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PETITIONER: DR. ASHOK KUMAR MAHESHWARI

       Vs.

RESPONDENT: STATE OF U.P. & ANR.

DATE OF JUDGMENT:       14/01/1998

BENCH: S. SAGHIR AHMAD, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S. SAGHIR AHMAD, J.      "Magnificent promises are always to be suspected" is an adage  which   was  forgotten   by  the  appellant  and  his colleagues  who   not  only  believed  such  a  promise  but approached the Court for its enforcement in writ proceedings which have  since reached  this Court requiring us to decide whether the doctrine of "Promissory Estoppel" can be invoked for the enforcement of a "promise" made contrary to law.      The  appellant   is  a  Demonstrator  in  the  Pharmacy Department of  S.N.  Medical  College,  Agra  where  he  was appointed or  11.01.73 and  his services  on that  post were regularised on 28.6.76.      The appellant and five of his other colleagues, working as Demonstrators  in various  Government Medical Colleges in U.P., filed a Writ Petition in the Allahabad High Court that the State Government as also the Director, Medical Education and Training,  may be  directed not  to fill  the  posts  of Lecturers in Pharmacy by direct recruitment and the same may be filled  up, at  least to  he extent of fifty per cent, by promotion of  Demonstrators working  in the Department as is done in  other Departments where posts of Readers are filled up, to  the extent  of  fifty  per  cent  by  promoting  the Lecturers, while  the posts  of Professors are filled up, to that extent, by promoting the Readers. It was pleaded before the High  Court that  the High Court that the Government, by its Order  dated 31.1.77  and 23.12.77,   had  provided,  in respect of  all posts  of  Readers  and  Professors  in  the Government Medical Colleges, that they shall be filled up by direct recruitment  to the  extent of  fifty per  cent,  and remaining fifty  per cent  would be  filled up  by promotion from amongst  persons working as Lecturers in the Department provided they  are qualified  for the post. It was contended that the  Government has  not made bay provision for filling up the  posts of  Lecturers in the Department of Pharmacy by promotion  from  amongst  the  Demonstrators  and  that  the Government had  not passed any specific order to that effect although such  an order should have been passed particularly in view  of the  fact that in all other Government services, avenue of  promotion has  been provided  for.  It  was  also

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claimed that  the Government, by its Order dated 24.6.86 had made provision  for time bound promotions of the teachers of Government Medical  Colleges  as  it  was  provided  that  a Lecturer, on  completing a  particular  period  of  service, would become  entitled to  the scale  of pay  admissible for Readers and  Readers would become entitled to be paid salary in the  pay scale  applicable to  Professors. It was claimed that these  benefits should  also be  made applicable to the persons working  as Demonstrators  in the Various Government Medical Colleges  and they should also be provided an avenue of  promotion   by  providing,  as  is  done  in  the  other Departments, that  the post of Lecturer in the Department of Pharmacy would  be filled  up, to  the extent  of fifty  per cent, by promotion from amongst the Demonstrators.      It was,  also claimed  that in  1980 when  4  posts  of Lecturers were  filled up  by the  respondents,  namely  the State Government  and the  Director, Medical  Education  and Training, by direct recruitment, the appellant and his Other colleagues made  representations to the Director, and it was on this  representation that  the respondents  accured  them that the remaining posts would be filled up by promoting. It was for  this reason that a seniority list of Demonstrators, working in  the Pharmacy  Department of  various  Government Medical Colleges,  was drawn  up. Since the State Government did not,  thereafter, issue  any instruction  or  order  for promotion of  Demonstrators to the posts of Lecturers in the Pharmacy Department,  the petitioner filed the Writ petition in the  High Court  which, by  the impugned  judgment  dated January 1,  1990 was  dismissed with the findings that there were neither  any statutory  rules nor  were  any  executive instructions ever  issued by  the Government  that fifty per cent posts  of  Lecturers  in  the  Pharmacy  Department  in various Government  Medical Colleges  would be  filled up by promotion of  Demonstrators, working  therein, and  that the case that any of the respondent had promised that petitioner or any  of his  colleague would  be promoted as Lecturer was not made out.      Learned counsel  for the  appellant has  raised, as was done in  the High  Court, the  plea of  Promissory  Estoppel before us  and has  contended  that  the  Government  having itself assured  the appellant  and his other colleagues that they would  be promoted as Lecturers and having itself taken steps  to  prepare  the  seniority  list  of  Demonstrators, working in various Government Medical Colleges, was bound by its  promise  and,  therefore,  ought  to  have  issued  the necessary notification  that the  posts of  Lecturers in the Department of  Pharmacy would  be Filled  up to promotion of Demonstrators. Since this was not done the high court should itself  have  commanded  the  Government  to  issue  such  a notification so  that the  promise, which  was made  to  the appellant,  was   fulfilled.  It   is  contended   that  the Government had  already issued  such Notification in respect of the  posts of  Professors and  Readers by  providing that they would be filled up, to the extent of fifty per cent, by promotion  of  Readers  and  Lecturers  and,  therefore,  in respect of  the Department  of  Pharmacy,  the  same  policy should have been adopted.      It is  not disputed  that the posts of Lecturers in the Department of  Pharmacy as  also  in  other  Departments  of Pharmacy  as  also  in  other  Departments  of  the  Medical Colleges are  filed up by direct recruitment. It is also not disputed that  so far  as Demonstrators are concerned, there are no  rules, statutory  or otherwise,  which provide  that they would  be promoted to the posts to Lecturers. The  High Court has  also considered this aspect of the matter and has

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recorded a  finding that  medical  education  in  Government Medical Colleges  is a  three-tier system  consisting of the posts of  Professors, Readers  and  Lecturers.  While  these posts were,  earlier, filled up by direct recruitment by the two  Government   Notifications,  issued  in  1977,  it  was provided that  the posts  of Professors and Readers would be filled up,  to the extent of fifty per cent, by promotion of Readers and Lecturers and the remaining fifty per cent would be filled  up by  direct recruitment. The scheme of personal promotion was  also introduced  under which  a  Lecturer  of Reader who had put in service for a specified period, was to be automatically  promoted to next higher grade available to the Readers  or Professors,  as the  case may  be.  No  such provision was  made for  the promotion  of Demonstrators not was the  scheme of  personal promotion  made  applicable  to them. The  High Court  has also  found it as a fact that the respondents, or  any of them, had not given any assurance to the appellant  or other  Demonstrators that  they  would  be promoted to  the  posts  of  Lecturers.  In  view  of  these findings, which  are findings,  of fact,  we need  not enter into the factual dispute once again.      Assuming, however, that any such assurance was given to the appellant  either by  the State  Government  of  by  the Director that the appellant or any of this colleague who had joined him in filing the Writ Petition, would be promoted as Lecturers, let  us examine  whether the  Rule of  Promissory Estoppel could be invoked in the particular circumstances of the case.      Doctrine of  "Promissory Estoppel"  has been evolved by the courts, on the principles of equity, to avoid injustice.      "Estoppel" in  Black’s Law  Dictionary, is indicated to mean that a party is prevented by his own acts from claiming a right  to the detriment of other party who was entitled to rely on  such conduct and has acted accordingly. Section 115 of the Indian Evidence Act is also, more or less, couched in a language which conveys the same expression.      "Promissory Estoppel"  is defined  as  in  Black’s  Law Dictionary as  "an estoppel  which arises  when there  is  a promise which  promisor should  reasonably expect  to induce action  or   forbearance  of   a  definite  and  substantial character on  the part  of promisee,  and which  does induce such action  or forbearance,  and such promise is binding if injustice can  be avoided only by enforcement of promise."      These definitions  in Black’s  Law Dictionary which are based on  decided cases,  indicate that  before that Rule of "Promissory Estoppel"  can be  invoked, it  has to  be shown that there  was a  declaration or promise made which induced the party to whom the promise was made to alter its position to its disadvantage.      In this  backdrop, let us travel a little distance into the past  to understand  the evolution  of the  Doctrine  of "Promissory Estoppel."      Dixon, J., an Australian Jurist, in Grundt v. The Great Boulder Pty. Gold Mines Ltd. (1938) 59 CLR 641, laid down as under :-      "It is  often said  simply that  he      party asserting  the estoppel  must      have been  induced to  act  to  his      detriment.  Although  substantially      such a  statement is  correct a  ns      leads to  misunderstanding, it does      not bring  out  clearly  the  basal      purpose  to   the  doctrine,   That      purpose is  to avoid  or prevent  a      detriment to  the  party  asserting

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    the  estoppel   by  compelling  the      opposite party  to  adhere  to  the      assumption upon  which  the  former      act or  abstained from acting. This      means that  the real detriment harm      from which  the law  seeks to given      protection is that which would flow      from the  change of position if the      assumption were  deserted that  led      to it."      The principle,  set out  above, was  reiterated by Lord Denning in  Central London  Properties Ltd.  v.  High  Trees House Ltd. 1947 KB 130, when he stated a sunder :-      "A promise intended to be binding, intended to be acted upon, and in fact acted upon is binding...."      Lord Denning approved the decision of Dixon, J. (supra) in Central  Newbury Car  Auctions Ltd. v. Unity Finance Ltd. (1956) 3  ALL ER  905.  Apart  from  propounding  the  above principle on  judicial  side,  Lord  Denning  wrote  out  an article,  a   classic  in   legal  literature,   on  "Recent Developments in  the Doctrine  of Consideration", Modern Law Review, Vol. 15, in which he expressed as under :-      "A man  should keep  his word.  All      the more  so when  the promises  is      not a bare promise but is made with      the intention  that the other party      should act upon it. Just a contract      is different  from  tort  and  from      estoppel, so also in the sphere now      under discussion  promises may give      rise to  a  different  equity  from      other conduct.      The  difference   may  lie  in  the      necessity of  showing  "detriment".      Where   one    party   deliberately      promises  to   waive,   modify   or      discharge his  strict legal rights,      intending the other party to act on      the faith of promise, and the other      party actually does act on it, then      it is  contrary, not only to equity      but also  to good  faith, to  allow      the promisor  to  go  back  on  his      promise. It should not be necessary      for the other party to show that he      acted to  his detriment in reliance      on  the   promise.  It   should  be      sufficient that he acted on it."      So far  as this  Court is  concerned,  it  invoked  the doctrine in  Union of  India vs. Indo-Afghan Agencies & Ors. AIR 1968  SC 718  = (1968) 2 SCR 366, in which it was, inter alia, laid  down that  even though  the case  would not fail within the  terms of  Section 115  of the Evidence Act which enacts the  Rule of  Estoppel, it  would still  be open to a party  who  had  acted  on  a  representation  made  by  the Government to  claim that  the Government should be bound to carry out the promise made by it even though the promise was nor recorded  in the   form of a formal contract as required by Article  299 of  the Constitution. To the same effect are the  decisions   in  Century  Spinning  Co.  vs.  Ulhasnagar Municipal Council,  AIR 1971  SC 1021  an d Radhakrishna vs. State of Bihar, AIR 1977 SC 1496.      In Motilal  Padampat Sugar  Mills Co. Ltd. vs. State of U.P (1979)  2 SCR  641 = 1979 (2) SCC 409 = AIR 1979 SC 621, while r  eiterating the  above principles  and quoting  with

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approval the  passage of  Dixon, J., extracted above, it was observed as  under :-      "We do  not think  that in order to      invoke the  doctrine of  promissory      estoppel it  is necessary  for  the      promisee to  show that  he suffered      detriment as  a result of 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 promisor      were to  recede  from  his  promise      then detriment would certainly come      in as  a necessary  ingredient, The      detriment in  such a  case  is  not      some  prejudice   suffered  by  the      promisee by  acting on the promise,      but he  prejudice  which  would  be      caused to  the  promisees,  if  the      promisor were allowed to go back on      the promise."      Thereafter, in  successive cases, as for example, Union of India  vs. Godfrey  Philips India Ltd. (1985) 4 SCC 369 = 1985 Supp  (3) SCR  123 =  AIR 1986  SC 806;  Delhi Cloth  & General Mills  Ltd. vs.  Union of  India & Ors. (1995) 1 SCC 274; Darshan  Oil (P) Ltd. vs. Union of India & Ors (1995) 1 SCC 245;  Shabi Construction  Co. Ltd. vs. City & Industrial Development Corporation  & Anr.  (1995) 4  SCC 301;  Shrijee Sales Corporation  vs. U.O.I, (1997) 3 SCC 398; Pawan Allovs & Castings  (P) Ltd. vs. U.P. State Electricity Board (1997) 7 SCC  251. the Rule of "Promissory Estoppel" was discussed, explained and elaborated.      There are  may 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 to  law, can it still be enforced by involving 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  vs. Jadunath  Majumdar Bahadur AIR 1931 PC 70; M/s Mathra  Parshad &  Sons vs.  State of  Punjab & Ors. AIR 1962 SC  745; Rishabh  Kumar vs.  State of  U.P. AIR 1987 SC 1576 = 1987 (Supp.) SCC 306).      This principle  was reiterated  in Union  of India  vs. R.C. D’Souza   AIR  1987 SC 1172 = (1987) 2 SCC 211, 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 & Anr. vs. Union of  India   &  Ors  (1995)  1  SCC  274  as  also  in  Shabi Construction Co.  Ltd  vs.  City  &  Industrial  Development Corporation &  Anr. (1995) 4 SCC 301 wherein it is laid down that the Rule of "Promissory Estoppel" a ’declaration’ which is contrary  to law or outside the authority or power of the Government or the person making that promise.      Applying th eabove principles to the instant case, even if it is accepted that the State Government or the Director, Medical Education  & Training,  assured the appellant or any of his  colleagues that  they would be promoted to the posts of Lecturer,  such a  ’ promise’  cannot be enforced against the respondents as the avenue of promotion for Demonstrators

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to the  post of  Lecturers was not provided either under the Statute or  any executive instruction. Moreover, if the post of Lecturer  was filled  up by promotion of Demonstrator, it would defeat  the existing mode of recruitment, namely, that it can  be filled  up by direct recruitment only and not  by promotion. It  may also be stated that the appellant did not make any  clear, sound  and positive  averment as  to  which officer of  the Government, when and in what manner gave the assurance to  the appellant or any of his colleague that hey would be  promoted as Lecturers. It was also not stated that he appellant  had, at  any time,  acting upon  the  promise, altered his  position,  in  any  manner,  specially  to  his detriment. Bald  Pleadings cannot be made the foundation for involving the Doctrine of Promissory Estoppel.      The appeal  being without  merits has  to be  dismissed reminding the appellant that a mind, conscious of integrity, scorns to  say  more  then  it  means  to  perform  and  the Government and Director were not of the material. No costs.