the people in the given circumstances. This is certainly expected of them. If there is any breach, the Courts should not be slow in holding so. If the situation so demands, the Court shall certainly strike down such orders in exercise of its powers of judicial review of executive actions. In case of their unreasonableness or inertness or even laches on their part for which some benefit is lost causing prejudice to the people at large or even to a individual, the Court may also direct the concerned authorities to exercise their functions fairly, reasonably and in accordance with law.
39. This legitimate expectation of the petitioner had been crystallized by successive agreements executed between the Government and the petitioner calling upon them to supply the Soya products to different schools earmarked by the Gove-rnment. The petitioner, marshalling all its resources successfully supplied the Soya products to all the schools in accordance with the agreements executed one after the other. There was no complain about the quality of the Soya products supplied by the petitioner or with regard to their service incidental to such supply to the Schools. There was no claim on behalf of the Government that the problem of malnutrition among the children had been solved or even minimized so that the school Feeding Program was no longer necessary. But the Government suddenly stopped the scheme since July, 2000, apparently without any reason.
53. In the decisions discussed above it. will be seen that the Courts are always alive to the paramount public interest, either in upholding the decision of the Government even to the prejudice of an individual, or in case of striking it down as arbitrary or unreasonable, the public interest element is always the criteria for doing so. The Courts all over the world in deciding an issue give importance always to the overall interest of the people at large which commensurate with the sense of social justice in a welfare state.
54. There is no doubt that the Government can always change its policy and the Courts will not interfere with such change, if made for a better one or for public interest or for some overwhelming reason for which a change of policy had become unavoidable, provided of course, the Government acts fairly and reason-ably. In this case, in discontinuing the School Feeding Program, the Government had failed to implement its own policy decision thawarting the legitimate expectation of the petitioner that the Government would continue their said program which was solemnly accepted in their policy decision.”
- 35. This Court also considered the principle of legitimate expectation in the case of The Chairman, Bangladesh Textile Mills Corporation V. Nasir Ahmed Chowdhury 22 BLD (AD) (2002) 199.
- 36. In the Case of Golam Mostafa V. Banglad-esh 2007 (XV) BLT (HCD) 128, the High Court Division explained the concept of legitimate expectation (P. 152) :
“44. The upshot of the decisions noted above are that judicial review may be allowed on the plea of frustration of legitimate expectation in the following situations :
i) If there is a promise by the authority, expressed either by their representations or by conducts.
ii) The decision of the authority was arbitrary or unreasonable within the Wednesbury principle,
iii) There was a failure on the part of the concerned authority to act fairly in taking the decision,
iv) The expectation to be crystallized into a legitimate one, it must be based on clear facts and circum-stances leading to a definite expectation and not a mere anticipation or a wish or hope and also must be reasonable in the circumstances.
v) Judicial review may allow such a legitimate expectation and quash the impugned decision even in the absence of a strict legal right unless there is an overriding public interest to defeat such an expectation.”
- 37. Apart from the decisions discussed above, the following decisions of the superior Courts from home and abroad are also considered:
Reg. V. Liverpool Corporation ex-parte Liverpool Taxi Fleet Operators’ Association (1972) 2 QB 299, Hughes V. D.H.S.S (1985) 1 AC 776, Findlay V. Secretary of State (1984) 3 All ER 801, Navjyoti Coo-Group Housing Society V. Union of India AIR 1993 SC 155, Union of India V. Hindustan Development Corporation AIR 1994 SC 988, Attorney General for New South Wales V. Quin (1990) 64 Australian LJR 327, Madras City Wine Merchants’ Association V. State of T.N. (1994 5 SCC 509, Punjab Communications Ltd. V. Union of Indio AIR 1999 SC 1813, Managing Director, Dhaka WASA V. Superior Buildings and Engineers Ltd. 51 DLR AD 1999. R.V. Secretary of State for the Home Department, Ex P. Hargreaves (1997) 1 WLR 906. Dr. Chanchal Goyal V. State ofRajasthan(2003) 3 SCC 485.HowrahMunicipal Corpn. V. Ganges Rope Co. Ltd. (2004)1 SCC 663. Kuldeep Singh V. Govt. of NCT ofDelhi(2006) 5 SCC 702.RamPraveshSinghV.StateofBihar(2006) 8 SCC 381. Jitendra Kumar V. State of Haryana (2008) 2 SCC 161.
- 38. An examination of the various decisions discussed and noted above would show that the principle of legitimate of expectation may arise or be applicable both in the subjective or procedural sense in the following manner:
I) although the concerned person may not have the legal right but because of well established prior practice, he would have an expectation which is crystallized into a legitimate one, based on the consistent conduct of the concerned authorities, unless there is overwhelming public interest to do otherwise;
II) mere indulgence may create an expectation in the mind of the incumbent but on its own, without more, would not render it a legitimate one;
III) it is however, a legitimate expectation on the part of the incumbent that the concerned authorities, under the circumstances of the case, would act fairly;
IV) when an incumbent has an expectation which is reasonable in the circumsta-nces, capable of including expectations which may go beyond enforceable legal rights and render it legitimate;
V) a public authority is bound to follow a certain procedure which is culminated into a promise or undertaking, because of its express or implied consistent practice unless, of course, it does not contravene any statutory duty;
VI) if from the evidence it is apparent that contractual term, is frequently departed from to some thing beneficial to the incumbent, his expectation may be crystallized into a legitimate one,
VII) if the practice is well established that it would be unfair on the part of the Government to depart from the said practice, legitimate expectation may rise that the incumbent can reasonably expect the said practice to continue to his benefit, even though he may not have strict legal right to the said benefit.
VIII) if some benefit or advantage which a class of persons had in the past been allowed by the Government which they can legitimately expect to continue unless there is some rational grounds for the authority to withdraw it,
IX) not a mere anticipation or a wish or a hope it must be a definite expectation, which is reasonable and fair in the
circumstances based on clear facts and consistent practice, so that a person or a class of persons may feel that there is no reason to discontinue the practice to his or their disadvantage, then the said expectation would be crystallized into a legitimate one and in such a case, the power of judicial review would be available to protect the said legitimate expectation unless there is overwhelming
public interest against it.
- 39. The Memo dated 31.10.2006 is based on Memo dated 06.08.1973 and Memo dated 21.03.1972. The Memo dated 21.04.1972 is based on a Memo dated 28.03.1969, issued by the Regulation Branch of Services and General Administration Department of the then Governm-ent ofEast Pakistan. The said Memo dated 28.03.1969 is earliest in this respect. It reads as follows (Annexure-B to the Writ Petition No. 4040 of 2007):
No. SGA/RI/18-33/69/71(350), dated Dacca, the 28th March, 1969.
Subject: Conversation of temporary posts into permanent ones and contingent and work charged staff into regular establishment.
In supersession of all previous orders on the subject noted above, Government have been pleased to decide in consultation with the Finance Department as follows :
(1) All temporary class-Ill and class-IV posts of permanent nature which have been in existence for five years or more may be converted into permanent ones in consul-tation with the Finance Department.
(2) All posts in class III and Class IV which are paid from contingency and continuing for ten years or more may be brought into regular establishment in consultation with Finance Department.
(3) Fifty per cent of the non-gazetted posts in the work-charged establishment existing for ten years or more may be brought into regular establishment in consultation with Finance Department.
All Departments and Directorates are reque-sted to take up the question of converting the temporary posts into permanent ones and bringing the posts paid from contingency and 50% of the posts in the work charged establishment into regular establishment on the principle enunciated in items 1, 2 and 3 respectively in consultation with the Finance Department.
- 40. The above memo envisages 3(three) kinds of employees. The employees in 3rd category is relevant for our purpose. It stipulates that 50% those employees who held non-gazetted posts for 10 (ten) years or more may be brought into regular establishment. This provision did not stipulate that only once this regularisation could be made.
- 41. After independence ofBangladesh, conversion of worked charged staff into regular establishment was allowed vide Memo No. Estb./RI/S-46/72/55 dated 21.4.1972 issued by the Establishment Division (Annexure-C to the Writ Petition No. 4040 of 2007) which is as follows:
Memo No. Estb./RI/S-46/72/55, dated, Dacca, 21st April, 1972.
Subject: Conversation of temporary posts into permanent ones arid conting-ent and work charged staff into regular establishment.
The government under Memo No. SGA/Rl/lS-33/69/71(350), dated 28th March, 1969 (copy enclosed) issued orders for conversion of certain temporary posts in to permanent ones and contingent and work charged staff into regular establishment. It appears that these decisions have not been fully impleme-nted as a result of which the employees concerned have not yet got the benefit of the said decisions. It has, therefore, been decided that the decisions referred to above should be implemented immedia-tely. It has further been decided that the conversion, as decided earlier, of the posts which have been in existence for 5/10 years or more, should be done with effect from the date the posts were created and the employees should be absorbed against the post with effect from the date of their appointment. In absorbing the employees the persons who have the longest period of service and are retiring or are on the
verge of retirement should be given preference so that they get retirement benefit of retirement under the President’s Order No. 14 of 1972.
- 42. This Memo although refers to the earlier Memo dated 24.03.1969, but did not stipulate that such conversion of work-charged employees to regular establishment should be made once.
- 43. The Memo No. Ed(R-IV)-IR-27/72-195 dated 6.8.1973 issued by the Establishment Division was also mentioned in certain subsequent memorandums. It is quoted below (Annexure-D to the Writ Petition No. 4040 of 2007):
No. Ed(R-IV)-IR-27/72-195, dated the 6th August, 1973.
SUBJECT: Fixation of age of retirement of the contingent and Work-Charged employees.
REF: This Divn. Memo. No. Ed(R-IV)-IM-5/72-96(500) dated 28-41972.
Government have been pleased to decided that the contingent and Work-Charged employees shall retire after completion of 60 years of age.
2. The above decision shall not be applicable to the contingent and Work-Charged employees who have been brought to the regular establishment in terms of Memo. No. S 8s GA/RI/IS-53/69-71 (950) DATED 28-3-69 and No. Estabt. /RI/S-46/72-55 dated 21-4-72. These employees shall retire after completion of 55th years of age like other employees of the regular establishment.
- 44. But this memo is only in respect of the retiring age of the Work-charged employee. It has nothing to do with their eligibility for conversion into regular establishment.
- 45. Another memorandum was issued by the Ministry of Public Works & Urban Development, Public Works Division vide Memo No. Sec.ll/Ec-4/73/409/1 dated 12.11.1974, in respect of conversion of the posts for work-charged and contingent staff into regular establishment. It is as follows (Annexure-E to the Writ Petition No. 4040 of 2007):
Memo No. See. 1 l/EC-4/73/409/1 Dated the 12th November 1974
Mr. S. M. Rahman.
1. The Chief Engineer,
2. The Additional Chief Engineer,
BangladeshPublic Works Deptt.
3. The Directorate of Govt. Accommodation.
Sub: Conversion of the posts for work-charged and contingent staff into regular establishment.
The undersigned in directed to say that it has been decided in consultation with the Establishment Division that the conversion of the posts for Work-Charged and contingent staff which have been in existence for 10 years or more may be brought into regular establishment and work-charged establishment and the employees concerned should be absorbed against the posts with effect from the date of their appointment in pursuance of the instructions, contained in the Memo. No. Estbt. BI/S-46 72-55 dated 21.04.72 the Ministry of Cabinet Affairs, Establishment Division, Regulation wing 1 (Copy enclosed). In absorbing the employees the persons who have the learned period of service and are retiring or are on the verge of retirement should be given preference so that they got retirement benefit on retirement under the President’s order No. 14 of 1972.
2. The persons who have already retired since the promulgation of the President’s order No. 14 of 1972 should be in pursuance of the instructions contained in the above mentioned memo, of
the Ministry of Cabinet Affairs, Esbt. Division regulation Wing be give the benefit of absorption into regular establishment by issue of orders retrospectively and giving retirement benefit provided the) had the prescribed length of service.
3. The charge will proceed against the appropriate Heads of Accounts of the budget provision under the Building Directorate. Bangladesh public Works Department and Government Accommodation Directorate.
4. This has the concurrence of the Ministry of Finance.
- 46. The Cabinet Secretariat, Establishment Division, issued a memo on the same subject vide O.M. o. Ed (Reg-III)M-48/80-62(500) dated 5.8.1980 which is as follows (Annexure-F to the Writ Petition No. 4040 f 2007):
O.M. No.ED (Reg.-IIIM-48/80-62 (500), dated the 5th August, 1980.
SUBJECT: Conversion of Temporary posts into permanent ones and Contingent and work-charged staff into regular establish-ment.
Government have reviewed the above issue in the light of the recommendations of the Committee for Enquiry on Improvement of Service Conditions of Non-Gazetted employees, setup under order No.ED/SW-II-1/5-110, dated 1/4/80 of this Division and have decided-
(1) All Ministries/Divisions/Departments /Offices should take immediate steps for conversion of temporary posts into permanent ones and contingent 85 work-charged staff into regular establishment in accordance with the decisions contained in Memo No. SGA/RI/1S-33/69/71(350), dated 28th March, 1969 of the then S & G.A. Deptt. of the Government of East Pakistan and No. Estb/Rl/S-46/72/55, dated 21st April, 1972 of this Division (copy enclosed), which have continued applicability.
(2) The vacancies in the regular establishment should, as a matter of policy, be filled up first by appointment from amongst work-charged and contingent staff on the basis of seniority and subject to fulfillment of requisite qualifications.
(3) While implementing the decision of conversion of temporary posts into permanent ones the instructions contained in this Division letter No. ED(AD-II)-157/79- 523(75) and No. ED (AD-II)-157/79-524(75), dated the 29th May, 1979 shall have to be kept in view.
(4) This issues with the concurrence of the Ministry of Finance.
- 47. This memo stipulates that work-charged and contingent employees should get preference when vacancies arise.
- 48. The Office Memo No. ED/REG-III-M-8/82-53 dated 4.8.1982 stipulates that the recruitment rules should be followed in converting the temporary employees in contingency and word-charged employees into regular establishment (Annexure-H to the Writ Petition No. 4040 of 2007).
- 49. In the meantime, the Government by its Memo No. 7162/Works/Lnpl-3″ 266 dated 28.07.1986, decided to set up a standing committee to deal with the issue of regularisation of the work-charged employees serving under different organizations under the Ministries/ Divisions (Annexure-G to the Writ Petition No. 4040 of 2007).
- 50. Accordingly, a standing committee constit-uted by the Establishment Ministry considered the regularisation of work-charged employees of Housing Directorate and the Public Works Directorate, in its meeting held on 17.12.1987. It resolved, among others, to regularise the 50% of the 400 employees of Housing Directorate and 19,452 employees of the PWD. by transferring them to regular establishment. The relevant portion of the minutes of the meeting of the standing committee held on 17.12.1987 are enclosed herewith (Annexure-I to the Writ Petition No. 4040 ff 2007):
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