Bombay High Court
Piyush S/O Subhash Chandekar vs The State Of Maharashtra, Thr. ... on 15 November, 2021
Bench: A.S. Chandurkar, Avinash G. Gharote, Pushpa V. Ganediwala
WP 4832 of 2018.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.4832/2018
PETITIONER : Umesh Devaji Burande
aged about 30 Years,
occupation Unemployed
R/o Ramnagar Ward No.6
behind Shivaji Mahavidyalaya Gadchiroli,
Taluka and District Gadchiroli.
...VERSUS...
RESPONDENTS : 1. State of Maharashtra
Through its Secretary Department of
Education and Sports, Mantralaya
extension office Madam Cama
Road Rajguru Chowk, Mumbai 400 032.
2. Deputy Director
Directorate of Sports and
Youth Services Nagpur Division,
Koradi Road, Nagpur.
3. The Maharashtra Ball Badminton
Association Recognised by Maharashtra
State Sports Council No.MSKK (8)
L/8702/KMA/1998
Through its General Secretary
Dr. Suresh Bhongade
J.B. College of Science, Wardha
Taluka and District Wardha.
4. Maharashtra State Road Transport
Corporation, Through its Divisional
Controller State Transport Gadchiroli,
Ta. & Dist. Gadchiroli.
WITH
::: Uploaded on - 15/11/2021 ::: Downloaded on - 16/11/2021 06:37:18 :::
WP 4832 of 2018.odt
2
WRIT PETITION NO.4796/2019
PETITIONER : Piyush s/o Subhash Chandekar
aged 23 years, r/o 35, Guptaji Bhavan,
Shrikrishna Nagar, Yavatmal.
...VERSUS...
RESPONDENTS : 1. The State of Maharashtra, through
Secretary to the Govt. of Maharashtra,
School Education & Sports Department,
Mantralaya, Mumbai 400 032.
2. Commissioner, Directorate of Sports &
Youth Services, Maharashtra
State, Pune.
------------------------------------------------------------------------------------
Shri Vijay N. Morande, Advocate for petitioner in WP No.4832/2018
Shri A.M. Sudame, Advocate for petitioner in WP No.4796/2019
Mrs. K.S. Joshi, Acting Government Pleader for respondent nos.1 and 2 in
both petitions
Shri S.W. Sambre, Advocate for respondent no.3 in WP No.4832/2018
Shri S.C. Mehadia, Advocate for respondent no.4 in WP No.4832/2018
Mrs. Gouri Venkatraman, Advocate for Intervenor
Shri Amit Kinkhede, Advocate for Intervenor
------------------------------------------------------------------------------------
CORAM : A.S. CHANDURKAR,
AVINASH G. GHAROTE AND
PUSHPA V. GANEDIWALA, JJ.
Date of reserving the order : 07/10/2021
Date of pronouncing the order : 15/11/2021
O R D E R : (PER : AVINASH G. GHAROTE, J.)
WP 4832 of 2018.odt
1. This full Bench has been constituted by the Hon'ble
the Chief Justice, for answering the following two questions :-
(1) Whether in a given facts and circumstances of the
present case, principles of Promissory Estoppel and
Legitimate Expectation would apply ?
(2) Whether the impugned Government Resolution
dated 01/07/2016 has been retrospectively applied to
the case of the petitioner ?
2. The need for constituting the Full Bench was felt as
the learned Division Bench (Shri Sunil B. Shukre and Shri Anil S.
Kilor, JJ.) in Umesh Burande's case [Writ Petition No.4832/2018]
while considering the effect of the Government Resolution dated
1/7/2016 in the background of the earlier Government
Resolution dated 30/4/2005, and the judgment of another
learned Division Bench of this Court ( Shri Prasanna B. Varale and
Shri Nitin W. Sambre, JJ.) in Sandip Phulchand Tandale Vs. The
State of Maharashtra and others (Writ Petition No.4409/2019,
dated 22/4/2019), which also considered the above two
Government Resolutions and had held that since the policy of the
WP 4832 of 2018.odt
year 2005 stood superseded by the new policy of the year 2016,
the latter would apply and no claim could be laid on the basis of
the former, felt that the principles of 'Promissory Estoppel' and
'Legitimate Expectation' were required to be considered in the
matter of withdrawal of the benefits of the earlier policy and thus
was of the opinion that the controversy needed to be put at rest
by an authoritative pronouncement of a Larger Bench on the
above questions, whereupon the Hon'ble the Chief Justice has
constituted this Full Bench.
3. Before we advert to the arguments, the background
facts leading to the present position as occurring in Writ Petition
No. 4832/2018 are summarized as under :
(a) the petitioner started playing the sport of 'Ball
Badminton' in the year 2002.
(b) the State of Maharashtra on 30/4/2005 came up with a
policy to promote sports, and considering that the persons who
were into the sports field were required to concentrate on the
game which took a lot of their time and energy, whereby their
academic career suffered, mooted a reservation of 5% in all
WP 4832 of 2018.odt
Government and Semi- Government offices in Categories A to D
for sportsmen who had performed special feats. The game of Ball
Badminton was one which was included as a sport in Appendix-A
to the Resolution as a game which would be eligible to the benefit
of such reservation policy.
(c) the petitioner is claimed to have continued his game of
Ball Badminton and is claimed to have secured various certificates
in the game. He participated as a player in the Maharashtra Ball
Badminton 51st State Junior Championship held at Wardha
between 17/12/2005 to 19/12/2005 and secured second place.
(d) on 1/7/2016 the State of Maharashtra introduced
the new policy in supersession of the policy as mooted in the
earlier Government Resolution dated 30/4/2005.
(e) in 2017 responding to the advertisement by the
Maharashtra State Road Transport Corporation (MSRTC) inviting
applications for the post of Junior Clerks in which one post was
reserved for sports quota, the petitioner had applied and
participated in the selection and was included in the select list
from 'open sports persons' quota for the post of clerk-typist.
WP 4832 of 2018.odt
(f) on 20/6/2018 the Divisional Controller, MSRTC,
Gadchiroli sent a communication to the Deputy Director Sports
and Youth Services, Nagpur for verification of the sports
certificate of the petitioner and was after some delay, informed
that since the sport of Ball Badminton was not included in the
Government Resolution dated 1/7/2016, therefore the certificate
could not be verified, which has given rise to Writ Petition
No. 4832/2018 being filed by the petitioner.
3.1. In Writ Petition No.4796/2019, the petitioner was
playing the game of 'Softball'.
4. Shri Vijay Morande, learned Counsel for the
petitioner in Writ Petition No.4832/2018 (Umesh Devaji Burande
Vs. State of Maharashtra through its Secretary, Department of
Education and Sports, Mantralaya Extension Office, Mumbai and
others), submits that the Government Resolution dated
30/04/2005, provides 5% reservation to sportsperson, which
include a person playing Ball Badminton. He further submits, that
the petitioner has been playing the game since 2002 till 2015 and
WP 4832 of 2018.odt
has acquired proficiency in the game which is evinced by the
certificates issued in his favour. By inviting our attention to para
no.2 of the Government Resolution dated 30/4/2005, he points
out the objects for issuance of the Government Resolution. He
further submits that Appendix-A lists the sport of Ball Badminton,
for playing which, the certificate of participation has been issued
in favour of the petitioner which makes him eligible for the
benefit of reservation. The petitioner was selected as a Junior
Clerk for MSRTC on 28/5/2018, and subsequent denial of the
benefit to him by virtue of the Government Resolution dated
1/7/2016 has led to the filing of the petition. He submits that
under the Government Resolution dated 1/7/2016, the petitioner
is not eligible as the sport of Ball Badminton has been removed
from the game of sports listed in Appendix-A of the Government
Resolution dated 30/4/2005, however since the petitioner had
already acted upon the promise as contained in the Government
Resolution dated 30/4/2005, the petitioner was entitled to be
governed by the same and reservation being applied to him as
contained therein. He submits that all earlier Government
Resolutions have been superseded by the Government Resolution
WP 4832 of 2018.odt
dated 1/7/2016 which changes the groups/categories as well as
the sports by deleting some of the sports like Ball Badminton and
Softball which were earlier included in the Government
Resolution dated 30/4/2005 under which the petitioner was
entitled for the benefit of reservation. He submits that the
Government Resolution dated 1/7/2016 had no retrospectivity
and therefore the petitioner would continue to be governed by
the Government Resolution dated 30/4/2005 and thus entitled to
benefit of reservation as contained therein.
4.1. Relying on Dr. Ashok Kumar Maheshwari Vs. State of
U.P. and another, (1998) 2 SCC 502, he submits that the principle
of promissory estoppel and legitimate expectation would clearly
apply to the case of the petitioner.
4.2. Shri Morande, learned Counsel for the petitioner, in
support of his submissions, has placed reliance upon the
judgments in Union of India and others Vs. Indo-Afghan Agencies
Ltd., AIR 1968 SC 718 ; State of Rajasthan and another Vs.
Mahaveer Oil Industries and others, (1999) 4 SCC 357 ; Bannari
WP 4832 of 2018.odt
Amman Sugars Ltd. Vs. Commercial Tax Officer and others,
(2005) 1 SCC 625 ; Secretary, State of Karnataka and others Vs.
Umadevi and others, 2006 SCC OnLine SC 407 ; Jitendra Kumar
and others Vs. State of Haryana and another, 2007 SCC OnLine
SC 1504 ; Monnet Ispat and Energy Limited Vs. Union of India
and others, (2012) 11 SCC 1; Union of India and another Vs.
V.V.F. Limited and another, 2020 SCC OnLine SC 378 and State of
Jharkhand and others Vs. Brahmaputra Metallics Ltd., Ranchi
and another, 2020 SCC OnLine SC 968.
4.3. He therefore submits that the view taken in Sandip
Phulchand Tandale Vs. The State of Maharashtra and others,
judgment dated 22/4/2019 in Writ Petition No.4409/2019 with
connected matters (High Court, Aurangabad Bench) is not
correct.
5. Shri Akshay Sudame, learned Counsel for the
petitioner in Writ Petition No.4796/2019 (Piyush s/o Subhash
Chandekar Vs. The State of Maharashtra, through Secretary to
the Govt. of Maharashtra, School Education & Sports
WP 4832 of 2018.odt
Department, Mantralaya, Mumbai and another ) which has been
tagged with Writ Petition No.4832/2018, submits that the
petitioner had a certificate of having played the game of Softball
which was included in Appendix-A to the Government Resolution
dated 30/4/2005 and therefore was entitled to the benefit of
reservation. He submits that the acquiring of qualification would
mean acting upon the Government Resolution by changing one's
position which had been done by the petitioner. He submits that
the Government Resolution dated 30/4/2005 in fact creates a
horizontal reservation which can directly be traceable to
Article 16 of the Constitution, which entitles the petitioner and
persons similarly situated to him to be considered for
employment. Relying upon Indira Sawhney Vs. Union of India
(1992) Supp. 3 SCC 212 he contends that reservation can also be
by way of executive instructions and the Government Resolution
dated 30/4/2005 is one such piece of executive instruction which
has created reservation as a result of which a vested right has
been created in the petitioner which having been crystallized
cannot be taken away for which reliance is placed on J. S. Yadav
Vs. State of Uttar Pradesh and another, (2011) 6 SCC 570 para
WP 4832 of 2018.odt
20 onwards. He submits that the right to offer one's candidature
for employment has been taken away which is impermissible in
law. He places reliance upon Tapti Oil Industries and another Vs.
State of Maharashtra, 1984 Mh.L.J. 321 and V. R. Potdar Vs. State
of Maharashtra, 1982 Mh. L.J. 799. Reliance is also placed upon
State of Jharkhand and others Vs. Brahmaputra Metallics Ltd.,
Ranchi and another, 2020 SCC OnLine SC 968.
5.1. Apart from the judgments relied upon by
Shri Morande, learned Counsel for the petitioner in Writ Petition
No.4832/2018, above, in support of his submissions, he further
relies upon the judgments in Century Spinning and
Manufacturing Company Ltd. And another Vs. The Ulhasnagar
Municipal Council and another 1970 (1) SCC 582 ; Excise
Commissioner U.P. Allahabad and others Vs. Ram Kumar and
others, 1976(3) SCC 540 ; The Bihar Eastern Gangetic Fisherman
Co-op. Society Ltd. Vs. Sipahi Singh and others, 1977(4) SCC
145; M/s Motilal Padampant Sugar Mills Co. Ltd. Vs. State of U.
P. and others, 1979 (2) SCC 409 ; M/s Jit Ram Shiv Kumar and
other Vs. State of Haryana and others, 1981(1) SCC 11 ; Union of
WP 4832 of 2018.odt
India and others Vs. Godfrey Phillips India Ltd., (1985) 4 SCC
369; Navjyoti Co-op. Group Housing Society and others Vs. Union
of India and others, (1992) 4 SCC 477 ; Food Corporation of
India Vs. M/s Kamdhenu Cattle Feed Industries, (1993) 1 SCC 71
and Union of India and others Vs. Hindustan Development
Corporation and others, (1993) 3 SCC 499.
6. Shri Sachin Sambre, learned Counsel for the
respondent no.3 in Writ Petition No.4832/2018 supports the view
canvassed by the learned Counsels for the petitioners.
7. Mrs. K.S. Joshi, the learned Acting Government
Pleader for the respondent nos.1 and 2 contends that :
(A) the question no.1 has not been properly framed as
according to her the answer cannot be rendered in the given facts
and circumstances of the case as they would be different in each
case. She submits that there is a Government Resolution of the
year of 2013 in between the Government Resolution of 2005 and
2016 and there have been changes taking place from time to
time.
WP 4832 of 2018.odt
(B) in the Government Resolution dated 30/4/2005
games recognized by the (a) Indian Olympic Association (b)
Maharashtra Olympic Association and (c) recommend by
Maharashtra Olympic Association were included. Clause 5 of the
Government Resolution dated 30/4/2005 reserved the right to
make changes in Appendix-A which would indicate that there was
no promise given or even if any promise was given it was subject
to change at the discretion of the State and therefore no right
whatsoever was created nor were the principles of promissory
estoppel and legitimate expectation could be said to be attracted
in this view of the matter.
(C) the 2005 policy was in force for 11 years and
therefore needed change in procedure and requirement to
promote sports at National and International level. The policy has
to change with circumstances.
(D) since it was realized that the policy of 2005 had
failed to achieve its objective and the need was felt to promote
games played in national and international tournaments and
competitions so as to enhance the standing of the Country the
new policy was framed in which the institutions of employment
WP 4832 of 2018.odt
were increased. The games as played in Olympics / Asian
Games / Commonwealth were included and more than 32 games
including Ball Badminton and Softball were excluded. She
submits that there was no crystallized right but a mere advantage
was granted for which reliance is placed upon the judgment in
Lalit Sehgal Vs. State of Goa and others, 1996 (1) Mh.L.J. 447.
(E) the policy of 2016 was a better policy in larger public
and national interest and therefore was required to be sustained.
Relying upon Union of India and others Vs. Hindustan
Development Corporation and others, (1993) 3 SCC 499 it is
submitted that for a policy to be struck down it had to be patently
arbitrary, discriminatory or mala fide none of which was there.
The criteria for inclusion-exclusion was not being tested. No
single game was picked up. Policy was rational in larger public
interest.
7.1. The learned Acting Government Pleader Mrs. Joshi
further submits that :
(1) There is no challenge in both the petitions to the
validity of the Government Resolution dated 1/7/2016. Challenge
WP 4832 of 2018.odt
is only to Appendix-A, in as much it excludes the game of Ball
Badminton and Softball.
(2) There are no pleadings as to how the Government
Resolution dated 1/7/2016 is detrimental.
(3) The Government Resolution has been issued in larger
public interest and has an overriding effect.
(4) The principles of promissory estoppel and legitimate
expectation do not apply.
(5) The policies of the State would always fluctuate.
They have to be kept modifying based upon the changing
conditions/scenario and the needs which arise with such change
in the situations, for the betterment of the society and has been
altered as per the prevailing situation in the sports arena.
(6) Action in framing the new policy is purely
administrative and is not susceptible to judicial review.
(7) There is no violation of any constitutional provisions.
(8) Concept of promissory estoppel cannot give rise to a
cause of action when there is a change in policy.
(9) There is no crystallized rights in the petitioner so as
to allege any violation.
WP 4832 of 2018.odt
(10) The Government Resolution dated 1/7/2016, is
prospectively applicable which is so stated in Clause-13 of the
said Government Resolution itself which makes it effective from
1/8/2016.
(11) Examination of retrospectivity would only be
permissible if challenge is raised to the vires of the Government
Resolution.
7.2. Reliance is placed upon the judgments in P.
Mahendran and others Vs. State of Karnataka and others, (1990)
1 SCC 411; Food Corporation of India Vs. M/s Kamdhenu Cattle
Feed Industries, (1993) 1 SCC 71; Union of India and others Vs.
Hindustan Development Corporation and others, (1993) 3 SCC
499; Madras City Wine Merchants' Association and another Vs.
State of T.N. and another, (1994) 5 SCC 509 ; Lalit Sehgal Vs.
State of Goa and others, 1996 (1) Mh.L.J. 447 ; P.T.R. Exports
(Madras) Pvt. Ltd. and others Vs. Union of India and others,
(1996) 5 SCC 268; Shrijee Sales Corporation and another Vs.
Union of India, (1997) 3 SCC 398; Sales Tax Officer and another
Vs. Shree Durga Oil Mills and another, (1998) 1 SCC 572 ; Dr.
WP 4832 of 2018.odt
Ashok Kumar Maheshwari Vs. State of U.P. and another, (1998) 2
SCC 502; State of Punjab and others Vs. Ramlubhaya Bagga and
others, (1998) 4 SCC 117; State of Rajasthan and another Vs.
Mahaveer Oil Industries and others, (1999) 4 SCC 357 ; Punjab
Communications Ltd. Vs. Union of India and others, (1999) 4
SCC 727; Federation of Railway Officers Association and others
Vs. Union of India, (2003) 4 SCC 289 ; Bannari Amman Sugars
Ltd. Vs. Commercial Tax Officer and others, (2005) 1 SCC 625 ;
State Bank's Staff Union (Madras Circle) Vs. Union of India and
others, (2005) 7 SCC 584; State of Orissa and others Vs.
Gopinath Dash and others, AIR 2006 SC 651; Directorate of Film
Festivals and others Vs. Gaurav Ashwin Jain and others, AIR 2007
SC 1640; Union of India and another Vs. Lieutenant Colonel P.K.
Choudhary and others, (2016) 4 SCC 236; Girjamata Labour
Co-operative Society Ltd. Vs. State of Maharashtra and others,
2017 (2) Mh.L.J. 622 and Kerala State Beverages (M and M)
Corporation Limited Vs. P.P. Suresh and others, (2019) 9 SCC 710.
8. Mrs. Venkatraman, learned Counsel for the
intervenor submits that the new policy of the year 2016 is neither
WP 4832 of 2018.odt
arbitrary nor unreasonable. She fully supports the judgment of
the Aurangabad Bench, in the case of Sandip s/o Phulchand
Tandale Vs. The State of Maharashtra and others in Writ Petition
No.4409/2019 dated 22/04/2019 (Coram : Prasanna B. Varale
and Nitin W. Sambre, JJ.) and submits that it has dealt with the
revised policy correctly and therefore there is no need for any
reference; there is no infirmity in the new policy; unless and until
the Coordinate Bench holds that there is infirmity in the new
policy, it cannot refer the question to a Larger Bench. Inviting our
attention to the judgment in the case of Umesh Burande (supra)
specifically para 12, she submits, there is no reason given as to
whether the new policy is arbitrary or unreasonable; there is no
pleading altogether, regarding any illegality in the new policy; the
reference to the Larger Bench, itself is not permissible, in absence
of a finding being rendered, that the policy is bad, arbitrary or
mala fide; the object of the revised policy has not been examined
at all. Reliance is placed upon Kasinka Trading Vs. Union of India,
(1995) 1 SCC 274 to contend that larger public interest should
always prevail. She further submits, that the learned Division
Bench making the reference did not examine the object of revised
WP 4832 of 2018.odt
policy. Further reliance is placed upon Union of India and others
Vs. Unicorn Industries, (2019) 10 SCC 575 and Kerala State
Beverages (M and M) Corporation Limited Vs. P.P. Suresh and
others, (2019) 9 SCC 710. Reliance is also placed on Santosh
Dnynoba Chavan Vs. State of Maharashtra and others, 2018 (2)
ALL MR 781. She submits that the policy of 2005, was revised in
the year 2011 and further also revision is within the discretion of
the Government and unless the discretion is found unreasonable
there cannot be any interference. She further submits, that this is
an enabling provision for which reliance is placed on Union of
India Vs. R. Rajeshwaran and another, (2003) 9 SCC 294. She
fully supports the new policy of the year 2016 and submits, that
there is no question of the principle of legitimate expectation or
promissory estoppel, being attracted in the present matter and
the questions under reference be answered accordingly.
9. Shri Amit Kinkhede, learned Counsel for the
intervenor has also addressed this Court. He supports the new
policy and the argument that the principles of promissory
estoppel and legitimate expectation have no applicability. He
WP 4832 of 2018.odt
submits that the sport of Ball Badminton or Softball are one
which negligible persons are aware of and play, as against which
the sports which are given in the Annexure to the new policy, are
based upon the recommendations of the Indian Olympic
Committee and are based upon an intention to improve the
standing of the Country in the Olympics, which issue according to
him, is of a larger public interest and therefore ought to prevail.
He further submits, that the classification is clearly reasonable.
Inviting our attention to the facts of the matter, he submits that
the petitioner in Writ Petition No.4832/2018, has made a
statement that he has been playing the sport, since 2002 whereas
the policy was framed in the year 2005 and therefore there
cannot be any case that the petitioner had acted upon the
promise and altered his position to his detriment. Relying upon
P & T Scheduled Caste/Tribe Employees' Welfare Association Vs.
Union of India, (1988) 4 SCC 147, he submits, that reservation is
an exception to Article 14 of the Constitution and only if it is
found that the employees were entrenched in the position due to
a policy that the principles of legitimate expectation and
promissory estoppel would be attracted and not otherwise.
WP 4832 of 2018.odt
9.1. In so far as question No.2 is concerned, he submits,
that the petitioner had applied in 2017 after the revised
Government Resolution of 2016 came into force in which case,
the question of any retrospectivity would not arise at all. For the
applicability of the principle of retrospectivity, he relies upon P.
Mahendram Vs. State of Karnataka (1990) 1 SCC 411.
9.2. He has also placed on record a compilation of
judgments in support of his contention, which are as under :-
(i) Motilal Padampant Sugar Mills Vs. State of U.
P. (1979) 2 SCC 409.
(ii) Union of India Vs. Godfrey Philips India Ltd.
(1985) 4 SCC 369
(iii) P & T Scheduled Caste/Tribe Employees'
Welfare Association Vs. Union of India (1988)4 SCC
(iv) P. Mahendram Vs. State of Karnataka (1990) 1
SCC 411
(v) Darjansingh Vs. Rampal Singh 1992 Supp (1)
SCC 191
(vi) Union of India Vs. Hindustan Development
Corp. (1993) 3 SCC 499
WP 4832 of 2018.odt
(vii) P.T.R. Exports Madras (P) Ltd. Vs. Union of
India (1996) 5 SCC 268
(viii) State Bank's Staff Union Vs. Union of India
(2005) 7 SCC 584
(ix) State of Karnataka Vs. Umadevi (2006) 4 SCC 1
(x) Monnet Ispat and Energy Ltd. Vs. Union of India
(2012) 11 SCC 1
(xi) Union of India Vs. Lt. Col. P. K. Choudhary
(2016) 4 SCC 236
(xii) Kerala State Beverages Corp. Ltd. Vs. P. P.
Suresh (2019) 9 SCC 710
(xiii) State of Jharkhand Vs. Brahmaputra Metallics
Ltd. 2020 SCC Online SC 968.
10. Shri S.C. Mehadia, learned Counsel raises a question
as to whether the petitioner was really induced by the policy. He
submits that the answer has to be 'no' for the reason that the first
certificate of participation filed on record as regards the
petitioner is of the year 2002, which would indicate that he was
15 years of age at that time and therefore had an affection
towards the game. The participation was before the policy came
into being. He further submits that between 2005 and 2015, there
is no certificate of participation placed on record indicating that
WP 4832 of 2018.odt
the petitioner continued to play the game. The policy of 2016,
was brought into effect from 1/8/2016, as against which the
petitioner has applied in the year 2017 when he was 30 years of
age, which clearly indicates that the application is not during the
currency of the policy of the year 2005. He therefore contends
that if the application itself is made upon the supersession of the
policy of the year 2005, the petitioner cannot claim any benefit
thereunder, and would be governed under the policy of the year
2016.
11. At the out set, we feel that the questions referred to
need to be rephrased. We, therefore, rephrase the questions as
under :-
(1) Whether a legally enforceable right can be claimed
based upon the principles of promissory estoppel and
legitimate expectation in respect of the policy framed under
the Government Resolution dated 30/4/2005, which has
been superseded by the Government Resolution dated
1/7/2016 ?
(2) Whether the Government Resolution dated 1/7/2016
is retrospectively applicable ?
WP 4832 of 2018.odt
12. Shri Morande, learned Counsel for the petitioner in
rebuttal submits that the policy as framed in the Government
Resolution dated 1/7/2016 is good and he has no qualms in that
regard. He admits that the object of both the policies of 2005 and
2016 was laudable as it provided succour to a sportsman at the
end of his career in sports by promising him job security for his
future by compensating him for the time, energy and efforts spent
by him in excelling in the particular sport.
12.1. The only grievance is the deletion of the game from
Appendix-A leading to the petitioner being denied the benefit of
reservation. He submits that by the policy of the year 2005 the
State had promised the benefit of 5% reservation to sports
persons in jobs available with Government and Semi-Government
Institutions and thus was estopped from now turning back and it
is based upon such promise that the petitioner had undertaken
the game of Ball Badminton and had spent a larger part of his
youth in playing the game and excelling therein.
WP 4832 of 2018.odt
12.2. He submits that there is a difference between a
reservation and a concession. While a concession can be
withdrawn a reservation cannot. What was granted was a
reservation and not a concession and therefore according to him,
it was not permissible for the State to resile from the policy of
2005, as it created a legitimate expectation in the minds of the
petitioner and persons similarly situated like him of their future
being secured by getting a job in the reservation as provided.
12.3. Citing the example of P. T. Usha, the learned Counsel
submits that it is because of such policy that she could excel in
the sport and bring laurels to the Country.
13. The principle of promissory estoppel, the origins of
which could be found in Hughes Vs. Metropolitan Railway Co.
(1877) AC 439 and Birmingham and District Land Co. Vs.
London and North-Western Rail Co. (1888) 40 Ch D 268 , by the
House of Lords, had gone into oblivion, and was resurrected by
Lord Denning in 1947 in Central London Property Trust Ltd. Vs.
High Trees House ltd. (1956) 1 ALL ER 256 , and has been taken
WP 4832 of 2018.odt
up, applied and expanded by the Indian Courts, thereafter. The
principle of promissory estoppel is founded in equity.
13.1. In Indo-Afghan Agencies Ltd. (supra), the Hon'ble
Apex Court was considering the question of enforcement of a
scheme, floated by the Textile Commissioner, which enabled
exporters to be entitled to import raw materials of the total
amount equal to 100% of the FOB value of the exports, and had
held, that the claim of the respondents therein was appropriately
founded upon the equity, which arose in their favour, as a result
of the representation made on behalf of the Union of India in the
Export Promotion Scheme and the action taken by the
respondents acting upon that representation under the belief that
the Government would carry out the representation made by it
and on the facts as proved in that case, it was held that no ground
had been suggested before the Court for exempting the
Government from the equity arising out of the acts done by the
exporters to their prejudice relying upon the representation.
WP 4832 of 2018.odt
13.2. In Century Spinning and Manufacturing Company
Ltd. (supra) [1970 (1) SCC 582] a three Judges Bench of this
Court after noting what had been said in M/s Indo-Afghan
Agencies Ltd (supra) held that public bodies are as much bound
as private individuals to carry out representations of facts and
promises made by them, relying on which other persons have
altered their position to their prejudice.
13.3. In Ram Kumar and others (supra) [1976 (3) SCC
540] a four Judges Bench of the Hon'ble Apex Court sounding a
discordant note, it was held, that there could be no estoppel
against the State Government in exercise of its legislative,
sovereign or executive powers and it was permissible for the State
to frame a policy which was in the interest of revenues of the
State, designed to meet the ever increasing pressing needs of the
developing society. Indo-Afghan (supra) however, was not
noticed.
13.4. In Sipahi Singh (supra) [1977 (4) SCC 145], which
was a case regarding enforcement of a contractual right, the three
WP 4832 of 2018.odt
Judges Bench of the Hon'ble Apex Court after noting Indo-Afghan
(supra) and distinguishing the same, on the ground that the claim
therein was founded upon equity, which arose in the favour of the
petitioner therein as a result of the representation made on behalf
of the Government regarding a particular scheme, reiterated the
position as laid down in Ram Kumar (supra) to hold that the
doctrine of promissory estoppel could not be pressed into service
as there cannot be any estoppel against the Government in
exercise of its sovereign, legislative and executive functions.
13.5. In M/s. Motilal Padampat Sugar Mills Co. Ltd.
(supra) [(1979) 2 SCC 409] the Hon'ble Apex Court, has while
considering the plea of an assurance given by the respondent no.4
therein on behalf of the State Government that the appellant
would be exempted from sales-tax for a period of three years
from the date of commencement of production, has traced the
origins of the doctrine of promissory estoppel and the principles
involved therein in the following words :-
"8. -----------. The doctrine would seem to apply even where
there is no pre-existing legal relationship between the
parties, but the promise is intended to create legal
WP 4832 of 2018.odt
relations or affect a legal relationship which will arise in
future. Vide Halsbury's Laws of England 4th Edn., p. 1018,
Note 2 to para 1514. Of course it must be pointed out in
fairness to Lord Denning that he made it clear in the High
Trees case that the doctrine of promissory estoppel cannot
found a cause of action in itself, since it can never do away
with the necessity of consideration in the formation of a
contract, but he totally repudiated in Evenden case the
necessity of a pre-existing relationship between the parties
and pointed out in Crabb v. Arun District Council [(1975)
3 All ER 865 : (1975) 3 WLR 847], that equity will, in a
given case where justice and fairness demand, prevent a
person from insisting on strict legal rights, even where
they arise, not under any contract, but on his own title
deeds or under statute. The true principle of promissory
estoppel, therefore, seems to be that where one party has
by his words or conduct made to the other a clear and
unequivocal promise which is intended to create legal
relations or affect a legal relationship to arise in the future,
knowing or intending that it would be acted upon by the
other party to whom the promise is made and it is in fact
so acted upon by the other party, the promise would be
binding on the party making it and he would not be
entitled to go back upon it, if it would be inequitable to
allow him to do so having regard to the dealings which
have taken place between the parties, and this would be so
irrespective of whether there is any pre-existing
relationship between the parties or not.
WP 4832 of 2018.odt
9. ---- it is a doctrine evolved by equity in order to prevent
injustice where a promise is made by a person knowing
that it would be acted on by the person to whom it is made
and in fact it is so acted on and it is inequitable to allow
the party making the promise to go back upon it. -------- It
is an equitable principle evolved by the courts for doing
justice and there is no reason why it should be given only
a limited application by way of defence.
10. ----- But, on what principle, one may ask, is the
distinction to be sustained between promissory estoppel
and proprietary estoppel in the matter of enforcement by
action. If proprietary estoppel can furnish a cause of
action, why should promissory estoppel not? There is no
qualitative difference between the two. Both are the
offsprings of equity and if equity is flexible enough to
permit proprietary estoppel to be used as a cause of action,
there is no reason in logic or principle why promissory
estoppel should also not be available as a cause of action,
if necessary to satisfy the equity.
13. ----. It is true that to allow promissory estoppel to
found a cause of action would seriously dilute the
principle which requires consideration to support a
contractual obligation, but that is no reason why this new
principle, which is a child of equity brought into the world
with a view to promoting honesty and good faith and
bringing law closer to justice, should be held in fetters and
not allowed to operate in all its activist magnitude, so that
it may fulfil the purpose for which it was conceived and
born. It must be remembered that law is not a mausoleum.
WP 4832 of 2018.odt
It is not an antique to be taken down, dusted, admired and
put back on the shelf. It is rather like an old but vigorous
tree, having its roots in history, yet continuously taking
new grafts and putting out new sprouts and occasionally
dropping dead wood. It is essentially a social process, the
end product of which is justice and hence it must keep on
growing and developing with changing social concepts and
values. Otherwise, there will be estrangement between law
and justice and law will cease to have legitimacy. -----.
19. When we turn to the Indian law on the subject it is
heartening to find that in India not only has the doctrine
of promissory estoppel been adopted in its fullness but it
has been recognized as affording a cause of action to the
person to whom the promise is made. The requirement of
consideration has not been allowed to stand in the way of
enforcement of such promise. The doctrine of promissory
estoppel has also been applied against the Government
and the defence based on executive necessity has been
categorically negatived. ----.
and laid down the position regarding the doctrine of promissory
estoppel, in the following words :-
24. ----. The law may, therefore, now be taken to be settled
as a result of this decision, that where the Government
makes a promise knowing or intending that it would be
acted on by the promisee and, in fact, the promisee, acting
in reliance on it, alters his position, the Government would
be held bound by the promise and the promise would be
WP 4832 of 2018.odt
enforceable against the Government at the instance of the
promisee, notwithstanding that there is no consideration
for the promise and the promise is not recorded in the
form of a formal contract as required by Article 299 of the
Constitution. ----. The doctrine of promissory estoppel is a
significant judicial contribution in that direction. But it is
necessary to point out that since the doctrine of
promissory estoppel is an equitable doctrine, it must yield
when the equity so requires. If it can be shown by the
Government that having regard to the facts as they have
transpired, it would be inequitable to hold the Government
to the promise made by it, the Court would not raise an
equity in favour of the promisee and enforce the promise
against the Government. The doctrine of promissory
estoppel would be displaced in such a case because, on the
facts, equity would not require that the Government
should be held bound by the promise made by it. When
the Government is able to show that in view of the facts as
have transpired since the making of the promise, public
interest would be prejudiced if the Government were
required to carry out the promise, the Court would have to
balance the public interest in the Government carrying out
a promise made to a citizen which has induced the citizen
to act upon it and alter his position and the public interest
likely to suffer if the promise were required to be carried
out by the Government and determine which way the
equity lies. It would not be enough for the Government
just to say that public interest requires that the
Government should not be compelled to carry out the
WP 4832 of 2018.odt
promise or that the public interest would suffer if the
Government were required to honour it. ------. It is only if
the Court is satisfied, on proper and adequate material
placed by the Government, that overriding public interest
requires that the Government should not be held bound by
the promise but should be free to act unfettered by it, that
the Court would refuse to enforce the promise against the
Government. The Court would not act on the mere ipse
dixit of the Government, for it is the Court which has to
decide and not the Government whether the Government
should be held exempt from liability. This is the essence of
the rule of law. The burden would be upon the
Government to show that the public interest in the
Government acting otherwise than in accordance with the
promise is so overwhelming that it would be inequitable to
hold the Government bound by the promise and the Court
would insist on a highly rigorous standard of proof in the
discharge of this burden. But even where there is no such
overriding public interest, it may still be competent to the
Government to resile from the promise "on giving
reasonable notice, which need not be a formal notice,
giving the promisee a reasonable opportunity of resuming
his position" provided of course it is possible for the
promisee to restore status quo ante. If, however, the
promisee cannot resume his position, the promise would
become final and irrevocable. ---.
33. ----. We do not think that in order to invoke the
doctrine of promissory estoppel it is necessary for the
promisee to show that he suffered detriment as a result of
WP 4832 of 2018.odt
acting in reliance on the promise. But we may make it
clear that if by detriment we mean injustice to the
promisee which would result if the promisor were to
recede from his promise, then detriment would certainly
come in as a necessary ingredient. The detriment in such
a case is not some prejudice suffered by the promisee by
acting on the promise, but the prejudice which would be
caused to the promisee, if the promisor were allowed to
go back on the promise. ----. It would, therefore, be
correct to say that in order to invoke the doctrine of
promissory estoppel it is enough to show that the
promisee has, acting in reliance on the promise, altered
his position and it is not necessary for him to further show
that he has acted to his detriment."
The judgment in Ram Kumar (supra) was duly
considered and the observation as made therein in regard to the
applicability of the doctrine of promissory estoppel against the
Government was held to be obiter.
13.6. In M/s Jit Ram Shiv Kumar and others (supra), the
Hon'ble Apex court after considering Indo-Afghan Agencies Ltd.
and Motilal Padampat Sugar Mills Co. (P) Ltd. (supra) held as
under :-
WP 4832 of 2018.odt
" 51. On a consideration of the decisions of this Court it is
clear that there can be no promissory estoppel against the
exercise of legislative power of the State. So also the
doctrine cannot be invoked for preventing the Government
from acting in discharge of its duty under the law. The
Government would not be bound by the act of its officers
and agents who act beyond the scope of their authority and
a person dealing with the agent of the Government must be
held to have notice of the limitations of his authority. the
Court can enforce compliance by a public authority of the
obligation laid on him if he arbitrarily or on his mere whim
ignores the promises made by him on behalf of the
Government. It would be open to the authority to plead and
prove that there were special considerations which
necessitated his not being able to comply with his obligations
in public interest."
It was also held, that the decisions of the Hon'ble
Apex Court, in Excise Commissioner U.P. Allahabad Vs. Ram
Kumar (supra), which held that the State Government was not
estopped or precluded from subjecting the sales of liquor to tax, if
it felt impel to do so, in the interest of revenue of the State, by
following the two earlier decisions in M. Ramnatha Pillai Vs.
State of Kerala, in which while dealing with the question,
whether the Government had right to abolish a post in the service
WP 4832 of 2018.odt
that the power to create or abolish a post is not related to the
doctrine of pleasure but is a matter of Governmental policy and
every sovereign Government has this power in the interest and
necessity of internal administration as the creation and abolition
of a post is dictated by policy decision, exigencies of
circumstances and administrative necessity and the creation, the
continuance and the abolition of post are all decided by the
Government in the interest of administration and general public
and the Courts exclude the operation of the doctrine of estoppel
when it is found that the authority against whom estoppel is
pleaded has owed a duty to the public against whom the estoppel
cannot fairly operate; and State of Kerala Vs. Gwalior Rayon Silk
Mfg. (Wvg.) Company Limited, 1973 (2) SCC 713 (C.B.) in which
it was held that the surrender by the Government of its legislative
powers to be used for public good cannot avail the company or
operate against the Government as equitable estoppel, correctly
stated the law. The position of law regarding the invocation and
application of the plea of promissory estoppel was summed up as
under :-
"40. The scope of the plea of doctrine of promissory estoppel
against the Government may be summed up as follows:
WP 4832 of 2018.odt
(1) The plea of promissory estoppel is not available against
the exercise of the legislative functions of the State.
(2) The doctrine cannot be invoked for preventing the
Government from discharging its functions under the law.
(3) When the officer of the Government acts outside the
scope of his authority, the plea of promissory estoppel is not
available. The doctrine of ultra vires will come into operation
and the Government cannot be held bound by the
unauthorised acts of its officers.
(4) When the officer acts within the scope of his authority
under a scheme and enters into an agreement and makes a
representation and a person acting on that representation
puts himself in a disadvantageous position, the Court is
entitled to require the officer to act according to the scheme
and the agreement or representation. The officer cannot
arbitrarily act on his mere whim and ignore his promise on
some undefined and undisclosed grounds of necessity or
change the conditions to the prejudice of the person who had
acted upon such representation and put himself in a
disadvantageous position.
(5) The officer would be justified in changing the terms of
the agreement to the prejudice of the other party on special
considerations such as difficult foreign exchange position or
other matters which have a bearing on general interest of the
State.
41. Before we conclude, we would refer to a recent decision
of this Court in Motilal Padampat Sugar Mills Co. (P) Ltd. v.
State of U.P. [(1979) 2 SCC 409 : 1979 SCC (Tax) 144 :
(1979) 2 SCR 641] It has been held that there can be no
WP 4832 of 2018.odt
promissory estoppel against the exercise of legislative power
and the legislature cannot be precluded from exercising its
legislative functions by resort to the doctrine of promissory
estoppel. It has also held that when the Government owes a
duty to the public to act differently, promissory estoppel could
not be invoked to prevent the Government from doing so. The
doctrine cannot be invoked for preventing the Government
from acting in discharge of its duty under the law. The
Government would not be bound by the acts of its officers
and agents, who act beyond the scope of their authority. A
person dealing with an agent of the Government must be held
to have noticed all the limitations of his authority."
13.7. In Tapti Oil Industries and another Vs. State of
Maharashtra and others 1984 Mh. L.J. 321, the Full Bench of this
Court held that the doctrine of promissory estoppel is available
against even executive action of the State. It is not necessary for
invoking the doctrine of promissory estoppel to trace the right to
any action of the Government under a legislative enactment. If
certain representations are made by the State Government, the
question as to whether those representations are made in the
exercise of its executive power or not is not relevant and if the
promisee has acted on those representations and altered his
position, then it will not be permissible for the State to resile from
WP 4832 of 2018.odt
its promise or representation to the prejudice of the person who
has acted on that promise.
13.8. In Godfrey Philips India Ltd. (supra), the Court after
noticing Motilal Padampat Sugar Mills (supra) and Jit Ram
(supra) expressed its disagreement with the observations in Jit
Ram (supra) to the extent that they conflicted with the statement
of law in Motilal Padampat Sugar Mills (supra) and introduced
reservations cutting down the full width and amplitude of the
propositions of law laid down in Motilal Padampat Sugar Mills
(supra) and held as under :
"13. Of course we must make it clear, and that is also laid
down in Motilal Sugar Mills case [(1979) 2 SCC 409 : 1979
SCC (Tax) 144 : (1979) 2 SCR 641] that there can be no
promissory estoppel against the Legislature in the exercise of
its legislative functions nor can the Government or public
authority be debarred by promissory estoppel from enforcing
a statutory prohibition. It is equally true that promissory
estoppel cannot be used to compel the Government or a
public authority to carry out a representation or promise
which is contrary to law or which was outside the authority
or, power of the officer of the Government or of the public
authority to make. We may also point out that the doctrine of
promissory estoppel being an equitable doctrine, it must yield
WP 4832 of 2018.odt
when the equity so requires; if it can be shown by the
Government or public authority that having regard to the
facts as they have transpired, it would be inequitable to hold
the Government or public authority to the promise or
representation made by it, the Court would not raise an
equity in favour of the person to whom the promise or
representation is made and enforce the promise or
representation against the Government or public authority.
The doctrine of promissory estoppel would be displaced in
such a case, because on the facts, equity would not require
that the Government or public authority should be held
bound by the promise or representation made by it. This
aspect has been dealt with fully in Motilal Sugar Mills case
[(1979) 2 SCC 409 : 1979 SCC (Tax) 144 : (1979) 2 SCR
641] and we find ourselves wholly in agreement with what
has been said in that decision on this point."
13.9. The principle of legitimate expectation, was
explained in Food Corporation of India v. Kamdhenu Cattle Feed
Industries (1993) 1 SCC 71 in the context of contractual
obligations of the State, in the following words :-
"7. In contractual sphere as in all other State actions, the
State and all its instrumentalities have to conform to Article
14 of the Constitution of which non-arbitrariness is a
significant facet. There is no unfettered discretion in public
law: A public authority possesses powers only to use them for
public good. This imposes the duty to act fairly and to adopt
WP 4832 of 2018.odt
a procedure which is 'fairplay in action'. Due observance of
this obligation as a part of good administration raises a
reasonable or legitimate expectation in every citizen to be
treated fairly in his interaction with the State and its
instrumentalities, with this element forming a necessary
component of the decision-making process in all State
actions. To satisfy this requirement of non-arbitrariness in a
State action, it is, therefore, necessary to consider and give
due weight to the reasonable or legitimate expectations of the
persons likely to be affected by the decision or else that
unfairness in the exercise of the power may amount to an
abuse or excess of power apart from affecting the bona fides
of the decision in a given case. The decision so made would
be exposed to challenge on the ground of arbitrariness. Rule
of law does not completely eliminate discretion in the
exercise of power, as it is unrealistic, but provides for control
of its exercise by judicial review.
8. The mere reasonable or legitimate expectation of a citizen,
in such a situation, may not by itself be a distinct 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 arises, it is to be
determined not according to the claimant's perception but in
WP 4832 of 2018.odt
larger public interest wherein other more important
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."
which indicates that the said principle is aimed at obliterating
arbitrariness in State actions.
13.10. In Union of India Vs. Hindustan Development
Corpn., (1993) 3 SCC 499, the Hon'ble Apex Court, in regard to
the doctrine of legitimate expectation, had held as under :
"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
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 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
WP 4832 of 2018.odt
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
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
WP 4832 of 2018.odt
quashed. If that be so then what should be the relief is again
a matter which depends on several factors."
13.11. In Mahaveer Oil Industries (supra) it was held that
public interest required that the State be held bound by the
promise held out by it, but this would not preclude the State from
withdrawing the benefit prospectively even during the period of
the scheme, if public interest so requires and even in a case where
the party has acted on the promise, if there is any supervening
public interest which requires that the benefit be withdrawn or
the scheme be modified, that supervening public interest would
prevail any promissory estoppel.
13.12. In Punjab Communications Ltd. (supra) while
dilating upon the question of applicability of the principle of
legitimate expectation, it was held that though a policy, may
create a legitimate expectation, which normally would be binding
upon the decision maker, however, such a policy can be changed
by the decision maker in overriding public interest, since choice of
policy is for the decision maker, this, however, change in policy
WP 4832 of 2018.odt
must satisfy the test of Wednesbury unreasonableness, so as to
enable the Court to interfere.
13.13. In Federation of Railway Officers' Association (supra)
it was held that the judicial review of a policy evolved by the
Government is limited; when policy according to which or the
purpose for which discretion is to be exercised is clearly expressed
in the Statute, it cannot be said to be an unrestricted discretion,
on matters affecting policy and requiring technical expertise the
Court would deal the matters for decision of those who are
qualified to address the issues and unless the policy or action is
inconsistent with the constitution and the laws or arbitrary or
irrational or abuse of power, the Court will not interfere with such
matters.
13.14. In Bannari Amman Sugars Ltd. (supra) while
considering the plea of promissory estoppel and legitimate
expectation and so also audi alteram partem, the Hon'ble Apex
Court held that a claim based on merely legitimate expectation
without anything more cannot ipso facto give a right though it
WP 4832 of 2018.odt
can be one of the grounds to consider whether the decision was
violative of these principles, warranting interference, as the
powers of the Court to review administrative action must be
restricted to general legal limitations applicable and it was held
that if the State's Acts within the bounds of reasonableness, it
would be legitimate to take into consideration the national
priorities and adopted policies and the ultimate test is whether on
the touchstone of reasonableness the policy decision comes out
unscathed. It also held that a restriction could not be held said to
be unreasonable merely because in a given case, it operates
harshly. It also held that in order to invoke the doctrine of
promissory estoppel clear, sound and positive foundation must be
led in the petition itself by the party invoking the doctrine and
bald expressions without any supporting material to the effect
that the doctrine is attracted because the party invoking the
doctrine has altered its position relying on the assurance of the
Government would not be sufficient to press into aid the doctrine
and the Courts are bound to consider all expects including the
results sought to be achieved and the public good at large,
because while considering the applicability of the doctrine the
WP 4832 of 2018.odt
Courts have to be equity and the fundamental principles of equity
must forever be present in the mind of the Court.
13.15. The principles regarding the invocation and
applicability of the doctrine of promissory estoppel and legitimate
expectation, thereafter, upon consideration of what has been
held in Indo-Afghan; Century Spinning and Manufacturing
Company Ltd. ; Ram Kumar; Sipahi Singh; Motilal Padampat;
Godfrey Phillips India Ltd.; Hindustan Development Corporation;
Kanishka Trading ; P.T.R. Exports (Madras) Pvt. Ltd. ; Dr. Ashok
Kumar Maheshwari ; Bannari Amman Sugars Ltd. (supra) have
been summed up by the Hon'ble Apex Court in Monnet Ispat &
Energy Ltd. (supra) in the following words :-
"182. In my view, the following principles must guide a court
where an issue of applicability of promissory estoppel arises:
182.1. Where one party has by his words or conduct made to
the other a clear and unequivocal promise which is intended
to create legal relations or affect a legal relationship to arise
in the future, knowing or intending that it would be acted
upon by the other party to whom the promise is made and it
is, in fact, so acted upon by the other party, the promise
would be binding on the party making it and he would not
be entitled to go back upon it, if it would be inequitable to
WP 4832 of 2018.odt
allow him to do so having regard to the dealings which have
taken place between the parties, and this would be so
irrespective of whether there is any pre-existing relationship
between the parties or not.
182.2. The doctrine of promissory estoppel may be applied
against the Government where the interest of justice,
morality and common fairness dictate such a course. The
doctrine is applicable against the State even in its
governmental, public or sovereign capacity where it is
necessary to prevent fraud or manifest injustice. However, the
Government or even a private party under the doctrine of
promissory estoppel cannot be asked to do an act prohibited
in law. The nature and function which the Government
discharges is not very relevant. The Government is subject to
the rule of promissory estoppel and if the essential
ingredients of this doctrine are satisfied, the Government can
be compelled to carry out the promise made by it.
182.3. The doctrine of promissory estoppel is not limited in
its application only to defence but it can also furnish a cause
of action. In other words, the doctrine of promissory estoppel
can by itself be the basis of action.
182.4. For invocation of the doctrine of promissory estoppel,
it is necessary for the promisee to show that by acting on
promise made by the other party, he altered his position. The
alteration of position by the promisee is a sine qua non for
the applicability of the doctrine. However, it is not necessary
for him to prove any damage, detriment or prejudice because
of alteration of such promise.
WP 4832 of 2018.odt
182.5. In no case, the doctrine of promissory estoppel can be
pressed into aid to compel the Government or a public
authority to carry out a representation or promise which is
contrary to law or which was outside the authority or power
of the officer of the Government or of the public authority to
make. No promise can be enforced which is statutorily
prohibited or is against public policy.
182.6. It is necessary for invocation of the doctrine of
promissory estoppel that a clear, sound and positive
foundation is laid in the petition. Bald assertions, averments
or allegations without any supporting material are not
sufficient to press into aid the doctrine of promissory
estoppel.
182.7. The doctrine of promissory estoppel cannot be
invoked in abstract. When it is sought to be invoked, the
court must consider all aspects including the result sought to
be achieved and the public good at large. The fundamental
principle of equity must forever be present to the mind of the
court. Absence of it must not hold the Government or the
public authority to its promise, assurance or representation.
Principles of legitimate expectation
188. It is not necessary to multiply the decisions of this
Court. Suffice it to observe that the following principles in
relation to the doctrine of legitimate expectation are now
well established:
188.1. The doctrine of legitimate expectation can be invoked
as a substantive and enforceable right.
188.2. The doctrine of legitimate expectation is founded on
the principle of reasonableness and fairness. The doctrine
WP 4832 of 2018.odt
arises out of principles of natural justice and there are
parallels between the doctrine of legitimate expectation and
promissory estoppel.
188.3. Where the decision of an authority is founded in
public interest as per executive policy or law, the court would
be reluctant to interfere with such decision by invoking the
doctrine of legitimate expectation. The legitimate expectation
doctrine cannot be invoked to fetter changes in
administrative policy if it is in the public interest to do so.
188.4. The legitimate expectation is different from
anticipation and an anticipation cannot amount to an
assertable expectation. Such expectation should be justifiable,
legitimate and protectable.
188.5. The protection of legitimate expectation does not
require the fulfilment of the expectation where an overriding
public interest requires otherwise. In other words, personal
benefit must give way to public interest and the doctrine of
legitimate expectation would not be invoked which could
block public interest for private benefit."
On facts it was held that the State Government had
full power to recall the recommendation made to the Central
Government for some good reasons, in the matter of application
made for the grant or renewal of a mining lease as no one has a
legal or vested right in respect of the same. In a separate
concurring judgment Hon'ble Shri Justice Gokhale, pointed out
WP 4832 of 2018.odt
the distinction between the promissory estoppel and legitimate
expectation in the following words :-
"289. As we have seen earlier, for invoking the principle of
promissory estoppel there has to be a promise, and on
that basis the party concerned must have acted to its
prejudice. In the instant case it was only a proposal, and it
was very much made clear that it was to be approved by
the Central Government, prior whereto it could not be
construed as containing a promise. Besides, equity cannot
be used against a statutory provision or notification.
290. What the appellants are seeking is in a way some
kind of a specific performance when there is no concluded
contract between the parties. An MoU is not a contract,
and not in any case within the meaning of Article 299 of
the Constitution of India. Barring one party (Adhunik)
other parties do not appear to have taken further steps. In
any case, in the absence of any promise, the appellants
including Adhunik cannot claim promissory estoppel in
the teeth of the notifications issued under the relevant
statutory powers. Alternatively, the appellants are trying
to make a case under the doctrine of legitimate
expectations. The basis of this doctrine is in
reasonableness and fairness. However, it can also not be
invoked where the decision of the public authority is
founded in a provision of law, and is in consonance with
public interest. As recently reiterated by this Court in the
context of the MMDR Act, in para 83 of Sandur
Manganese [(2010) 13 SCC 1] "it is a well-settled
WP 4832 of 2018.odt
principle that equity stands excluded when a matter is
governed by statute". We cannot entertain the submission
of unjustified discrimination in favour of Bihar Sponge
and Iron Ltd. as well for the reason that it was not pressed
before the High Court nor was any material placed before
this Court to point out as to how the grant in its favour
was unjustified."
13.16. The position regarding legitimate expectation, was
thereafter considered in Lieutenant Colonel P.K. Choudhary
(supra), while considering the doctrine of legitimate expectation
in the matter of promotion and noticing Kamdhenu Cattle Feed
Industries; Hindustan Development Corporation; Punjab
Communications Ltd. and Monnet Ispat & Energy Ltd. (supra) it
was held that legitimate expectation as an argument cannot
prevail over a policy introduced by the Government which does
not suffer from any perversity, unfairness or unreasonableness or
which does not violate any fundamental or other enforceable
rights vested. The following is what has been said :-
"52. Legitimate expectation as a concept has engaged the
attention of this Court in several earlier decisions to which
we shall presently refer. But before we do so we need only to
say that the concept arises out of what may be described as a
reasonable expectation of being treated in a certain way by
WP 4832 of 2018.odt
an administrative authority even though the person who has
such an expectation has no right in law to receive the benefit
expected by him. Any such expectation can arise from an
"express promise" or a "consistent course of practice or
procedure" which the person claiming the benefit may
reasonably expect to continue. The question of redress which
the person in whom the legitimate expectation arises can
seek and the approach to be adopted while resolving a
conflict between any such expectation, on the one hand, and
a public policy in general public interest on the other, present
distinct dimensions every time the plea of legitimate
expectation is raised in a case.
58. That apart, legitimate expectation as an argument cannot
prevail over a policy introduced by the Government which
does not suffer from any perversity, unfairness or
unreasonableness or which does not violate any fundamental
or other enforceable rights vested in the respondents. In the
case in hand, the Government has, as a matter of policy,
decided to lower the age profile of officers serving in Combat
Arms and Combat Arms Support pursuant to the
recommendations made by the Expert Committees. We have
in the earlier part of the judgment dealt with the
recommendations made by the Committees and the
objectives sought to be achieved by the policy decisions of the
Government. There is nothing perverse, unreasonable or
unfair about the policy that the age of officers serving in
Combat Arms and Combat Arms Support will be lowered by
creating additional vacancies to be allotted on Command Exit
Model. In the absence of any perversity, unreasonableness or
WP 4832 of 2018.odt
unfairness in the policy so introduced, we see no reason to
allow the argument based on legitimate expectation to
unsettle or undo the policy which is otherwise laudable and
intended to render the Indian Army more efficient and better
equipped for combat situations. It also is not a case where no
reasonable person could have taken the decision which the
Government have taken as regards the need for lowering the
age profile of the Commanding Officers or their exit after 2½
to 3 years to occupy positions which the Government have
created for the officers to occupy till they are considered for
promotion to the next higher rank."
13.17. The principles regarding legitimate expectation, have
been laid down in Kerala State beverages (M & M) Corporation
Ltd Vs. P. P. Suresh (2019) 9 SCC 710 wherein the Hon'ble Apex
Court was considering the applicability of the doctrine of
legitimate expectation in the background of a vested right of
employment claimed by the Abkari workers who had lost their
livelihood due to ban on attack in the state of Kerala and the state
had taken a decision to provide the displaced workers
employment by adjusting them against 25% of the daily wage
vacancies that would arise in the Corporation. The question
WP 4832 of 2018.odt
regarding any vested right of employment was answered as
under :-
"12 There is no dispute that a number of abkari workers
lost their livelihood due to the ban on arrack in the State,
in the year 1996. Dissatisfied with the monetary
compensation provided to them, they demanded
employment in the Corporation. The agitation turned
violent and to find an immediate solution to the law and
order problem, the Government took a decision to provide
employment to displaced abkari workers, adjusting them
against 25% of the daily wage vacancies that would arise
in the Corporation. There was no assurance given to all the
displaced abkari workers that they would be re-employed.
The assurance given by the Government was to reserve
25% of daily wage vacancies that would arise in future for
the displaced abkari workers. It cannot be said that a
vested right accrued to all the abkari workers to claim
employment in retail outlets in the Corporation. We do not
agree with the submission of the respondents that a vested
right was created by the Government Order dated 20-2-
2002 and that it was indefeasible. There was no
unequivocal promise that all the displaced workers would
be provided re-employment.
13. The assurance given to the abkari workers that they
would be considered for employment in 25% of the daily
wage vacancies that would arise in the Corporation,
according to the Government, had to be altered due to
administrative exigencies. The implementation of the
WP 4832 of 2018.odt
decision to provide employment to displaced abkari
workers was not possible in view of the fact that the
number of vacancies of daily wage employees after the
year 2002 were very less whereas there was a large
number of displaced abkari workers to be accommodated.
In view of the difficulties faced by the Government in
implementation of the Government Order dated 20-2-
2002, the Government found it fit to modify the policy
decision by a Government Order dated 7-8-2004. It came
to the notice of the Government that several displaced
abkari workers perished after 1996. Their families had to
be provided immediate succour. To give priority to the
families in immediate need, the Government decided that
dependent sons of the deceased abkari workers who died
after the year 1996 would be provided employment against
the 25% daily wage vacancies in the Corporation. The said
decision cannot be termed as unreasonable or arbitrary as
it was taken in light of overriding public interest. Relevant
considerations were taken into account by the Government
to alter the Government Order dated 20-2-2002."
In so far as the doctrine of legitimate expectation is
concerned the Hon'ble Apex Court relying on Punjab
Communications Ltd. Vs. Union of India and others (1999) 4 SCC
727, held that the position was as under :-
"19. An expectation entertained by a person may not be
found to be legitimate due to the existence of some
WP 4832 of 2018.odt
countervailing consideration of policy or law. [ H.W.R.
Wade & C.F. Forsyth, Administrative Law (Eleventh Edn.,
Oxford University Press, 2014).] Administrative policies
may change with changing circumstances, including
changes in the political complexion of Governments. The
liberty to make such changes is something that is inherent
in our constitutional form of Government. [Hughes v.
Department of Health and Social Security, 1985 AC 776,
788 : (1985) 2 WLR 866 (HL)].
20. The decision-makers' freedom to change the policy in
public interest cannot be fettered by applying the principle
of substantive legitimate expectation. [Findlay, In re, 1985
AC 318 : (1984) 3 WLR 1159 : (1984) 3 All ER 801 (HL)]
So long as the Government does not act in an arbitrary or
in an unreasonable manner, the change in policy does not
call for interference by judicial review on the ground of a
legitimate expectation of an individual or a group of
individuals being defeated.
21. The assurance given to the respondents that they
would be considered for appointment in the future
vacancies of daily wage workers, according to the
respondents, gives rise to a claim of legitimate expectation.
The respondents contend that there is no valid reason for
the Government to resile from the promise made to them.
We are in agreement with the explanation given by the
State Government that the change in policy due was to the
difficulty in implementation of the Government Order
dated 20-2-2002. Due deference has to be given to the
discretion exercised by the State Government. As the
WP 4832 of 2018.odt
decision of the Government to change the policy was to
balance the interests of the displaced abkari workers and a
large number of unemployed youth in the State of Kerala,
the decision taken on 7-8-2004 cannot be said to be
contrary to public interest. We are convinced that the
overriding public interest which was the reason for change
in policy has to be given due weight while considering the
claim of the respondents regarding legitimate expectation.
We hold that the expectation of the respondents for
consideration against the 25% of the future vacancies in
daily wage workers in the Corporation is not legitimate."
13.18. The issue thereafter fell for consideration of a three
Judges Bench of the Hon'ble Apex Court in Union of India Vs.
Unicorn Industries (2019) 10 SCC 575 , and after considering the
position as enunciated in Kanishka Trading; Shree Durga Oil
Mills; Mahaveer Oil Mills; Shreejee Sales Corporation (supra);
Shri Sidhbali Steels Vs. State of U.P. 2011 (3) SCC 193 and D.G.
of Foreign Trade Vs. Kanak Exports 2016(2) SCC 226 , it was held
as under :-
"18. It has been observed, that the withdrawal of exemption
in public interest is a matter of policy and the courts would
not bind the Government to its policy decisions for all times
to come, irrespective of the satisfaction of the Government
that a change in the policy was necessary in the public
WP 4832 of 2018.odt
interest. It has been held that, where the Government acts in
public interest and neither any fraud or lack of bona fides is
alleged much less established, it would not be appropriate
for this Court to interfere with the same. Ultimately, this
Court came to the conclusion that the withdrawal of the
exemption was in the public interest and, therefore, refused
to interfere with the order of the Delhi High Court dismissing
the petitions.
20. It could thus be seen that, it has been held that when
withdrawal of the exemption is in public interest, the public
interest must override any consideration of private loss or
gain. In the said case, the change in policy and withdrawal
of the exemption on the ground of severe resource crunch
have been found to be a valid ground and to be in public
interest.
22. It could thus be seen that this Court observed that once
public interest is accepted as a superior equity which can
override an individual equity, the same principle should be
applicable in such cases where the period is prescribed.
26. It could thus be seen that, it is more than well settled
that the exemption granted, even when the notification
granting exemption prescribes a particular period till which
it is available, can be withdrawn by the State, if it is found
that such a withdrawal is in the public interest. In such a
case, the larger public interest would outweigh the
individual interest, if any. In such a case, even the doctrine of
promissory estoppel would not come to the rescue of the
persons claiming exemptions and compel the State not to
WP 4832 of 2018.odt
resile from its promise, if the act of the State is found to be
in public interest to do so."
13.19. The Hon'ble Apex Court thereafter in State of
Jharkhand and Others Vs Brahmputra Metallics Ltd., Ranchi and
Another 2020 SCC OnLine SC 968 dilated upon the doctrine of
promissory estoppel and legitimate expectation and upon a
consideration of Monnet Ispat and Energy (supra) held that for
the application of the doctrine of promissory estoppel, there has
to be a promise based on which the promisee has acted to its
prejudice, whereas in contrast while applying the doctrine of
legitimate expectation, the primary considerations are
reasonableness and fairness in State action and considering
Lt. Col. P.K. Choudhary (supra) held that the doctrine of
legitimate expectation cannot be claimed as a right in itself, but
can be used only when the denial of a legitimate expectation
leads to the violation of Article 14 of the constitution. Further
considering Kamdhenu Cattle Feed Industries (supra) and NOIDA
Enterpreneurs Assn Vs. NOIDA 2011(6) SCC 508 , it held that the
doctrine of substantive legitimate expectation is one of the ways
WP 4832 of 2018.odt
in which the guarantee of non-arbitrariness enshrined under
Article 14 of the Constitution finds concrete expression.
13.20. In Union of India and Another Etc. Vs. V.V.F. Limited
and Another 2020 SCC OnLine SC 378 a three Judges Bench of
the Hon'ble Apex Court, while considering the doctrine of
promissory estoppel held that when the public interest warrants,
the principles of promissory estoppel cannot be invoked and that
the rule of promissory estoppel being an equitable doctrine has to
be moulded to suit the particular situation. It is not a hard-and-
fast rule but an elastic one, the objective of which is to do justice
between the parties and to extend an equitable treatment to them
and it was held as under :-
"58. As observed hereinabove, the subsequent
notifications/industrial policies do not take away any vested
right conferred under the earlier notifications/industrial
policies. Under the subsequent notifications/industrial
policies, the persons who establish the new undertakings
shall be continue to get the refund of the excise duty.
However, it is clarified by the subsequent notifications that
the refund of the excise duty shall be on the actual excise
duty paid on actual value addition made by the
manufacturers undertaking manufacturing activities.
WP 4832 of 2018.odt
Therefore, it cannot be said that subsequent
notifications/industrial policies are hit by the doctrine of
promissory estoppel. The respective High Courts have
committed grave error in holding that the subsequent
notifications/industrial policies impugned before the
respective High Courts were hit by the doctrine of
promissory estoppel. As observed and held hereinabove, the
subsequent notifications/industrial policies which were
impugned before the respective High Court can be said to be
clarificatory in nature and the same have been issued in the
larger public interest and in the interest of the Revenue, the
same can be made applicable retrospectively, otherwise the
object and purpose and the intention of the Government to
provide excise duty exemption only in respect of genuine
manufacturing activities carried out in the concerned areas
shall be frustrated. As the subsequent notifications/industrial
policies are "to explain" the earlier notifications/industrial
policies, it would be without object unless construed
retrospectively. The subsequent notifications impugned
before the respective High Courts as such provide the
manner and method of calculating the amount of refund of
excise duty paid on actual manufacturing of goods. The
notifications impugned before the respective High Courts can
be said to be providing mode on determination of the refund
of excise duty to achieve the object and purpose of providing
incentive/exemption. As observed hereinabove, they do not
take away any vested right conferred under the earlier
notifications. The subsequent notifications therefore are
clarificatory in nature, since it declares the refund of excise
WP 4832 of 2018.odt
duty paid genuinely and paid on actual manufacturing of
goods and not on the duty paid on the goods manufactured
only on paper and without undertaking any manufacturing
activities of such goods."
It is not necessary to multiply judgments as the
citations relied upon by the learned Counsel for the parties,
enunciate the doctrine of promissory estoppel and legitimate
expectation, which stand addressed by the above judicial
pronouncements. It is thus apparent that the principles of
promissory estoppel and that of legitimate expectation, cannot
come in the way of larger public interest and the State would
always have the right to change the policy, if it can be
demonstrated that factors existed, which required it to change or
modify the policy on account of the policy having become
unworkable, not giving the desired result or was in larger public
interest or such other reasons as may pass the test of
reasonableness. Personal benefit must give way to public interest
and the doctrine of legitimate expectation would not be invoked
which could block public interest for private benefit. Judicial
review would thus be confined to an examination as to whether
there was any arbitrariness, unreasonableness in the matter of
WP 4832 of 2018.odt
change of policy and not otherwise. It is thus based upon the
position as enunciated from the above judicial pronouncements
that the questions referred to have to be answered.
14. At the outset, what is material to note is that the
policy as framed by the Government Resolution dated 30/4/2005,
was amended by the Government Resolutions dated 1/12/2010,
21/5/2011, 10/4/2013 and 1/10/2005 earlier also.
15. The purpose behind bringing the policy for
reservation in employment to sportsperson, as spelt out from the
Government Resolution dated 30/04/2005, appears to be that the
sports activity, is an integral part in the social life of the nation as
well as the State, which enables the sportsperson to participate in
various international and national competitions which brings
name and fame, not only to the sportsperson but also to the
nation. It was found that there was a demand for reservation
from various quarters for sportspersons to be assured of
employment. After considering that the time period for
developing a career in sports and the academic career is the
WP 4832 of 2018.odt
same, as a result of which, if a sportsperson turns to developing
his career in the field of sport, his career in the academic field
naturally suffers, as a result of which, the sportsperson is unable
to compete with students who have concentrated on the academic
career alone and their parents in such a situation also do not
promote a sports career by preferring a career in academics as
there was also the lack of opportunity of employment after having
devoted a better part of the career building time, towards sports,
the need was therefore felt for framing a policy which would
address the issue of giving an impetus to a person to choose a
career in sports, as a result of which, the Government Resolution
dated 30/4/2005 was brought into effect. By the said
Government Resolution dated 30/4/2005 a 5% reservation was
provided in various offices as listed in Clause (1) therein for
sportspersons and criteria were laid down, in Clauses (3) and (4)
therein upon fulfilling which, the sportsperson would become
entitled to be considered for appointment in the 5% posts as
reserved for sportspersons found to be complying with the criteria
and found to be eligible. The sports, playing of which would
make a sportsperson eligible for the reservation were categorized
WP 4832 of 2018.odt
into four categories -A to D and the sports were to be those
approved by (1) the Indian Olympic Association (2) Maharashtra
Olympic Association and (3) those recommended by the
Maharashtra Olympic Association. The procedure was also laid
down, which was to be adopted for grant of employment. Terms
and conditions to be fulfilled/complied with, to enable a
sportsperson to avail of the benefit were also laid down in
Clause (7) of the said Government Resolution dated 30/4/2005.
16. Appendix-A to the said Government Resolution dated
30/4/2005 gave a list of the sports approved by these
associations. The sport of 'Ball Badminton' was included in the list
of sports approved by the Indian Olympic Association and the
sport of 'Softball' was included in the list of sports as
recommended by the Maharashtra Olympic Association. It is thus
apparent that the said Government Resolution dated 30/4/2005
did not specify particular sports which would be entitled to the
benefit of reservation but the naming of such sport was left to the
discretion of (1) the Indian Olympic Association (2) Maharashtra
Olympic Association to be approved by them and (3) those
WP 4832 of 2018.odt
recommended by the Maharashtra Olympic Association. This
would clearly indicate that the approval and recommendation
were not fixed but could vary, depending upon the decision,
approval and recommendation of the Indian Olympic Association
and Maharashtra Olympic Association.
17. In fact this position is illustrated by the judgment in
the case of Santosh Dnyoba Chavan Vs. The State of Mah. & Ors.
2018 (2) All M.R. 781, in which the sport of 'Atya Patya', which
was included in Appendix-A of the Government Resolution dated
30/4/2005, as the sport approved by the Indian Olympic
Association, for which competitions were held by the Atya Patya
Federation of India, affiliated to All India Olympic Association.
The petitioner therein had several certificates in the sport of Atya
Patya and had also represented the State. He had appeared for
the Maharashtra Public Service Commission (MPSC ) preliminary
examination in 2014 and had cleared it. The main examination
was also cleared by him. The appointment was sought from the
sports quota and when the certificates were sent for verification,
it was stated that the petitioner did not qualify since the Indian
WP 4832 of 2018.odt
Olympic Association had withdrawn the affiliation of Atya Patya
Federation of India vide Circular dated 11/2/2011, and therefore
he was not qualified. In Writ Petition it was noticed that the
Indian Olympic Association had amended its constitution in its
Annual General Assembly on 12/2/2011, whereby the category of
recognized members was deleted, due to which the affiliation
of 31 National Federations, which included the Atya Patya
Federation of India which was a recognized member, stood
withdrawn/de-recognized in respect of which a circular was duly
issued by the Indian Olympic Association. This fact came to the
notice of the State of Maharashtra in February 2013 as a result of
which a Government Resolution was issued on 30/12/2013,
whereby the sportspersons who had played during the period
from February 2011 to December 2013, were protected by
holding them eligible for the benefit of reservation and sports
certificates which were sent to the Directorate of Sports for
verification prior to 28/2/2014 only should be presumed to have
approval of Indian Olympic Association and accordingly should
be verified, which was challenged as violative of Article 14 of the
Constitution. A learned Division Bench of this Court, held that
WP 4832 of 2018.odt
what sports activity/event should be considered for giving 5%
reservation under the Government Resolution dated 30/4/2005,
would fall within the domain of the respondents and it was not
for the Courts to re-write the policy of the Government, had
dismissed the petition. The position that the benefit of the policy
as contained in the Government Resolution dated 30/4/2005,
was not in respect of particular sports, but was in respect of
sports approved by the Indian Olympic Association and
approved/recommended by the Maharashtra Olympic
Association, stood confirmed.
18. Clause-5 of the Government Resolution dated
30/4/2005 being material in this regard, it would be apt to
reproduce the same, which is as under :-
"5) vkj{k.kklkBh ekU;rkizkIr dzhMk izdkj
fofo/k xVkalkBh ekU;rkizkIr dzhMk izdkjkapk
rDrk ifjf'k"V&v ;sFks Bsoyk vkgs- lnj ;knhe/;s
vko';drsuqlkj osGksosGh cny dj.;kps vf/kdkj 'kklukl
jkgrhy-"
It would thus be apparent that the right to change
the sport in Appendix-A entitled for reservation, has been
WP 4832 of 2018.odt
specifically reserved by the State. This would further indicate that
though the playing of a particular sport, subject to the satisfaction
of the eligibility criteria laid down, could entitle a sportsperson
for being considered for the reservation, the sport could be
changed by the State at any time. The representation thus given
in the policy as emanating from the Government Resolution dated
30/4/2005, was capable of being changed at any time, from time
to time, based upon the need felt by the State. The promise or
expectation given/created therefore was capable of being
changed anytime, which condition was contained in the
Government Resolution dated 20/4/2005 itself, and thus was a
promise which was neither fixed or absolute, but a conditional
one and therefore merely because some of the sports as listed in
Appendix-A of the Government Resolution dated 30/4/2005 were
deleted that would not mean that a sportsperson had acquired
any claim on the basis of the principle of promissory estoppel or
legitimate expectation. One single Clause-5 of the Government
Resolution dated 30/4/2005 makes these principles inapplicable.
WP 4832 of 2018.odt
19. Even Clause-3(d) of the Government Resolution
dated 30/4/2005, conferred upon the State the discretion to
directly appoint a sportsperson who had brought laurels to the
State, by diluting the age and educational criteria as contained
therein, which would indicate the nature of discretion retained by
the State.
20. By a subsequent Government Resolution dated
9/12/2010, for exercising the discretion as vested in the State
under Clause-3(d) of the Government Resolution dated
30/4/2005, for direct appointment, so as to expedite the
appointments, Committees were constituted to make
recommendations. The Hon'ble the Chief Minister was also
empowered to grant an appointment in a given case directly,
without even asking for the recommendation of the Committees
as constituted under the Government Resolution dated
9/12/2010. All the appointments to be made by direct mode,
were subject to the 5% limit of reservation as contained in the
Government Resolution dated 30/4/2005.
WP 4832 of 2018.odt
21. Thereafter by a Government Resolution dated
21/5/2011, the position as regards the sportspersons competent
to be appointed directly under Clause- 3(d) of the Government
Resolution dated 30/4/2005 for having performed a feat which
brought laurels to the State, was clarified by defining the
expression 'feat which glorified the State's name', as under :
"¼1½^^jkT;kps uko mTToy dj.kkjh dkefxjh** Eg.kts
dks.krh dkefxjh gs Li"V gks.;kP;k n`"Vhus [kkyhy vf/kd`r
Li/kkZe/;s ind izkIr [ksGkMwauk 'kklu lsosr FksV fu;qDrh
ns.;kklkBh fopkj dj.;kr ;kok"
¼v½ xV&^^v** e/khy fu;qDrhlkBh%& ¼1½ vkWfyfEid
dzhMk Li/kkZ] ¼2½ tkxfrd dzhMk Li/kkZ] ¼3½ ,f'k;u xsEl Li/kkZ]
¼4½ dkWeuosYFk xsEl Li/kkZ]
[email protected]&812 ¼500&5&11½&1
¼c½ xV&^^c** e/khy fu;qDrhlkBh%& ¼1½ vkf'k;kbZ
pWfEi;u'khi Li/kkZ] ¼2½ T;qfu;j oYMZ pWfEi;u'khi Li/kkZ]
¼3½ ;qFk vkWfyfEid-**
This would reaffirm the position that the terms of the
Government Resolution dated 30/4/2005 were being clarified
and changed from time to time as in the original Government
Resolution dated 30/4/2005, in Clause - (4) (a) - (Group-A) - the
eligibility criteria stated that the sportsperson ought to have
WP 4832 of 2018.odt
participated in an International Sports Competition, individually
or as a team member representing the Country and must have
secured 1/2/3 place or Gold/Silver/Bronze medal and such
competitions must have been organized by International
Federations associated with International Olympic Association.
There was no mention of Asian Games and Commonwealth
Games, which were introduced for the first time by the
Government Resolution dated 21/5/2011. Similar is the position
in respect of Clause-(4) (b) - (Group-B) - in the original
Government Resolution dated 30/4/2005, wherein the eligibility
criteria was changed by introducing the Asian Championship
Event; Junior World Championship Event and Youth Olympic
which also were introduced for the first time by the Government
Resolution dated 21/5/2011.
22. The Government Resolution dated 10/4/2013
further amended the Government Resolution dated 21/5/2011
for direct appointment by making some deletions therein, one of
them being the eligibility criteria for appointment in Group-C
and D. To be included in Group-C, the criteria was expanded to
WP 4832 of 2018.odt
include even a sportsperson who had represented the Country in
tournaments/events indicated in Group-A and B of the
Government Resolution dated 30/4/2005 as it stood modified by
the Government Resolution dated 21/5/2011. For being included
in Group-D the criteria was expanded to include (a) having
secured a medal in South Asian Championship and
Commonwealth Championship or (b) having secured a medal in a
tournament/event organized by an International Federation
associated with the International Olympic Committee in which at
least 6 countries had participated or (c) all tournaments/ events
which made one eligible to be included in Groups - A, B and C or
(D) has stood first in National Games.
23. It is further material to note that Appendix-A and B,
annexed to the Government Resolution dated 10/4/2013, did not
include most of the games approved by the Indian Olympic
Association which were included in Appendix-A of the
Government Resolution dated 30/4/2005 as well as some
approved by the Maharashtra Olympic Association such as
WP 4832 of 2018.odt
Aquatics and Lawn Tennis but included new games such as
Yatching, Sailing, Equestrian, Fencing and Wrestling.
24. This would indicate that time and again not only a
particular sport but also the tournaments where a sportsperson
participated were being changed.
25. Then came the Government Resolution dated
1/10/2015, which included differently abled sportsperson who
had participated in games/ tournaments/ events organized by
National Disabled Federation associated with the Indian Olympic
Association in Groups - A to D of the Government Resolution
dated 30/4/2005 which also included the 'Para Olympic' and
'Blind Sports' in Appendix-A to the Government Resolution dated
10/4/3013 for the purpose of Direct appointment.
26. Thereafter came the Government Resolution dated
1/7/2016, by which the Government Resolution dated
30/4/2005 and all subsequent Government Resolutions thereto
WP 4832 of 2018.odt
were superseded and a revised policy for reservation was brought
into being.
27. What is material to note is that the learned Counsels
for the petitioners do not dispute the validity of the Government
Resolution dated 1/7/2016 and neither any challenge thereto has
been laid in the petitions in this regard. What is disputed is only
the deletion of some sports, from the list of sports for which
reservation shall be available as per the Government Resolution
dated 1/7/2016 namely, Ball Badminton and Softball in case of
the present petitions. It is material to note that the Government
Resolution dated 1/7/2016 not only deletes the sports of Ball
Badminton and Softball, from its ambit, but except for Chess,
Kabaddi and Khokho, it deletes all other Indian/Local sports. The
criterion of being included in Group-A, B, C and D is based upon
the sports played in the various tournaments, as indicated in
Schedule-A to the Government Resolution dated 1/7/2016. There
is yet another significant difference in as much as, whereas the
earlier Government Resolution dated 30/4/2005, restricted the
5% reservation, to the offices as indicated in Clause-1 (a) to (e)
WP 4832 of 2018.odt
therein, the Government Resolution dated 1/7/2016, expanded
the same, to various other institutions, as would be apparent,
from the following table.
Sr. Government Resolution Government Resolution dated
No. dated 30/4/2005 1/7/2016
1½ vkj{k.k ykxw djko;kP;k lsok 1½ [ksGkMw fo"k;d vkj{k.k ykxw vlysyh
o dk;kZy;s dk;kZy;s%&
ukefunsZ'kukus Hkjko;kP;k lnj 'kklu fu.kZ; 'kkldh;@
inkae/khy vkjk{k.k gs [kkyhy fue'kkldh; dk;kZy;@ 'kkldh;
dk;kZy;kl ykxw jkghy%& midzekrhy lkafo/kkfud [email protected]
ftYgkifj"[email protected] iapk;r lfeR;[email protected]
v½ jkT; 'kklukph loZ dk;kZy;s
xzkeiapk;[email protected] uxjifj"[email protected] [email protected]
c½ jkT; 'kklukph midze o
[email protected] [email protected] [email protected]
egkeaMGs 'kklukps vaxhd`r O;olk;@ fo|[email protected]
d`"kh fo|[email protected] 'kkldh; f'k{k.k laLFkk
d½ LFkkfud LojkT; laLFkk
vkJe'[email protected] lgdkjh [email protected] lgdkjh
M½ oS/kkfud eaMGs
lk[kj dkj[[email protected] lgdkjh lwrfxj.;[email protected]
b½ jkT; 'kklukdMwu izR;{k fdaok [email protected] lgdkjh [email protected] lgk;~;d vuqnku
feG.kk&;k 'kklu ekU; LosPNk
vizR;{k ¼mnk- tehu] ik.kh]
laLFkk ;kaP;klg vU; T;k T;k izdkjP;k
vuqnku] dj loyrh b-½ izkIr
laLFkk o dk;kZy;s ;kauk jkT;kP;k
gks.kk&;k laLFkk- frtksjhrwu fu/[email protected] [email protected] lgk;~;d
vuqnku feGrs v'kk loZ izdkjP;k [email protected]
eaMGs ;kauk R;kaP;k vkLFkkiusojhy inkoj
[ksGkMwalkBh 5% vkj{k.k ¼lekarj vkj{k.k½
ykxw dj.ks ca/kudkjd jkghy-
WP 4832 of 2018.odt
28. It is further material to note that the need for
superseding the Government Resolution dated 30/4/2005 and all
its subsequent Government Resolutions, Circulars, Corrigendum
etc. was felt, as in absence of requisite information regarding the
requirements, a number of applicants, were later on found to be
ineligible, as a result of which, a number of seats remained vacant
and in some cases it also resulted in litigation and thus the
purpose for which the Government Resolution dated 30/4/2005
was brought into being was not being achieved.
29. Thus, the Government Resolution dated 1/7/2016,
framed comprehensive policy for according reservations of 5% to
sportspersons, fulfilling the eligible criteria as laid down therein.
What is apparent are two significant changes which have been
made in the Government Resolution dated 1/7/2016, one of
them being, of enlarging the number of institutions where the
reservations would be available, as indicated in Clause-1 of the
same and the other making it available on the basis of
participation in the tournaments/sports events conducted, as
indicated in Clause - 2 thereof.
WP 4832 of 2018.odt
30. Thus, it would be apparent that the Government
Resolution dated 1/7/2016 by enlarging the number of
institutions where the 5% reservation would become available
and the criteria being participation in the sports events being
conducted under the aegis of various institutions, was clearly
intended to address a larger public interest than what the
Government Resolution dated 30/4/2005 and its amendments
were intended to do. It is thus axiomatic that when the
Government Resolution dated 1/7/2016, serves a larger public
interest, the State was clearly within its competence to do so and
the question of the State being estopped by the principle of
promissory estoppel and that of legitimate expectation would not
come in the way of the State, in formulating a policy, to subserve
a greater base and larger public interest, so that the benefit of the
reservation, would become available, to more number of
sportspersons than it was earlier available. A similar position was
considered by the Hon'ble Apex Court in P.P. Suresh (supra), and
what has been said therein would equally apply to the present
case too.
WP 4832 of 2018.odt
31. Even otherwise, as pointed out above, Clause -5 of
the Government Resolution dated 30/4/2005, made it amply
clear, that the State had reserved the right in itself, in changing
the sports, as enumerated in Appendix -A from time to time,
which would indicate that the promise given was conditional one
and therefore, even if it was presumed that due to the promise a
legitimate expectation was created of being considered for the
reservation on playing of a certain sport, the same clearly was
subservient to Clause-5 and therefore, was a conditional one.
32. There is also no challenge to the change in policy on
the basis of any discrimination or violation of Article 14 of the
Constitution. As approved in Bramhaputra Metallics (supra) the
principle of promissory estoppel necessarily requires that there is
a promise on the basis of which the party concerned must have
acted to its prejudice and that the doctrine of legitimate
expectation cannot be claimed as a right in itself, but can be used
only when the denial of a legitimate expectation leads to violation
of Article 14 of the Constitution. As pointed out above, there is no
ground regarding violation of Article 14 of the Constitution. That
WP 4832 of 2018.odt
apart, Clause-5 of the Government Resolution dated 30/4/2005
by reserving the right to change the sport, clearly indicated to the
concerned person that the promise was subject to change any
time, and it has to be demonstrated that the promise has been
acted upon to the detriment of the concerned person. Can the
mere playing of a sport mean that a promise to be considered for
reservation, was acted upon. In our considered opinion this
would not be so, for the mere playing of a sport by itself, would
not entitle a sportsperson to the benefit of the policy as there
were other requirements to be fulfilled for meeting the eligibility
prescribed for seeking the benefit of the reservation, as is evident
from Clause -3 and 4 of the Government Resolution dated
30/4/2005.
33. The change in policy from the one as contained in
the Government Resolution dated 30/4/2005 to the one as
contained in the Government Resolution dated 1/7/2016, was
clearly on account of failure of the earlier policy and to address a
larger base and in wider public interest, which is clearly
permissible in law and thus the same cannot be said to have been
WP 4832 of 2018.odt
hit by the principles of promissory estoppel or legitimate
expectation.
34. The contention that the policy as contained in the
Government Resolution dated 30/4/2005, constituted a
horizontal reservation, which was directly traceable to Article 16
of the Constitution and therefore a vested right had been created
to offer one's candidature, which was being sought to be taken
away by the Government Resolution dated 1/7/2016, has to be
looked into in the context of what is meant by the creation of a
vested right.
34.1. In J.S. Yadav Vs. State of Uttar Pradesh and another,
(2011) 6 SCC 570 a vested right has been held to mean as
under :
"20. "17. The word 'vested' is defined in Black's Law Dictionary
(6th Edn.) at p. 1563, as:
'Vested; fixed; accrued; settled; absolute; complete. Having
the character or given the rights of absolute ownership; not
contingent; not subject to be defeated by a condition
precedent.'
Rights are 'vested' when right to enjoyment, present or
prospective, has become property of some particular person or
persons as present interest; mere expectancy of future benefits,
or contingent interest in property founded on anticipated
continuance of existing laws, does not constitute vested rights.
WP 4832 of 2018.odt
In Webster's Comprehensive Dictionary (International Edn.)
at p. 1397, 'vested' is defined as:
'[L]aw held by a tenure subject to no contingency;
complete; established by law as a permanent right; vested
interests.' "
(See Bibi Sayeeda v. State of Bihar [(1996) 9 SCC 516 :
AIR 1996 SC 1936] at SCC p. 527, para 17.)
21. The word "vest" is normally used where an immediate
fixed right in present or future enjoyment in respect of a
property is created. With the long usage the said word
"vest" has also acquired a meaning as "an absolute or
indefeasible right". It had a "legitimate" or "settled
expectation" to obtain right to enjoy the property, etc. Such
"settled expectation" can be rendered impossible of
fulfilment due to change in law by the legislature. Besides
this, such a "settled expectation" or the so-called "vested
right" cannot be countenanced against public interest and
convenience which are sought to be served by amendment
of the law. (Vide Howrah Municipal Corpn. v. Ganges Rope
Co. Ltd. [(2004) 1 SCC 663] )
22. Thus, "vested right" is a right independent of any
contingency. Such a right can arise from a contract, statute
or by operation of law. A vested right can be taken away
only if the law specifically or by necessary implication
provides for such a course."
To demonstrate the existence of a vested right, first it
has to be established, that the right claimed has been enjoyed,
which is not the position herein as there was merely an
WP 4832 of 2018.odt
expectancy to be considered, and nothing else. J.S. Yadav (supra)
clearly indicates that mere expectancy of future benefits, or
contingent interest in property founded on anticipated
continuance of existing laws, does not constitute vested rights
and the principle would equally be applicable in the present
matter. In P.P. Suresh (supra) while considering the assurance
given by the Government as reflected from the Government Order
dated 20/2/2002 to provide employment to displaced Abkari
workers, adjusting them against 25% of the daily wage vacancies
that would arise in the Corporation, it was held that no vested
right was created by virtue of such an assurance.
34.2. The Government Resolution dated 30/4/2005, did
not create a horizontal reservation, as per Clause - 7 (7) therein,
on the playing of any particular sport, but the same was created
in respect of a sport approved/recommended by the authorities as
stated therein and which sport was to be approved/recommended
was at the sole discretion of the Indian Olympic Association and
the Maharashtra Olympic Association. Thus, even if a horizontal
reservation was created, a sportsperson, playing a particular sport
WP 4832 of 2018.odt
could not claim an absolute right, for the benefit of reservation,
as the playing of such particular sport, was at the discretion of the
above authorities, apart from which under Clause-5 of the
Government Resolution dated 30/4/2005, the right to make
changes in the sports in Appendix-A, was kept reserved by the
State, in itself. In the instant case also what has been indicated or
provided by the Government Resolution dated 30/4/2005, was
the reservation of 5% for sportspersons in the matter of
employment, on complying criteria as laid down therein and
nothing else, which was based upon the anticipated continuance
of the then existing law/assurance which was the Government
Resolution dated 30/4/2005 and thus it cannot be said that any
vested right was created in the matter. This 5% reservation in the
matter of employment, has not been taken away by the
Government Resolution dated 1/7/2016, but only the criteria has
been changed to accommodate a larger number of sportspersons
and the number of institutions where such 5% reservation for
sportspersons would become available has been enlarged, so that
a greater number of vacancies would become available.
WP 4832 of 2018.odt
34.3. That apart Article 16 (4) of the Constitution is only
an enabling provision as held in P&T Scheduled Caste/Tribe
Employees' Welfare Assn. Vs. Union of India (1988) 4 SCC 147,
and the State would always have the liberty to make changes in
policies, based upon the change in circumstances, criteria,
conditions, unworkability of the policy, addressing a larger public
interest and similar factors.
Question No.1 is therefore answered as under :
A legally enforceable right cannot be claimed
based upon the principles of promissory estoppel and
legitimate expectation in respect of the policy framed
under the Government Resolution dated 30/4/2005 as
its superseding by the Government Resolution dated
1/7/2016 is in larger public interest.
Question No.2 :
35. In so far as question No.2 is concerned, it need not
detain us longer, as one has only to look at the language of the
Government Resolution dated 1/7/2016, for an answer. The
WP 4832 of 2018.odt
Government Resolution dated 1/7/2016 contains Clause-(xiii),
which for the sake of ready reference is reproduced as under :-
"(xiii) Lknj 'kklu fu.kZ; fuxZfer >kY;kiklqu ,d
efgU;kuarj gks.kk&;k loZ Hkjrh izdzh;slkBh ojhy dk;Zi/nrh
ykxw gksbZy-
gs vkns'k lkekU; iz'kklu foHkkxkP;k laerhus fuxZfer
dj.;kr ;sr vkgsr-
lnj 'kklu fu.kZ; egkjk"Vª 'kklukP;k
www.maharashtra.gov.in ;k ladsrLFkGkoj miyC/k
dj.;kr vkyk vlwu R;kpk ladsrkad
201607011649431321 vlk vkgs- gk vkns'k fMthVy
Lok{kjhus lk{kkafdr d:u dk<.;kr ;sr vkgs-"
36. A bare perusal of Clause-(xiii) of the Government
Resolution dated 1/7/2016 would indicate that the Government
Resolution dated 1/7/2016 has been made operational/operative,
one month after the date of its publication and thus would come
into effect on 1/8/2016. This clearly indicates that the
Government Resolution dated 1/7/2016 is prospective in
operation w.e.f. 1/8/2016 onwards and therefore, is not
retrospective in operation. We therefore need not consider the
judgments as cited at the bar on this question. Needless to say
WP 4832 of 2018.odt
the applicability of any Government Resolution has to be tested
on the date of the application made.
Question No.2 is therefore answered as under :
The Government Resolution dated 1/7/2016 is not
retrospectively applicable.
37. The matter may now be placed before the learned
Division Bench to decide the writ petitions in light of the answers
above.
38. Before we part, it would be appropriate to place on
record our appreciation for the assistance rendered by the learned
Counsels named above, who had addressed us during the course
of arguments and have rendered valuable assistance to us in
arriving at the answers to the questions referred to us.
(PUSHPA V. GANEDIWALA, J.) (AVINASH G. GHAROTE, J.) (A.S. CHANDURKAR, J.)
Wadkar
