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

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 stating 'the fence sitters cannot be placed at par with the front runners'.

Analysis by the Supreme Court

The Court noted that as per notification of 1985, the post of +2 lecturers in Government schools were created in the BSES cadre. The concerned advertisement issued subsequently affirmed the same. Even the Finance Department notification depicts that pay scale was equivalent to the BSES lecturers. It was of the view that merely because the appointment letter stated they were appointed against ex-cadre posts would not mean the posts were not created in BSES cadre. Pertinently, the pay scale of the +2 lecturers also matched that of the BSES lecturers. The Court observed that the 2006 notification of merger did not state that the posts created after 1977 would not enjoy the benefit of merger. On the issue of encadrement, the Court opined that there was no relevant intelligible differential for such an 'arbitrary classification'. It noted that the exclusion of +2 lecturers from the BSES cadre and in turn from the BES cadre is discriminatory, as the BSES teacher who are junior to the +2 lecturers have been extended the benefit of better pay and promotion to key administrative posts. Therefore, it is a violation of rights of +2 lecturers under Articles 14 and 16(1) of the Constitution of India. It reprimanded the State Government's discriminatory action -

"...repeated attempts by the state to inordinately favour those in the BES cadre, we are constrained to observe that the state government is not acting bonafide and is persisting in their iniquitous attempt to deny to the respondents, what is legitimately due to them."

Doctrine of Legitimate Expectation

The Court held that the State's action to sub-group +2 lecturer with teachers of nationalised schools and to deprive them from the benefit that enure to the lecturers in the BSES cadre upsets their legitimate expectation. Due to lack of promotional avenues to key administrative posts, +2 lecturers are, precisely, deprived of their expectation to occupy higher positions in the education department. Referring to the principles of the doctrine of legitimate expectation elucidated in the judgment of the Queen's Bench in R. v. Inland Revenue Commissioners, ex parte M.F.K. Underwriting Agents Ltd. and R v. North and East Devon Health Authority Ex p. Coughlan, the Court held that the inconsistent stand of the State Government with respect to the +2 lecturers smacks of arbitrariness. It noted -

"...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."

It held that the Bihar Government had failed to uphold its commitment to regularity, perfectibility, certainty and fairness.

"…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."

Case Name: State of Bihar And Ors. v. Shyama Nandan Mishra

Citation: 2022 LiveLaw (SC) 449

Case No. and Date: Civil Appeal No 7364 of 2014 | 05 May 2022

Corum: Justices K.M. Joseph and Hrishikesh Roy

Authored By: Justice Hrishikesh Roy

Headnotes

Doctrine of Legitimate Expectation - 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 [Paragraph 33]

Doctrine of Legitimate Expectation - 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 - Regularity, Predictability, Certainty and Fairness are necessary concomitants of Government's action - failure to keep commitment would permit the State's action to be interdicted [Paragraph 34]

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