Amar Dam & Anr vs The State Of West Bengal & Ors
2022 Latest Caselaw 4921 Cal

                IN THE HIGH COURT AT CALCUTTA
                    Civil Appellate Jurisdiction
                           Appellate Side

Present:-   Hon'ble Mr. Justice I. P. Mukerji
            Hon'ble Mr. Justice Subhendu Samanta.



                      F.M.A. 2169 of 2018

                        Amar Dam & Anr.
                               Vs.
                 The State of West Bengal & Ors.




For the appellants           :     Sardar Amjad Ali, Sr. Advocate.
                                   Mr. Pinaki Chakraborty,
                                   Ms. Saswati Ghosh Sinha, Advocates.

For the State                :     Mr. Amal Kumar Sen,
                                   Mr. Lal Mohan Basu, Advocates.

For the respondents          :     Mr. Sudipto Moitra,

Mr. A.K. Gayen, Advocates.

Judgment on                  :     01.08.2022



I. P. MUKERJI, J.-

In the 1980s of the last century the Government of India started a

twenty point programme. It was for promoting the quality of life of

the socially and economically weaker sections of rural areas. In

West Bengal the government worked in collaboration with the

department of Agriculture and rural development of the state

government.

Nobody has told this court about the legal status of the appellant

No. 2, Krishi Bikash Shilpa Kendra (the appellant) which appears to

be an association or society founded on 27th September, 1979. It

was registered with the Land Reforms Department in the district of

Birbhum. Its aims and objectives were to provide assistance to both

the governments to implement this twenty point programme. The organization had one registered office and several branch offices in

various parts of West Bengal. It seemed to lend its helping hand in

developing agriculture, bio-gas plant, community irrigation system,

family welfare, family planning, birth control, animal husbandry,

cultivation and harvesting scientifically, using high yielding variety

of seeds.

So much seems to have been the reputation enjoyed by this

organization that on 27th September, 1979 the Special L.A.

Collector, Birbhum wrote to its General Director as follows:-

"......and we are asking the various District and Block level authorities to assist you under various kinds of assistance, such as IRDP, NREP, RLEGP, seeds of higher yielding varieties and other projects etc. so that, the workers can get assistances."

On 9th February, 1982 it received accolades from the office of the

Prime Minister in the following words:

".....to inform you that as per the performances of activities your organisation is being appreciated as a good organization to implement the 20-points Programmes in the State of West Bengal."

The appellant wanted recognition of their workers and security for

them by their absorption in government service. In response to this

on 22nd July, 1982 it received the following communication from

the Prime Minister's office:-

"....and the matter of Regularization of the workers of Krishi Bikash Shilpa Kendra would be subsumed, afterwards."

On 17th November, 1982 the Prime Minister's office sent another

communication to the organization saying that ".....the matter has

been forwarded to the Chief Secretary Govt. of West Bengal for

suitable action."

The District Magistrate of Birbhum, Burdwan, Murshidabad, Nadia

and Malda etc. reported that to cope with the shortage of financial

resources, the workers attached to the organization were doing

cultivation work in collaboration with owners of agricultural land

on 50% profit sharing basis. They were also doing miscellaneous

work like supplying smokeless chullah to save fuel, sinking tube

wells in some places for fresh drinking water, constructing low cost

toilets, to generate income.

Atleast by three letters dated 12th April, 1982, 8th March, 1985 and

18th April, 1985 the government of West Bengal had deeply

acknowledged and appreciated the performance of the appellant in

various districts and block levels.

In the letter of 18th April, 1985 the Secretary, Agriculture

Department, Government of West Bengal wrote "Your performances

in Rural Development under 20-points Programmes is deeply

appreciated by the Govt. and considering for taking over your farm in

future."

The Chief Secretary to the State of West Bengal directed the

Secretary, Agriculture Department to prepare a report further to the

letter of the appellant dated 26th March, 1985 to the Prime Minister

which had been forwarded by his office to the Chief Secretary. It

related to "taking over of the staff" of the organization.

The foundation of this case is the letter dated 23rd May, 1985 of the

Secretary, Agricultural Department, Government of West Bengal

containing this report where it was admitted that as against the

claim of 4200 workers working in 1993 branches of the appellant to

implement the twenty point programme, only 70 branches were

identified with a total 2450 number of workers. In a carefully

worded conclusion, the Secretary stated that although he regretted

that the government could not take over the organization he

acknowledged that the workers had rendered service in various

state and national programmes in the field of "rural and

agriculture" on the assurance of the Prime Minister that they would

be regularized afterwards and that this fact needed to be "thought"

by the government.

From time to time, writ applications were made by the appellants

which by orders of court were sent to the government for

consideration. We did not detain ourselves with those writ

applications because nothing fruitful came out of them.

The Additional Secretary made a decision on 9th November, 2015

acting in terms of an order dated 31st August, 2015 in a writ

application [WP No. 4936(W) of 2012] (Shri Amar Dam and Anr. vs.

The State of West Bengal & Ors.) where the government was asked

to consider the report and recommendation of the Secretary,

Agriculture Department dated 23rd May, 1985 and the subsequent

representations by the members of the organization.

One paragraph of that decision is most intriguing. It is as follows:-

"AND WHEREAS, with reference to this Department's letter no. 222/AG/O/L-67/II(Pt-I) dated 24.09.2015, Sushila Ananth, Deputy Secretary to the Govt. of India, Department of Agriculture Cooperation and Farmers Welfare, informed vide his letter dated 07.10.2015 that the Ministry of Statistics and Programme Implementation which monitors Twenty Point Programme has clarified vide D.O. No.

1/8/2012-TPP dated 12.09.2012 that KBSK has not been authorized at any stage to implement the Twenty Point Programme or any part of it and appears to be no involvement of this Department in the said case. Now, after hearing and careful consideration of the facts of present case, it is observed that since the organization is functioning without any Government authorization and the Government has no responsibility towards so called employees of KBSK/KVSK, hence their petition is hereby rejected. It is further observed that this case has resulted in loss of precious time of the Hon'ble Court(s) and also officials of the concerned departments. Hence litigations of this nature should be discouraged.

All concerned may be informed accordingly for further course of action."

Aggrieved by this decision, the appellant preferred the instant writ

application which was dismissed by the learned single judge.

Now, it is sought to be contended by learned counsel for the

respondents at a point of time some 40 years after the above report

containing recommendations dated 23rd May, 1985 that it is not

bound to act in terms of the representations contained in those

documents.

In fact, the respondents deny the role of the appellant and say there

is no question of granting any largesse to them.

If such was the plea, then the order of this court made on 31st

August, 2015 ought to have been challenged on that ground. It was

not. Hence, as late as on 31st August, 2015 this court thought it fit

and proper for the government to consider the representations,

views and recommendations made in 1985.

This order has become final and binding on all parties.

It is quite astonishing to find in the decision dated 9th November,

2015 that a reference was made to a communication of the

Government of India dated 7th October, 2015 from a Deputy

Secretary to the department of Agriculture Cooperation and

Farmers Welfare referring to another document dated 12th

September, 2012 that the organization had not been authorized to

implement the twenty point programme. Further, the government of

West Bengal had also denied any role to play in the matter and

described the litigation as frivolous and vexatious.

In the impugned judgment and order dated 5th May, 2017

dismissing the writ application the learned judge with brevity yet

sufficient clarity recounted the submissions of the appellant that as

an agency they worked for the twenty point programme of the

Central government. Their work and contribution were appreciated

both by the central and the state governments. Both the

governments were of the view that in acknowledgment of the work

done and/or to reward it, the members of the organization would be

considered to be absorbed in government service or the government

would take over the organization, run it itself employing the

members. In the impugned departmental order dated 9th November,

2015 the role of the appellant in implementing the twenty point

programme was denied. It was said that they were indulging in

vexatious litigation and that no assurance had been given by any

government to them to provide employment or any other benefit.

Having narrated the above facts, the learned judge proceeded to

view the appellant's claim as one based on the principle of

promissory, estoppel. His lordship referred to various

correspondences where there was a clear satisfaction on the part of

both the Central and the State governments that the appellant had

rendered very laudable service in implementing the twenty point

programme and that the case of their members for absorption

deserved consideration.

The learned judge proceeded to hold that this did not amount to

any promise by the government. No promise was evident from the

records. The learned judge endorsed the view of the Additional

Secretary in the impugned order dated 9th November, 2015

rejecting the claim of the appellants holding that "nothing has been

placed before the Court to suggest that, the initial appointment of

the employees of the appellant was with the concurrence of or prior

approval of the authorities for any absorption or regularization to

take place."

This is a unique case. I have not come across a case like this. The

circumstances are special. Our decision is in a new field and bound

to have some repercussion on the law.

Legitimate expectation and promissory estoppel are two legal

doctrines which I propose to deal with before proceeding to analyse

the merits of the case.

By a representation, decision, policy or statement of the

government a person is led to believe by the government that a

state of affairs, right enjoyed by him or obligation imposed on him

would continue in the same way, unless there is an extraordinary

situation calling for its alteration. It is said to give rise to legitimate

expectation. Any departure from this is viewed as arbitrary, unfair

and unreasonable conduct on the part of the government calling for

intervention by the court.

Suppose there is a government policy allowing duty free import of

fertilizers used in the cultivation of a particular crop. Let us say

that the farmers of a particular region could cultivate either that

crop or another crop. It is represented either expressly or impliedly

by the government that since this policy has been continuing for a

long period of time, it would continue. Believing this representation

and acting on the prevailing state of affairs, the farmers of that

particular region take steps for cultivation of the crop for which

fertilizers are freely importable with the hope and expectation that

with duty free fertilizers they would be able to make a fairly large

profit cultivating that particular crop than they would be making

cultivating the other variety. All of a sudden the government

changes its policy by imposing heavy duty on this fertilizer. This

seems to give the farmers a cause of action against the government.

They could say that the previous action of the government gave rise

to a legitimate expectation in them that fertilizers would continue to

be duty free and they would continue to earn handsome amounts

from cultivation of that particular crop. The change in policy has

caused them great detriment. The government, it seems, could be

restrained by orders of court from enforcing the new policy, unless

it is able to show that the change was warranted by overwhelming

public interest. The action of the government giving rise to

legitimate expectation is weighed on the scales of arbitrariness,

fairness and reasonableness. The continuing state of affairs as

promised or represented to be maintained or the state of affairs

promised to be brought about is weighed against the changed

situation. The judge has to adjudicate whether there is lack of

fairness or presence of arbitrariness and unreasonableness in the

changed policy.

"A public authority has a duty to act with fairness and consistency in its dealings with the public and that if it makes inconsistent decisions unfairly or unjustly, it misuse its powers........inconsistency of policy may amount to an abuse of discretion, particularly when undertakings or statements of intent are disregarded unfairly........only an overriding public interest will outweigh the obligation of a promise, particularly where it is made to an individual or a small group.........an expectation whose fulfillment requires that a decision-maker should make an unlawful decision, cannot be a legitimate expectation." (Administrative Law, H.W.R. Wade & C.F.

Forsyth)

In this case, there was no representation or promise made by any

government official that the members of the organization would be

absorbed or that the organization would be taken over by the

government and run for the benefit of the members. It only

recognized their contribution and proposed to consider their above

case. Since, there was no clear representation or promise of any

reward, the case cannot come under the principle of legitimate

expectation.

The other doctrine is promissory estoppel. Here, it has to be shown

that the government had made a representation or promise, short

of a formal contract, inducing a person to act in a particular way.

The relationship created by the government should be akin to a

contract, although it is not formally entered into by writing or

otherwise. It has to be shown that a person acted on this promise.

Although not a formal contract, the government could be held to be

bound by it negatively in the sense that they could not be allowed

to resile from the representation or promise.

Since there was no positive representation or promise by the

government to the appellant, the doctrine of promissory estoppel

would also not apply in this case.

Since there is no written promise to reward for past work certainly

no case under Section 25 of the Contract Act is maintainable.

The fact remains that indisputably the appellant was a legitimate

organization, recognized by the Central and State governments and

had done work to further the twenty point programme of the

Central government in some districts of West Bengal. This work

had been acknowledged by both the Central and State

governments. Both felt, without handing out any express promise

or assurance to the organization that its workers should be

absorbed in government or in the alternative, the government

would take over the organization and run it so that income could be

earned by its members. Thereafter, both the Central and State

governments turning around and stating that the organization was

unrecognized and did not do any work to promote the twenty point

programme is wrongful conduct.

What is more important is that by the order of this court dated 31st

August, 2015 it was held that the case of the appellant as made out

now, needed consideration and on that basis, referred to the State

government for a decision.

Since on that premise the reference by this court had been made, it

was not within the jurisdiction of the Additional Secretary, to

dismiss the claim at the bud stage by stating that the organization

had not taken any approval from the government to work on the

twenty point programme. This basis of proceeding, in my opinion,

was in transgression of his jurisdiction or refusal or unwillingness

to exercise his jurisdiction.

Secondly, the impugned order suffered from perversity in

considering a stray note from the Central government denying the

contribution of the petitioners despite a galore of correspondences

earlier. What the Additional Secretary was required to do was to

accept the facts which emerged from the body of correspondences

exchanged in the 1980s as true and recommend to the government

a decision in the matter.

A government should not equate its conduct and style of

functioning with that of an unscrupulous businessman. When it

makes a statement, it should do it with responsibility. When it

makes a representation, it should do that with the intention of

fulfilling it. Any statement which it makes, any representation it

makes, or any decision that it arrives at, should be made finally

unless there is good cause for revoking it on the ground of fraud or

mistake as early as possible. Once it is final, it should not be

changed unless the circumstances are extraordinary. This is true

with change of governments or change in administration. A decision

of the government should be impersonal emanating from the

sovereign, not liable to be changed with change of guards. In this

case, when the government, both State and Central, 40 years ago

had acknowledged the work of the organization in the twenty point

programme and thought that its members may be considered to be

absorbed in government service or the organization be run by the

government, there was no occasion for it to turn around later and

even cease to acknowledge, the organization or its work. The

government should take it upon it the responsibility to atleast

consider honouring its commitment made 40 years ago to some

extent specially when this has received the stamp of approval of

this court in 2015 by referring it to the government to take a

decision on it.

The action or inaction of the government complained of above,

cannot be categorized as one giving rise to legitimate expectation

amongst the members of the organization. Neither can they invoke

the doctrine of promissory estoppel. Nonetheless, the conduct is

undesirable and unprincipled on the part of the government and its

officers. The court cannot shut its eyes to this state of affairs. It has

the duty to ensure that this kind of wrongful conduct does not

recur in future.

In those circumstances, I set aside the impugned judgment and

order dated 15th May, 2017 and the decision of the government

dated 9th November, 2015. The matter is referred to the Chief

Secretary, Government of West Bengal or any Principal Secretary of

the government to be nominated by him. The Chief Secretary or the

Principal Secretary (the adjudicator) will carefully examine afresh

the case of the appellant from the records, the correspondences

exchanged between the Central government and the appellant,

State government and the appellant or between the two

governments recognizing the appellant and the work done by them.

The adjudicator will also carefully study the assurance given by the

governments to the appellant from time to time about members of

the association being absorbed into government service or the

government taking over the organization and running it to provide

income to its members. The adjudicator shall re-adjudicate the case

of the appellant upon hearing the appellant or its representative

considering the records that may be produced by them.

Upon its satisfaction with the case of the appellant, the adjudicator

will recommend to the government that a grant may be made to the

appellant which might be utilized to provide pensionary benefits to

those members of the organization who were involved in

implementation of the twenty point programme or their legal heirs

and representatives. Such decision should be taken within three

months of communication of this order. Any recommendation made

by the adjudicator shall have to be honoured by the State

government. The State government shall have the right to claim as

reimbursement of expenses, from the Central government any grant

made to the appellant.

This appeal is accordingly disposed of.

Certified photocopy of this order, if applied for, be supplied to the

parties upon compliance with all requisite formalities.

I agree.

(SUBHENDU SAMANTA, J.)                               (I. P. MUKERJI, J.)