State Can't Deviate From Substantive Legitimate Expectation Induced By It In The Absence Of Compelling Public Interest : Supreme Court

The Supreme Court, on Thursday, opined that when substantive legitimate expectation, which is not ultra vires the power of the State, has been induced, then State cannot be allowed to change course against such expectation. The Apex Court further noted that upsetting such expectation in absence of any compelling public interest amounts to abuse of power by the State."...abuse of power is one of the criteria for testing whether a public body could resile from a prima facie legitimate expectation - if the government authority induced an expectation which was substantive, the upsetting of that expectation, through departure from the expected course of action in the absence of compelling public interest, would be so unfair, that it would amount to abuse of power", the Court observed. A Bench comprising Justices K.M. Joseph and Hrishikesh Roy upheld the order of the Division Bench of Patna High Court, which, inter alia, held that the +2 lecturers (respondents herein) appointed pursuant to Advertisement No. 1/87 ought be treated as members of Bihar Subordinate Education Service Selection Grade Cadre, as can be construed from several documents issued by the State Government that were placed on record.The Supreme Court observed :"..where the substantive legitimate expectation is not ultra vires the power of the authority and the court is in a position to protect it, the State cannot be allowed to change course and belie the legitimate expectation of the respondents. As is well known, Regularity, Predictability, Certainty and Fairness are necessary concomitants of Government's action and the Bihar government in our opinion, failed to keep to their commitment by the impugned decision, which we find was rightly interdicted by the High Court". Factual Background In 1979, when the Bihar Government had introduced the 10+2+3 education pattern, the higher secondary education was imparted by colleges. It decided to create posts of +2 lecturer to impart +2 level education. Accordingly, in 1985, the Government sanctioned posts of lecturers in Subordinate Service Selection Grade for government schools and nationalised schools. The posts of +2 lecturers in Government schools were categorically in the Bihar Subordinate Education Service Selection Grade (BSES) as per the job advertisement No. 1/87 (concerned advertisement). It is pertinent to note that, on 07.07.2006, the Government had merged the Bihar Subordinate Education Service (BSES) and Bihar Education Service Class II (BES). However, the benefit of the merger in BES was denied to +2 lecturers in Government Colleges. This deviation was challenged before the Patna High Court. In the interim, in 2009, the State Government framed the Bihar Government Higher Secondary Schools (Service Conditions) (Amendment) Rules, 2009. The 2009 Amendment defined lecturers as +2 lectures appointed pursuant to the concerned advertisement and these +2 lecturers in Government schools were encadred with the secondary school teachers in nationalised schools. The encadrement was challenged before the Patna High Court on the ground that the +2 lecturers were above the nationalised secondary school teachers and therefore by the 2009 Amendment unequals were treated equally. The High Court in the impugned order held that the +2 lecturers appointed pursuant to the concerned advertisement were part of BSES. It found the encadrement to be unjustified. Contentions raised by the appellant Senior Advocate, Mr. P.S. Patwalia, appearing on behalf of the State of Bihar submitted that the appointment letter issued to the +2 lecturer mentioned that they were appointed in Ex Cadre Posts. The reference to the BSES in the concerned advertisement was only for identification of post and not for inclusion in the BSES cadre. He averred that when the BSES and BES were decided to be merged in 1977, the post of +2 lecturer did not exist. On the issue of encadrement, he contended that the same was done in conformity with the Bihar Non-Government Secondary Schools (Taking over of Control and Management) Act, 1981 (1981 Act). Contentions raised by the respondent Senior Advocate, Mr. Vijay Navare, appearing on behalf of the +2 lecturers, submitted that in the concerned advertisement it has been mentioned in no unclear terms that +2 lecturers in Government schools were in the BSES Selection Grade. It was argued that the notification for encadrement issued under 2009 Rules in exercise of power under 1981 Act is not legally viable as the 1981 Act was not amended before issuing the notification. Senior Advocate, Mr. Vijay Hansaria, appearing for the BES Association expressed concern that the lecturers in the BES Cadre ought not to lose seniority because of the merger of the +2 lecturers into the BES Cadre. Observing, inter alia, that the Association had not participated in the proceedings before the High Court, the Apex Court refused to grant relief ...

State Can't Deviate From Substantive Legitimate Expectation Induced By It In The Absence Of Compelling Public Interest : Supreme Court

Sohini Chowdhury

"Regularity, Predictability, Certainty and Fairness are necessary concomitants of Government's action".

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