Himachal Pradesh High Court
Kewal Singh Shandil And Others vs Union Of India And Others on 20 July, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 6902 of 2010 .
Judgment Reserved on 8.7.2016 Date of decision: 20.7.2016 Kewal Singh Shandil and others. ...Petitioners Versus Union of India and Others. ...Respondents Coram of The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1 Yes.
For the Petitioners:
rt Mr. Sunil Mohan Goel, Advocate.
For the Respondents: Mr.Ashok Sharma, Assistant Solicitor General of India with Mr.Angrez Kapoor, Advocate, for respondents No. 1 and 5.
Mr.J.S. Guleria, Assistant Advocate General, for respondent No. 2.
Mr.Ramakant Sharma, Senior advocate, with Ms.Devyani Sharma, Advocate, for respondent No. 3.
Mr.Satyen Vaidya, Senior Advocate, with Mr.Vivek Sharma, Advocate, for respondent No. 4.
Tarlok Singh Chauhan J.
All the petitioners are regular employees of Himachal Pradesh State Electricity Board Limited (for short HPSEB), respondent No. 4 and are/were on deputation with Satluj Jal Vidyut Nigam (for short SJVN), respondent No. 3 and are aggrieved by the alteration of their conditions of deputation.
2. The chronological sequence of events is as follows:-
"23.7.1991 An agreement was entered into between Hon'ble Chief Minister Himachal Pradesh and Union Minister of Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 20:51:03 :::HCHP 2 CWP No. 6902 of 2010 Power regarding execution of Nathpa Jhakri Hydro Electric Project (now SJVNL) regarding the organizational arrangement.
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6.1.1992 The H.P. State Electricity Board notified terms and conditions of secondment of HPSEB personnel to NJPC on the basis of the agreement dated 23.7.1991. 12.7.1998 The Joint Action Committee of HPSEB staff submitted a detailed memorandum of grievance to the then of Hon'ble Union Minister of Power, Government of India and Hon'ble Chief Minister Himachal Pradesh.
3.6.1999 rt The Joint Secretary, Government of India after careful consideration and prior consultation accepted the package deal finalized by the Board of Directors of NJPC.
24.1.2000 In this background agreement bearing No. 13/6/98- Hydel.II came to be executed between the Joint Secretary (Hydro) Government of India Ministry of Power, New Delhi and Secretary (MMP & Power) to the Government of Himachal Pradesh.
4.2.2000 Pursuant to the agreement Himachal Pradesh State Electricity Board vide Notification bearing No.HPSEB(Sectt)/103-44/2000-8573-607 dated 4/2/2000 notified terms and conditions of deputation including equivalence of HPSEB's regular staff, working in Nathpa Jhakri Power Corporation. 11.4.2001/ Pursuant to the aforesaid terms and conditions, office 13.3.2002 order was issued on 13.3.2002 by NJPC whereby the personnel's of HPSEB on deputation of NJPC had been drawing the allowances/Perks etc. at par with those admissible to the NJPC employees of equivalent status.
26.11.2008 The Under Secretary to the Government of India, Ministry of Heavy Industries & Public Enterprises, Department of Public Enterprises Government of India ::: Downloaded on - 15/04/2017 20:51:03 :::HCHP 3 CWP No. 6902 of 2010 issued an office memorandum in which para iv of Annexure IV on the subject provides for variable pay- performance related pay.
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20.4.2009 Board of Directors of Respondent No. 3 held meeting and under item No. 180/17, titled revision of scales of pay and fringe benefits, it was mentioned that pay revision of the employees of Public Sector Undertaking (PSUs) on Ida pattern is due w.e.f. 1.1.2007. The of minutes further contained that Central Public Sector Enterprises (CPSEc) scales, perks and benefits, as per rt the relevant notification, will be given to only those government employees who come on permanent absorption basis. It further contained that in SJVNL, which is a joint venture of Respondents No. 1 and 2, the 724 deputaionists as per agreement will continue in the organization on deputation if it is not possible to absorb them. The minutes further contained that the Board agreed with the proposal to take up the issue with the Ministry of Power and Department of Public Enterprises and till the finalization of the same by the Government of India, the existing practice regarding pay and allowances be continued.
24.4.2009 The respondent No. 3 also took up the matter with the respondent Union of India, on the subject 'pay and allowances to deputationists in SJVNL'. It was mentioned in this communication that as per the DPE OM dated 26.11.2008, the Government Officers on deputation to CPSEs would draw salaries as per their entitlement in Parent Department.
8.6.2009 The Under Secretary to the Government of India, Ministry of Heavy Industries & Public Enterprises, Department of Public Enterprises Government of India issued an office memorandum on the subject 'Revision of scales of pay of executives of CPSE's w.e.f.
::: Downloaded on - 15/04/2017 20:51:03 :::HCHP 4 CWP No. 6902 of 201001.01.2007, pay etc. of Government Officers on deputation to the CPSEs. It is mentioned in the said office memorandum that Para 121, Annexure IV, Point .
No. iv of DPE O.M. No. 2(70)/08-DPE(WC), dated 26.11.2008 provides that Government Officers who are on deputation to the CPSEs will continue to draw salary as per their entitlement in the parent Department. Only those who come on permanent absorption basis will of get the CPSE scales, perks and benefits.
7.9.2009 Petitioners made a representation to Respondent No. 3 rt wherein it was mentioned that there appears some contemplative move to disallow the perks and allowances of SJVNL in respect of those deputationists whose services were approved or taken over on deputation on or after 26.11.2008 and to allow them allowances of their parent Organization. 14.9.2009 The Additional General Manager (P&A) of respondent No. 3 wrote to respondent No. 4 on the subject 'Borrowing services of the personnel from HPSEB on deputation and allowing them salary and allowances of their parent Department in accordance with the DPE guidelines' in which it was mentioned that henceforth deputation terms with respect of employees from HPSEB stand revised as per the DPE guidelines. The changed deputation terms be brought to the notice of all employees of HPSEB willing to come on deputation to SJVNL.
25.2.2010 The Secretary of the Himachal Pradesh State Electricity Board, responded to the aforesaid letter and wrote to respondent No. 3 that the terms and conditions of deputation for the HPSEB deputation employees who are already on deputation as on 26.11.2008 or who go on deputation after 26.11.2008, should not be changed/altered as per the DPE ::: Downloaded on - 15/04/2017 20:51:03 :::HCHP 5 CWP No. 6902 of 2010 guidelines in view of the agreement signed on 23.7.1991 between the Government of Himachal Pradesh and the Government of India. Reference was .
also made to Clause 3.3 of the agreement and it was specifically mentioned that the said Clause, inter alia, provides that in so far as the deputation of the HPSEB personnel to NJPC is concerned, it shall be ensured that the terms of secondment will not be to the of disadvantage of the HPSEB personnel. It was mentioned in the said letter that the letter issued by the 29.4.2010 rt SJVNL dated 14.9.2009 be withdrawn immediately. Respondent No. 3 also issued Corporate Personnel Circular No. 205/2010, which inter alia, provides that adjustable ad hoc advance against performance related pay and revision of perks due w.e.f. 26.11.2008 will be payable, inter alia, to the deputationists who joined prior to 26.11.2008. In other words, the grant of performance related pay to the deputationists who joined after 26.11.2008 has been discontinued vide this circular.
4.5.2010 The Himachal Pradesh State Electricity Board Employees Union made a detailed representation against the discrimination towards its deputationists and the violation of the provisions of the agreement entered into in this regard between the concerned parties.
26.5.2010 The Special Officer of the HPSEB took up the issue with the Government of H.P. and has mentioned therein that the guidelines of CPSE should be treated as general guidelines, wherein specific agreements are there. In this background, the agreement shall prevail over the guidelines.
21.7.2010 The respondent No. 3 issued office Memorandum to the Heads of P&A Shimla/Projects and heads of F&A ::: Downloaded on - 15/04/2017 20:51:03 :::HCHP 6 CWP No. 6902 of 2010 Shimla/Projects on the subject 'Salary to deputationists joined SJVNL, which reads as "As per DPE guidelines, deputationists joining SJVN after 26.11.08 are to be .
paid salary as per entitlement in the parent department/organization. In the wake of aforesaid guidelines matter was examined and submitted before the competent authority. As per approval of competent authority it has been decided that deputationists joining of SJVN after 28.11.08 (including extension if any) be allowed to draw salary (including perks and rt allowances) as per their entitlement in the parent department."
3. Aggrieved by the decision of the respondent Corporation in implementing OMs issued by the Department of Public Enterprises on 26.11.2008, 8.6.2009 and further issuance of letter dated 14.9.2009 and circular dated 29.4.2010 and inter office memorandum dated 21.7.2010, the petitioners had filed the instant writ petition on various grounds taken in the petition and have prayed for the following reliefs:-
"i) That this Hon'ble Court may be pleased to issue a writ of certiorari letter dated 14.9.2009 (Annexure P 14), office Circular dated 29.4.2010 (Annexure P 17) and Inter Office Memo dated 21.7.2010 (Annexure P 21) issued by Respondent No. 3.
ii) That this Hon'ble Court may be pleased to issue a writ of mandamus directing the Respondents to continue to govern the terms of deputation of the employees of the HPSEB and the Government of H.P. on deputation with the SJVNL in consonance with and as agreed between the Respondents vide agreement dated 24.1.2000 and notification dated
4.2.2000 and office orders dated 11.4.2001 and 13.3.2002 respectively, entered into between Respondents No. 1 and 2 and issued by Respondents No. 3 and 4 and not to re-
::: Downloaded on - 15/04/2017 20:51:03 :::HCHP 7 CWP No. 6902 of 2010determine the terms of deputation of the employees of the HPSEB or the Government of H.P. including the petitioners on the basis of the DPE guidelines issued vide OMs, dated .
26.11.2008 and 8.6.2009.
iii) That this Hon'ble Court may kindly be pleased to issue an appropriate writ to the effect that the DPE guidelines issued by the Respondent No. 5 vide office Memorandums dated 26.11.2008 and 8.6.20089 cannot be made applicable to of determine the terms of deputation of the employees of the HPSEB and the Government of H.P. like the petitioners on deputation with the SJVNL and alternatively, the petitioners pray that if this Hon'ble Court is pleaded to come to the rt conclusion that the said guidelines have been made applicable, even in order to determine the terms of deputation of the employees of the HPSEB and Government of H.P., who are on deputation with Respondent No. 3, then this Hon'ble Court may kindly be pleaded to issue a writ of Certiorari quashing the applicability of the said guidelines viz a viz the employees of the HPSEB and the Government of H.P. on deputation with the SJVNL.
iv) That the Respondents may kindly be directed to produce all the relevant records of the case before this Hon'ble Court and to pay the costs of the petition."
4. Respondent No. 4 (HPSEB Ltd.) has supported the claim of the petitioners and it is averred that the personnel of HPSEB who are on deputation to the SJVNL are getting the pay scales as also the other perks and allowances in pursuance of the settled and agreed terms and conditions of various instruments/agreements, which cannot be altered to their determent unilaterally on the basis of Office Memorandum dated 26.11.2008 and 8.6.2009. It is apt to reproduce paras 18 and 20 of the reply, which read thus:-
"18. In reply to this para, the replying respondent submits with utmost respect that the personnel of HPSEB who are on ::: Downloaded on - 15/04/2017 20:51:03 :::HCHP 8 CWP No. 6902 of 2010 deputation to the SJVNL are getting the pay scales as also the other perks and allowances in pursuance of the settled and agreed terms and conditions of various instruments/agreements, which .
cannot be altered to their determent unilaterally on the basis of Office Memorandum dated 26.11.2008 and 8.6.2009.
20. The contents of this para are admitted that the AGM (P&A) of Respondent No. 3 wrote letter dated 14/9/2009 (Annexure P-14) to the replying respondent in which it was inter-alia mentioned that of henceforth deputation terms with respect to employees of the replying respondent stand revised as per the DPE guideline. The replying respondent vide letter dated 25/2/2010 (Annexure P-15) rt wrote to the Respondent No. 3 stating inter-alia therein that the terms and conditions of deputation for the HPSEB deputation employees who are already on deputation as on 26/11/2008 or who go on deputation after 26/11/2008, ought not to be changed/altered in the light of DPE guidelines. In the letter ibid it was stated that an agreement was signed on 23/7/1991 between the then two Governments i.e. the Government of India and the H.P. Government for the smooth and expeditious execution of the Nathpa Jhakri Hydro electric Project by the then NJPC now SJVNL. Clause No. 3.3 of the said agreement specifically provides that in so far as deputation of HPSEB Personnel to NJPC is concerned, it shall be ensured that the terms of secondment will not be the disadvantage of HPSEB personnel. From the above, it is evident that the guidelines issued by the DPE cannot supersede the sacrosanct agreement in between the two Governments. In view of the above, the replying respondent had requested the Respondents No. 3 to withdraw the letter dated 14/9/209 immediately."
5. Respondent No. 3, SJVNL has opposed the petition by filing a separate reply, wherein the maintainability of the petition itself has been questioned on the ground that the respondent was bound to follow the guidelines issued by respondent No. 1 vide office memorandum dated 26.11.2008 and guidelines dated 8.6.2009. It is further averred that the petition is liable to be dismissed on the ::: Downloaded on - 15/04/2017 20:51:03 :::HCHP 9 CWP No. 6902 of 2010 ground that the replying respondent in its 118th meeting of Board of Directors held on 20th April, 2009 had agreed with the proposal to .
take up the issue with the Ministry of Power and Department of Public Enterprises and till finalization of the same, the existing practice was permitted to be continued. Even the Executive Director of the replying respondent had written a communication dated of 24.4.2009, but respondent No. 1 had not acceded to this request and vide communication dated 8.6.2009 (annexure P-10) had rt proceeded to issue the memorandum, which is binding upon the replying respondent.
6. Respondent No. 1 has also contested the petition by filing its separate reply, and has justified the issuance of impugned memorandum.
7. It has been averred that the Department of Public Enterprises (DPE) is the nodal Department in Government of India, to issue policy guidelines in respect of the Central Public Sector Enterprises (for short CPSEs) and has further clarified that the CPSEs are those Government Companies where the equity of Central Government is more than 50%, which have been established by an enactment of the Parliament and where the managements of such companies are controlled by Central Government, etc. It is further averred that as on 31.3.2009, there were 246 CPSEs in India having 15-35 lakh employees, who are working on the Industrial Dearness Allowance pay pattern, while the remaining are one Central Dearness Allowance pay pattern. The Ida pay pattern comprises two categories of employees viz (i) Executive (Board & ::: Downloaded on - 15/04/2017 20:51:03 :::HCHP 10 CWP No. 6902 of 2010 below Board level) and non-unionized Supervisors and (ii) workmen Pay and Allowances etc. .
8. In respect of the first category i.e. Executive (Board and below Board level) and non-unionized Supervisors is decided by the Government of India based on the recommendations of a Pay Revision Committee, headed by a retired Judge of Supreme Court of of India. While the wage revision in respect of second category i.e. workmen, is based on the negotiations between the Trade-Unions rt and the Management of respective CPSEs, for which board guidelines are issued by the DPE, before such negotiations. With regard to CDA pattern employees, their pay structure (with some conditions is generally based on the pay structural of Central Government employees. Government of India vide Resolution dated 30.11.2006 had set up a Pay Revision Committee (hereinafter called as 2nd PRC) headed by Justice (Retd) M.J. Rao, Supreme Court of India, with other eminent persons as its Members, to give its recommendations for the pay structure in respect of Executives) Board below Board level) and non-unionized Supervisors of CPSEs, following Ida pattern, w.e.f. 1.1.2007. The 2nd PRC in their report at page III, para 6.2.3 (A) VI, recommended as under:-
"Government Officers on deputation to the CPSEs, will continue to draw the salary as per their entitlement in the parent department. Only those who come on permanent absorption basis will get the benefit of CPSE scales, perks, benefits."
9. These recommendations of 2nd PRC were circulated by the DPE to all administrative Ministers/Departments and other agencies concerned, which included Ministry of Power that is the ::: Downloaded on - 15/04/2017 20:51:03 :::HCHP 11 CWP No. 6902 of 2010 administrative ministry in respect of SJVN. Central Cabinet considered the recommendations of the 2nd PRC and also the .
comments of respective administrative Ministries/Department's/ Agencies including Ministry of Power. Government's decision has been conveyed in DPE O.M/Dated 26.11.2008 and 9.2.2009. The recommendation of 2nd PRC regarding pay etc. of Government of officers on deputation to CPSEs (as referred above) was accepted in toto by the Government. The date of effect of the recommendation rt of the 2nd PRC including the aforesaid recommendation on deputationists was w.e.f. 1.1.2007. Further as per para '18' of the DPE OM dated 26.11.2008, there is a provision of Anomalies Committee, comprising Secretaries of Department of Expenditure, Department of Personnel & Training and DPE, to look into further specific issue/problem that may arise in implementation of Govt's decision on the recommendations of 2nd PRC.
10. Some Ministries/Departments had raised the issue of pay of deputationists w.e.f. 1.1.2007, as they were finding difficulties in its implementation. Based on the recommendations of the Anomalies Committee (as aforesaid), Government's decision was conveyed in O.M. dated 8.6.2009. This order in nut shell conveyed that the Government officers already on deputation with the CPSEs as on 26.11.2008 (instead of earlier effective date of 1.1.2007) will continue to avail of the option already available and exercised by them till the end of their tenure. Meaning thereby that any Government officer (including State Government Officer) who has joined the CPSE after 26.11.2008, on deputation, his/her pay etc. ::: Downloaded on - 15/04/2017 20:51:03 :::HCHP 12 CWP No. 6902 of 2010 would be regulated as per Annexure IV, point No. (iv) of O.M. dated 26.11.2008.
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11. Therefore, all these petitioners who are Government Officers and have joined the SJVN after 26.11.2008 on deputation will draw the salary as per their entitlement in their parent department i.e. HPSEB and only those officers, who come on of permanent basis, will get the CPSE pay scales, perks and allowances, performance Related Pay (PRP) etc. rt
12. It is averred that above provisions apply to all the CPSEs, be it Maharatna, Navratna, Miniratna CPSEs like NHPC, NHDC, THDC, which are similarly placed like SJVN. It is reiterated that above mentioned decision of the Cabinet is based on the duly constituted Pay Revision Committee headed by a former Judge of Supreme Court and also deliberations undergone. The impugned provisions are mandatory in nature and CPSEs are required to follow them in letter and spirit. It is also submitted that there is no disadvantage to the petitioners, as while on deputation to SJVN, they continue to get their pay etc. as per their entitlement in HPSEB and equal to their counterparts in HPSEB. It is further averred that there are many CPSEs, which have both IDA and CDA pattern of pay scales, which are altogether different pay structures, while they work in same CPSE or for that matter doing the same job. The applicability of revision of scales of pay in respect of employees on deputation with the CPSUs was clarified by the DPE vide their subsequent O.M. dated 8.6.2009 which rationalized the terms and conditions of deputation in respect of deputationist with the CPUs.
::: Downloaded on - 15/04/2017 20:51:03 :::HCHP 13 CWP No. 6902 of 201013. Now in so far as the State of H.P. is concerned, it has chosen to support the claim of the petitioner and it has been averred .
that the employees of HPSEB on deputation with SJVN were representing the State and consequently there cannot be any discrimination in the matter of salary, pay and perks etc. in violation of the specific agreements entered into on 24.5.1988, 23.7.1991, of 6.1.1992, 24.1.2000 and notification dated 4.2.2000. It is further averred that the petitioners cannot be discriminated viz-a-viz the rt regular employees of SJVN, as the State Government is having 25% share capital in SJVN. It is further contended that the office memorandum dated 26.11.2008 (Annexure P-11) and the DPE guidelines may in normal course be applicable in the matter of deputationists from one department to another department, but the same are not at all applicable to the instant case, as it is different, distinct and distinguishable from the routine/normal deputation of employees to any State or Central Government Departments.
I have heard learned counsel for the parties and have gone through the records of the case.
14. Before adverting to the relative merits of the case, it would be necessary to observe that the parties are ad idem that all the petitioners herein have joined on deputation with SJVNL only after Office Memorandum dated 26.11.2008 had already been issued. Another important aspect which shall have to be borne in mind while determining the instant lis is that the petitioners admittedly were not privy or party to the agreements upon which ::: Downloaded on - 15/04/2017 20:51:03 :::HCHP 14 CWP No. 6902 of 2010 they seek to place reliance. Bearing in mind these important aspects, I now proceed to deal with the merits of the case.
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15. Indubitably, respondent No. 3 is a Government Company as defined in Section 2(45) of the Companies Act, which reads thus:-
"2(45) "Government company" means any company in which not less than fiftyone per cent of the paid-up share capital is held by the Central Government, or by any State Government or of Governments, or partly by the Central Government and partly by one or more State Governments, and includes a company which is a subsidiary company of such a Government company."
rt
16. Clause 35A of the Memorandum of Association and Articles of Association deals with powers subject to Guidelines/regulations for Mini Ratna/Nav Ratna Companies and the same reads thus:-
"35A The Board/Chairman shall exercise all such Powers as are applicable to Mini Ratna companies and all such powers as applicable to Nav Ratna, upon such status as and when, bestowed subject to adherence of to the stipulations, guidelines, notifications, circulars as may be issued from time to time by the Department of Public enterprises or any other Department of the Government of India governing the status of Mini Ratna/Nave Ratna companies."
17. It is not in dispute that respondent No. 3 is a Mini Ratna Company and therefore, in terms of the aforesaid clause, the stipulations, guidelines, notifications, circulars as may be issued from time to time by the Department of Public Enterprises or any other Department of Government of India governing the status of Mini Ratna Companies are to be strictly adhered to by respondent No. 3. Once it is so, can the petitioners claim a right dehors the ::: Downloaded on - 15/04/2017 20:51:03 :::HCHP 15 CWP No. 6902 of 2010 instructions, notifications, circulars etc. issued by respondent No. 1, i.e. Department of Public Enterprises?
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18. The petitioners virtually have no answer to this question, save and except to harp upon the agreements (supra) to contend that though they were not party or privy to the same, but being the beneficiaries of such agreements, the same could not have been of nullified on the basis of the executive instructions issued by respondent No. 1. rt
19. This contention is sans merit, as it would be preposterous to hold that the employees would have a larger right than the one vested or conferred upon the employer i.e. respondent No. 3. The employer can only pay what is prescribed. After all it is out of the coffers of employer that pay and allowances of the petitioners are to be paid.
20. That apart, the petitioners are only entitled to be paid what has been prescribed in the guidelines, notifications, circulars etc. issued from time to time by respondent No. 1 and at the same time respondent No. 3 cannot deviate from what is envisaged in these circulars, notifications etc. Even otherwise, the petitioners have failed to point out that in case their plea is accepted, then where from and by whom the additional amount towards their pay and allowances would be made good.
21. The matter can be looked from a different angle.
Admittedly, the petitioners have not assailed or prayed for quashing of any of the office memorandums issued by respondent No. 1, more particularly the ones issued on 26.11.2008 and 8.6.2009 and ::: Downloaded on - 15/04/2017 20:51:03 :::HCHP 16 CWP No. 6902 of 2010 therefore, cannot be held entitled to any relief in view of the binding nature of these memorandums upon respondent No. 3 in term of .
clause 35A of the Memorandum of Association and Articles of Association.
22. In addition to this it was only after issuance of the memorandum dated 26.11.2008 that the petitioners with their eyes of wide open have joined respondent No. 3 and therefore, cannot now turn around and question the memorandum at this stage.
rt
23. The learned counsel for the petitioner would still argue that in light of various agreements executed from time to time, the petitioners have legitimate expectation to get the pay and perks as admissible to the employees of SJVNL.
24. The doctrine of legitimate expectation has been described in Halsbury's Laws of England, 4th Edition, in the following words:
"81. Legitimate expectations. - A person may have a legitimate expectation of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment. The expectation may arise either from a representation or promise made by the authority, including an implied representation, or from consistent past practice."
25. The same principle has been followed even by the Courts in India. Reference in this connection may be usefully made to the judgment of the Hon'ble Supreme Court in the case of Navjyoti Housing Cooperative Group Housing Society and others vs. Union of India, 1992 (4) SCC 477, Supreme Court Advocate-on-Record Association and others vs. Union of India ::: Downloaded on - 15/04/2017 20:51:03 :::HCHP 17 CWP No. 6902 of 2010 1993 (4) SCC 441, Food Corporation of India vs. Kamdhenu Cattle Feed Industries 1993 (1) SCC 71 and Union Territory of .
Chandigarh vs. Dilbagh Singh and others 1993 (1) SCC 154.
26. In Madras City Wine Merchants' Association and another vs. State of Tamil Nadu and another (1994) 5 SCC 509 the Hon'ble Supreme Court held that the legitimate of expectation may arise:-
"(a) if there is an express promise given by a public authority; or rt
(b) because of the existence of a regular practice which the claimant can reasonably expect to continue;
(c ) such an expectation must be reasonable. However, if there is a change in policy or in public interest the position is altered by a rule or legislation, no question of legitimate expectation would arise."
27. In Ram Pravesh Singh and others vs. State of Bihar and others (2006) 8 SCC 381, the question as to what is the legitimate expectation was directly in issue before the Hon'ble Supreme Court and it was held as under:
"15. What is legitimate expectation? Obviously, it is not a legal right. It is an expectation of a benefit, relief or remedy, that may ordinarily flow from a promise or established practice. The term 'established practice' refers to a regular, consistent predictable and certain conduct, process or activity of the decision-making authority. The expectation should be legitimate, that is, reasonable, logical and valid. Any expectation which is based on sporadic or casual or random acts, or which is unreasonable, illogical or invalid cannot be a legitimate expectation. Not being a right, it is not enforceable as such. It is a concept fashioned by courts, for judicial review of administrative action. It is procedural in character based on the requirement of a higher degree of fairness in administrative action, as a consequence of the promise made, or practice established. In short, a person can be said to ::: Downloaded on - 15/04/2017 20:51:03 :::HCHP 18 CWP No. 6902 of 2010 have a 'legitimate expectation' of a particular treatment, if any representation or promise is made by an authority, either expressly or impliedly, or if the regular and consistent past .
practice of the authority gives room for such expectation in the normal course. As a ground for relief, the efficacy of the doctrine is rather weak as its slot is just above 'fairness in action' but far below 'promissory estoppel'. It may only entitle an expectant : (a) to an opportunity to show cause before the expectation is dashed; or (b) to an explanation as to the cause for denial. In appropriate of cases, courts may grant a direction requiring the Authority to follow the promised procedure or established practice. A legitimate expectation, even when made out, does not always rt entitle the expectant to a relief. Public interest, change in policy, conduct of the expectant or any other valid or bonafide reason given by the decision-maker, may be sufficient to negative the 'legitimate expectation'. The doctrine of legitimate expectation based on established practice (as contrasted from legitimate expectation based on a promise), can be invoked only by someone who has dealings or transactions or negotiations with an authority, on which such established practice has a bearing, or by someone who has a recognized legal relationship with the authority. A total stranger unconnected with the authority or a person who had no previous dealings with the authority and who has not entered into any transaction or negotiations with the authority, cannot invoke the doctrine of legitimate expectation, merely on the ground that the authority has a general obligation to act fairly."
28. In Secretary, State of Karnataka and other vs. Umadevi (3) and others (2006) 4 SCC 1, a Constitution Bench of the Hon'ble Supreme Court referred to the circumstances in which the doctrine of legitimate expectation can be invoked:
"The doctrine can be invoked if the decisions of the administrative authority affect the person 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 have been ::: Downloaded on - 15/04/2017 20:51:03 :::HCHP 19 CWP No. 6902 of 2010 communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision maker that they will not be .
withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn."
28. In Confederation of Ex-Servicemen Associations and others vs. Union of India and others (2006) 8 SCC 399, another of Constitution Bench of the Hon'ble Supreme Court referring to the doctrine of legitimate expectation held as under:
rt "No doubt, the doctrine has an important place in the development of Administrative Law and particularly law relating to 'judicial review'. Under the said doctrine, a person may have reasonable or legitimate expectation of being treated in a certain way by an administrative authority even though he has no right in law to receive the benefit. In such situation, if a decision is taken by an administrative authority adversely affecting his interests, he may have justifiable grievance in the light of the fact of continuous receipt of the benefit, legitimate expectation to receive the benefit or privilege which he has enjoyed all throughout. Such expectation may arise either from the express promise or from consistent practice which the applicant may reasonably expect to continue."
30. The same reiteration of law is found in a recent judgment of the Hon'ble Supreme in Union of India and another vs. Lt. Col.
P. K. Choudhary and others AIR 2016 SC 966 wherein it was held as under:
"42. In Food Corporation of India v. Kamdhenu Cattle Feed Industries (1993) 1 SCC 71: (AIR 1993 SC 1601) one of the earlier cases on the subject this Court considered the question whether Legitimate Expectation of a citizen can by itself create a distinct enforceable right. Rejecting the argument that a mere reasonable and legitimate expectation can give rise to a distinct and enforceable right, this Court observed:
"8.The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct ::: Downloaded on - 15/04/2017 20:51:04 :::HCHP 20 CWP No. 6902 of 2010 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 of arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more rtimportant 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."
(emphasis supplied)
43. To the same effect is the decision of this Court in Union of India v. Hindustan Development Corporation and Ors. (1993) 3 SCC 499, where this Court summed up the legal position as under:
" 28..... For legal purposes, the expectation cannot be the same as anticipation. It is different from a wish, a desire or a hope nor can it amount to a claim or demand on the ground of a right. However earnest and sincere a wish, a desire or a hope may be and however confidently one may look to them to be fulfilled, they by themselves cannot amount to an assertable expectation and a mere disappointment does not attract legal consequences. A pious hope even leading to a moral obligation cannot amount to a legitimate expectation. The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. Again it is distinguishable from a genuine expectation. Such expectation should be justifiably legitimate and protectable.::: Downloaded on - 15/04/2017 20:51:04 :::HCHP 21 CWP No. 6902 of 2010
Every such legitimate expectation does not by itself fructify into a right and therefore it does not amount to a right in the conventional sense."
.
33. On examination of some of these important decisions it is generally agreed that legitimate expectation gives the applicant sufficient locus standi for judicial review and that the doctrine of legitimate expectation is to be confined mostly to right of a fair hearing before a decision which results in negativing a promise or withdrawing an of undertaking is taken. The doctrine does not give scope to claim relief straightaway from the administrative authorities as no crystallised right as such is involved. The protection rt of such legitimate expectation does not require the fulfilment of the expectation where an overriding public interest requires otherwise. In other words where a person's legitimate expectation is not fulfilled by taking a particular decision then decision-maker should justify the denial of such expectation by showing some overriding public interest. Therefore even if substantive protection of such expectation is contemplated that does not grant an absolute right to a particular person. It simply ensures the circumstances in which that expectation may be denied or restricted. A case of legitimate expectation would arise when a body by representation or by past practice aroused expectation which it would be within its powers to fulfil. The protection is limited to that extent and a judicial review can be within those limits. But as discussed above a person who bases his claim on the doctrine of legitimate expectation, in the first instance, must satisfy that there is a foundation and thus has locus standi to make such a claim. In considering the same several factors which give rise to such legitimate expectation must be present. The decision taken by the authority must be found to be arbitrary, unreasonable and not taken in public interest. If it is a question of policy, even by way of change of old policy, the courts cannot interfere with a decision. In a given case whether there are such facts and circumstances giving rise to a legitimate expectation, it would primarily be a question of fact. If these tests are satisfied and if the court is satisfied that a case of legitimate expectation is made out ::: Downloaded on - 15/04/2017 20:51:04 :::HCHP 22 CWP No. 6902 of 2010 then the next question would be whether failure to give an opportunity of hearing before the decision affecting such legitimate expectation is taken, has resulted in failure of .
justice and whether on that ground the decision should be quashed. If that be so then what should be the relief is again a matter which depends on several factors."
(emphasis supplied)
44. Reference may also be made to the decision of this Court in Punjab Communications Ltd. v. Union of India and Ors. (1999) 4 of SCC 727, where this Court held that a change in policy can defeat a substantive legitimate expectation if it can be justified on "Wednesbury reasonableness." The choice of policy is for the rt decision-maker and not the Court. The legitimate substantive expectation merely permits the Court to find out if the change of policy which is the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made. A claim based merely on legitimate expectation without anything more cannot ipso facto give a right. Similarly in Dr.Chanchal Goyal (Mrs.) v. State of Rajasthan (2003) 3 SCC 485, this Court declined relief on the plea of legitimate expectation on the ground that the appellants had not shown as to how any act was done by the authorities which created an impression that the conditions attached to the original appointment order were waived. No legitimate expectation could be, declared this Court, claimed on such unfounded impression especially when it was not clear as to who and what authority had created any such impression. The decisions of this Court in Ram Pravesh Singh v. State of Bihar (2006) 8 SCC 381, Sethi Auto Service Station and Anr. v. Delhi Development Authority and Ors. (2009) 1 SCC 180, Confederation of Ex-servicemen Association v. Union of India (2006) 8 SCC 399, and State of Bihar and Ors. v. Kalyanpur Cements Ltd. (2010) 3 SCC 274, reiterate the legal position stated in the decisions earlier mentioned. In Monnet Ispat and Energy Ltd. v. Union of India and Ors. (2012) 11 SCC 1, this Court reviewed the case law on the subject and quoted with approval the following passage in Attorney General for New South Wales (1990) 64 Aus LJR 327:
" To strike down the exercise of administrative power solely on the ground of avoiding the disappointment of the ::: Downloaded on - 15/04/2017 20:51:04 :::HCHP 23 CWP No. 6902 of 2010 legitimate expectations of an individual would be set the courts adrift on a featureless sea of pragmatism. Moreover, the notion of a legitimate expectation (falling short of a legal .
right) is too nebulous to form a basis for invalidating the exercise of a power when its exercise otherwise accords law."
31. It would be evident from the aforesaid exposition of law that the doctrine of legitimate expectation cannot be applied in of cases of invalid expectation. The expectation should be legitimate, that is, reasonable, logical and valid. Any expectation which is rt based on sporadic or casual or random acts, or which is unreasonable, illogical or invalid cannot be a legitimate expectation.
For the application of doctrine of legitimate expectation, representation or promise should be made by an authority, a person unconnected with the authority, who had no previous dealing and who has not entered into any transactions or negotiations with the authority cannot invoke doctrine of legitimate expectation.
Therefore, a person who bases his claim on the doctrine of legitimate expectation has to satisfy that he has relied on the said representation and the denial of that expectation has worked to his detriment. (See: State of Uttar Pradesh and others vs. United Bank of India and others (2016) 2 SCC 757).
32. It can further be discernible from the aforesaid exposition of law that a case of legitimate expectation would arise when a body representation or by past practice aroused expectation which it would be within the power to fulfill. The protection is limited to that extent and judicial review can be within those limits. However, a person who bases his claim on the doctrine of legitimate ::: Downloaded on - 15/04/2017 20:51:04 :::HCHP 24 CWP No. 6902 of 2010 expectation, in the first instance, must satisfy that there is a foundation and thus has locus standi to make such a claim. In .
considering the same several factors which give rise to such legitimate expectation must be present. The decision taken by the authority must be found to be arbitrary, unreasonable and not taken in public interest. If it is a question of policy, even by change of old of policy, the Courts cannot interfere with a decision. In a given case whether there are such facts and circumstances giving rise to a rt legitimate expectation, it would primarily be a question of fact. It is more than settled that where there is no promise, the doctrine of legitimate expectation does not apply.
33. Bearing in mind the aforesaid principles, it would noticed that there is practically no material placed by the petitioners on record, which may even remotely indicate that any promise was made or any assurance at any point of time was ever held out to them by respondent No. 1 that they would be continued to be given pay, perks, allowances, as envisaged in the earlier agreements (supra). Rather, the memorandum and guidelines issued by respondent No. 1 is by way of conscious decision as is clearly evident from its reply and it is more than settled that the scope of judicial review in such like cases is extremely limited more particularly when the petitioners themselves have not sought quashing of the memorandum and DPE guidelines issued on 26.11.2008 and 8.6.2009, respectively.
34. Moreover, it is not in dispute that even though the State Government has 25% share capital, still the SJVNL is a CPSE and ::: Downloaded on - 15/04/2017 20:51:04 :::HCHP 25 CWP No. 6902 of 2010 therefore, in terms of clause 35A of the Memorandum of Association and Articles of Association, is bound by not only the guidelines .
issued by respondent No. 1, but even bound by the stipulations, notifications, circulars, instructions issued by any other department of the Government of India.
35. The petitioners were required to show and establish on of record that they have a legal right to claim the pay, allowances and other benefits as envisaged in the so called agreements and further rt establish that despite the provisions contained in clause 35A of the Memorandum of Association and Articles of Association, memorandums issued on 26.11.2008 and thereafter on 8.6.2009 are not applicable to their cases.
36. The object of issuance of writ of mandamus is to compel performance of a legal duty. In Zonal Manager, Central Bank of India Vs. Devi Ispat Limited and others (2010) 11 SCC 186, the Hon'ble Supreme Court held that mandamus can be issued by the High Court under Article 226 of the Constitution, if a legal right exist and corresponding legal duty is liable to be performed by the State or its instrumentalities. It is apt to reproduce para 28 of the judgment, which reads thus:-
"28. It is clear that (a) in the contract if there is a clause for arbitration, normally, a writ court should not invoke its jurisdiction;
(b) the existence of effective alternative remedy provided in the contract itself is a good ground to decline to exercise its extraordinary jurisdiction under Article 226; and (c) if the instrumentality of the State acts contrary to the public good, public interest, unfairly, unjustly, unreasonably discriminatory and violative of Article 14 of the Constitution of India in its contractual or statutory obligation, writ petition would be maintainable.::: Downloaded on - 15/04/2017 20:51:04 :::HCHP 26 CWP No. 6902 of 2010
However, a legal right must exist and corresponding legal duty on the part of the State and if any action on the part of the State is wholly unfair or arbitrary, writ courts can exercise their power. In .
the light of the legal position, writ petition is maintainable even in contractual matters, in the circumstances mentioned in the earlier paragraphs."
37. A mandamus will be issued to a person aggrieved who approaches the Court, if he makes out (i) existence of a legal right in of him and a corresponding obligation on the respondent to perform a legal duty and (ii) refusal, either express or implied, by the rt respondent to perform such duty, in spite of a demand. It is therefore, for the petitioners to prove the existence of legal right in their favour, after all it is they who have prayed for the issuance of writ in the nature of mandamus and are bound to establish the existence of a legal right in their favour and a corresponding legal duty upon the respondents to desist from implementing the OMs dated 26.11.2008 and 8.6.2009.
38. The petitioners were further required to establish that despite clause 35A of the Memorandum of Association and Articles of Association of respondent No. 3, it was still obligated upon respondent No. 3 to have continued paying the pay and other allowances and their condition of service would continue to be governed in terms of the agreements, as already referred to herein above. Having failed to prove aforesaid, no relief can be granted to them.
39. Evidently, respondent No. 1 has not chosen to deviate from the mandate of the OMs issued by it on 26.11.2008 and 8.6.2009 and on the other hand the same have essentially to be ::: Downloaded on - 15/04/2017 20:51:04 :::HCHP 27 CWP No. 6902 of 2010 followed by respondent No. 3 in terms of clause 35A of the Memorandum of Association and Articles of Association. Therefore, .
once respondent No. 1 has refused to relax the stipulation in the OMs in issue, the Court cannot compel the respondents to relax the condition of OMs as that would amount to compelling the authorities to commit an illegality. Giving effect to such plea would be of prejudicial to the interest of law and will do incalculable mischief to public interest. It will be a negation of law and rule of law.
rt
40. The principle, on which the whole argument of the petitioners is based, eludes to a situation where extraordinary jurisdiction of this Court is sought to be invoked for compelling the authority to commit illegality by issuing a prerogative writ on the specious plea of Article 14 of the Constitution of India claiming infringement right of equality by practicing irrational discrimination.
Obviously, this Court cannot be made privy to pass an illegal or unwarranted order. The extraordinary and discretionary power of this Court cannot be exercised for such a purpose.
41. Now adverting to the plea of the petitioners that they have been discriminated against. No doubt, it is true that Article 14 of the Constitution embodies a guarantee against arbitrariness, but it does not assume uniformity in mis-conceptualized plea based on erroneous assumption of mandate of law. It is trite that guarantee of equality being a positive concept, cannot be enforced in a negative manner. Any direction for enforcement of such claim was only tantamount to perpetuating an illegality, which cannot be permitted. A claim based on equality clause has to be just and legal.
::: Downloaded on - 15/04/2017 20:51:04 :::HCHP 28 CWP No. 6902 of 201042. As a last ditch effort, learned counsel for the petitioners would vehemently argue that once the petitioners get less pay, perks .
and allowances than their counter parts, who are regular employees of respondent No. 3, then there is discrimination writ large. Even this contention cannot be accepted, as it is only after obtaining the consent of the petitioners that they were deputed to work with of respondent No. 3 at the time when OM dated 26.11.2008 had already been issued by respondent No. 1. It is more than settle that rt there can be no deputation without the consent of the person, so deputed and he would, therefore, know his rights and privileges in the deputation post.
43. What is the deputation has been succinctly dealt with by the Hon'ble Supreme Court in State of Punjab vs. Inder Singh and others (1997) 8, SCC 372, in the following terms:
"18. Concept of "deputation" is well understood in service law and has a recognised meaning. 'Deputation' has a different connotation in service law and the dictionary meaning of the word 'deputation' is of no help. In simple words 'deputation' means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per Recruitment Rules. Whether the transfer is outside the normal field of deployment or not is decided by the authority who controls the service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post. The law on deputation and repatriation is quite settled as we have also seen in various judgments which we have referred ::: Downloaded on - 15/04/2017 20:51:04 :::HCHP 29 CWP No. 6902 of 2010 to above. There is no escape for the respondents now to go back to their parent departments and working there as Constables or Head Constables as the case may be."
.
44. In service jurisprudence, deputation is resorted to in public interest to meet exigencies of public service. Deputation is a tripartite agreement as held by the Hon'ble Supreme Court in Inder of Singh's case (supra) based on voluntary consent of the principal employer to lend the services of his employee, which decision has rt to be accepted by the borrowing Department/employer and also involves consent of the employee.
45. In Gurinder Pal Singh and others vs. State of Punjab and others, 2005 (1) SLR, 629, a learned Division Bench of the Punjab and Haryana High Court observed that a deputation subsists so long as the parties to this tripartite arrangement do not abrogate it. However, if any one of the parties repudiate the agreement, the other two have no legally enforceable right to insist upon continuance of the deputation. It is apt to reproduce para 12 of the judgment which reads thus:
"12. In service jurisprudence, "deputation" is described as an assignment of an employee of one department or cadre to another department or cadre. The necessity for sending on deputation arises in "public interest" to meet the exigencies of "public service". The concept of deputation is based upon consent and voluntary decision of the employer to lend the services of his employee, corresponding acceptance of such service by the borrowing employer and the consent of the employee to go on deputation. A deputation subsists so long as the parties to this tripartite arrangement do not abrogate it. However, if any one of the parties repudiate the agreement, the other two have no legally enforceable right to insist upon continuance of the deputation.::: Downloaded on - 15/04/2017 20:51:04 :::HCHP 30 CWP No. 6902 of 2010
Even in the cases where deputationists continue for a pretty long period and options for their "absorption" in the borrowing department were taken, yet their repatriation to the parent .
department was upheld by the Apex Court in Rattilal B. Soni vs. State of Gujarat, AIR 1990 SC 1132: [1991 (3) SLR 77 (SC)] after holding that "the appellants being on deputation, they could be repatriated to their parent cadre at any time and they do not get any right to be absorbed on the deputation post."
of "Deputation" per se being a contractually made ad hoc arrangement, seldom confers any right upon a deputationist, either for completion of the term of deputation or regularisation of such stop-gap arrangement. The judgments relied upon by the rt learned counsel for the College in this regard squarely answer the controversy."
46. Thus, there can be no gain saying that 'deputation' is the assignment of an employee of one Department/cadre to another Department /cadre and the deputation subsists so long as parties to tripartite agreement adhere to the same.
47. Once the petitioners were already aware of the OMs dated 26.11.2008 and 8.6.2009 and were fully aware of their rights and privileges in the deputation post and despite that still chose to proceed on deputation with respondent No. 3, then they have no one to blame for their folly apart from themselves. The petitioners cannot claim a higher right than they are entitled to in law.
48. In view of the aforesaid discussion, there is no merit in this petition and the same is accordingly dismissed. Consequently, the petitioners are directed to refund the excess amount together with the prevailing bank interest in terms of orders passed by learned Division Bench of this Court on 29.12.2010.
::: Downloaded on - 15/04/2017 20:51:04 :::HCHP 31 CWP No. 6902 of 2010With these observations the petition stands disposed of, so also the pending application(s), if any.
.
(Tarlok Singh Chauhan), Judge.
20th July, 2016 (KRS) of rt ::: Downloaded on - 15/04/2017 20:51:04 :::HCHP