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2021 (10) TMI 1375 - SC - Indian LawsDoctrine of approbate and reprobate - Filling up of post of Director-General either by direct recruitment or on deputation in tune with CPRI (Pay, Recruitment and Promotion) Rules, 1989 - HELD THAT:- There is no element of an unequal bargaining power involved. Nobody has forced the Respondent to enter into a contract. He indeed was an employee of the society for 23 years. We do not wish to go into the question as to whether it is a case of re-employment or not, as the fact remains that the Respondent wanted the job, which is why there was an unexplained and studied reluctance to raise the issue of him being a permanent/regular employee, but only at the fag end of his tenure. The first of the representations were made on 30.12.2014, followed by others. The conduct speaks for itself. Hence, on the principle governing delay, laches, and acquiescence, followed by approbation and reprobation, Respondent No. 1 ought not to have been granted any relief by invoking Article 226 of the Constitution of India. On the interpretation of the rules, we have already discussed that there is no prohibition in law for a tenure appointment. We are dealing with a post that stands at the top realm of the administration. There is an intended object and rationale attached to the post. It is the incumbent of the post who has to carry forward the object and vision in the field of research - The Division Bench was not right in holding that the highest constitutional authority on the executive side was misled by the lower officials. There are no place for such an inference. A conscious decision has been made to go for a tenure appointment in the interest of society. Similarly, a conscious decision was also made to go for a fresh recruitment. There is a marked difference between the assessments made during the Respondent's tenure and the one made for continuation after the completion of the tenure. No question of being a junior or senior arises as materials have been placed for assessment by a different department. The assessment was done by the highest authorities, as approved by the Secretary to the Government of India and by the Hon'ble Minister concerned apart from the Cabinet Secretary - In the absence of any prohibition and mandatory mode of appointment, the Appellant's decision in going for a tenure appointment is perfectly in order. The order is very explicit in saying that it is subject to suitability, and such suitability for re-appointment having been considered, this Court is not expected to substitute its view. The non-consideration of the report by the "ACC" also would not be fatal, as the Cabinet Secretary himself has approved it, and so also the other higher authorities - the Respondent has not shown any substantial prejudice. Even if one assumes that these materials have not been placed before "ACC", we believe that there may not be any need for such approval for two reasons. Firstly, the first Appellant found that the Respondent is not suitable for re-appointment, which was approved by the other authorities. Therefore, the employer has taken a conscious decision in the interest of the society. Secondly, it is not a case of extension in which case maybe the confirmation by "ACC" would have been warranted. The appeals filed by the Respondent deserve to be dismissed. Once it is held that the Respondent is not entitled to any extension, the consequential benefits cannot be granted - appeals filed by the Appellants stand allowed.
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