Dhaka City Corporation Vs. Firoza Begum & others, 3 LNJ (AD) (2014) 98

Case No: CIVIL APPEAL No. 101 of 2010

Judge: Syed Mahmud Hossain,

Court: Appellate Division ,,

Advocate: Mr. Abdul Motin Khashru,Mr. Tofailure Rahman,,

Citation: 3 LNJ (AD) (2014) 98

Case Year: 2014

Appellant: Dhaka City Corporation

Respondent: Firoza Begum & others

Subject: Legitimate Expectation ,

Delivery Date: 2012-01-25


APPELLATE DIVISION
(CIVIL)
 
Md. Abdul Wahhab Miah, J.
Nazmun Ara Sultana, J.
Syed Mahmud Hossain, J.
Muhammad Imman Ali, J.

Judgment on
25.01.2012
  Dhaka City Corporation, represented by its Mayor, Nagar Bhaban, 5,Phonix Road, Fulbaria, Dhaka.
....Appellant.
-Versus-
Firoza Begum and others.
....Respondents.
 

Constitution of Bangladesh, 1972
Article 102
Evidence Act (I of 1872)
Section 115
Legitimate Expectation—Promissory Estoppel—Time-scale is usually granted to a permanent staff in revenue set-up. By according time-scale, the appellant in effect gave recognition to respondent Nos.1 to 88 as its permanent staff members. Respondent Nos.1-88 with the passage of time have developed in their mind a legitimate and reasonable expectation that they would be absorbed in the revenue budget of DCC. We do not have any reservation to observe that both DCC and the Government have been trying to sidetrack the legitimate demand of respondent Nos.1-88 by trying to shift the responsibility on the shoulders of each other. We do not have any word to deprecate such behavior. Over the years, respondent Nos.1-88 have been moving heaven and earth to be absorbed in the revenue budget of DCC and at the last resort they had to file the writ petition before the High Court Division. In the case in hand not only DCC but also the Government in the Ministry of Local Government have made express promise to absorb the service of respondent Nos.1-88 in the revenue set-up of the DCC. Because of shifting responsibility on the shoulders of each other by the Government and DCC, respondent Nos.1 to 88 could not yet be absorbed in the revenue set-up of DCC.   A person basing his claim on the doctrine of legitimate expectation has to satisfy that he relied on the representation of the authority and the denial of that expectation would work to his detriment. The findings arrived at and the decision made by the High Court Division are based on proper appreciation of laws and facts. . . . (17, 19, 23, 24 and 28)
Smith Vs. Secretary of State for Home Affairs [1969] 2 Ch. 149 and Council of Civil Service Union and others Vs. Minister for the Civil Service 1985 AC 374 ref.
 
For the Appellant: Mr. Tofailure Rahman, Senior Advocate, instructed by Mr. Md. Zahirul Islam, Advocate-on-Record.
For Respondent: Mr. Abdul Matin Khasru, Senior Advocate, instructed by Mr. Md. Nawab Ali, Advocate-on-Record. 
 
CIVIL APPEAL No. 101 of 2010
 
JUDGMENT
 
Syed Mahmud Hossain, J:
 
This appeal by leave is directed against the judgment and order dated 23.07.2009 passed by the High Court Division in Writ Petition No.9675 of 2008 making the Rule absolute with a direction that respondent Nos.1-88 be absorbed in the revenue budget of the appellant with their arrear salaries and benefit.
 
The facts involved in this appeal, in a nutshell, are that SIP (Slum Improvement Project) (second phase) commenced in July, 1988 to be completed by June, 1993 with the help of Community Organizers appointed for the purpose as per the approved project pro-forma for Slum Improvement Project (second phase) revised in April, 1989 with the objects detailed in the project pro-forma. The said project pro-forma contained a condition that “The community organizers will be an appointed staff member of the Municipality. The salary of the community organizer will be paid by the project for the duration of the project. Upon completion of the project they will continue as Pourashava Employees paid under the Pourashava budget. Community health worker will be working on honorarium.” Writ-petitioner Nos.1-10 were originally appointed in the first project, namely, SIP (second phase) as a community organizer under Dhaka City Corporation (USDP), writ-respondent No.3. The Urban Basic Service Delivery Project under the Local Government Rural Development Co-operative after referring to an UNSDP, Local Government Division commenced on 1st January, 1996 and on 01.04.1997, ECNEC approved the project. The Local Government Engineering Department (LGED) implemented the project through four City Corporations and twenty-one Pourashavas. The support staffs were engaged from previous Slum Improve-ment Project (second phase). On 19.10.1997, writ-petitioner Nos.1-10 were absorbed in the said second project i.e. UBSDP and writ-petitioner No.11 to 76-80, 86-88 were directly appointed through competitive examination as caretakers in the said UBSDP on 11.06.2000 and 30.12.1998 respectively. Writ-respondent No.8, the Project Director of UBSDP by his letter dated 23rd March, 1998 informed that salaries of the caretakers of the second project would be paid as per national pay scale of 1997 with effect from July 1, 1997. The third project i.e. Local Partnerships for Urban Poverty Alleviation Project (Revised) commenced on September 1, 1998 to be completed by June 30, 2006. Writ-petitioner Nos.1-80 and 86-88, caretakers of second project i.e. UBSDP were absorbed in the third project on of July 15, 2001 and writ-petitioner Nos.81-85 were appointed on 6th July, 2005 in the said third project. Thereafter, the Ministry of LGRD by its office order dated June 3, 2002 requested writ-respondent No.6, Chief Executive Officer, DCC (Dhaka City Corporation) to continue the activities of the said third project even after its completion and by its letter dated 2nd October, 2002 Ministry of LGRD directed writ-respondent No.6, Chief Executive Officer, DCC to continue the activities of the said third project even after its completion of the own fund of DCC.  Followed by the office order dated 23rd of April, 2003 the Secretary, DCC approved of the payment of arrear salaries and other service benefits to writ-petitioners from February, 2001 to February, 2003 asking the appropriate authority to take necessary steps. The writ-petitioners received their salaries and other service benefits till 30th June, 2007. Thereafter, the writ-petitioners, vide letter dated 19th September of 2006 and 20th September, 2006 respectively requested the Mayor, DCC and the Secretary, Ministry of LGRD to absorb them in the revenue budget. On receipt of the letter dated 20th September, 2006 the Secretary, Ministry of LGRD, vide his letter dated 31st October, 2006 requested the Chief Engineer, LGED and the City Corporation to give opinion as to the absorption of the writ-petitioners in the revenue budget of DCC. In response to the letter dated 31.10.2006, the Chief Engineer, LGED recommended continuing the activities of the project and absorbing the writ-petitioners in revenue budget. Subsequently, on 14th May, 2007 the Chief Slum Development Officer and Member Secretary SBSUAP requested the Zonal Executive Officer, DCC to shift the 84 Urban Development Centres to DCC. Accordingly, the Urban Development Centres were shifted within the establishment of the DCC. The Chief Slum Development Officer and Member Secretary, LGED/PD (SBSUAP) forwarded the staff service particulars of 100 employees employed in the project to DCC. Writ-respondent No.3, DCC, vide office order dated 9th October, 2007 allowed the writ-petitioner-caretakers to draw salary and allowances of 1st, 2nd and 3rd Time Scales as they completed 8th, 12th and 15th years of their service under DCC, Dhaka in “Support for Basic Service in Urban Areas Project.” On 02.09.2007, a committee was formed with the Chief Revenue Officer as its convenor and 10 Zonal Executive Officers, the Chief Urban Planner, the Law Officer and the Principal Development Officer and the Principal Development Officer as its members to report, amongst others, whether the manpower of the project could be transferred to the revenue budget of DCC. On 10.12.2007, the committee submitted a report recommending, amongst others, that the 512 persons employed in the project could be absorbed within the administrative framework of DCC. After that, the Chief Executive Officer of DCC, vide his letter dated 14th of January, 2008 sent a proposal to writ-respondent No.2, Secretary, LGRD, requesting him to transfer 512 officers and employees of “Support for Basic Service in Urban Areas Project” in the service of DCC under revenue budget as per the decision of Executive Committee of National Economic Council (ECNEC) dated 03.01.2008. The Joint Chief, Planning Division, Government of Bangladesh, vide his letter dated 10th January, 2008 requested all concerned including the Chief Executive Officer, DCC to transfer manpower from the completed projects to revenue budget following the existing Rules and Regulations as per the decision of ECNEC dated 31st December, 2007.  The Government in the Ministry of Local Government Rural Development and Co-operatives, Local Government Division, vide letter dated 4th March, 2008 through its Senior Assistant Secretary requested the Chief Executive Officer of DCC to send a specific proposal for transferring the manpower of the projects to revenue budget following all the Rules and Regulations. After that, writ-respondent No.3 (DCC) took up no steps whatsoever for absorption of the writ-petitioners in the revenue budget of the DCC and also to pay the arrear salaries and other service benefits in spite of the decision of the ECNEC to absorb the writ-petitioners in the revenue budget as per  Rules and Regulations. The writ-petitioners, thereafter, served a legal notice dated 29th June, 2008 claiming arrear salaries amounting to TK.1,07,08,048.00. Pursuant to a meeting held on 12th July, 2008 with the Chief Executive Officer of DCC for deciding the demand of salaries and allowances of 300 employees of “Support for Basic Service in Urban Areas Project”, a positive initiative was taken. At that meeting it was decided that as per the direction of the Mayor of DCC and in compliance with the Government Rules, two officers of DCC were required to submit a proposal regarding the salary and allowance of 300 employees within 10 days. They accordingly submitted their report on 11th August, 2008 recomm-ending payment of salary.
 
After that, On 21st September, 2008, the Chief Executive Officer, DCC wrote a letter to writ-respondent No.2 praying for sanctioning of TK.3,51,84,800.00 for payment of salary and allowances of 300 employees and officers of “Support for Basic Service in Urban Areas Project” for December, 2008. Accordingly, DCC paid TK.12 lacs for distribution amongst 300 employees on 29th September, 2008. Lastly, at its fourteenth General Meeting of Commissioners, DCC decided to send a request letter for transferring the said project in the revenue budget of DCC. Therefore, the writ-petitioners are entitled to get all benefits such as selection grade, promotion, time scale etc. as they served the projects of DCC and they are legally entitled to continue as such. The writ-petitioners have served DCC for 10 to 18 years awaiting absorption in the revenue budget of DCC.
 
Being aggrieved by and dissatisfied with the decision taken at the 14th General Meeting of Commissioners of DCC, the writ petitioners filed the writ petition before the High Court Division and obtained the Rule Nisi in Writ Petition No.9675 of 2008.
 
The writ-respondent contested the Rule by filing affidavit-in-opposition controverting the material statements made in the writ petition.
 
The learned Judges of the High Court Division upon hearing the parties by their judgment and order dated 23.07.2009 made the Rule absolute with a direction that writ-petitioner Nos.1-88 be absorbed in the revenue budget of the DCC with their arrear, salaries and other benefits.
 
Feeling aggrieved by and dissatisfied with judgment and order dated 23.07.2009 passed by the High Court Division, the writ-respondent, DCC, moved this Division by filing Civil Petition for Leave to Appeal No.2122 of 2009 in which leave was granted on 09.02.2010 resulting in the initiation of Civil Appeal No.101 of 2010.
 
Mr. Tofailure Rahman, learned Senior Advocate, appearing on behalf of the appellant, submits that the writ-respondents having known about the fate of their status on completion of the project and their service being contractual in nature, continuation of their service in the project did not create any right in their favour to be absorbed in the revenue budget of the DCC. He further submits that DCC being guided under the Ordinance of 2008, now under the Act of 2009 and there being no scope for DCC to absorb any employee beyond their organogram, the High Court Division erred in law in directing the appellant to absorb respondent Nos.1 to 88 in the revenue budget with all arrear salaries and benefits. He lastly submits that respondent Nos.1 to 88 knew that they would be automatically terminated from the service on completion of the project and that they have been notified from time to time including clear assertion of their letters of appointment and as such, the High Court Division has erred in law in construing that continuation of their work in the project created legitimate expectation in favour of respondent Nos.1 to 88.
 
Mr. Abdul Matin Khasru, learned Senior Advocate, appearing on behalf of the writ-petitioner-respondents, on the other hand, supports the impugned judgment stating that the actions of the appointing authority culminated in legitimate expectation in the minds of the writ-petitioners that they would be absorbed in the revenue budget of Dhaka City Corporation.
 
We have considered the submissions of the learned Senior Advocates, the impugned judgment and the materials on record.
 
Before addressing the conflicting submissions of the learned Senior Advocates of both the sides, it would be proper to go through the submissions of the learned Advocate, on which, leave was granted as under: 

“The writ-petitioner-respondents having known about the fate of their status on completion of the project, the service being contractual in nature, continuation of their service in the project did not create any right in their favour to be absorbed in the revenue budget of the Dhaka City Corporation. The Dhaka City Corporation being guided under the Ordinance of 2008, now under the Act of 2009 and there being no scope for Dhaka City Corporation to absorb any employee beyond their organogram, the High Court Division erred in law in directing the petitioner to absorb the writ-petitioner-respondents in the revenue budget in the revenue budget with all arrears, salaries and benefit; the writ-petitioner-respondents knew that they would be automatically terminated from the service on completion of the project and that they have been modified from time to time including clear assertion of their letters of appointment and as such, the High Court Division has erred in law in construing that continuation of their work in the project created legitimate expect-ation in favour of the writ-petitioner-respondents. The length of service in the project of the writ-petitioner-respondents does not create any right to be absorbed in the revenue budget automatically without sanction from the Government and as such, the High Court Division erred in law making the Rule absolute.”
 
Respondents Nos.1-10 were originally appointed in the first project namely, SIP (Slum Improvement Project) (second phase) as a community organizers under Dhaka City Corporation. The Urban Basic Service Delivery Project    (in short, UBSP) under the Ministry of Local Government,  Rural Development and Co-operatives, Local Government Division, commenced on 1st January,1996 and the project was approved by ECNEC on 1st Aprial,1997. The Local Government Engineering Department (LGED) through 4 City Corporations and 21 Pourashavas implemented the projects. The support staff were engaged from previous Slum Improvement Project (second phase). Respondent Nos.1-10 were absorbed in the second project i.e. UBSDP on 19th October, 1997 and respondent Nos.11-76, 86-88, 77-79 and 80 were directly appointed through competitive examination as the caretakers in the UBSDP on 11.06.2008 and 30.12.1998. The Project Director of UBSDP by the letter dated 23.03.1998 informed that salaries of the caretakers of the second project would be paid as per national pay scale of 1997 with effect from 01.07.1997. The third project i.e. local partnership for Urban Poverty Alleviation Project (Revised) commenced on 01.09.1998 to be completed on 30.06.2006. Respondent Nos.1-80 and 86-88, caretakers of second project (UBSDP) were absorbed in the third project on 15.07.2001 and respondent Nos.81-85 were appointed on 08.07.2005 in the third project.
 
The Ministry of LGRD by its office order dated 03.06.2002 requested Chief Executive Officer, DCC, to continue the activities of the third project even after its completion by the letter dated 02.10.2002 with own fund of DCC.
 
Having considered different annexures to the writ petition, it appears that some of the respondents have been trying diligently and persistently to establish their claim to be absorbed in the revenue budget of DCC. There is no gainsaying the fact that respondent Nos.1-88 were given assurance from time to time by the DCC and the Ministry of LGRD that their services would be absorbed in the revenue budget.
 
In the Project Pro-forma from Slum Improvement Project (2bd phase) contained in Annexure-B to the writ petition states, amongst others, “The community organizer will be an appointed staff member of the municipality. The salary of the community organizer will be paid by the project for the duration of the project. Upon completion of the project, they will continue as Pourashava employees, paid under the Pourashava budget. Community Health worker will be working on honorarium. Upon completion of the project they will continue as permanent employees and paid under the Pourashava budget. Community health workers will be working on honorarium.” Even in the highest body of the Government, ‘ECNEC’, a positive decision was taken to absorb respondent Nos.1 to 88  and others standing on the same footing in the revenue budget as contained in Annexure-‘R’ to the writ petition dated 10.01.2008, which reveals that the decision of ECNEC was communicated to the all City Corporations including DCC.
 
By an office order dated 09.11.2007 as contained in Annexure-‘O’ to the writ petition, DCC allowed respondent Nos.1-88 time scale the relevant portion of the office order is extracted below :
 
‘‘সিটি করপোরেশনের বস্তি উন্নয়ন বিভাগের অধীনে ‘‘সাপোর্ট ফর বেসিক সার্ভিস ইন আরবান এরিয়াস ’’ প্রকল্পে নিয়োজিত কেয়ারটেকারদের (স্কেলভূক্ত) যোগদানের তারিখ হবে প্রকল্পের মেয়াদ শেষ দিন পর্যন্ত (৩০শে জুন/০৭ইং) ক্রমে ৮, ১২ ও ১৫ বৎসর পৃর্তিতে ১ম, ২য় ও ৩য় টাইম স্কেলের বকেয়া বেতন-ভাতাদি প্রদানের অনুমতি দেয়া হল।
কর্তৃপক্ষের অনুমোদনক্রমে এই আদেশ জারী করা হলো। ইহা অবিলমেব কার্যকর হবে।’’
 
Time-scale is usually granted to a permanent staff in revenue set-up. By according time-scale, the appellant in effect gave recognition to respondent Nos.1 to 88 as its permanent staff members.
 
On 15.01.2008, the Chief Executive Officer of Dhaka City Corporation wrote a letter to the Secretary, Local Government Division stating at serial No.7 as under :
 
‘‘৭। একইসাথে গত ০৩/০১/২০০৮ তারিখে অনুষ্ঠিত পরিকল্পনা বিভাগের ঊঈঘঊঈ সভার ৪.৩(খ) সিদ্ধান্ত (অস্পষ্ট) অনুযায়ী (কপি সংযুক্ত-৪) ঢাকা সিটি করপোরেশন কর্তৃক বাস্তবায়িত নগর দারিদ্র দূরীকরণ প্রকল্প অংশ-২ পার্ট ফর বেসিক সার্ভিস ইন আরবান এরিয়াস প্রকল্পের ৫১২ (পাঁচশত বার) জন কর্মকর্তা-কর্মচারীর চাকুরী মান বিধি বিধান অনুসরণ পূর্বক রাজস্ব বাজেটে স্থানান্তরের বিষয়ে প্রয়োজনীয় ব্যবস্থা গ্রহনের জন্য বিনীতভাবে অনুরোধ জানাচ্ছি। ’’
 
In the backdrop of the above, respondent Nos.1-88 with the passage of time have developed in their mind a legitimate and reasonable expectation that they would be absorbed in the revenue budget of DCC. We do not have any reservation to observe that both DCC and the Government have been trying to sidetrack the legitimate demand of respondent No.1-88 by trying to shift the responsibility on the shoulders of each other. We do not have any word to deprecate such behavior. Over the years, respondent No.1-88 have been moving heaven and earth to be absorbed in the revenue budget of DCC and at the last resort they have to file the writ petition before the High Court Division.
 
The phrase “legitimate expectation” first emerged in its modern public law context in the judgment of Lord Denning in Smith Vs. Secretary of State for Home Affairs [1969] 2 Ch. 149, 170 and it has gained an ever more prominent presence in the case reports. Despite this increasing visibility, however, many of its features remain undefined. In order to establish legitimate expectation there must be a commitment which can be characterized as a promise.    
 
The root of the principle of legitimate expectation is constitutional principle of rule of law which requires regularity, predictability and certainty in Government’s dealing with the public.
 
In the case of the Council of Civil Service Union and others Vs. Minister for the Civil Service 1985 AC 374, the House of Lords observed:
 
“Legitimate 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.”
 
In the case in hand not only DCC but also the Government in the Ministry of Local Government have made express promise to absorb the service of respondent Nos.1-88 in the revenue set-up of the DCC. Because of shifting responsibility on the shoulders of each other by the Government and DCC, respondent Nos.1 to 88 could not yet be absorbed in the revenue set-up of DCC.  
 
In his book “Constitutional Law of Bangladesh”, Third Edition, Mr. Mahmudul Islam, having considered a large number of reported cases of English, Indian and our jurisdictions deduced the principles emerged from those cases as under :
  1. The statement or practice giving rise to the legitimate expectation must be sufficiently clear and unambiguous, and expressed or carried out in such a way as to show that it was intended to be binding. A statement will not be binding if it is tentative, or if there is uncertainty as to what was said. Where it was said that a recommendation from X was ‘almost invariably’ accepted there was no legitimate expectation that it would be accepted. Legitimate expectation cannot be based on departmental note to which concurrence of the relevant authority has not been obtained. 
  2. Legitimate expectation cannot be pressed in aid when the policy or practice on which the expectation is based is ultra vires.
  3. Substantive protection of legitimate expectation will generally require that the promise is made to a small group and a general announcement of policy to a large group is unlikely to be presented substantively.
  4. An expectation to be legitimate must be founded upon a promise or practice by the public authority that is said to be bound to fulfill the expectation and a Minister cannot found an expectation that an independent officer will act in a particular way or an election promise made by a shadow Minister does not bind the responsible Minister after the change of the government.
  5. A person basing his claim on the doctrine of legitimate expectation has to satisfy that he relied on the representation of the authority and the denial of that expectation would work to his detriment. The court can interfere only if the decision taken by the authority is found to be arbitrary, unreasonable or in gross abuse of power or in violation of the principles of natural justice and not taken in public interest.
  6. The statement or practice must be shown to be applicable and relevant to the case in hand. Thus where an offer of an interview had been made in 1986, but action was taken in 1988 without an interview, there was no legitimate expectation of an interview in 1988 as the circumstances then were quite different.
  7. Legitimate expectations are enforced in order to achieve fairness. Thus where it was argued that a previous practice of giving an oral hearing gave rise to a legitimate expectation of a hearing, the court said that the question was whether the official in question had acted unfairly and in the circumstances the decision on the papers was held fair. Even if a case of legitimate expectation is made out, the decision or action of the authority will not be interfered with unless it is shown to have resulted in failure of justice. There cannot be any legitimate expectation ignoring a mandatory provision of law requiring permission to be obtained.
  8. Clear words in the statue or in the policy statement override legitimate expectation.
  9. If the statement said to be binding was given in response to information from the citizen, it will not be binding if that information is less than frank, and if it is not indicated that a binding statement is being sought.
  10. He who seeks to enforce must be a person to whom (or a member of the class to which) the statement was made or the practice applied.
  11. Even though a case is made out, a legitimate expectation shall not be enforced if there is overriding public interest which requires otherwise.
  12. A claim based on legitimate expectation cannot be sustained when there is non-compliance with a mandatory provision of law. 
The principles expounded above may be the guiding principles for deciding the cases on legitimate expectation.
 
In the case in hand, serial No.(V) of the aforesaid principles applies.
 
In the light of the findings made before, we do not find any ground for interference.
 
The findings arrived at and the decision made by the High Court Division are based on proper appreciation of laws and facts.
 
Accordingly, the appeal is dismissed. There is no order as to costs.
 
Ed.