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Judgment
These Writ Appeals are preferred against the order of learned single Judge in W.P. 11053 of 1996 dated 4.1.1999. Parties herein will be
referred according to their ranks in the writ petition.
The material facts which are necessary for proper disposal of these appeals could be summarised thus:
First respondent is Madras Metropolitan Water Supply and Sewerage Board, a Board created under Madras Metropolitan Water Supply and
Sewerage Act, 1878. u/s 81 of the Act, the Board has been given the right to make Regulations to carry out the purpose of the Act and invoking
that power, first respondent has made Madras Metropolitan Water Supply and Sewerage Board Employees Service Regulations, 1978
(hereinafter referred to as ''Service regulations'').
On 29.4.1993, the Board issued proceedings in EP No. 15 of 1993, Personnel and Administration Department, which dealt with study leave
and incentives for higher education related to the Board. The Board has also formulated Regulations by name Madras Metropolitan Water Supply
and Sewerage Board Employees Leave Regulations (hereinafter referred to as ''Leave regulations''). Regulation 9 of the Leave Regulations as it
stood before 29.04.1993 reads thus,
Study Leave:- Study leave, on half pay may be granted, at the discretion of the Board, to staff in pay scales the minimum of which is Rs. 600 or
more who desired to undergo a special course of higher studies or specialised training in a professional and technical subject having a direct and
close connection with their share of duty. Study leave is not admissible for pursuit of academic courses unrelated to the employee''s work. The
maximum study leave admissible will be 24 months during the entire service of an employee and it may be granted upto 12 months at any one time.
Before proceeding on study leave, an employee must furnish an undertaking to the Board agreeing to serve the Board for not less than five years
after his return from leave.
If the Board considers that the course of study or training for attending, which study leave is granted, is of particular relevance to an employee for
his efficient functioning, it may permit such employee to draw full pay for the entire period of his leave.
On 29.4.1993, the Board passed a resolution amending Regulation 9. The amended Regulation 9 reads thus,
Study Leave:- Study leave, on half pay may be granted, at the discretion of the Board, to staff in pay scales the minimum of which is Rs. 2,000/-
or more who desire to undergo a special course of higher studies or specialised training in a professional and technical subject having a direct and
close connection with their duty. Study leave is not admissible for pursuit of academic courses unrelated to the employee''s work. The maximum
study leave admissible will be 24 months during the entire service of an employee and it may be granted upto 12 months at any one time. Before
proceeding on study leave, an employee must furnish an undertaking to the Board agreeing to serve the Board for not less than five years after this
return from leave. The above guidelines is only made applicable to persons proceeding on study leave on their own..........
c) Recognition of Post Graduate qualification acquired while in service:- Once a candidate acquires a First Class Post graduate Engineering
qualification, he will get two years extra weightage in terms of seniority which will be counted for elevation. If he acquires a second class post
graduate Engineering qualification, he will get one year''s extra weightage for this purpose. If he does not qualify (after availing study leave), the
entire salary drawn during the study leave period will be recovered.
d) Miscellaneous: An eligible candidate whose application has been sent with prior permission of the Board and has been accepted by the
University should execute a Bond, before he joins the University to serve the Board for a minimum period of five years on his rejoining service after
study leave. If he wants to quit within this period, he should refund the expenses incurred by the Board on him during his study period. The
candidates will be permitted to draw stipend or allowances granted by the institution in addition to the leave salary.
The amendments will be effective from 1.4.1993 and will not be made applicable to the past cases.
It is the case of writ petitioners that on the basis of this amended Regulations, petitioners applied for leave and got admission in the various
colleges to get Post-Graduate Engineering qualifications. It is their case that the amended leave Regulation 9 was in the nature of incentive offered
to them and basing on the said Regulation when they sought for study leave, the same was also granted by first respondent as per proceedings
dated 3.8.1994 and they were relieved from services of Board and permitted to join various Universities for the purpose of completing their Post
Graduate Engineering. At the time of issuing proceedings dated 3.8.1994, it was stated that if they acquire First Class Post Graduate Engineering
qualification, they will get two years weightage in terms of seniority which will be counted for elevation and if they acquired Second Class Post
Graduate Engineering qualification, they will get one year extra weightage in seniority and if they do not qualify after availing study leave, the entire
salary drawn during the study leave period will be recovered. It also provides that they should execute a bond to serve the Board for a period of
five years and if they quit the services of the Board within that period, they should refund the expenses incurred by the Board on them during their
study period. It is their case that all these petitioners commenced the course and completed the course in 1996 and all the petitioners obtained first
class.
Reason for filing the writ petition is that the proceeding dated 29.4.1993 was rescinded by the Board as per proceedings in BP 8/95, dated
10.3.1995. By virtue of proceedings dated 10.3.1995, original leave Regulation No. 9 was restored. According to petitioners, the restoration of
original Regulation No. 9 has affected their chance of promotion and also seniority. It is their case that all assurances granted to petitioners were
wiped away. Petitioners have acted to their detriment by joining course of study in the hope that they will be given the benefit of seniority and in
view of subsequent proceedings, their hopes have been nullified. Petitioners, therefore, moved representations to first respondent for which there
was no reply.
In the various grounds taken in the writ petition, it is said that the principles of promissory estoppel and equitable estoppel will apply to the facts
and circumstances of the case. First respondent has held out a categorical assurance and promise that if a person qualifies himself in Post Graduate
degree course, he will be given the benefit of weightage in seniority and this benefit had a number of conditions attached to it, such as half pay,
execution of bond for five years, etc. Since petitioners have acted on the basis of promise made by first respondent and at all stages, they were
under the impression and were made to understand that on passing the course, they would get weightage of seniority and having undergone the
course and having acted on the basis of the promise held out by respondent, the Board cannot go back on those promises and withdraw the
benefits already granted. It is further said that though the amendment is not retrospective, it has been made retro-active by stating that the revised
rule will apply even to those who are already undergoing the course of study. It is their case that the Act prohibits the Board to make Regulations
with retrospective effect. These Regulations have been made in exercise of powers conferred u/s 81 of the Act and it gives powers to the Board to
specify the conditions of service of Officers and employees. The said Regulations can come into force on the date when the Regulations have been
made by the Board and, therefore, it can only have prospective effect. It is their case that the amendment to the Regulations cannot be made
applicable to the persons who have already acted on the earlier Regulations. It is their further case that the retrospectively of the Regulations should
not affect the vested rights of persons. On the basis of Regulation dated 29.4.1993, petitioners have obtained or acquired vested right to have the
service conditions regulated in accordance with rules. It is their case that they have also suffered tremendous detriment by acting on the promise
and assurance held out by first respondent. Detriments they have suffered are, (1) Bond to be executed by writ petitioners; (2) Half Pay which
petitioners received during the course of study; (3) The family suffered on account of half-pay; (4) In the course of failure to pass the course,
refund of the entire half pay paid during the course of study; and (5) consequent tension due to the absence of failure in the course. On the basis of
these detriments which petitioners suffered, first respondent is not entitled to rescind from the same. The impugned proceeding is also challenged as
violative of principles of natural justice,
For the above reasons, petitioners seek issuance of writ of Certiorarified mandamus or any other appropriate writ, order or direction calling for
the records of the respondent in proceedings No. BP/8/95 Personnel and Administration Department, dated 10.3.1995, quash the same and
further direct respondent to act in accordance with proceedings No. BP/15/93, Personnel and Administration Department, dated 29.4.1993, by
giving the benefit of seniority and other benefits and pass such further or other orders as may be deemed fit and proper.
Counter affidavit was filed by first respondent wherein they have narrated the circumstances under which they had to rescind the earlier Leave
Regulation, No. 9. In the counter affidavit, it is said that there are many Post Graduate Engineers working in the Board and if the amended
Regulation dated 29.4.1993 is implemented, it will adversely affect the Senior Engineers who are already having Post Graduate Engineering
qualifications, and they will become juniors to the persons who have completed post graduation on being sponsored by the Board. Taking into
consideration the above circumstances, it became necessary to reconsider the proceedings in BP 15/93 in order to avoid any complication in fixing
seniority. It is further said that proceeding BP 15/93 is only amendment to Leave Regulation and not to Service Regulations. Board also justified in
passing proceedings in BP 8/95 taking into consideration the interest of administration of Board. It is also said that due to the liberalised Leave
Regulations, certain practical difficulties arose in implementing the amended leave regulation. There are persons in service with Post Graduate
qualification in Engineering and the amended Regulation could not be made applicable to them and this amounts to inequality among the Engineers
of Senior Cadre. It was also brought to the notice of the Board that there are more applications to join M.E./M/Tech. courses and study leave in
en masse will dislocate the normal functioning of Engineering wing of the Board. It is also said that to ensure fairness in fixation of seniority and to
avoid disputes in fixing seniority and to avoid dislocation in normal functioning of the Board, it was decided to rescind the proceedings already
issued.
It is also said that the Graduate Engineers who have been deputed for higher education on the basis of amended Regulation No. 9 as per
proceedings BP 15/93, had adversely affected the senior Engineers who are also Post Graduates. Proceedings in BP 15/93 also should not affect
the existing employees and taking into consideration the over all benefit, the Board decided to rescind proceedings in BP 15/93. The principle of
promissory estoppel also cannot be invoked since it is against law. It is also said that the principle of natural justice also may not have any
application since the Board is given the power to change the regulation without notice and no notice is also required to be given to the employees.
It prayed for dismissal of the writ petition.
Along with the writ petition, WMP 14780 of 1996 was filed for interim direction to Board to give effect to proceedings BP 15/93 dated
29.4.1993 and consequently grant benefit of seniority in accordance with the said order. The said WMP was dismissed by learned Judge of this
Court and learned Judge held that unless and until the writ petition is decided in favour of petitioners, petitioners will not be entitled to interim relief
which they have sought for in WMP. It is further held that main relief in writ petition and WMP are same and the same cannot be granted in
interlocutory stage.
While so, Association of Assistant Engineers, represented by its General Secretary and one Assistant Engineer took out a petition in WMP
19485 of 1996 to implead themselves in writ petition as well as in the Miscellaneous Petition. They have subsequently been impleaded.
After respondents 2 and 3 were impleaded, writ petitioners filed WMP 20114 of 1998 for grant of injunction restraining first respondent from
making any promotions to the post of Executive Engineer, pending disposal of writ petition. Learned Judge of this Court, as per order dated
13.11.1998 dismissed the said application holding that no interim order could be granted. Learned Judge held that any appointment made by first
respondent during pendency of writ petition will always be subject to the result of writ petition. Learned Judge also directed to post the main writ
petition for disposal.
Additional respondents who were impleaded also supported the case of the Board and contended that the amended Regulation No. 9 passed
by the Board as per proceedings No. 15/93 is really discriminatory and the same is not valid. A Regulation cannot be passed affecting the vested
right of those Engineers who are equally placed with that of writ petitioners. Merely because petitioners got qualified after 1.10.1993 by acquiring
Post Graduate Engineering qualification, their seniority should not be affected when the rule of seniority is provided under the General Rules as
provided under the Service Regulations.
Learned single Judge as per order dated 4.1.1999 allowed the writ petition on the ground of promissory estoppel. Learned Judge held that the
Board has held out to petitioners that they will be given service weightage if they obtain Post Graduate Engineering qualification either First Class
or Second Class and that right which they had obtained cannot be taken away by subsequent amendment to the Leave Regulations nor earlier
resolution could be rescinded to their detriment. Learned Judge further held that petitioners have acted on the assurance given by the Board and
the vested right cannot be taken away by amending the Regulations with retrospective effect. Proceedings of the Board in BP 8/95 dated
10.3.1995 was, therefore, quashed, and first respondent was directed to act in accordance with proceedings in BP 15/93 dated 29.4.1993 by
giving benefit of seniority and other benefits. Two months time was granted to first respondent to comply with the directions.
It is against the said order of learned single Judge, these Writ Appeals are preferred.
W.A.104 of 1999 is filed by additional respondents 2 and 3 and W.A.204 of 1999 is filed by a Post Graduate Engineer who is affected by the
decision of the learned single Judge.
In W.A.104 of 1999, appellants filed C.M.P. 841 of 1999 to grant interim stay of operation of order of learned single Judge. As per order
dated 22.1.1999, interim stay was granted until further orders.
Petitioners in writ petition filed counter to CMP 841 of 1999 and moved an application to vacate the stay. Since the argument on interim
application as well as main Writ Appeal being the same, with consent of parties, both Writ Appeals were heard.
Learned Counsel for appellants in W.A.104 of 1999 submitted that there is No. scope for applicability of principle of promissory estoppel in
this case. It is argued that there are many senior Post Graduate Engineers working in the Board and the seniority list has also been published, which
has become final. That seniority cannot be taken away merely because petitioners have been sent for higher studies on the basis of amended Leave
Regulation No. 9 as per proceedings in BP 15/93. It is submitted that service Regulations provide for how to reckon seniority and so long as that
is not amended, Leave Regulations cannot affect their seniority. It is further submitted that main purpose of issuing proceedings BP 15/93 was to
recognise the higher qualification by enhancing the quality of output and to help the employees. It is further said that when an Engineer acquires
higher qualification; it enriches the operational capabilities and ability to handle diversity of a predominantly technical organization like the Board. It
is argued that if this is the aim on the basis of which the proceeding dated 29.4.1993 was issued, naturally appellants and other persons similarly
situated are also entitled to be considered and the benefit given to petitioners alone will be discriminatory. The amendment which has come into
effect from 1.4.1993 has affected their vested rights and that right cannot be taken away. It is further submitted that petitioners also cannot have
any vested right since even before they got qualified for higher qualification and before they were given the weightage, the order was rescinded.
Petitioners got themselves qualified only in the year 1996 whereas amended regulation was rescinded on 10.3.1995. As per original Regulation
No. 9 also, an Engineer who wants to pursue his higher studies will be entitled to half pay and also to execute bond for serving the Board for a
period of five years. The only change that is made is regarding service weightage which should not have been provided in the Leave Regulation.
How far other Engineers similarly situated were not considered by the Board and when the Board itself found that the special benefit given to
petitioners will be inequitable, it thought of rescinding it.
Learned senior counsel for appellants in W.A.204 of 1999 submitted that final seniority list has been published on 2.9.1987 of Assistant
Executive Engineers and the same has become final. It is further argued that the amended Regulation No. 9 as per proceedings BP 15/93 is
arbitrary and the same has affected other employees who are far seniors to petitioners. It is also submitted that it is violative of Article 14 of the
Constitution of India since it has no nexus to the object which is sought to be achieved.
Learned Standing Counsel for the Madras Metropolitan Water Supply and Sewerage Board also supported the arguments of Learned
Counsel for appellants.
Learned Counsel for writ petitioners fully supported the findings of learned single Judge and prayed for dismissal of Writ Appeals. It is also
argued that when learned Judge has exercised his powers under Article 226 of the Constitution of India, the same is not liable to be disturbed or
interfered with lightly.
First question that is to be considered is whether the principle of promissory estoppel could be applied in this case and how far the amended
Regulation No. 9 as per proceedings in BP 8/95 dated 10.3.1995 is valid ?
As per the Madras Metropolitan Water Supply and Sewerage Act, 1978, the Board has been constituted for attending to the growing needs
and for planned development and appropriate Regulation of water supply and sewerage services in the Madras Metropolitan Area with particular
reference to the protection of Public health and for all matters connected therewith or incidental thereto. u/s 80 of the Act, Government may make
Rules to carry out the purposes of the Act. u/s 81 of the Act, the Board is empowered to make Regulations not inconsistent with the Act for
carrying out the purposes of the Act. u/s 81(2)(c) of the Act, the Board is empowered to make Regulations regarding the method of recruitment,
qualifications, the pay, the duties and other terms and conditions of service of officers and employees and the constitution and management of
provident fund and other superannuation funds.
On the basis of the said provisions, the Board has already framed Regulations for Employees (Discipline and Appeal) Regulations; Pay
Regulations; Leave Regulations; Service (Conduct) Regulations; Pension Regulations and also Employees Service Regulations. Regulation No. 3 of
Madras Metropolitan Water Supply and Sewerage Board reads thus,
The Madras Metropolitan Water Supply and Sewerage Board Employees (Discipline and Appeal) Regulations, 1978, the Madras Metropolitan
Water Supply and Sewerage Board Pay Regulations, 1978, the Madras Metropolitan Water Supply and Sewerage Board Leave Regulations,
1978, the Madras Metropolitan Water Supply and Sewerage Board Services (Conduct) Regulations, 1978, and the Madras Metropolitan Water
Supply and Sewerage Board Pension Regulations 1978 shall, in so far as be applicable and except to the extent specifically provided in these
Regulations govern all the staff employees in the Board''s services in the matter of pay, leave pension, and other conditions of service.
Regulations Nos.21 and 22 of the Service Regulations are also relevant for our purpose, which reads thus,
Seniority :- a) The seniority of a person in the Board''s service with respect to a category or grade shall be determined by the rank obtained
by him in the list of approved candidates drawn up by the Board subject to the rule of reservation where it appeals; the date of commencement of
his probation shall be the date on which he joins the Board''s service irrespective of his seniority.
b) The seniority of a person transferred from one class or category to another carrying the same pay or scale of pay shall be reckoned with
reference to rank in the class or category from which he is transferred.
c) It shall be open to the Managing Director or the authority empowered in this behalf by the Managing Director to fix the seniority of any person in
a class, category or grade after giving such persons or any other person likely to be affected an opportunity to make a representation in this regard.
An aggrieved employee may prefer an appeal to the Board against the decision of the Managing Director.
d) Whenever the need arises for the Board to take over the services of officers and staff working in other institutions like the Madras Municipal
Corporation, Local Bodies or the State Government, the inter-se-seniority of such officers and staff in any category or grade on the Board"" service
shall be determined on the basis of the length of service rendered by them in that category or grade in the previous institution.
Promotion To Supervisory Or Managerial Grades: - 10% of the promotions subject to a minimum of at least one to Board Services in
Managerial grades shall be made on grounds of merit and the balance 90% promotions to these grades and all promotions to the lower grades on
the basis of only seniority. Promotions to fill up the vacancies not set apart for merit promotion in the supervisory and managerial categories will
also be decided on the basis of seniority. Even for merit promotions, seniority will be the deciding factor as between the candidates eligible for
being considered for such promotion. The Board shall be the deciding authority for making merit promotions.
Regulation 21 provides how to reckon seniority and under Regulation No. 22, 10% of the promotions subject to a minimum of at least one to
Board Services in managerial grades shall be made on grounds of merit and the balance 90% promotions to these grades and all promotions to the
lower grades on the basis of only seniority. Even in respect of 10% merit promotions, seniority will be the deciding factor as between candidates
eligible for being considered for such promotions..
It is clear from reading of Regulations 3, 21 and 22 of Service Regulations that seniority and promotions are to be governed only by Service
Regulations and the same alone shall govern the employees in the Board Services. It is the admitted fact that no amendment has been made to
Service Regulations. As per Regulation 21, seniority of a person has to be determined by the rank obtained by him in the list of candidates drawn
up by the Board. It is further clear that the length of service in the Board Service shall be the only criteria for considering seniority. That seniority
cannot be taken away by any Regulation made in the Leave Regulations.
The purpose of Regulation No. 9 in Leave Regulation is only to enable the candidate to get higher qualifications. Original Leave Regulation also
provides for availing study leave. We have already extracted Regulation No. 9 as it originally stood and which has now been restored by
proceedings in BP 8/95. As per the said Rule, during study leave, the candidate will be entitled to only half pay unless the Board for special
reasons to be recorded allows the employees to draw full pay for the entire period of study leave. It is also clear from the said Rule that the study
leave cannot be granted to employees unless he intends to pursue his higher studies in a professional technical subject having direct and close
connection with the share of duties. From the said provision, it is clear that higher qualification could be more useful to the Board and should enrich
the operational capability and ability. If that was the position even under original Regulation, what was the necessity for amending Regulation as per
proceedings in BP 15/93. It could further be seen that amended Regulation as per proceedings in BP 15/93 was made effective from 1.4.1993
and the same is not made applicable to past cases. The consequence of amendment was drastic. It is not disputed that employees having Post
Graduate qualification in environmental engineering are there, long before 1.10.1993. Learned Counsel for appellants brought to our notice that out
of 39 Post Graduate holders, 18 are already having same specialisation in Post Graduate degree i.e., environmental engineering and the names of
18 employees who are already in service long before petitioners came, are also brought to our notice. Even though they are Post Graduates, in
Environmental Engineering, they are not given the benefit of amended Regulation as per proceedings BP 15/93. If the purpose is to grant incentive
to higher qualified employees, which enriches the operational capability and ability, the same cannot be denied to employees who are seniors to
petitioners merely because they have acquired qualification before petitioners. What is the nexus that is to be achieved by amending Regulation as
per proceeding No. 15/93 and to make effective from 1.4.1993?
It is made clear that it will not be applicable to past cases; why seniors, who possess the same qualifications are to be left out are not explained by
writ petitioners. Appellants have also brought to our notice the seniority list of Assistant Engineers as on 2.9.1987 published by first respondent,
which has now become final. These writ petitioners are juniors to most of the appellants and they are now claiming seniority only by virtue of
proceedings in BP 15/93 on the ground that they became Post Graduates after 1993.
Board has also stated that before passing proceedings BP. 15/93, it has not considered the seniority and other relevant facts so far as other
senior post graduates are concerned and they came to know about this anamoly only when various representations were received from seniors. It
is also argued by Learned Counsel that seniority has to be fixed only on the basis of Service Regulations and any provision in the Leave Regulation
should not be inconsistent with Service Regulations. Apart from the same. Service Regulations got overriding effect in regard to matters provided
therein. We find force in the said submission. It is not disputed that first respondent has passed Madras Metropolitan Water Supply and Sewerage
Board Employees'' Service Regulations which deal with Engineering and technical services which provide for qualification for promotion to various
posts. These Special Regulations also provide for qualification and other requirements for further promotions. Taking into consideration above fact,
what was the necessity for giving service weightage for employees getting higher qualification after 1993 is also a matter which ought to have been
explained by petitioners.
Employees who are similarly situated and who had acquired same qualification earlier and who are seniors to writ petitioners are losing
seniority only because of writ petitioners who have obtained post-graduate qualification after 1993. We do not think that the Board is justified in
passing such regulations which is purely arbitrary. When the anamoly has been found out, Board thought of rescinding the amended Regulation and
restore the original Regulation No. 9. By the amended regulation by proceedings in BP 15/93, a concession was given to petitioners in the nature
of incentive. The same was withdrawn by passing another Regulation. It is in this background, we have to consider whether principle of promissory
estoppel applies to the facts of this case.
H.W.R. Wade & C.F. Forsyth on Administrative Law (7th Edition) at page 268 of the book considered the basic principles of ''Promissory
Estoppel'', which reads thus,
The basic principle of estoppel is that a person who by some statement or representation of fact causes another to act to his detriment in reliance
on the truth of it is not allowed to deny it later, even though it is wrong. Justice here prevails over truth. Estoppel is often described as a rule of
evidence, but more correctly, it is a principle of law. As a principle of common law, it applies only to representations about past or present facts.
But there is also an equitable principle of ''promissory estoppel'' which can apply to public authorities.
What are the limitations in invoking principle of promissory estoppel was also considered by the learned authors. At page 270 of the book, learned
authors have said thus,
In public law, the most obvious limitation on the doctrine of estoppel is that it cannot be invoked so as to give an authority powers which it does
not in law possess. In other words, no estoppel can legitimate action which is ultra vires.
At page 271 it is further said that the principle of estoppel does not operate at the level of government policy.
The scope of promissory estoppel came up for consideration before the Honourable Supreme Court in the decision reported in Vasantkumar
Radhakisan Vora Vs. The Board of Trustees of the Port of Bombay, In mat case, their Lordships approved the decision of Motilal Padampat
Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh and Others, wherein it is held thus,
...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 on 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 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 against the government or public authority.
And in para 18 of the Judgment, their Lordships further declared thus,
It is equally settled law that the promissory estoppel cannot be used to compel the government or a public authority to carry out a
representation or promise which is prohibited by law or which was devoid of the authority or power of the officer of the government or, the public
authority to make, We may also point out that the doctrine of promissory estoppel being an equitable doctrine, it must yield place to the equity, if
larger public interest so requires, and, if it can be shown by the government or public authority, for having regard to the facts as they have
transpired that it would be inequitable to hold the government or public authority to the promise or representation made by it. The court on
satisfaction would not, in those circumstances raise the equity in favour of the persons to whom a promise or representation is made and enforce
the promise or representation against government or the public authority. Equally promissory estoppel should not be extended, though it may be
founded on an express or implied promise stemmed from the conduct or representation by an officer of the State or Public authority when it was
obtained to play fraud on the Constitution and the enforcement would defeat or tend to defeat the constitutional goals. For instance, a right to
reservation either under Article 15 (4) or 16 (4) in favour of the Scheduled Castes, Scheduled Tribes or backward classes was made with a view
to ameliorate their status socially, economically and educationally so as to assimilate those sections into the mainstream of the society. The persons
who do not belong to those classes, but produce a certificate to mask their social status and secure an appointment to an office or post under the
state or public employment or admission into an educational institution maintained by the State or receiving aid from the State, on later
investigation, though belated, was found that the certificate produced was false and the candidate was dismissed from the post or office or
debarred or sent out from the institution or from the balance course of the study, the plea of promissory estoppel would always be found favour
with the courts and being easily extended in favour of the candidate or party that played fraud on the Constitution. It would amount not only to
putting a premium on the fraud on the Constitution, but also a denial to reserved candidate and the general candidate as well. Therefore, the plea of
promissory estoppel should not be extended to such areas.
(Emphasis supplied)
In D.C.M. Ltd. and Another Vs. Union of India (UOI) and Another, , in para 6 of the Judgment, it is held thus,
...It is well-settled that the doctrine of promissory estoppel represents a principle evolved by equity to avoid injustice and, though commonly
named promissory estoppel, it is neither in the realm of contract nor in the realm of estoppel. The basis of this doctrine is the inter-position of equity
which has always proved to its form, stepped in to mitigate the rigour of strict law. It is equally true that the doctrine of promissory estoppel is not
limited in its application only to defence but it can also find a cause of action. This doctrine is applicable against the Government in the exercise of
its governmental public or executive functions and the doctrine of executive necessity or freedom of future executive action, cannot be invoked to
defeat the applicability of this doctrine. It is further well-established that the doctrine of promissory estoppel must yield when the equity so requires.
If it can be shown by 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.
In M/s. Pawan Alloys and Casting Pvt. Ltd., Meerut etc, etc. Vs. U.P. State Electricity Board and others, their Lordships followed the
decision in Kasinka Trading and another, etc. etc. Vs. Union of India and another, wherein their Lordships have considered the limitation of
applicability of promissory estoppel, which reads thus,
The doctrine of promissory estoppel or equitable estoppel is well established in the administrative law of the country. To put it simply, the
doctrine represents a principle evolved by equity to avoid injustice. The basis of the doctrine is that where any party has by his word or conduct
made to the other party an unequivocal promise or representation by word or conduct, which is intended to create legal relations or effect a legal
relationship to arise in the future, knowing as well as intending that the representation, assurance or the promise would be acted upon by the other
party to whom it has been made and has, in fact, been so acted upon by the other party, the promise, assurance or representation should be
binding on the party making it and that party should not be permitted 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 or are intended to take place between the parties.
It has been settled by this Court that the doctrine of promissory estoppel is applicable against the Government also particularly where it is
necessary to prevent fraud or manifest injustice. The doctrine, however, cannot be pressed into aid to compel the Government or the 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.* There is preponderance of judicial opinion that to invoke the doctrine of promissory estoppel
clear, sound and positive foundation must be laid in the petition itself by the party invoking the doctrine and mat 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. In our opinion, the doctrine of promissory estoppel cannot be
invoked in the abstract and the courts are bound to consider all aspects including the results sought to be achieved and the public good at large,
because while considering the applicability of the doctrine, the courts have to do equity and the fundamental principles of equity must for ever be
present to the mind of the court, while considering the applicability of the doctrine, The doctrine must yield when the equity so demands if it can be
shown having regard to the facts and circumstances of the case that it would be inequitable to hold the Government or the public authority to its
promise, assurance or representation.
(Emphasis supplied)
And finally in para 30 of the Judgment their Lordships held that one of the conditions for application of promissory estoppel hinges upon balance of
equity or ''public interest''.
In Dr. Ashok Kumar Maheshwari Vs. State of U.P. and Another, entire law was considered wherein, it is held thus
In Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P. while reiterating the above principles and quoting with approval, the passage of
Dixon, J., extracted above, it was observed as under: (SCC p. 452, para 33)
We do not think that in order to invoke the doctrine of promissory estoppel, it is necessary for the promise to show that he suffered detriment as a
result of acting in reliance on the promise. But, we may make it clear that if by detriment, we mean injustice to the promisee which could result if
the promisee 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 premisor were allowed to go back on the promise.
Thereafter, in successive cases, as for example, Union of India v. Godfrey Philips India Ltd; Delhi Cloth & General Mills Ltd. v. Union of
India; Kasinka Trading v. Union of India; Darshan Oils (P) Ltd. v. Union of India; Shabi Construction Co. v. City & Industrial Development
Corpn. Shrijee Sales Corpn. v. Union of India; Pawan Alloys & Casting (P) Ltd. v. U.P. S.E.B. the rule of ""promissory estoppel"" was discussed,
explained and elaborated.
There are many aspects of ""Promissory estoppel"", but in the instant case we are concerned only with one aspect which is to the effect that if
any ""Promise"" has been made contrary of law, can it still be enforced by invoking this rule.
The basic principle is that the plea of estoppel cannot be raised to defeat the provisions of a statute. (See: G.H.C. Ariff v. Jadunath Majumdar
Bahadur, Mathra Parshad & Sons. v. State of Punjab, Rishab Kumar & Sons v. State of U.P.).
This principle was reiterated in Union of India v. R.C.d. Souza where a retired army officer was recruited as Assistant Commandant on
temporary basis and was called upon to exercise his option for regularisation contrary to the statutory rules. It was held that it would not amount to
estoppel against the Department.
Whether a promissory estoppel, which is based on a ""promise"" contrary to law can be invoked has already been considered by this Court in
Kasinka Trading v. Union of India as also in Shabi Construction Co. v. City & Industrial Development Corporation, wherein it is laid down that
the rule of ""promissory estoppel"" cannot be invoked for the enforcement of a ""promise"" or a ""declaration"" which is contrary to law or outside the
authority or power of the Government or the person making that promise.
The same principle was reiterated in the decision reported in Jalandhar Improvement Trust Vs. Sampuran Singh, wherein their Lordships said
that the principle of promissory estoppel cannot be taken and the authorities are confined with statutory rules and if any order contrary to the rules
are made, the same cannot be justified on the principle of promissory estoppel. Their Lordships also held that the principle of promissory or
equitable estoppel cannot be invoked to protect illegal acts.
Dr. S.P. Sathe on his book Administrative Law (6th Edition, 1998), learned author says, ''Promissory estoppel cannot be invoked against a
statutory provision or to support an ultra act or to compel the government or a public authority to carry out a promise which is contrary to law or
ultra vires its powers.'' (See page 496).
It has also been held in State of Himachal Pradesh and others etc. Vs. Ganesh Wood Products and others, etc., that the doctrine of estoppel
should not be reduced to the rule of thumb. Being an equitable doctrine, it should be kept elastic enough in the hands of the Court to do complete
justice between the parties.
D.D. Basu on Administrative Law, (1996 Edition), has considered this question at page 562, wherein learned author says that the principle of
promissory estoppel cannot be used against Government or public authority in certain circumstances. Learned author stated thus,
""But since the doctrine of promissory estoppel is an equitable doctrine, it would be subject to limitations to which all equitable rights and
obligations are subject, e.g. -
(a) It would be open for the Government or public authority to show that the officer or agent who made the representation acted beyond the scope
of his authority and the person who dealt with him is supposed to have notice of the limitation of the authority of a public servant with whom he is
dealing.
(b) It would be open to the public authority to prove that there were special considerations which necessitated his not being able to comply with his
obligations under the doctrine, in the public interest.
(c) The doctrine cannot be invoked to prevent the Government from acting in discharge of its duty under the law, or where its application would
involve the violation of a statute.
(d) The doctrine cannot be applied against the exercise of the legislative power of the state.
(e) Where a contract describes itself as ''provisional'' and stipulates that Government would not be bound to complete it (e.g., in the case of
settlement by public action), there is nothing to prevent the Government from changing its policy and cancelling the provisional contract before the
contract is finally accepted.
(f) It would not be applied where the Government can show that there are certain circumstances in the case which render it inequitable that the
representation would be enforced against the Government or that the private interest must yield to the public.
(g) The doctrine of promissory estoppel cannot be invoked when the petitioner knew all the facts and there was no question of his being misled by
the representation or the authority or the Government was under a legal duty or prohibition to act in a particular manner, or the petitioner failed to
substantiate that he had altered his position, relying on the alleged representation or the officer concerned acted beyond the scope of his authority,
so that the alleged representation was ultra vires.
The doctrine is not applicable against the Legislature or to challenge the vires of a statute.
Nor is it available to compel the Government or a public authority to carry out a representation which is contrary to law or outside the authority
of the officer to make, or to debar the Government from enforcing a statutory prohibition.
From the above settled legal position, we have to consider how far the principles could be invoked by writ petitioners against respondents in
this case.
Writ petitioners also knew how the seniority is to be reckoned and mere taking higher educational qualification will not count seniority as per
the service regulations. Petitioners are also well aware that the authorities cannot act against law and ignore service regulations and give them
favour. If any such favour is shown, that will only amount to arbitrariness and against law. Even though petitioners need not show that they have
suffered any detriment, they must show that injustice has been done to them.
What is the injustice that is suffered by petitioners? Facts stated above make it clear that by virtue of proceedings BP 8/95 petitioners are not
allowed to over-reach their seniors merely on the basis of higher qualification. That is not an injustice. The authorities have only restored the original
position by which the interse seniority of petitioners with the other Assistant Engineers were allowed to be retained. It only allowed that other
seniors who are equally qualified should also get benefit of higher educational qualification and the incentive given to writ petitioners should not
result in injustice. Writ petitioners are not in a position to substantiate that the withdrawal of rescinding proceedings in BP 15/93 has caused any
prejudice to them. While invoking the principles of promissory estoppel, court will have to consider the equity on both sides.
An argument was taken by Learned Counsel for respondents that but for the proceedings in BP 15/93, they would not have availed study
leave and the relieving order also shows that they are entitled to have weightage in seniority. I do not find any merit in the submission since even as
per the old Regulation, study leave could be availed by the staff, but they would be entitled to only half pay. By virtue of taking study leave,
petitioners got better qualified at the instance of Government 1st respondent. In fact, by availing study leave, they are now in advantageous
position. We do not think that the principle of promissory estoppel could be invoked against first respondent in this case.
Writ petitioners also will have to satisfy the Court that proceedings in BP 15/93 is valid and the same could be enforced in a Court of Law. It
is true that leave regulation No. 9 was amended by virtue of proceedings in BP 15/93. But, if the same is arbitrary and is also discriminatory, the
same cannot be said as valid. We have already said how injustice has been done by-virtue of this proceeding. If principle of promissory estoppel is
accepted, it will mean that the Court will have to perpetuate injustice against seniors for they being equally qualified. Merely because seniors got
better qualified earlier to 1993, their claims are not liable to be ignored. Even now, first respondent is entitled to consider the claims of petitioners
under Regulation No. 22 of Service regulations under 10% quota on the basis of merit. We do not think that proceedings in BP 15/93 dated
29.4.1993 could be supported as valid or on the basis of promissory estoppel. The same was rightly rescinded by first respondent by restoring old
leave regulation.
Learned Counsel for respondents also submitted that proceedings in BP 8/95 is retroactive and by the impugned regulations, their vested right
is taken away and therefore it is invalid. Reliance was also placed on few decisions of the Honourable Supreme Court. Learned Counsel placed
reliance on the decision reported in Ex-Major N.C. Singhal Vs. Director General Armed Forces Medical Services, New Delhi and Another,
wherein it was held that the Government has no power to alter or modify the conditions of service of a Government servant with retrospective
effect to the prejudice of the Government servant.
We do not think that the above submission of Learned Counsel could be accepted. Only if petitioners show that they have got vested right and
the same has accrued to them, this question arises for consideration. Even before writ petitioners could better qualify by their higher education,
proceedings in BP 15/93 was rescinded. Weightage in seniority will be given only on completion of higher qualification. Till then, they are only
expecting that a right will accrue to them. As per Regulation No. 22 of Service Regulations, promotion is mostly on the basis of seniority. None of
the petitioners got right to get promoted and that is not condition of service. They have got right to be considered for promotion on the basis of
seniority. When that right has not accrued to them, they cannot contend that they have got vested right. Again, proceedings in BP 8/95 was made
applicable to all the petitioners who are undergoing course. In fact, it has no retrospective effect, but made applicable to all the persons undergoing
the course. It is well settled that appointing authority got power to change the rules and that alone has been done by rescinding proceedings in BP
15/93. We do not find that the decision in Ex-Major N.C. Singhal Vs. Director General Armed Forces Medical Services, New Delhi and
Another, have any application to the facts of this case.
At this juncture, Learned Counsel for respondents submitted that learned single Judge has already exercised his discretion in quashing the
proceedings in BP 8/95 and has also given directions to implement proceedings in BP 15/93. It is argued that when a discretion has been exercised
by learned Judge of this Court, the same is not liable to be lightly interfered with in appeal. It is further argued that unless appellants satisfy that the
discretion exercised by learned single Judge is wrong, the same is not liable to be interfered with even if another view is possible. Reliance was
placed on the decision of Kerala High Court reported in 80 Sales Tax Cases 477 (Kerala Trading Corporation v. State of Kerala), where a
Division Bench of Kerala High Court held thus:
""We are of the opinion that in a ease where the extraordinary discretionary jurisdiction of this Court is invoked and a single Judge has exercised
discretion, one way or the other, it is not for an appellate court to interfere lightly with that discretion unless there are compelling circumstances.
Only in cases where discretion was exercised in a perverse or arbitrary manner, has the appellate court to interfere. The mere fact that a different
view is possible on the same set of facts does not justify interference in appeal; nor can such interference be justified for the only reason that the
judgment could have been written in a more felicitous manner. Unless the order under appeal is shown to be clearly wrong, the appellate court
ordinarily does not interfere. It shall not interfere for the only reason that the judgment under appeal was not right. The possibility of an alternative
view, by itself, is no reason why the appellate jurisdiction shall be invoked or exercised. These propositions are well-settled. We need refer only to
a few of the number of precedents in this regard.
Asquith, L.J., observed in (1948) 1 All ER 343 (Belleden (formerly Satterthwaite) v. Satterthwaite):
We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might
reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable
disagreement is possible, and is, in fact, plainly wrong that an appellate body is entitled to interfere.
Lord Goddard, C.J., held in (1949) 1 All ER 256 (Stepney Borough Council v. Joffee):
It is constantly said (although I am not sure that it is always sufficiently remembered) that the function of a court of appeal is to exercise its powers
where it is satisfied that the judgment below is wrong, not merely because it is not satisfied that the judgment was right.
Dealing specifically with an appeal from a judgment rendered under Article 226 of the Constitution of India, the Supreme Court held in Gujarat
Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha (1980) 56 FJR 137 (SC) at page 167 (AIR 1980 SC 1896 at page 1916):
Moreover, we sit here in appeal over the High Court''s judgment. And an appellate power interferes not when the order appealed is not right but
only when it is clearly wrong. The difference is real, though fine.
The very question of the amplitude of the appellate power of a Division Bench from a judgment of a single Judge in exercise of the jurisdiction
under Article 226 of the Constitution was considered by a Bench of this Court in W.A. No. 202 of 1973. Govindan Nair, C.J., speaking for the
Bench, held:
It is thus clear that even exercise of discretion can be interfered with if the appellate court is convinced that the exercise of discretion by the
subordinate authority was wrong. But as we said earlier, mis is not a case of exercise of a discretion and the view taken by Justice Nambiyar
cannot be said to be wrong.
We do not think that it is necessary to multiply authorities in support of this accepted but oft forgotten principle.
When this point was urged by Learned Counsel, we also thought that a full fledged argument is required on the powers of appellate court
against the order of learned Judge under Article 226 of the Constitution of India.
Learned Senior counsel Sri S. Gopalaratnam gave great assistance in placing various decisions on this point and we had the advantage of
hearing learned Senior Counsel in detail.
It is true that for invoking powers under Article 226 of the Constitution of India, Court exercises discretion while passing orders. What is
meant by ''discretion''.
In (1991) 1 S.C.C. 80 (Ramji Dayawala and Sons (P) Ltd. v. Invest Import), a similar argument was put forward before the Honourable
Supreme Court. An argument was taken that when Court has exercised its discretion one way, the appellate Court should be slow to interfere with
the discretionary order and substitute its own discretion in place of the discretion of the Court before which the motion was addressed.
Considering the said argument, their Lordships, considered what is meant by ''discretion''. In para 20 of the Judgment, their Lordships held thus,
... It is well settled that where the trial Court has a discretion in the matter; the Appellate Court would not ordinarily substitute its discretion in
place of the discretion exercised by the trial Court. But it is equally well settled that where the trial Court ignoring the relevant evidence. Side-
Tracking the approach to be adopted in the matter and overlooking various relevant consideration, has exercised its discretion one way, the
Appellate Court keeping in view the fundamental principle can and"" ought to interfere because when it is said that a matter is within the discretion
of the Court, it is to be exercised according to well established judicial principles, according to reason and fair play and not according to whim and
caprice. Discretion'', said Lord Mansfield in R.v. Wilkes ''when applied to a court of justice, means sound discretion guided by law. It must be
governed by rule, not by humour: it must not be arbitrary, vague, and fanciful, but legal and regular'' (See Craies Statute Law, 6th Edn., P.273). In
the course of this judgment we would be constrained to point out that both the learned Single Judge and the Judges of the Division Bench
completely overlooked the well established principles in granting stay of suit in a case where reliance is placed upon a subsisting arbitration
agreement.
(Emphasis supplied.)
Megarry Miscellany at Law at page 219 learned author has said thus,
...Discretion is indeed a poor substitute for principles, however, great the judge. ""The Discretion of a Judge is the Law of Tyrants: it is always
unknown: it is different in different Men; it is casual, and depends on Constitution-Temper, and Passion. In the best, it is oftentimes Caprice, in the
worst it is every Vice. Folly, and Passion to which human Nature is liable."" "" As anger does not become a judge, so neither doth pity, for on is the
mark of a foolish woman, as the other is of a passionate man."" ""Discretion, when applied to a Court of justice, means sound discretion guided by
law. It must be governed by rule, not by humour: it must not be arbitrary, vague. and fanciful: but legal and regular.
(Emphasis supplied)
Wharton in Law Lexicon (14th Edn.). at page 546 has stated thus,
Such matters in the course of a trial as are to be decided summarily buy the judge, and cannot be questioned afterwards, are said to be within his
discretion. Various matters incidental to the conduct of a cause before trial are also by statute left in the discretion of the Court, or a judge at
chambers. Discretion is thus defined by Coke, in Rooke''s case. 40 Eliz.: ''Discretion is a science of understanding to discern between falsity and
truth, between wrong and right, between shadows and substance, between equity and colourable glosses and pretences, and not to do according
to their Wills and private affections: for, as on it said, talis discretio discretionem confundit.''
(Emphasis supplied)
In The Law Lexicon by P. Ramanatha Aiyar, (1997 Edition), learned author has taken into consideration various decisions and considered
what is meant by discretion; discretion Judicial; and discretion of Court, and said thus,
Discretion, In general, is the discernment of what is right and proper. It denotes knowledge and prudence, that discernment which enables a
person to judge critically of what is correct and proper united with caution; nice discernment, and judgment directed by circumspection; deliberate
judgment; soundness of judgment; a science of understanding to discern ""between falsity and truth, between wrong and right, between shadow and
substance, between equity and colourable glosses and pretences, and not to do according to the Will and private affections of persons.
Discretion"" means, when it is said that something is to be done within the discretion of the authorities that something is to be done according to the
rules of reason and justice, not according to private opinion; according to law and not humour. It is to be not arbitrary, vague and fanciful, but legal
and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of his office ought to confine himself.
(Lord Halsbury, L.C. Sharp v. Ewakefield, (1891) 64 LT Rep 180; (1891) Ca 173.)
The very word discretion standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from
folly, unthinking or haste; evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking. 33 Bom 334 = 10 Bom LR
821 = 3 IC 361. The word ''discretion'' in itself implies vigilant circumspection and care; therefore where the legislature concedes wide discretion it
also imposes a heavy responsibility. (1933 Cr.C.175 = AIR 1933 Sind 49)
the power to decide within the limits allowed by positive rules of law as to punishments, remedies or costs and generally to regulate matters of
procedure and administration;
discernment of what is right and proper (Art. 136(1), Const.)
The discretion of a Judge is the law of tyrants; it is always unknown. It is casual, and depends upon constitution, temper, passion. In the best, it is
oftentimes caprice; in the worst, it is every vice, folly and passion to which human nature is liable.""(Lord Camden, L.C.J., Case of Hindson and
Kersey (1680), 8 How. St. Tr. 57)....
Discretion, Judicial- It is a certain'' latitude or liberty accorded by statute or rules to a judge as distinguished from a ministerial or administrative
official, in adjudicating on matters brought before him. The use of the word ""judicial"" limits and regulates the exercise of the discretion, and prevents
it from being wholly absolute, capricious, or exempt from review. But the presence of the word ""discretion"" permits the judge to consider as a
judge, what are vaguely termed, all the circumstances of the case and; the purpose for which he is invested with the considerations of convenience
or utility or saving of expenses rather than on considerations of strict law or technicalities.
(Emphasis supplied)
... ... ...
When a statute gives a judge a discretion, what is meant is a judicial discretion, regulated according to the known rules of law, and not the mere
whim or caprice of the person to whom it is given on the assumption that he is discreet. (Lee v. Bude Railway Co., (1871) LR 6 CP 576 580, ,
Willes. J.; and see Morgen v. Morgen, 1869, LR 1 P & M 644, 647).
That discretion, like other judicial discretions, must be exercised according to common sense and according to justice, and if there is a miscarriage
in the exercise of it. it will be reviewed: but still it is a discretion, and for my own part I mink that when a tribunal is invested by Act of Parliament,
or by rules, with a discretion, without any indication in the Act or rules of the grounds on which the discretion is to be exercised, it is a mistake to
lay down any rules with"""" a view of indicating the particular grooves on which the discretion would run, for if the Act or rules did not fetter the
discretion of the judge, why should the court do so?"" Gardner v. Jay, (1985) 29 Ch D 50 Bowen, L.J.) (See also 5 Cal 259 =4 CLJ 25; 2 Bom
LR 845; 17 Cal 767; 29 Bom 71 26 All 238 PC 11 CWN 1143).
Discretion is a science of understanding, to discern between falsity and truth, between wrong and right, between shadows and substance, between
equity and colourable glosses and pretences, and not to do according to men''s Wills, and private affections. Lord Coke Rooke ''s case. (1958), 5
Rep 99 b.
Stroud in Legal Dictionary has said thus,
Where something is left to be done according to the Discretion of the authority on whom the power of doing is it is conferred, the discretion must
be exercised honestly and in the spirit of the statute, otherwise, the act done would not fall within the statute. ''According to his Discretion'', means,
it is said according to the rules of reason and justice, not private Opinion (Rooke''s Case, 5 Rep. 100 a: Keighley''s case, 10 Rep. 140 b.:
Eastwick v. City of London, Style, 42, 43: per Willes, J. Lee v. Bude Ry, L.R. 6C.P576; 40 L.J.C.P.288); according to law and not humour: it is
to be not arbitrary, vague and fanciful, but legal and regular) per Ld Mansfield. R. v. Wilkes, 4 Burr. 2839); to be exercised not capriciously, but
on judicial grounds and for substantial reasons (per Jessel, M.R. Re Taylor, 4 Ch. D.160; 46 L.J. Ch.400; and per Ld B1ackburn, Doherty v.
Allman, 3 App. Ca. 728). And it must he exercised within the limits to which an honest man competent to the discharge of his office ought to
confine himself (per Ld Kenyon, Wilson v. Rastall, 4 T.R. 757); that is within the limits and for the objects intended by the legislature"" (Maxwell,
147, 148...why to 151 for cases in illustration). V. May: Opinion.
In 1927 King''s Bench 645 (Maxwell v. Keun) learned Judge considered the very same question. There also Lordship recognised that it is
almost essential of system and practice the discretion of the Judge should not only be respected but upheld. But Lordship posed a question
whether discretion has been exercised judicially. At page 653, it is held thus,
I quite agree the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question as an
adjournment of a trial and it very seldom does do so; but on the other hand, if it appears that the result of the order made below is to defeat the
rights of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the
Court has power to review such an order, and it is. to my mind, its duty to do so.
(Emphasis supplied)
At page 657, it is further held thus,
The result of mis seems to me to be that in the exercise of a proper judicial discretion, no judge ought to make such an order as would defeat the
rights of a party and destroy them altogether, unless he is satisfied that he has been guilty of such conduct that justice can only properly be done to
the other party by coming to that conclusion. I am very far from being satisfied that, that is so in the case; on the other hand, I am quite satisfied
that very substantial injustice would be done to the plaintiff by refusing the application that this case should be postponed, and that that is the result
of the present order"".
In Ramachandra Ganpat Shinde and another Vs. State of Maharashtra and others, , their Lordships reminded the duties of Courts, which
reads thus,
Respect for law is one of the cardinal principles for an effective operation of the Constitution, law and the popular Government. The faith of the
people is me source and succour to invigorate justice intertwined with the efficacy of law. The principle of justice is ingrained in our conscience and
though ours is a nascent democracy which has now taken deep roots in our ethos of adjudication�be it judicial, quasi-judicial or administrative
as hallmark, the faith of the people in the efficacy of judicial process would be disillusioned if the parties are permitted to abuse its process and
allowed to go scot free. It is but the primary duty and highest responsibility of the court to correct such orders at the earliest and restore the
confidence of the litigant public, in the purity of the fountain of justice; remove stains on the efficacy of judicial adjudication and respect for rule of
law, lest people would lose faith in the courts and take recourse to extra-constitutional remedies which is a death-knell to the rule of law.
In AIR 1967 Supreme Court 1450 (Moon Mills v. Industrial Court, Bom), it is held that a writ of certiorari is legally a matter of sound
discretion.
In Durga Prashad Vs. Chief Controller of Imports and Exports, their Lordships followed the decision in Moon Mills case (cited supra)
In Century Spinning and Manufacturing Company Ltd. and Another Vs. The Ulhasnagar Municipal Council and Another, the Honourable S.C.
held thus,
The High Court may, in exercise of its discretion, decline to exercise its extraordinary jurisdiction under Article 226 of the Constitution. But the
discretion is judicial: if the petition makes a claim which is frivolous, vexatious, or prima facie unjust, or may not appropriately be tried in a petition
invoking extraordinary jurisdiction, the Court may decline to entertain the petition. But a party claiming to be aggrieved by me action of a public
body or authority on the plea that the action is unlawful, high-handed, arbitrary or unjust is entitled to a hearing of its petition on the merits.
Apparently, the petition filed by the company did not raise any complicated questions of fact for determination, and the claim could not be
characterised as frivolous, vexatious or unjust. The High Court has given no reasons for dismissing the petition in limine, and on a consideration of
the averments in the petition and the materials placed before the Court, we are satisfied that the Company was entitled to have its grievance against
the action of the Municipality, which was prima facie unjust, tried.
In 1982 A W R 108 (Sri Narhar Rai v. Smt. Thirupathibibi, learned Judge of Andhra Pradesh High Court in para 7 of the Judgment held thus,
But it is argued that pro interesse suo is a discretionary remedy and that remedy should not be granted to the petitioners in this case. I must say
that the suggestion that any discretion a Court of law might have should be used against an applicant cannot be right. I find from Gibbon''s ""The
Decline and Fall of the Roman Empire"" that the discretion of the Judge is the first engine of tyranny, Where a Court finds a citizen''s valuable rights
have been illegally interfered with by the superior might of the State. I do not see any justification to drive the complainant from pillar to post and
from application to suit and appeal. Where this harm is unintended result of a failure to follow-up the judgment of the appellate Court, unasked the
Court should remedy the wrong.
(Emphasis supplied)
Learned Senior Counsel also brought to our notice the circumstances under which writs of certiorari or Mandamus are issued.
From the above decisions, it is clear that if a sound discretion has been exercised, the Court of appeal will be slow in interfering with the
discretion exercised by lower Court. But, if the discretion has been exercised without taking into consideration the well settled legal principles, the
aggrieved person is entitled to canvass the correctness of the said reasoning on the ground that discretion has been exercised not in accordance
with law. In that event, entire matter is left open to be decided by appellate court. Once it is found that discretion has been exercised not in
accordance with law, it follows that it is not sound discretion. The Court while asked to exercise its discretion, is not giving a bounty nor it should
think that it is giving gift or charity nor it should think that it will exercise discretion only at its Will and pleasure. In that case, it is not a discretion.
The Court is to exercise the discretion to undo injustice. In that case, it will also follow that if the discretion exercised is unreasonable"" or capricious
in which event it will be open to appellate court to interfere with the exercise of discretion of learned single Judge (See Uttar Pradesh Co-operative
Federation Ltd. Vs. Sunder Brothers of Delhi, Once it is found that the discretion exercised is unreasonable and capricious, the only conclusion
that could be arrived is that the order of single Judge is clearly wrong which empowers the appellate court to interfere. The decision relied on by
respondents 80 STC 77 (cited supra) will not in any way go against the case of appellants in this case.
We are of the view that the discretion exercised by learned Single Judge is not on sound principles and we are also of the view that if the relief
sought for is granted, it will amount to manifest injustice to the appellants before this Court. At the same time, writ petitioners also will not suffer
any injury, nor the dismissal of writ petition will affect their conditions of service. We are also of the view that if proceedings in BP15/93 is allowed
to be implemented, appellants herein and also Assistant Engineers who are seniors to writ petitioners and equally qualified will be put to greater
hardship and the same is inequitable. We are also of the view that for various reasons stated earlier proceedings in BP 15/93 dated 29.4.1993 is
not'', valid and writ petitioners are not entitled to have the same enforced.
In the result, we set aside the order of learned Single Judge dated 4.1.1999 by allowing these Writ Appeals. There will be no order as to
costs. Consequently, connected C.M.Ps are closed. We are grateful to the learned Senior Counsel Mr. S. Gopalaratnam for his able performance
by assisting us.