TMI Blog2021 (10) TMI 1375X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 mandat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1960. It functions under the aegis of the Ministry of Power. The object of this institution is to contribute to the power sector in the country for improved planning, operation and control of power systems while serving as a national level laboratory for undertaking applied research in electrical power engineering besides functioning as an independent national testing, certification authority for electrical equipment, components to ensure reliability in power systems and to innovate and develop new products. Thus, there is an extreme element of public interest involved in the functioning of the CPRI. 4. The Respondent/writ Petitioner initially joined the services of CPRI way back in the year 1984 - 05.07.1984. On his request, he was voluntarily retired while working as Engineering Officer, Grade-IV w.e.f. 31.03.2008. 5. By the Office Memorandum dated 08.11.1991, the Government of India, Department of Personnel and Training introduced a procedure which states that for appointment of certain specified posts, the approval of Appointments Committee of the Cabinet ( ACC ) consisting of the Hon'ble Prime Minister and Hon'ble Home Minister, would be required. A furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as member of the ACC gave his seal of approval for an initial tenure of five years or until further orders, with a further direction that the Respondent would be eligible for re-appointment for a further term up to 31.05.2019, the date of his superannuation. 11. An order of appointment was issued by the Ministry of Power vide its letter dated 22.03.2010. On 26.03.2010, the Respondent accepted the offer and joined his office. He was accordingly informed of the decision made by the ACC regarding his appointment and tenure, even prior to his acceptance. We may also note that due intimation has been given on the terms and conditions, including the pay scale. 12. The Respondent went on performing his part from the date of him taking charge without any demur. On finding his tenure coming to an end, for the first time he submitted a representation after about four years and nine months from the date of his joining, to the Secretary, Ministry of Power on 30.12.2014, taking a stand that since his appointment was made by way of direct recruitment, he should be treated as a regular employee and therefore, to be continued till the date of his superannuation. A similar request was als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance, and revocation of proposal. When an offer is made, it is required to be accepted by the receiver to partake the character of a concluded contract. Hence, the knowledge of the terms of the offer is a primary and essential factor for acceptance. To understand this better, when an acceptance is made in an unqualified manner, it takes in its sweep the said acceptance along with the knowledge of the terms of the offer. This is for the reason that an unaccepted offer creates neither any right nor obligation. Such an acceptance as existing Under Section 7 of the Act must both be absolute and unqualified. As per Section 8, the performance of the conditions of a proposal or the acceptance of any consideration for a reciprocal promise which may be offered with a proposal is an acceptance of the proposal. Hence, an absolute and unqualified acceptance would give birth to the contract along with the terms of the offer. 19. Section 39 deals with the effect of the refusal of the party to perform a promise wholly. Though we are not concerned with this provision, this provision is the only one that speaks of the concept of acquiescence, which could be signified by words or conduct, being a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. 23. A defence of laches can only be allowed when there is no statutory bar. The question as to whether there exists a clear case of laches on the part of a person seeking a remedy is one of fact and so also that of prejudice. The said principle may not have any application when the existence of fraud is pleaded and proved by the other side. To determine the difference between the concept of laches and acquiescence is that, in a case involving mere laches, the principle of estoppel would apply to all the defences that are available to a party. Therefore, a Defendant can succeed on the various grounds raised by the Plaintiff, while an issue concerned alone would be amenable to acquiescence. ACQUIESCENCE: 24. We have already discussed the relationship between acquiescence on the one hand and delay and laches on the other. Acquiescence would mean a tacit or passive acceptance. It is implied and reluctant consent to an act. In other words, such an action would qualify a passive assent. Thus, when acquiescence takes place, it presupposes knowledge against a particular act. From the knowledge comes passive acceptance, therefore instead of taking any action against any allege ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llusive, not on the ground of res judicata or estoppel but on the principle that a person cannot both approbate and reprobate, it is immaterial that the present Appellants were not parties thereto, and the decision in Verschures Creameries Ltd. v. Hull and Netherlands Steamship Co. Ltd. [(1921) 2 KB 608], and in particular, the observations of Scrutton, LJ, at page 611 were quoted in support of this position. There, the facts were that an agent delivered goods to the customer contrary to the instructions of the principal, who thereafter filed a suit against the purchaser for price of goods and obtained a decree. Not having obtained satisfaction, the principal next filed a suit against the agent for damages on the ground of negligence and breach of duty. It was held that such an action was barred. The ground of the decision is that when on the same facts, a person has the right to claim one of two reliefs and with full knowledge he elects to claim one and obtains it, it is not open to him thereafter to go back on his election and claim the alternative relief. The principle was thus stated by Bankes, L.J.: Having elected to treat the delivery to him as an authorised de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been passed, it is complied with, accepted by the other party and derived the benefit out of it, he cannot challenge it on any ground. (Vide Maharashtra SRTC v. Balwant Regular Motor Service [Maharashtra SRTC v. Balwant Regular Motor Service AIR 1969 SC 329].) In R.N. Gosain v. Yashpal Dhir [R.N. Gosain v. Yashpal Dhir, (1992) 4 SCC 683] this Court has observed as under: (SCC pp. 687-88, para 10) 10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that 'a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage'. 25. The Supreme Court in Rajasthan State Industrial Development and Investment Corporation v. Diamond and Gem Development Corporation Ltd. [Rajasthan State Industrial Development and Investment Corporation v. Diamond and Gem Development Corporation Ltd., (2013) 5 SCC 470 : (2013) 3 SCC (Civ) 153], made an observation t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, by way of his actions, or conduct, or silence when it is his duty to speak, from asserting a right which he would have otherwise had. ARTICLE 226 OF THE CONSTITUTION OF INDIA: 28. We would not dwell deep into the extraordinary and discretionary nature of relief Under Article 226 of the Constitution of India. This principle is to be extended much more when an element of undue delay, laches and acquiescence is involved. The following decisions of this Court would suffice: UP Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464: 8. Our attention was also invited to a decision of this Court in State of Karnataka v. S.M. Kotrayya (1996) 6 SCC 267 : 1996 SCC (L S) 1488. In that case the Respondents woke up to claim the relief which was granted to their colleagues by the Tribunal with an application to condone the delay. The Tribunal condoned the delay. Therefore, the state approached this Court and this Court after considering the matter observed as under: (SCC p. 268) Although it is not necessary to give an explanation for the delay which occurred within the period mentioned in Sub-sections (1) or (2) of Section 21, explanation should be given for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ips considered delay as serious factor and have not granted relief. Therein it was observed as follows: (SCC pp. 359-60, para 34) 34. The Respondents furthermore are not even entitled to any relief on the ground of gross delay and laches on their part in filing the writ petition. The first two writ petitions were filed in the year 1976 wherein the Respondents herein approached the High Court in 1992. In between 1976 and 1992 not only two writ petitions had been decided, but one way or the other, even the matter had been considered by this Court in Debdas Kumar [State of WB v. Debdas Kumar, 1991 Supp (1) SCC 138 : 1991 SCC (L S) 841 : (1991) 17 ATC 261. The plea of delay, which Mr. Krishnamani states, should be a ground for denying the relief to the other persons similarly situated would operate against the Respondents. Furthermore, the other employees not being before this Court although they are ventilating their grievances before appropriate courts of law, no order should be passed which would prejudice their cause. In such a situation, we are not prepared to make any observation only for the purpose of grant of some relief to the Respondents to which they are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation, in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as it relates to the remedy. (emphasis supplied) 28. This Court has accepted the above principles of English law. In Tilokchand Motichand v. H.B. Munshi (1969) 1 SCC 110 : (1969) 2 SCR 824 and Rabindranath Bose v. Union of India (1970 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t: (SCC p. 326, para 9) 9. ... the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the Petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this Rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction. 22. In State of Maharashtra v. Digambar [State of Maharashtra v. Digambar, (1995) 4 SCC 683] a three-Judge Bench laid dow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment Corporation [Tukaram Kana Joshi v. Maharashtra Industrial Development Corporation, (2013) 1 SCC 353 : (2013) 1 SCC (Civ) 491] it has been ruled that: (SCC pp. 359-60, para 12) 12. ... Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause of action, etc. That apart, if the whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third-party interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience. And again: (SCC p. 360, para 14) 14. No hard-and-fast Rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le applying the said principle, one has to be conscious of the fact that there may not be a legitimate expectation on the part of an employee as against the statute. We would like to refer to the following judgment of this Court on the above principle. Assistant Excise Commissioner and Ors. v. Issac Peter and Other, Issac Peter; Assistant Excise Commissioner, (1994) 4 SCC 104: 26. Learned Counsel for Respondents then submitted that doctrine of fairness and reasonableness must be read into contracts to which state is a party. It is submitted that the state cannot act unreasonably or unfairly even while acting under a contract involving State power. Now, let us see, what is the purpose for which this argument is addressed and what is the implication? The purpose, as we can see, is that though the contract says that supply of additional quota is discretionary, it must be read as obligatory -- at least to the extent of previous year's supplies -- by applying the said doctrine. It is submitted that if this is not done, the licensees would suffer monetarily. The other purpose is to say that if the state is not able to supply so, it would be unreasonable on its par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at case. Shrilekha Vidyarthi v. State of UP (1991) 1 SCC 212 : 1991 SCC (L S) 742 was a case of mass termination of District Government Counsel in the State of UP It was a case of termination from a post involving public element. It was a case of non-government servant holding a public office, on account of which it was held to be a matter within the public law field. This decision too does not affirm the principle now canvassed by the learned Counsel. We are, therefore, of the opinion that in case of contracts freely entered into with the state, like the present ones, there is no room for invoking the doctrine of fairness and reasonableness against one party to the contract (State), for the purpose of altering or adding to the terms and conditions of the contract, merely because it happens to be the state. In such cases, the mutual rights and liabilities of the parties are governed by the terms of the contracts (which may be statutory in some cases) and the laws relating to contracts. It must be remembered that these contracts are entered into pursuant to public auction, floating of tenders or by negotiation. There is no compulsion on anyone to enter into these contracts. It is vo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt made a request only after enjoying his tenure near the end of the period. It was also only made for continuance till the date of superannuation. The impugned order passed by the Appellants is only a relieving order. The performance assessment under the Rules after the first year or subsequent thereto has nothing to do with the assessment made for re-appointment. The initial appointment itself was by way of re-employment. The appointment order clearly states that the Respondent is appointed for an initial tenure of five years or until further orders and re-appointment will be based on suitability. Clause 48 of the Rules is only applicable to regular employees, indicating the upper age limit to remain in service and thus, cannot be an enabling one to a tenure-based appointee. The recommendation of the Search-Cum-Selection Committee and by way of the cabinet note is not binding while considering the tenure of the Respondent. All the materials were placed before the ACC , and thereafter, a conscious decision was taken on both occasions. Suitability and adequacy are the discretion of the employer alone. There is no arbitrariness involved in not considering the extension. The Divisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court would not constitute estoppel, especially when the terms are not in consonance with the rules, as held in the judgment of this Court in Somesh Thapliyal v. HNB Garhwal University. DISCUSSION: 37. We have already dealt with the principles of law that may have a bearing on this case. 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. 38. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision Bench cannot be sustained in the eye of the law. 41. Mr. Prashant Bhushan, made reliance upon the decision rendered by this Court in Somesh Thapliyal v. HNB Garhwal University. We are of the view that it is not a case in point. In the said decision, Rules were in place for a regular employment, and the post filled was a bottom-line post. The concept of bargaining power was thus rightly applied by this Court. The grievance was also in tune with the rules, and there was no justification for a contractual appointment, whereas in the case at hand, we are dealing with a tenure-based appointment. Thus, the facts being different, the ratio has no application. 42. On reading the appointment order, we could not identify the existence of automatic extension. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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