Legitimate Expectation | Case Reference

Legitimate Expectation

Editors’ Note

In the instant case writ petitioners-respondents in response to the advertisement published by the concerned authority for appointment in a project applied accordingly and sat for written and viva voce examination in 2003. However, the said appointment process was eventually stopped and postponed. The project eventually ended without appointing them in the said posts. Now the writ petitioners-respondents have sought for appointment in another project which has started in 2017 after a long period of closure of earlier project. They claim that since they had participated in the written and viva voce examination earlier and in the new project there are vacant posts, they have a legitimate expectation to be appointed directly in the said post. The High Court Division made the Rule absolute directing the authority concerned to fill up the posts advertised in the new project if the writ petitioners are selected in earlier appointment process and if they are not otherwise disqualified as per the present circular in any manner. The Appellate Division, however, set aside the judgment and order passed by the High Court Division holding that the writ petitioners-respondents did not have acquired any legal right to be appointed in the earlier project and now they cannot claim to be appointed in new project. Referring to its earlier judgments reported in 71 DLR (AD) 395 and 72 DLR (AD) 188 the Appellate Division reiterated that the doctrine of legitimate expectation can neither preclude legislation nor invalidate a statute enacted by the competent legislature. When the government changes policy, if it is not malafide or otherwise unreasonable, the doctrine of legitimate expectation cannot defeat the changed policy.  

Mere participation in the written and viva voce examination, ifso facto, does not create any vested right in favour of the writ petitioners-respondents to be appointed: The writ petitioners-respondents did not have acquired any legal right to be appointed in HPSP project and now they cannot claim to be appointed in new project i.e. Alternative Medical Care (AMC) Operational Plan (OP) as of right without participating in recruitment process. The writ petitioners-respondents participated in the examination for appointment under HPSP project in the year 2003 and having regard to the fact that the said appointment process was postponed and cancelled and on the plea of their participation in the earlier written and viva examination, no legal and vested right has been created in favour of the writ petitioners-respondents to be appointed to the posts as allegedly vacant in the new project. Mere participation in the written and viva voce examination, ifso facto, does not create any vested right in favour of the writ petitioners-respondents to be appointed automatically in the newly created posts in subsequent project. ...(Para 17)

Any appointment by passing the relevant Rules of the concerned authority should be treated as back door appointment and such appointment should be stopped. ...(Para 21)

We have no hesitation to hold that the writ petitioners-respondents have no legal and vested right to be appointed as of right in the posts as has been sought by them on the plea that they had earlier participated in the written examination and viva voice for the similar posts. The claim of the writ petitioner-respondents appears to be very fanciful having no legal basis. ...(Para 23)

Judgment contrary to the law settled by the Appellate Division has no binding effect: Having perused the said judgments we have no hesitation to hold that the observations/directions made in the said writ petitions are not based on sound principle of law and the law settled by this Division. Since, the judgments passed by the High Court Division in the above two writ petitions are not in accordance with law, thus those have no binding effect and persuasive value on any authority; rather said judgments are void ab initio. May be, by virtue of the above two judgments some persons have got appointment by the concerned authority but it is our considered view that this act is to be treated as passed and closed transaction. ...(Para 26)

It has to be borne in mind that the function or duty of a Court is not to do charity; rather it has to act in accordance with law to ensure justice. If an aspirant candidate or a participant of a particular selection process is provided job later on without participation in later selection process as decided by the concerned authority then this will create havoc in regular selection process and eligible and meritorious candidates will be deprived from getting job. ...(Para 28) 16 SCOB [2022] AD 100

Appointment- Legitimate right-

The High Court Division observed that the petitioners having been successful in their written and viva examinations were finally recommended for the post of Compressor Operator and Technician by the specially constituted committees comprising high officials of GTCL and as such the recommendation of the said committees could be termed as internal notes or internal communication of GTCL. The High Court Division observed "Though the recommendations or the fact of constitution of such committees were not officially communicated to the petitioners at any stage, it cannot be denied that, in a transparent appointment process by a government owned enterprise, such process of appointment cannot be kept secret terming the same as internal communication. Therefore, obliviously, the petitioners somehow got information about those recommendations of the committees." The High Court Division went on to hold that the writ petitioners acquired a legitimate right in favour of their appointment in the GTCL and, therefore, declared the impugned notification cancelling the appointment process as without lawful authority. In view of the above, we are of the opinion that the High Court Division was not correct in finding that the writ petitioners had acquired a legitimate right to appointment in GTCL. Accordingly, the judgement and order of the High Court Division is hereby set aside. ...Gas Transmission Company Ltd., Dhaka -VS- Mohammad Abdul Aziz, [10 LM (AD) 292]

This is a writ in the nature of mandamus. A direction has been sought by the petitioner upon the respondent No. 3. Let us have a clear idea what constitution has mandated under Article 102(2)(a)(i) - It says "on the application of any person aggrieved, make an order-(i) directing a person performing any functions in connection with the affairs of the Republic or of a local authority, to refrain from doing that which he is not permitted by law to do or to do." The writ of mandamus as enshrined in the Constitution enjoins how in a given situation authority should act in accordance with law. This is the elementary principle of writ mandamus. [73  DLR 145]

In the reported decision of 55 DLR (AD) 26 as referred to above in paragraph 38, our Hon'ble Appellate Division has observed as under:

“The counsel for the Ekushey TV Ltd. has submitted that it has filed an application with regard to the TV Licence with Bangla desh Telecommunication Regulatory Com mission established under the Bangladesh Telecommunication Act, 2001. Our judgment will have no bearing in considering the application by Ekushey for licence by the said Commission which is free to decide in accordance with law."

Criteria No. (iv) says: "An expectation to be legitimate must be founded upon a promise or practice by the public authority that is said to be bound to fulfill the expectation and a Minister cannot found an expectation that an independent officer will act in a particular way or an election promise made by a shadow Minister does not bind the responsible Minister after the change of the government." [73  DLR 146]

Criteria No. (v) says: A person basing his claim on the doctrine of legitimate expectation has to satisfy that he relied on the representation of the authority and the denial of that expectation would work to his detriment. The court can interfere only if the decision taken by the authority is found to be arbitrary, unreasonable or in gross abuse of power or in violation of the principles of natural justice and not taken in public interest." [73  DLR 146]

Legitimate Expectation' may also arise from the express conduct of Govern- ment, its functionaries and other public or statutory authority as happened in the instant case. It is always expected that the Government and the other public and statutory functionaries shall act fairly and reasonably with a citizen or a person and the Court shall definitely in- terfere in a matter if it is found that the Government and the other public and statutory functionaries failed to act fairly and reasonably as per the dictate of the statute in denial of the legitimate expectation of such citizen or person. Government of Bangladesh vs. Satellite Fishing Ltd (Md. Abdul Wahhab Miah J) (Civil) 10 ADC 325

Articles 1 and 19 under part-2 29(1) read with Article 27, 31 and 40-সরকারী প্রাথমিক বিদ্যালয়ে দপ্তরী কাম প্রহরী পদে আউট সোসিয়ের মাধ্যমে জনবল নিয়োগের নীতিমালা-২০১২ is set aside.

As all the petitioners have been serving in their respect post for more than 3 (three) years, they have legitimate expectation that they would be regularized in their respective posts. Under such circumstances, they are eligible and entitled to regularize in the said post and the authority shall absorb the petitioners in the revenue set up as all other posts of the government primary school are under revenue set up The High Court Division finds that as all the petitioners have been serving in their respect post for more than 3 (three) years. they have legitimate expectation that they would be regularized in their respective posts. Under such circumstances, they are eligible and entitled to regularize in the said post and the authority, shall absorb the petitioners in the revenue set up as all other posts of the government primary school are under revenue set up. Considering the facts and circumstances, the High Court Division is of the view that the impugned Nitimala is not compatible with the existing provisions of law and the Constitution of the People's Republic of Bangladesh.

As such, the impugned Nitimala is liable to be set aside. In the result, these Rules are made absolute and the "সরকারী প্রাথমিক বিদ্যালয়ে দপ্তরী কাম প্রহরী পদে। আউট সোর্সিংয়ের মাধ্যমে জনবল নিয়োগের নীতিমালা- ২০১২ is hereby set aside. The respondents are directed to frame rules and regulation for the post of সন্তরী and/or Night Guard for the government primary school and create two separate post, one for দপ্তরী and another for Night Guard if necessary, in accordance with the existing provision of law and the Constitution of the People's Republic of Bangladesh. As the petitioners have already been serving for more than 3 (three) years they should be regularized under revenue set-up in their respective post if they have requisite qualification in accordance with law without considering their age limit within 6 (six) months from the date of receipt of this order. However, there is no order as to costs. Abdul Hakim Chowdhury and others Vs. Bangladesh represented by the Secretary, Ministry of Primary and Mass Education, Secretariat, Dhaka (Spl. Original) 16 ALR (HCD) 291-299

Doctrine of legitimate expectation- implement of contract- The doctrine of legitimate expectation may be played into service in many cases particularly in contractual sphere while canvassing the implications underlying the administrative law. Such expectation can be claimed if the decision of the authority deprives a person the benefit or advantage which he had enjoyed and which he can legitimately expect to continue until he is intimated some rational grounds for withdrawing it and that he has been given an opportunity or that he has received an assurance that it will not withdraw the benefit without giving an opportunity of advancing reasons. Legitimate expectation gives the claimant sufficient locusstandi for judicial review and it operates in the domain of public law and in appropriate cases give rise to substantive as well as procedural rights. There is no neglect and laches on the part of the writ petitioner to implement the agreement. It has also spent huge amount of money after taking over possession towards the improvement of the Mills. Therefore, the writ petitioner's expectation of getting a registered instrument upon payment of the balance consideration cannot be taken away by the authority unilaterally. The High Court Division, in the premises, acted no illegality in making the rule absolute...... Government of Bangladesh =VS= Refat Garments Limited, [5 LM (AD) 173]