THE STATE OF WEST BENGAL & ORS. versus GITASHREE DUTTA (DEY) on 20 April 2022

THE STATE OF WEST BENGAL & ORS.

v.

GITASHREE DUTTA (DEY)

(Civil Appeal No. 4254 of 2022)

APRIL 20, 2022

[S. ABDUL NAZEER AND VIKRAM NATH, JJ.]

Doctrines/Principles – Doctrine of legitimate expectation –Principle of Estoppel – When not applicable–National Food SecurityAct, 2013 – Cancellation of declaration of Fair Price Shop (FPS)vacancies in view of the implementation of 2013 Act– Correctnessof – Held: Appellants were reposed with a responsibility ofimplementing the mandate of the 2013 Act and to bring aboutreforms in the existing Public Distribution System – In the presentcase, upon scrutiny, it was found that declaration of vacancies videnotification dtd. 30.01.14 was not in conformity with the 2013 Actand thus, cancellation of the said notification was necessary forthe implementation of the said Act –Thus, the plea of legitimateexpectation of the respondent does not have any basis – Respondentbeing a mere applicant in an un-finalised selection process has novested right to seek continuation of the notified vacancies, when byrecalling the vacancy notification, the appellants endeavored toenforce the statute –There can be no estoppel against a statute –No material irregularity in issuing the impugned notification dtd.17.08.15 cancelling the declaration of vacancies –Respondent hasnot made out a case of arbitrariness or unreasonableness or malafide – Judgment of Division Bench set aside and that of the SingleJudge is restored.

Doctrines/Principles – Doctrine of legitimate expectation vis-à-vis Principle of Estoppel – Discussed.

Allowing the appeal, the Court

HELD: 1.1 The doctrine of “legitimate expectation” hasbeen developed in the context of principles of natural justice.‘Legitimate expectation’ is a public law right whereas ‘promissoryestoppel’ is a private law right. The doctrine of legitimateexpectation in public law is based on the principle of fairness and

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Anon-arbitrariness in governmental actions. However, the doctrineof legitimate expectation ordinarily would not have any applicationwhen the legislature has enacted the statute. Further, thelegitimate expectation cannot prevail over a policy introducedby the Government, which does not suffer from any perversity,unfairness or unreasonableness or which does not violate anyBfundamental or other enforceable rights vested in the respondent.When the decision of public body is in conformity with law or is inpublic interest, the plea of legitimate expectation cannot besustained. [Paras 10 and 11][1067-B-E]

1.2 There is a necessary inter-play between the plea ofClegitimate expectation and Article 14. For a decision to be non-arbitrary, the reasonable/legitimate expectations of the claimanthave to be considered. However, to decide whether theexpectation of the claimant is reasonable or legitimate in thecontext, is a question of fact in each case. Whenever the question Darises, it is to be determined not according to the claimant’sperception but in larger public interest wherein other moreimportant considerations may outweigh what would otherwisehave been the legitimate expectation of the claimant. The 2013Act was enacted to provide for food and nutritional security inhuman life cycle approach, by ensuring access to adequate quantityEof quality food at affordable prices to people to live a life withdignity and for matters connected therewith or incidental thereto.[Paras 14 and 15][1069-A-C, G]

1.3 It is clear from the different provisions of the 2013 Actthat there is a paradigm shift in addressing the problem of foodFsecurity from the current welfare approach to a right basedapproach. The Act confers legal right on the eligible beneficiariesto get the essential commodities through fair price shops at ahighly subsidized price. The Act also envisages reformsnecessary for distribution of essential commodities to the rationGcard holders. In the present case, upon scrutiny, it was foundthat declaration of vacancies vide notification dated 30.01.2014was not in conformity with the 2013 Act and thus, cancellation ofthe said notification was necessary for the implementation of theprovisions of the said Act. In view of above, the plea of legitimate H

expectation of the respondent is without having any basis. In theinstant case, no promise of any kind was made to continue theexisting policy on the part of the State. Furthermore, Clause 4 ofthe Conditions of the Notification dated 30.01.2014, calling forvacancies, provided that the State could reject applications withoutascertaining any reasons. The agency which initiated the selectionprocess is entitled to recall it upon reasonable grounds.Participation in the selection process or being a selected candidatedoes not vest such candidate with the right to direct the Authoritiesto give him appointment. Having regard to the above, it cannotbe said that the State has acted with material irregularity inissuing the impugned notification dated 17.08.2015. [Paras 19,21 & 22][1071-D-E; 1072-A-D]

1.4 There can be no estoppel against a statute. In the instantcase, the appellants were reposed with a responsibility ofimplementing the mandate of the 2013 Act, and more importantly,to bring about reforms in the existing Public Distribution Systemas stipulated under Section 12 of the said Act. The respondentherein being a mere applicant in an un-finalised selection process,has no vested right in his favour to seek continuation of thenotified vacancies, when by recalling the vacancy notification, theappellants endeavored to enforce the statute. Moreover, therecan be no estoppel against a statute. Even going by theobservations of the Division Bench in the impugned judgment,that the State was aware of the 2013 Act while issuing the30.01.2014 vacancy notification, the said notification cannot besustained, being contrary to the mandate of the National FoodSecurity Act, 2013, more importantly of Section 12 thereof.[Paras 25 and 29][1073-A; 1074-B-E]

1.5 The 2013 Act came into effect on 10.09.2013. Thevacancy notice is dated 30.01.2014. The vacancy notice does notrefer to the provisions of 2013 Act. It would be improper to inferthat the provisions of 2013 Act were kept in mind while issuingvacancy notice dated 30.01.2014. The respondent has not madeout a case of arbitrariness or unreasonableness or mala fide. Thejudgment of the Division Bench impugned is set aside and thejudgment of the Single Judge is restored. [Paras 30 and 31][1074-F-G, H; 1075-A]

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1064SUPREME COURT REPORTS

Hat Calcutta in M.A.T. No.1341 of 2018.

Rakesh Dwivedi, Sr. Adv., Soumitra G. Chaudhuri, ChanchalKumar Ganguli, Advs. for the Appellants.

Supriyo Chattopadhaya, Arup Banerjee, Prakash Sharma, Advs.for the Respondent.

The Judgment of the Court was delivered by

S. ABDUL NAZEER, J.

Leave granted.

2. This appeal is directed against the judgment dated 06.03.2019in M.A.T No.1341 of 2018 whereby the Division Bench of the HighCourt of Calcutta has allowed the appeal and set aside the order of thelearned Single Judge in Writ Petition No. 661(W) of 2017. The questionfor consideration in this appeal is whether the State of West Bengal wasjustified in cancelling the declaration of FPS (Fair Price Shop) vacanciesin view of the implementation of National Food Security Act, 2013 (forshort ‘2013 Act’).

3. Shorn of details, by a Gazette Notification dated 30.01.2014,the vacancy for FPS dealership was declared in the District of Alipurduar.The respondent participated in the selection process and wasrecommended as a first priority candidate in respect of the said vacancy.However, no final order appointing the respondent was issued by theState Authority. While the application of the respondent was pending, anotification dated 17.08.2015 was issued by the Food and SuppliesDepartment of the State of West Bengal cancelling the declaration ofvacancies. This notification was issued in the light of implementation ofthe 2013 Act, which is as under:

“In view of the implementation of the National Food Security Act,2013 in the State, the Governor is pleased to cancel with immediateeffect the FPS vacancies notified vide Memo. Nos. 2480/FS/O/Sectt./CSS/7S-16/2013 dated 26.08.2013, 3062-FS/Sectt/Food/4M-04/2013 dated 06.11.2013, 152-FS/Sectt/Food/4M-16/2013dated 20.01.2014, 540-FS/Sectt/Food/4M-16/2013 dated04.03.2014 and G-295/FS/Sectt/Food/6F-19/2009 dated08.01.2015. No further action will be taken in connection withapplications received against such vacancies.”

4. Being aggrieved by the cancellation of declaration of vacancies,the respondent moved an application under Article 226 of the Constitution A

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Abefore the High Court of Calcutta inter alia praying for quashing of theNotification dated 17.08.2015. The State of West Bengal contested thewrit petition by filing affidavit in opposition and the said writ petition wasdismissed by the learned Single Judge. The said judgment of the learnedSingle Judge was assailed by the respondent before the Division benchof the Calcutta High Court. This intra Court appeal along with threeBother matters were taken up by the Division Bench simultaneously anddecided finally by a judgment dated 06.03.2019. The Division Benchwhile deciding the said appeals held that the State of West Bengal hasfailed to justify the decision to recall the vacancies and that it has actedin an arbitrary and unreasonable manner, and hence, quashed theCNotification dated 17.08.2015. As noticed above, the State of West Bengaland its functionaries have challenged the legality and correctness of thesaid judgment in this appeal.

5. We have heard the learned counsel for the parties.

D6. The contention of the learned counsel for the appellants is thatthe Notification dated 17.08.2015 was issued in public interest in view ofthe 2013 Act. Therefore, the plea of legitimate expectation of therespondent is without any basis. It is argued that there is no estoppelagainst the statute. It is further argued that the Division Bench failed toappreciate that due to the implementation of the 2013 Act, the numberEof beneficiaries has been reduced in the State at that time after mappingof ration card holders, thus it was no more viable to create or go throughwith the process of filling up of vacancies. It is urged that the selectionshown pursuant to the Notice dated 30.01.2014 does not vest therespondent with any justiciable right to agitate before the Writ Court.F

7. However, the learned counsel for the respondent whilesupporting the judgment of the Division Bench submits that the respondenthad participated in the selection process and became successful thereat.The respondent altered the material position to her prejudice, on thebasis of the directions issued by the State in terms of the said notification.GThe justification for cancellation given in the impugned notification dated17.08.2015 is the coming into effect of the 2013 Act. The said Act wasin force prior to the notification dated 30.01.2014. Therefore, theAuthorities are deemed to have taken into consideration the parameterslaid down in the 2013 Act while declaring vacancy on 30.01.2014. Atthis stage, the Authorities cannot resile from their declared position.H

8. We have carefully considered the submission of the learnedcounsel made at the bar and perused the materials placed on record.

9. The respondent has contended that she has legitimateexpectation to be treated fairly even if she may not have a vested rightin getting the appointment. It is the duty and the obligation of the State toact fairly and not arbitrarily. A decision not to fill up the vacancies mustbe bona fide and for justifiable and appropriate reasons.

10. The doctrine of “legitimate expectation” has been developedin the context of principles of natural justice. ‘Legitimate expectation’ isa public law right whereas ‘promissory estoppel’ is a private law right.The doctrine of legitimate expectation in public law is based on the principleof fairness and non-arbitrariness in governmental actions.

11. However, the doctrine of legitimate expectation ordinarily wouldnot have any application when the legislature has enacted the statute.Further, the legitimate expectation cannot prevail over a policy introducedby the Government, which does not suffer from any perversity, unfairnessor unreasonableness or which does not violate any fundamental or otherenforceable rights vested in the respondent. When the decision of publicbody is in conformity with law or is in public interest, the plea of legitimateexpectation cannot be sustained. In Punjab Communications Ltd. v.Union of India and Ors.[1] this Court held that policy decision creatingthe legitimate expectation which is normally binding on the decision maker,can be changed by the decision maker in overriding public interest. Itwas held as under:

“37. The above survey of cases shows that the doctrine oflegitimate expectation in the substantive sense has been acceptedas part of our law and that the decision-maker can normally becompelled to give effect to his representation in regard to theexpectation based on previous practice or past conduct unlesssome overriding public interest comes in the way…….”

12. In Sethi Auto Service Station and Another v. DelhiDevelopment Authority and Others[2], this Court after referring tovarious precedents observed as under:

“32. An examination of the aforenoted few decisions shows thatthe golden thread running through all these decisions is that a 1 1999 (4) SCC 727

2 (2009) 1 SCC 180

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Acase for applicability of the doctrine of legitimate expectation,now accepted in the subjective sense as part of our legaljurisprudence, arises when an administrative body by reason of arepresentation or by past practice or conduct aroused anexpectation which it would be within its powers to fulfil unlesssome overriding public interest comes in the way. However, aBperson who bases his claim on the doctrine of legitimateexpectation, in the first instance, has to satisfy that he has reliedon the said representation and the denial of that expectation hasworked to his detriment. The Court could interfere only if thedecision taken by the authority was found to be arbitrary,Cunreasonable or in gross abuse of power or in violation of principlesof natural justice and not taken in public interest. But a claimbased on mere legitimate expectation without anything more cannotipso facto give a right to invoke these principles.

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33. It is well settled that the concept of legitimate expectationDhas no role to play where the State action is as a public policy orin the public interest unless the action taken amounts to an abuseof power. The court must not usurp the discretion of the publicauthority which is empowered to take the decisions under lawand the court is expected to apply an objective standard whichleaves to the deciding authority the full range of choice which theElegislature is presumed to have intended. Even in a case wherethe decision is left entirely to the discretion of the deciding authoritywithout any such legal bounds and if the decision is taken fairlyand objectively, the court will not interfere on the ground ofprocedural fairness to a person whose interest based on legitimateFexpectation might be affected. Therefore, a legitimate expectationcan at the most be one of the grounds which may give rise tojudicial review but the granting of relief is very much limited. [Vide:Union of India v. Hindustan Development Corporation –(1993) 3 SCC 499]”

G13. In Union of India v. Lt. Col. P.K. Choudhary[3], this Courtheld that the legitimate expectation, as an argument, cannot prevail overthe policy introduced by the Government which does not suffer fromany perversity, unfairness or unreasonableness or which does not violateany fundamental or other enforceable rights vested in the respondents.

14. There is a necessary inter-play between the plea of legitimateexpectation and Article 14. For a decision to be non-arbitrary, thereasonable/legitimate expectations of the claimant have to be considered.However, to decide whether the expectation of the claimant is reasonableor legitimate in the context, is a question of fact in each case. Wheneverthe question arises, it is to be determined not according to the claimant’sperception but in larger public interest wherein other more importantconsiderations may outweigh what would otherwise have been thelegitimate expectation of the claimant. In Food Corporation of Indiav. M/s Kamdhenu Cattle Feed Industries[4], this Court has pointedout as under:

“8. The mere reasonable or legitimate expectation of a citizen, insuch a situation, may not by itself be a distinct enforceable right,but failure to consider and give due weight to it may render thedecision arbitrary, and this is how the requirement of dueconsideration of a legitimate expectation forms part of the principleof non-arbitrariness, a necessary concomitant of the rule of law.Every legitimate expectation is a relevant factor requiring dueconsideration in a fair decision-making process. Whether theexpectation of the claimant is reasonable or legitimate in the contextis a question of fact in each case. Whenever the question arises,it is to be determined not according to the claimant’s perceptionbut in larger public interest wherein other more importantconsiderations may outweigh what would otherwise have beenthe legitimate expectation of the claimant. A bona fide decision ofthe public authority reached in this manner would satisfy therequirement of non-arbitrariness and withstand judicial scrutiny.The doctrine of legitimate expectation gets assimilated in the ruleof law and operates in our legal system in this manner and to thisextent.”

15. Bearing in mind the above legal principles, let us examine thepresent case. The 2013 Act was enacted to provide for food and nutritionalsecurity in human life cycle approach, by ensuring access to adequatequantity of quality food at affordable prices to people to live a life withdignity and for matters connected therewith or incidental thereto. It isbeneficial to refer to the ‘Introduction’ to the 2013 Act in order tounderstand the scope and purpose of the Act:

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“INTRODUCTION

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“INTRODUCTION

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Eradicating extreme poverty and hunger is one of the goalsunder the Millennium Development Goals of the United Nations.It casts responsibilities on all State parties to recognize the rightof everyone to adequate food. Food security means availability ofBsufficient foodgrains to meet the domestic demand as well asaccess, at the individual level, to adequate quantities of food ataffordable prices.

Providing adequate food has always been focus of theGovernment’s planning and policy. However, this legislation marksCa paradigm shift in addressing the problem of food security fromthe current welfare approach to a right based approach. Thislegislation would confer legal rights on eligible beneficiaries toreceive entitled quantities of foodgrains at highly subsidized prices.Besides, it also confers legal rights on women and children andother special groups such as destitute, homeless, disaster andDemergency affected persons and persons living in starvation toreceive meal free of charge or at affordable price.”

16. The ‘Statement of Objects and Reasons’ of 2013 Act, interalia, states as follows:

“(i) progressively undertake necessary reforms by the Centraland State Governments in the Targeted Public Distribution Systemin consonance with the role envisaged for them in the proposedlegislation.”

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17. Section 3 of the 2013 Act provides for the right to receivefoodgrains at subsidized prices and Section 4 provides for nutritionalFsupport to pregnant women and lactating mothers. Similarly, Section 5provides for the nutritional support to the children. Section 6 provides forprevention and management of child malnutrition.

18. Section 12 reposes a duty on the State to progressivelyundertake reforms necessary in the Targeted Public Distribution SystemGand the same should be in consonance with the Act. The same isreproduced as under:

“12. (1) The Central and State Governments shall endeavour toprogressively undertake necessary reforms in the Targeted PublicDistribution System in consonance with the role envisaged forHthem in this Act.”

Further under Section 12(2)(e), the Act envisages power of theState to undertake various steps in furtherance to reform the system,which shall, inter alia, include that the state can give preference to anypublic bodies/panchayats/SHGs/cooperative societies etc. The same hasbeen reproduced herein :- “12. (2) The reforms shall, inter alia, include—

(e) preference to public institutions or public bodies such asPanchayats, self-help groups, co-operatives, in licensing of fairprice shops and management of fair price shops by women ortheir collectives;”

Sub-section (23) of Section 2 defines the expression “TargetedPublic Distribution System” is as under:

“Targeted Public Distribution System” means the system fordistribution of essential commodities to the ration card holdersthrough fair price shops”.

19. It is clear from the different provisions of the 2013 Act thatthere is a paradigm shift in addressing the problem of food security fromthe current welfare approach to a right based approach. The Act conferslegal right on the eligible beneficiaries to get the essential commoditiesthrough fair price shops at a highly subsidized price. The Act alsoenvisages reforms necessary for distribution of essential commodities tothe ration card holders.

20. This Court in Swaraj Abhiyan v. Union of India & Ors.[5]has held that the 2013 Act is a social welfare legislation and its provisionsare mandatory. It is held thus:

“42. The provisions in the NFS Act mentioned above aremandatory and yet almost four years down the line they have notbeen fully implemented by some States.

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44. These questions have been troubling us since this matterwas listed on 24-10-2016 subsequent to our order dated 13-5-2016 in Swaraj Abhiyan (II) [Swaraj Abhiyan (2) v. Union ofIndia, (2016) 7 SCC 498 : (2016) 7 SCC 534 : AIR 2016 SC2953] . We had expected the State Governments concerned toimplement the provisions of the NFS Act with all due seriousness since it is a social welfare legislation enacted by Parliament.”

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A21. In the present case, upon scrutiny, it was found that declarationof vacancies vide notification dated 30.01.2014 was not in conformitywith the 2013 Act and thus, cancellation of the said notification wasnecessary for the implementation of the provisions of the said Act. Inview of above, the plea of legitimate expectation of the respondent iswithout having any basis.B

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22. We are also of the view that, in the instant case, no promise ofany kind was made to continue the existing policy on the part of theState. Furthermore, Clause 4 of the Conditions of the Notification dated30.01.2014, calling for vacancies, provided that the State could rejectapplications without ascertaining any reasons. The agency which initiatedCthe selection process is entitled to recall it upon reasonable grounds.Participation in the selection process or being a selected candidate doesnot vest such candidate with the right to direct the Authorities to givehim appointment. Having regard to the above, it cannot be said that theState has acted with material irregularity in issuing the impugnedDnotification dated 17.08.2015.

23. This Court in Sarkari Sasta Anaj Vikreta Sangh v. State ofM.P.[6 ]has held that no person can claim a right to run a fair price shop asan agent of the government and he could only have a right to be consideredfor appointment. In this context, this Court observed as follows:E

“11. ……………… No one could claim a right to run a fair priceshop as an agent of the Government. All that he could claim wasa right to be considered to be appointment to run a fair price shop.If the Government took a policy decision to prefer cooperativesocieties for appointment as their agents to run fair price shops, inFthe light of the frustrating and unfortunate experience gathered inthe last two decades, we do not see how we can possibly holdthat there was any discrimination.”

24. The appellant has contended that the State Government wasreposed with a responsibility for implementing the 2013 Act which, interGalia, entrusted a responsibility to reform the existing Targeted DistributionSystem. The respondent in an unfinalized selection process has no vestedright in his favour to seek continuation of the notified vacancies. Hence,by recalling the vacancy notification, the State endeavored to enforcethe statute and that there can be no estoppel against a statute.

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25. It is trite law that there can be no estoppel against a statute.This Court has settled this principle in a catena of judgments, starting asearly as 1955. A Constitution Bench of this Court in Thakur AmarSinghji v. State of Rajasthan[7] held as follows:

“….We are unable on these facts to see any basis for a plea ofestoppel. The letter dated 28.11.1953 was not addressed to thepetitioner; nor does it amount to any assurance or undertaking notto resume the jagir. And even if such assurance had been given, itwould certainly not have been binding on the Government, becauseits powers of resumption are regulated by the statute, and mustbe exercised in accordance with its provisions. The Act confersno authority on the Government to grant exemption fromresumption, and an undertaking not to resume will be invalid, andthere can be no estoppel against a statue”.

26. A Constitution of Bench of this Court in Electronics Corpn.of India Ltd. v. Secy. Revenue Deptt., Govt. of A.P.[8] also upheldthis principle and held as follows:

“21. There are two short answers to this contention. In the firstplace, there can be no estoppel against a statute…….”

27. This Court in A.P. Dairy Development Corpn. Federationv. B Narasimha Reddy[9], has held that when the actions of thegovernment are not in conformity with law, the doctrine of estoppel wouldnot apply. This Court observed:

“40.….The State, being a continuing body can be stopped fromchanging its stand in a given case, but where after holding enquiryit came to the conclusion that action was not in conformity withlaw, the doctrine of estoppel would not apply.”

28. It is clear that this Court in several judgments has also upheldthat the plea of promissory estoppel would stand negated when themandate of a statute is followed. This Court in A.P. Pollution ControlBoard II v. Prof. M.V. Nayudu & ors.[10], held as under:

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1074SUPREME COURT REPORTS

“69. The learned Appellate Authority erred in thinking thatbecause of the approval of plan by the Panchayat, or conversionof land use by the Collector or grant of letter of intent by theCentral Government, a case for applying principle of “promissoryestoppel” applied to the facts of this case. There could be noestoppel against the statute….”

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29. In the instant case, we have already noticed that the appellantswere reposed with a responsibility of implementing the mandate of the2013 Act, and more importantly, to bring about reforms in the existingPublic Distribution System as stipulated under Section 12 of the saidAct. The respondent herein being a mere applicant in an un-finalisedCselection process, has no vested right in his favour to seek continuationof the notified vacancies, when by recalling the vacancy notification, theappellants endeavored to enforce the statute. Moreover, as discussedabove, there can be no estoppel against a statute. Even going by theobservations of the Division Bench in the impugned judgment, that theDState was aware of the 2013 Act while issuing the 30.01.2014 vacancynotification, the said notification cannot be sustained, being contrary tothe mandate of the National Food Security Act, 2013, more importantlyof Section 12 thereof as held in A.P. Dairy Development Corpn.Federation (supra).E30. There is also no merit in the contention of the respondent thatthe Authorities have taken into consideration the parameters laid downin 2013 Act while declaring the vacancies on 30.01.2014. There is nothingon record to suggest that when the vacancies were declared on30.01.2014, the Authorities kept in mind the provision of the 2013 Act.The 2013 Act came into effect on 10.09.2013. The vacancy notice isFdated 30.01.2014. The vacancy notice does not refer to the provisionsof 2013 Act. In our view, it would be improper to infer that the provisionsof 2013 Act were kept in mind while issuing vacancy notice dated30.01.2014. The respondent has not made out a case of arbitrariness orunreasonableness or mala fide. In our view, the Division Bench oughtGto have held that the notification dated 17.08.2015 was issued to keepthe public distribution system in tune with the mandate of 2013 Act,more specifically Section 12 which provides for reform in the publicdistribution system.

31. Resultantly, the appeal succeeds and it is accordingly allowed.HThe judgment of the Division Bench impugned herein is set aside and the judgment of the learned Single Judge is restored. Parties are directedto bear their respective costs.

32. All pending applications also stand disposed of.

Divya Pandey

Appeal allowed.

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