UNION OF INDIA AND OTHERS versus N MURUGESAN ETC.

UNION OF INDIA AND OTHERS

N MURUGESAN ETC.

(Civil Appeal Nos. 2491-2492 of 2021)

OCTOBER 07, 2021

[SANJAY KISHAN KAUL AND M. M. SUNDRESH, JJ.]

Service Law – CPRI (Pay, Recruitment and Promotion) Rules,1989 (Working Rule No.1) – Direct recruitment – Tenure appointment– Non-extension of – Respondent no.1 was an ex-employee ofappellant-Central Power Research Institute (CPRI) – Appointed asDirector General thereof through Direct Recruitment for an initialtenure of five years or until further orders, being eligible for re-appointment for further term up to the date of superannuation –Sought extension of service towards the end of tenure – Not extended– Fresh recruitment, private respondent was selected as the newDirector-General – Writ petitions filed by respondent inter aliaquestioning his relieving order and challenging the recruitment ofthe private respondent – Dismissed by Single Judge on ground ofdelay and laches – Appeals, allowed by Division Bench – Held:Appointment order very explicitly says that extension is subject tosuitability, and such suitability for re-appointment having beenconsidered, this Court is not expected to substitute its view –Employer had discretion and in the absence of any arbitrariness,one cannot question its wisdom – Rules do not prohibit tenureappointment – Direct recruitment can also be made for filing up thepost on tenure basis – Division Bench misconstrued directrecruitment to mean an appointment to permanent post –Respondent not entitled to extension – Further, on the principlegoverning delay, laches, and acquiescence, followed by approbationand reprobation, the respondent ought not to have been grantedany relief – Impugned order set aside – Constitution of India –Article 226 – Contract Act, 1872 – ss.3, 7, 8, 39 – Acquiescence –Delay/Laches – Approbation and Reprobation – Doctrine of Election– Doctrine of Fairness – Karnataka Societies Act, 1960.

Delay/Laches and Acquiescence – Principles governing –Discussed.

DEF

Doctrines/Principles – Doctrine of Fairness – Employer andemployee relationship – Applicability of – Held: In an employerand employee relationship, the doctrine of fairness has to be appliedwith more vigour when it involves an instrumentality of the State.

Constitution of India – Article 226 – Nature of relief –BExtraordinary and discretionary – Discussed.

Service Law – Direct recruitment – Definition of – Held: Directrecruitment would mean recruitment through process stipulatedunder the rules – Therefore, it cannot be interpret that all directrecruitments are to be made by regular employment – DirectCrecruitment can also be made for filing up the post on tenurebasis.

Words & Phrases – ‘Laches’; ‘acquiescence’; ‘approbationand reprobation’ – Meaning of – Discussed.

Allowing the appeals filed by the appellants and dismissingDthat of the respondent’s, the Court

HELD: 1. THE INDIAN CONTRACT ACT, 1872:

Section 3 of the Act concerns itself with an act ofcommunication, acceptance, and revocation of proposal. Whenan offer is made, it is required to be accepted by the receiver toEpartake the character of concluded contract. Hence, theknowledge of the terms of the offer is primary and essentialfactor for acceptance. To understand this better, when anacceptance is made in an unqualified manner, it takes in its sweepthe said acceptance along with the knowledge of the terms of theFoffer. This is for the reason that an unaccepted offer createsneither any right nor obligation. Such an acceptance as existingunder Section 7 of the Act must both be absolute and unqualified.As per Section 8, the performance of the conditions of proposalor the acceptance of any consideration for reciprocal promisewhich may be offered with proposal is an acceptance of theGproposal. Hence, an absolute and unqualified acceptance wouldgive birth to the contract along with the terms of the offer. Section39 deals with the effect of the refusal of the party to perform apromise wholly. Though the Court is not concerned with thisprovision, this provision is the only one that speaks of the conceptH

of acquiescence, which could be signified by words or conduct,being an exception for terminating the contract. Under thisprovision, promisee may put an end to the contract unless thereexists an element of acquiescence that could be seen andexhibited through his words or conduct. Obviously, such acontract which would also involve words or conduct, is to be seenon the facts of each case. [Paras 18, 19][264-F-H; 265-A-B]

2.1 DELAY, LACHES AND ACQUIESCENCE:

The principles governing delay, laches, and acquiescenceare overlapping and interconnected on many occasions. However,they have their distinct characters and distinct elements. Onecan say that delay is the genus to which laches and acquiescenceare species. Similarly, laches might be called genus to speciesby name acquiescence. However, there may be case whereacquiescence is involved, but not laches. These principles arecommon law principles, and perhaps one could identify that theseprinciples find place in various statutes which restrict the periodof limitation and create non-consideration of condonation incertain circumstances. They are bound to be applied by way ofpractice requiring prudence of the Court than of strict applicationof law. The underlying principle governing these concepts wouldbe one of estoppel. The question of prejudice is also an importantissue to be taken note of by the Court. [Para 20][265-C-E]

2.2 LACHES:

The word laches is derived from the French languagemeaning “remissness and slackness”. It thus involvesunreasonable delay or negligence in pursuing claim involvingan equitable relief while causing prejudice to the other party. Itis neglect on the part of party to do an act which law requireswhile asserting right, and therefore, must stand in the way ofthe party getting relief or remedy. Two essential factors to beseen are the length of the delay and the nature of acts done duringthe interval. It would also involve acquiescence on the part ofthe party approaching the Court apart from the change in positionin the interregnum. Therefore, it would be unjustifiable for Courtof Equity to confer remedy to party who knocks its doors

Awhen his acts would indicate waiver of such right. By hisconduct, he has put the other party in particular position, andtherefore, it would be unreasonable to facilitate challenge beforethe Court. Thus, man responsible for his conduct on equity isnot expected to be allowed to avail remedy. defence of lachescan only be allowed when there is no statutory bar. The questionBas to whether there exists clear case of laches on the part of aperson seeking remedy is one of fact and so also that of prejudice.The said principle may not have any application when theexistence of fraud is pleaded and proved by the other side. Todetermine the difference between the concept of laches andCacquiescence is that, in case involving mere laches, the principleof estoppel would apply to all the defences that are available to aparty. Therefore, defendant can succeed on the various groundsraised by the plaintiff, while an issue concerned alone would beamenable to acquiescence. [Paras 21-23][265-F-H; 266-A-C]

D2.3 ACQUIESCENCE :

Acquiescence would mean tacit or passive acceptance. Itis implied and reluctant consent to an act. In other words, suchan action would qualify passive assent. Thus, when acquiescencetakes place, it presupposes knowledge against particular act.EFrom the knowledge comes passive acceptance, therefore insteadof taking any action against any alleged refusal to perform theoriginal contract, despite adequate knowledge of its terms, andinstead being allowed to continue by consciously ignoring it andthereafter proceeding further, acquiescence does take place. Asa consequence, it reintroduces new implied agreement betweenFthe parties. Once such situation arises, it is not open to theparty that acquiesced itself to insist upon the compliance of theoriginal terms. Hence, what is essential, is the conduct of theparties. When acquiescence is followed by delay, it may becomelaches. The concept of acquiescence is to be seen on case-to-Gcase basis. [Paras 24, 25][266-D-G]

2.4 APPROBATE AND REPROBATE:

These phrases are borrowed from the Scott’s law. Theywould only mean that no party can be allowed to accept and reject

the same thing, and thus one cannot blow hot and cold. Theprinciple behind the doctrine of election is inbuilt in the conceptof approbate and reprobate. Once again, it is principle of equitycoming under the contours of common law. Therefore, he whoknows that if he objects to an instrument, he will not get thebenefit he wants cannot be allowed to do so while enjoying thefruits. One cannot take advantage of one part while rejecting therest. person cannot be allowed to have the benefit of aninstrument while questioning the same. Such party either hasto affirm or disaffirm the transaction. This principle has to beapplied with more vigour as common law principle, if such aparty actually enjoys the one part fully and on near completion ofthe said enjoyment, thereafter questions the other part. Anelement of fair play is inbuilt in this principle. It is also speciesof estoppel dealing with the conduct of party. [Para 26][266-H;267-A-C]

3. ARTICLE 226 OF THE CONSTITUTION OF INDIA

The Court would not dwell deep into the extraordinary anddiscretionary nature of relief under Article 226 of the Constitutionof India. This principle is to be extended much more when anelement of undue delay, laches and acquiescence is involved. Theprinciple is also required to be adopted while considering caseinvolving approbation and reprobation. [Paras 28, 29][271-C;279-D-E]

4. DOCTRINE OF FAIRNESS:

The doctrine of fairness is inbuilt in every employer andemployee relationship. The said doctrine has to be applied afterthe relationship come into being rather than at the stage ofrecruitment. While dealing with recruitment, on the question ofsuitability and adequacy, substantial discretion is appropriatelyconferred on the employer. At that stage, the question is withrespect to the need of the employer to complete particular typeof work. In an employer and employee relationship, the doctrineof fairness has to be applied with more vigour when it involvesan instrumentality of the State. Therefore, State is not expectedto act adversely to the interest of the employee, and anydiscrimination should be valid one. Ultimately, one has to seethe overwhelming public interest as every action of the

ABC

Ainstrumentality of the state is presumed to be so. While applyingthe said principle, one has to be conscious of the fact that theremay not be legitimate expectation on the part of an employeeas against the statute. [Para 30][279-E-H]

5. WORKING RULES :

The rules per se do not prohibit tenure appointment. Thedefinition of direct recruitment would mean recruitment througha process stipulated under the rules. Therefore, by no stretch ofthe imagination, one can interpret that all direct recruitmentsare to be made by regular employment. Therefore, directCrecruitment can also be made for filing up the post on tenurebasis. Hence, in the absence of any statutory bar under the rules,a tenure appointment made through direct recruitment byfollowing the due procedure cannot be termed as contrary to law.In direct recruitment the appointment on regular or tenurebasis is the discretion of the employer, especially when the rulesDdo not prohibit. Rule 48 speaks of the age of superannuation fora regular employee which will be the completion of sixty years.There is no difficulty in appreciating the said rule, which dealswith regular employee alone and therefore can have noapplication while dealing with an appointment made on tenureEbasis. After all, Court of law cannot give different status to anemployee than the one which was conferred and acceptedespecially when the same is not prohibited under the rules.[Para 32][282-C-E]

6.1 There is no element of an unequal bargaining powerFinvolved. Nobody has forced the respondent to enter into acontract. He indeed was an employee of the society for 23 years.This Court does not wish to go into the question as to whether itis case of re-employment or not, as the fact remains that therespondent wanted the job, which is why there was an unexplainedand studied reluctance to raise the issue of him being permanent/Gregular employee, but only at the fag end of his tenure. The firstof the representations were made on 30.12.2014, followed byothers. The conduct speaks for itself. Hence, on the principlegoverning delay, laches, and acquiescence, followed byapprobation and reprobation, respondent no.1 ought not to haveHbeen granted any relief by invoking Article 226 of the Constitutionof India. There is no prohibition in law for tenure appointment.The Court is dealing with post that stands at the top realm ofthe administration. There is an intended object and rationaleattached to the post. It is the incumbent of the post who has tocarry forward the object and vision in the field of research. Thereis certainly an overwhelming public interest involved. Theemployer, has load of discretion available. In the absence ofany arbitrariness, one cannot question its wisdom. After all, adecision has been taken at the highest level. The Court cannotinfer that materials have not been placed before taking thedecision. conscious decision has been made to go for tenureappointment in the interest of society. Similarly, consciousdecision was also made to go for fresh recruitment. [Paras 37,38][284-D-H; 285-A-B]

6.2 What was challenged is only relieving order, whichcannot be given the character of termination. The DivisionBench misconstrued direct recruitment to mean an appointmentto permanent post. The Court is dealing with direct recruitmentto post of primary importance, i.e. Director-General, which isto be filled on tenure basis. The rules as perused andunderstood do not prohibit tenure appointment. In the absenceof any prohibition and mandatory mode of appointment, theappellant’s decision in going for tenure appointment is perfectlyin order. [Para 39][285-C-D]

Somesh Thapliyal v. HNB Garhwal University 2021 SCCOnline SC 659 – distinguished.

6.3 On reading the appointment order, the Court could notidentify the existence of automatic extension. The order is veryexplicit in saying that it is subject to suitability, and such suitabilityfor re-appointment having been considered, this Court is notexpected to substitute its view. The non-consideration of thereport by the “ACC” also would not be fatal, as the CabinetSecretary himself has approved it, and so also the other higherauthorities. The respondent has not shown any substantialprejudice. Even if one assumes that these materials have notbeen placed before “ACC”, there may not be any need for such

Aapproval for two reasons. Firstly, the first appellant found thatthe respondent is not suitable for re-appointment, which wasapproved by the other authorities. Therefore, the employer hastaken conscious decision in the interest of the society. Secondly,it is not case of extension in which case maybe the confirmationby “ACC” would have been warranted. All the appellants,Bincluding the Hon’ble Minister, have approved the subsequentdecision to go for fresh recruitment by taking note of the largerpublic interest. Once it is held that the respondent is not entitledto any extension, the consequential benefits cannot be granted.The respondent is not entitled to any relief. The impugned orderCis set aside. [Paras 42-44][286-A-E]

Nagubai Ammal v. B. Shama Rao, 1956 SCR 451; Stateof Punjab v. Dhanjit Singh Sandhu, (2014) 15 SCC144 : [2014] 3 SCR 1121; Rajasthan State IndustrialDevelopment & Investment Corpn. v. Diamond & GemDDevelopment Corpn. Ltd., (2013) 5 SCC 470: [2013] 4SCR 331; UP Jal Nigam v. Jaswant Singh, (2006) 11SCC 464 : [2006] 8 Suppl. SCR 916; Eastern CoalfieldsLtd. v. Dugal Kumar, (2008) 14 SCC 295: [2008] 11SCR 369; State of J&K v. R.K. Zalpuri, (2015) 15 SCC602: [2015] 12 SCR 285; Assistant Excise CommissionerEand Others v. Issac Peter and Other, Issac Peter;Assistant Excise Commissioner, (1994) 4 SCC 104:[1994] 2 SCR 67 – relied on.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.2491-2492 of 2021.

From the Judgment and Order dated 26.04.2019 of the High Courtof Karnataka at Bengaluru in Writ Appeal Nos.1555 and 1556 of 2018(S-Res).

With

Civil Appeal Nos.2493-2494 of 2021.

K. M. Nataraj, ASG, Gurmeet Singh Makker, Rajan Kr. Chaurasia,Ms. Vimla Sinha, Vatsal Joshi, Sharath Nambiar, Prashant Bhushan,Ms. Alice Raj, Rahul Gupta, Advs. for the Appearing Parties.

The Judgment of the Court was delivered by

M. M. SUNDRESH, J.

1. Heard Shri KM Nataraj, learned Additional Solicitor Generalappearing for the appellant and Shri Prashant Bhushan, learned counselfor the respondent. There is no representation on behalf of Shri VSNandakumar who has been arrayed as private respondent and whoserecruitment and selection was also challenged by Respondent No.1. Wehave also perused the documents filed and written submissions placedby the parties.

2. As the present appeals are filed by both contesting partieschallenging the same impugned judgment, for the sake of brevity theyare disposed of by common order. Civil Appeal No. 2491-2492 of 2021is taken up as lead case, and the parties arrayed thereunder are to betaken in the same manner for the other cases as well.

PRIMARY FACTS:

3. Central Power Research Institute (CPRI) is an autonomousbody registered as society under the Karnataka Societies Act, 1960. Itfunctions under the aegis of the Ministry of Power. The object of thisinstitution is to contribute to the power sector in the country for improvedplanning, operation and control of power systems while serving as anational level laboratory for undertaking applied research in electricalpower engineering besides functioning as an independent national testing,certification authority for electrical equipment, components to ensurereliability in power systems and to innovate and develop new products.Thus, there is an extreme element of public interest involved in thefunctioning of the CPRI.

4. The respondent/writ petitioner initially joined the services ofCPRI way back in the year 1984 - 05.07.1984. On his request, he was

Avoluntarily retired while working as Engineering Officer, Grade-IV w.e.f.31.03.2008.

5. By the Office Memorandum dated 08.11.1991, the Governmentof India, Department of Personnel and Training introduced procedurewhich states that for appointment of certain specified posts, the approvalBof “Appointments Committee of the Cabinet” (“ACC”) consisting ofthe Hon’ble Prime Minister and Hon’ble Home Minister, would berequired. further Office Memorandum was issued on 03.07.2006,facilitating appointments approved by “ACC” in autonomous institutions.Needless to state, the post of Director-General is one among them.

C6. An advertisement was made on 16.05.2009 to fill up the post ofDirector-General either by direct recruitment or on deputation in tunewith CPRI (Pay, Recruitment and Promotion) Rules, 1989 (WorkingRule No.1). The respondent had applied for the said post being eligibleto be appointed on direct recruitment.

D7. The working rule referred to above deals with various categoriesof officers and personnel along with the mode of recruitment, designation,the scale of pay, and the date of superannuation for the regular employees.For the post of Director-General, there are two modes of recruitmentsas noted earlier by us. One is by way of deputation, and the other is bydirect recruitment. Qualification with respect to age restriction is 55Eyears for direct recruitment, while the same is extended by one moreyear for deputation. On the educational qualification part, from the requisitedegrees, it would also involve 15 years of experience in the fieldsmentioned thereunder. performance review is also mandated oncompletion of one year of service after appointment as Director-General,Fin the case of direct recruitment. The evaluation is made by the Search-cum-Selection Committee consisting of experts in the field. The periodof deputation is capped at three years, extendable up to five years.8. From the above, we could gather in clear terms that the post ofDirector-General carries very high degree of importance. The factGthat the age limit is fixed at 55 years of completion, being the maximumwith 15 years of experience also indicates the rationale behind thequalification fixed.

9. The Ministry of Power, after due deliberation on therecommendation made by the Search-cum-Selection Committee infavour of the respondent, sought the approval of “ACC” to the post ofH

Director-General, CPRI from the date he assumes charge up to thedate of his retirement on superannuation (31.05.2019) or until furtherorders, whichever is earlier.

10. The file was circulated to the Hon’ble Minister and then tothe Hon’ble Prime Minister in pursuance of the recommendations madeby the Cabinet Secretary. After considering the relevant materials, theHon’ble Prime Minister as member of the “ACC” gave his seal ofapproval for an initial tenure of five years or until further orders, with afurther direction that the respondent would be eligible for re-appointmentfor further term up to 31.05.2019, the date of his superannuation.

11. An order of appointment was issued by the Ministry of Powervide its letter dated 22.03.2010. On 26.03.2010, the respondent acceptedthe offer and joined his office. He was accordingly informed of thedecision made by the “ACC” regarding his appointment and tenure, evenprior to his acceptance. We may also note that due intimation has beengiven on the terms and conditions, including the pay scale.

12. The respondent went on performing his part from the date ofhim taking charge without any demur. On finding his tenure coming toan end, for the first time he submitted representation after about fouryears and nine months from the date of his joining, to the Secretary,Ministry of Power on 30.12.2014, taking stand that since hisappointment was made by way of direct recruitment, he should be treatedas regular employee and therefore, to be continued till the date of hissuperannuation. similar request was also made to the President, CPRIGoverning Council. This was followed by series of representations,one after the other, perhaps knowing full well that time was running out.

13. Meanwhile, performance assessments were made asmandated under the rules, which were found satisfactory. On the questionof considering his eligibility for further term of extension, detailedstudy was undertaken, resulting in report dated 05.02.2015. This reportin clear terms, indicated that it would not be in the interest of the instituteto extend the tenure-based appointment for further period. On suchreport being placed before all the authorities, including the Hon’bleMinister, conscious decision was made by the employer to go for freshrecruitment. This decision was also approved by all the authorities. Inthis connection, we may note that there is no clarity with regard to theapproval given by the “ACC” for the extension of service of therespondent. In pursuance of the advertisement dated 22.02.2015, the

Aprivate respondent was recruited and selected as the new Director-General.

14. Under the aforesaid circumstances, the respondent filed twowrit petitions before the High Court of Karnataka questioning the relievingorder given to him by terming it as an order of termination with furtherBchallenge to the report dated 05.02.2015, advertisement dated 22.02.2015,and the recruitment of the private respondent.

15. The learned Single Judge dismissed the writ petitions on theground of delay and laches. It was further held that such case did notrequire the invocation of the discretionary jurisdiction under Article 226Cof the Constitution of India.

16. Aggrieved by the aforesaid, the respondent filed appeals beforethe Division Bench. The Division Bench allowed the appeals withoutgranting an order of reinstatement by compensating the respondent. Thus,the other reliefs sought by the respondent were not considered andDgranted. Against this order of the Division Bench dated 26.04.2019, theseappeals have been filed before us.

17. Before we deal with the submissions made at the Bar, it wouldbe imperative to deal, appreciate and reiterate the general and settledprinciples of law while understanding the rules governing the presentEcase.

THE INDIAN CONTRACT ACT, 1872:

18. Section 3 of the Act concerns itself with an act ofcommunication, acceptance, and revocation of proposal. When an offeris made, it is required to be accepted by the receiver to partake theFcharacter of concluded contract. Hence, the knowledge of the termsof the offer is primary and essential factor for acceptance. Tounderstand this better, when an acceptance is made in an unqualifiedmanner, it takes in its sweep the said acceptance along with the knowledgeof the terms of the offer. This is for the reason that an unaccepted offercreates neither any right nor obligation. Such an acceptance as existingGunder Section 7 of the Act must both be absolute and unqualified. As perSection 8, the performance of the conditions of proposal or theacceptance of any consideration for reciprocal promise which may beoffered with proposal is an acceptance of the proposal. Hence, anabsolute and unqualified acceptance would give birth to the contractHalong with the terms of the offer.

19. Section 39 deals with the effect of the refusal of the party toperform promise wholly. Though we are not concerned with thisprovision, this provision is the only one that speaks of the concept ofacquiescence, which could be signified by words or conduct, being anexception for terminating the contract. Under this provision, promiseemay put an end to the contract unless there exists an element ofacquiescence that could be seen and exhibited through his words orconduct. Obviously, such contract which would also involve words orconduct, is to be seen on the facts of each case.

DELAY, LACHES AND ACQUIESCENCE:

20. The principles governing delay, laches, and acquiescence areoverlapping and interconnected on many occasions. However, they havetheir distinct characters and distinct elements. One can say that delay isthe genus to which laches and acquiescence are species. Similarly, lachesmight be called genus to species by name acquiescence. However,there may be case where acquiescence is involved, but not laches.These principles are common law principles, and perhaps one couldidentify that these principles find place in various statutes which restrictthe period of limitation and create non-consideration of condonation incertain circumstances. They are bound to be applied by way of practicerequiring prudence of the Court than of strict application of law. Theunderlying principle governing these concepts would be one of estoppel.The question of prejudice is also an important issue to be taken note ofby the Court.

LACHES:

21. The word laches is derived from the French language meaning“remissness and slackness”. It thus involves unreasonable delay ornegligence in pursuing claim involving an equitable relief while causingprejudice to the other party. It is neglect on the part of party to do anact which law requires while asserting right, and therefore, must standin the way of the party getting relief or remedy.

22. Two essential factors to be seen are the length of the delayand the nature of acts done during the interval. As stated, it would alsoinvolve acquiescence on the part of the party approaching the Courtapart from the change in position in the interregnum. Therefore, it wouldbe unjustifiable for Court of Equity to confer remedy to party whoknocks its doors when his acts would indicate waiver of such right.

ABy his conduct, he has put the other party in particular position, andtherefore, it would be unreasonable to facilitate challenge before theCourt. Thus, man responsible for his conduct on equity is not expectedto be allowed to avail remedy.

23. defence of laches can only be allowed when there is noBstatutory bar. The question as to whether there exists clear case oflaches on the part of person seeking remedy is one of fact and soalso that of prejudice. The said principle may not have any applicationwhen the existence of fraud is pleaded and proved by the other side. Todetermine the difference between the concept of laches and acquiescenceis that, in case involving mere laches, the principle of estoppel wouldCapply to all the defences that are available to party. Therefore, adefendant can succeed on the various grounds raised by the plaintiff,while an issue concerned alone would be amenable to acquiescence.

ACQUIESCENCE :

D24. We have already discussed the relationship betweenacquiescence on the one hand and delay and laches on the other.Acquiescence would mean tacit or passive acceptance. It is impliedand reluctant consent to an act. In other words, such an action wouldqualify passive assent. Thus, when acquiescence takes place, itpresupposes knowledge against particular act. From the knowledgeEcomes passive acceptance, therefore instead of taking any action againstany alleged refusal to perform the original contract, despite adequateknowledge of its terms, and instead being allowed to continue byconsciously ignoring it and thereafter proceeding further, acquiescencedoes take place.F

25. As consequence, it reintroduces new implied agreementbetween the parties. Once such situation arises, it is not open to theparty that acquiesced itself to insist upon the compliance of the originalterms. Hence, what is essential, is the conduct of the parties. We onlydealt with the distinction involving mere acquiescence. WhenGacquiescence is followed by delay, it may become laches. Here again,we are inclined to hold that the concept of acquiescence is to be seen ona case-to-case basis.

APPROBATE AND REPROBATE:

26. These phrases are borrowed from the Scott’s law. They wouldHonly mean that no party can be allowed to accept and reject the same

thing, and thus one cannot blow hot and cold. The principle behind thedoctrine of election is inbuilt in the concept of approbate and reprobate.Once again, it is principle of equity coming under the contours ofcommon law. Therefore, he who knows that if he objects to an instrument,he will not get the benefit he wants cannot be allowed to do so whileenjoying the fruits. One cannot take advantage of one part while rejectingthe rest. person cannot be allowed to have the benefit of an instrumentwhile questioning the same. Such party either has to affirm or disaffirmthe transaction. This principle has to be applied with more vigour as acommon law principle, if such party actually enjoys the one part fullyand on near completion of the said enjoyment, thereafter questions theother part. An element of fair play is inbuilt in this principle. It is also aspecies of estoppel dealing with the conduct of party. We have alreadydealt with the provisions of the Contract Act concerning the conduct ofa party, and his presumption of knowledge while confirming an offerthrough his acceptance unconditionally.

27. We would like to quote the following judgments for betterappreciation and understanding of the said principle:

•Nagubai Ammal v. B. Shama Rao, 1956 SCR 451:

“But it is argued by Sri Krishnaswami Ayyangar that as theproceedings in OS. No. 92 of 1938-39 are relied on as barringthe plea that the decree and sale in OS. No. 100 of 1919-20are not collusive, not on the ground of res judicata or estoppelbut on the principle that person cannot both approbate andreprobate, it is immaterial that the present appellants were notparties thereto, and the decision in Verschures CreameriesLtd. v. Hull and Netherlands Steamship CompanyLtd. [(1921) 2 KB 608], and in particular, the observations ofScrutton, LJ, at page 611 were quoted in support of this position.There, the facts were that an agent delivered goods to thecustomer contrary to the instructions of the principal, whothereafter filed suit against the purchaser for price of goodsand obtained decree. Not having obtained satisfaction, theprincipal next filed suit against the agent for damages on theground of negligence and breach of duty. It was held that suchan action was barred. The ground of the decision is that whenon the same facts, person has the right to claim one of tworeliefs 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 andclaim the alternative relief. The principle was thus stated byBankes, L.J.:

“Having elected to treat the delivery to him as anauthorised delivery they cannot treat the same act as amisdelivery. To do so would be to approbate andreprobate the same act”.

The observations of Scrutton, LJ on which the appellants relyare as follows:

“A plaintiff is not permitted to ‘approbate andreprobate’. The phrase is apparently borrowed from theScotch law, where it is used to express the principleembodied in our doctrine of election — namely, that noparty can accept and reject the sameinstrument: Ker v. Wauchope [(1819) 1 Bli 1, 21]: Douglas-Menzies v. Umphelby [(1908) AC 224, 232]. The doctrine of election is not however confined toinstruments. person cannot say at one time that atransaction is valid and thereby obtain some advantage,to which he could only be entitled on the footing that itis valid, and then turn round and say it is void for thepurpose of securing some other advantage. That is toapprobate and reprobate the transaction”.It is clear from the above observations that the maxim that aperson cannot ‘approbate and reprobate’ is only one applicationof the doctrine of election, and that its operation must beconfined to reliefs claimed in respect of the same transactionand to the persons who are parties thereto. The law is thusstated in Halsbury’s Laws of England, Vol. XIII, p. 464, para512:

“On the principle that person may not approbate andreprobate, species of estoppel has arisen which seemsto be intermediate between estoppel by record andestoppel in pais, and may conveniently be referred tohere. Thus party cannot, after taking advantage underan order (e.g. payment of costs), be heard to say that itis invalid and ask to set it aside, or to set up to the

prejudice of persons who have relied upon it caseinconsistent with that upon which it was founded; norwill he be allowed to go behind an order made inignorance of the true facts to the prejudice of thirdparties who have acted on it”.

•State of Punjab v. Dhanjit Singh Sandhu, (2014) 15 SCC144:

“22. The doctrine of “approbate and reprobate” is only aspecies of estoppel, it implies only to the conduct of parties. Asin the case of estoppel it cannot operate against the provisionsof statute. (Vide CIT v. V. MR. P. Firm Muar [CIT v. V. MR.P. Firm Muar, AIR 1965 SC 1216]).

23. It is settled proposition of law that once an order has beenpassed, it is complied with, accepted by the other party andderived the benefit out of it, he cannot challenge it on anyground. (Vide Maharashtra SRTC v. Balwant Regular MotorService [Maharashtra SRTC v. Balwant Regular MotorService, AIR 1969 SC 329].) In R.N. Gosain v. YashpalDhir [R.N. Gosain v. Yashpal Dhir, (1992) 4 SCC 683] thisCourt has observed as under: (SCC pp. 687-88, para 10)

“10. Law does not permit person to both approbateand reprobate. This principle is based on the doctrineof election which postulates that no party can acceptand reject the same instrument and that ‘a person cannotsay at one time that transaction is valid and therebyobtain some advantage, to which he could only beentitled on the footing that it is valid, and then turnround and say it is void for the purpose of securingsome other advantage’.”

25. The Supreme Court in Rajasthan State IndustrialDevelopment and Investment Corpn. v. Diamond and GemDevelopment Corpn. Ltd. [Rajasthan State IndustrialDevelopment and Investment Corpn. v. Diamond and GemDevelopment Corpn. Ltd., (2013) 5 SCC 470 : (2013) 3 SCC(Civ) 153] , made an observation that party cannot bepermitted to “blow hot and cold”, “fast and loose” or “approbate

and reprobate”. Where one knowingly accepts the benefits ofa contract or conveyance or an order, is estopped to deny thevalidity or binding effect on him of such contract or conveyanceor order. This rule is applied to do equity, however, it must notbe applied in manner as to violate the principles of right andgood conscience.

26. It is evident that the doctrine of election is based on therule of estoppel, the principle that one cannot approbate andreprobate is inherent in it. The doctrine of estoppel by electionis one among the species of estoppel in pais (or equitableestoppel), which is rule of equity. By this law, person maybe precluded, by way of his actions, or conduct, or silencewhen he has to speak, from asserting right which he wouldhave otherwise had.”

· Rajasthan State Industrial Development & InvestmentCorpn. v. Diamond & Gem Development Corpn. Ltd.,(2013) 5 SCC 470:

“I. Approbate and reprobate

15. party cannot be permitted to “blow hot-blow cold”, “fastand loose” or “approbate and reprobate”. Where one knowinglyaccepts the benefits of contract, or conveyance, or of anorder, he is estopped from denying the validity of, or the bindingeffect of such contract, or conveyance, or order upon himself.This rule is applied to ensure equity, however, it must not beapplied in such manner so as to violate the principles of whatis right and of good conscience. [Vide Nagubai Ammal v. B.Shama Rao [AIR 1956 SC 593] , CIT v. V. MR. P. FirmMuar [AIR 1965 SC 1216] , Ramesh ChandraSankla v. Vikram Cement [(2008) 14 SCC 58 : (2009) 1 SCC(L&S) 706 : AIR 2009 SC 713] , Pradeep OilCorpn. v. MCD [(2011) 5 SCC 270 : (2011) 2 SCC (Civ) 712 :AIR 2011 SC 1869] , Cauvery Coffee Traders v. HornorResources (International) Co. Ltd. [(2011) 10 SCC 420 : (2012)3 SCC (Civ) 685] and V. Chandrasekaran v. AdministrativeOfficer [(2012) 12 SCC 133 : (2013) 2 SCC (Civ) 136 : JT(2012) 9 SC 260] .]

16. Thus, it is evident that the doctrine of election is based onthe rule of estoppel—the principle that one cannot approbateand reprobate is inherent in it. The doctrine of estoppel byelection is one among the species of estoppel in pais (orequitable estoppel), which is rule of equity. By this law, aperson may be precluded, by way of his actions, or conduct, orsilence when it is his duty to speak, from asserting right whichhe would have otherwise had.”

ARTICE 226 OF THE CONSTITUTION OF INDIA:

28. We would not dwell deep into the extraordinary anddiscretionary nature of relief under Article 226 of the Constitution ofIndia. This principle is to be extended much more when an element ofundue delay, laches and acquiescence is involved. The following decisionsof this Court would suffice:

•UP Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464:

“8. Our attention was also invited to decision of this Courtin State of Karnataka v. S.M. Kotrayya [(1996) 6 SCC 267 :1996 SCC (L&S) 1488] . In that case the respondents wokeup to claim the relief which was granted to their colleagues bythe Tribunal with an application to condone the delay. TheTribunal condoned the delay. Therefore, the state approachedthis Court and this Court after considering the matter observedas under: (SCC p. 268)

“Although it is not necessary to give an explanationfor the delay which occurred within the period mentionedin sub-sections (1) or (2) of Section 21, explanationshould be given for the delay which occasioned afterthe expiry of the aforesaid respective period applicableto the appropriate case and the Tribunal should satisfyitself whether the explanation offered was proper. Inthe instant case, the explanation offered was that theycame to know of the relief granted by the Tribunal inAugust 1989 and that they filed the petition immediatelythereafter. That is not proper explanation at all. Whatwas required of them to explain under sub-sections (1)and (2) was as to why they could not avail of the remedyof redressal of their grievances before the expiry of the

period prescribed under sub-section (1) or (2). Thatwas not the explanation given. Therefore, the Tribunalwas wholly unjustified in condoning the delay.”

9. Similarly in Jagdish Lal v. State of Haryana [(1997) 6 SCC538 : 1997 SCC (L&S) 1550] this Court reaffirmed the rulethat if person chose to sit over the matter and then woke upafter the decision of the Court, then such person cannot standto benefit. In that case it was observed as follows: (SCC p.542)

“The delay disentitles party to discretionary reliefunder Article 226 or Article 32 of the Constitution. Theappellants kept sleeping over their rights for long andwoke up when they had the impetus from Virpal SinghChauhan case [Union of India v. Virpal SinghChauhan, (1995) 6 SCC 684 : 1996 SCC (L&S) 1 :(1995) 31 ATC 813] . The appellants desperate attemptto redo the seniority is not amenable to judicial reviewat this belated stage.”

10. In Union of India v. C.K. Dharagupta [(1997) 3 SCC 395: 1997 SCC (L&S) 821] it was observed as follows: (SCC p.398, para 9)

“9. We, however, clarify that in view of our finding thatthe judgment of the Tribunal in R.P. Joshi [R.P.Joshi v. Union of India, OA No. 497 of 1986 decidedon 17-3-1987] gives relief only to Joshi, the benefit ofthe said judgment of the Tribunal cannot be extendedto any other person. The respondent C.K. Dharagupta(since retired) is seeking benefit of Joshi case [R.P.Joshi v. Union of India, OA No. 497 of 1986 decidedon 17-3-1987] . In view of our finding that the benefitof the judgment of the Tribunal dated 17-3-1987 couldonly be given to Joshi and nobody else, evenDharagupta is not entitled to any relief.”

11. In Govt. of WB v. Tarun K. Roy [(2004) 1 SCC 347 : 2004SCC (L&S) 225] their Lordships considered delay as seriousfactor and have not granted relief. Therein it was observed asfollows: (SCC pp. 359-60, para 34)

“34. The respondents furthermore are not even entitledto any relief on the ground of gross delay and lacheson their part in filing the writ petition. The first two writpetitions were filed in the year 1976 wherein therespondents herein approached the High Court in 1992.In between 1976 and 1992 not only two writ petitionshad been decided, but one way or the other, even thematter had been considered by this Court in DebdasKumar [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, shouldbe ground for denying the relief to the other personssimilarly situated would operate against therespondents. Furthermore, the other employees notbeing before this Court although they are ventilatingtheir grievances before appropriate courts of law, noorder should be passed which would prejudice theircause. In such situation, we are not prepared to makeany observation only for the purpose of grant of somerelief to the respondents to which they are not legallyentitled to so as to deprive others therefrom who maybe found to be entitled thereto by court of law.”

•Eastern Coalfields Ltd. v. Dugal Kumar, (2008) 14 SCC295:

“24. As to delay and laches on the part of the writ petitioner,there is substance in the argument of learned counsel for theappellant Company. It is well settled that under Article 226 ofthe Constitution, the power of High Court to issue anappropriate writ, order or direction is discretionary. One of thegrounds to refuse relief by writ court is that the petitioner isguilty of delay and laches. It is imperative, where the petitionerinvokes extraordinary remedy under Article 226 of theConstitution, that he should come to the court at the earliestreasonably possible opportunity. Inordinate delay in making themotion for writ is indeed an adequate ground for refusing toexercise discretion in favour of the applicant.

25. Under the English law, an application for leave for judicialreview should be made “promptly”. If it is made tardily, it may

be rejected. The fact that there is breach of public law dutydoes not necessarily make it irrelevant to consider delay orlaches on the part of the applicant. Even if leave is granted,the question can be considered at the time of final hearingwhether relief should be granted in favour of such applicant ornot. (Vide R. v. Essex County Council [1993 COD 344] .)

26. In R. v. Dairy Produce Quota Tribunal, ex pCaswell [(1990) 2 AC 738 : (1990) 2 WLR 1320 : (1990) 2 AllER 434 (HL)] , AC at p. 749, the House of Lords stated [Ed.:Quoting from O’Reilly v. Mackman, (1982) 3 All ER 1124 atp. 1131a-b.] : (All ER p. 441a-b)

“The public interest in good administration requires thatpublic authorities and third parties should not be keptin suspense as to the legal validity of decision theauthority has reached in purported exercise of decision-making powers for any longer period than is absolutelynecessary in fairness to the person affected by the

decision.”

27. The underlying object of refusing to issue writ has beensuccinctly explained by Sir Barnes Peacock in LindsayPetroleum Co. v. Prosper Armstrong Hurd [1874 LR 5 PC 221: 22 WR 492] , thus: (LR pp. 239-40)

“Now the doctrine of laches in courts of equity is notan arbitrary or technical doctrine. Where it would bepractically unjust to give remedy, either because theparty has, by his conduct, done that which might fairlybe regarded as equivalent to waiver of it, or where byhis conduct and neglect he has, though perhaps notwaiving that remedy, yet put the other party in asituation, in which it would not be reasonable to placehim if the remedy were afterwards to be asserted, ineither of these cases, lapse of time and delay are mostmaterial. But in every case, if an argument against relief,which otherwise would be just, is founded upon meredelay, that delay of course not amounting to bar byany statute of limitations, the validity of that defencemust be tried upon principles substantiallyequitable. Two circumstances, always important in such

cases, are, the length of the delay and the nature of theacts done during the interval, which might affect eitherparty and cause balance of justice or injustice intaking the one course or the other, so far as it relates tothe remedy.”

(emphasis supplied)

28. This Court has accepted the above principles of Englishlaw. In Tilokchand Motichand v. H.B. Munshi [(1969) 1 SCC110 : (1969) 2 SCR 824] and Rabindranath Bose v. Union ofIndia [(1970) 1 SCC 84 : (1970) 2 SCR 697] this Court ruledthat even in cases of violation or infringement of fundamentalrights, writ court may take into account delay and laches onthe part of the petitioner in approaching the court. And if thereis gross or unexplained delay, the court may refuse to grantrelief in favour of such petitioner.”

•State of J&K v. R.K. Zalpuri, (2015) 15 SCC 602:

“20. Having stated thus, it is useful to refer to passagefrom City and Industrial Development Corpn. v. DosuAardeshir Bhiwandiwala [City and Industrial DevelopmentCorpn. v. Dosu Aardeshir Bhiwandiwala, (2009) 1 SCC 168] ,wherein this Court while dwelling upon jurisdiction under Article226 of the Constitution, has expressed thus: (SCC p. 175, para30)

“30. The Court while exercising its jurisdiction underArticle 226 is duty-bound to consider whether:

(a) adjudication of writ petition involves any complexand disputed questions of facts and whether they canbe satisfactorily resolved;

(b) the petition reveals all material facts;

(c) the petitioner has any alternative or effective remedyfor the resolution of the dispute;

(d) person invoking the jurisdiction is guilty ofunexplained delay and laches;

(e) ex facie barred by any laws of limitation;

(f) grant of relief is against public policy or barred byany valid law; and host of other factors.”

21. In this regard reference to passage from KarnatakaPower Corpn. Ltd. v. K. Thangappan [Karnataka PowerCorpn. Ltd. v. K. Thangappan, (2006) 4 SCC 322 : 2006 SCC(L&S) 791] would be apposite: (SCC p. 325, para 6)

“6. Delay or laches is one of the factors which is to beborne in mind by the High Court when they exercisetheir discretionary powers under Article 226 of theConstitution. In an appropriate case the High Courtmay refuse to invoke its extraordinary powers if thereis such negligence or omission on the part of theapplicant to assert his right as taken in conjunctionwith the lapse of time and other circumstances, causesprejudice to the opposite party.”

After so stating the Court after referring to the authority in Stateof M.P. v. Nandlal Jaiswal [State of M.P. v. NandlalJaiswal, (1986) 4 SCC 566] restated the principle articulatedin earlier pronouncements, which is to the following effect:(SCC p. 326, para 9)

“9. … the High Court in exercise of its discretion doesnot ordinarily assist the tardy and the indolent or theacquiescent and the lethargic. If there is inordinate delayon the part of the petitioner and such delay is notsatisfactorily explained, the High Court may decline tointervene and grant relief in exercise of its writjurisdiction. It was stated that this rule is premised on anumber of factors. The High Court does not ordinarilypermit belated resort to the extraordinary remedybecause it is likely to cause confusion and publicinconvenience and bring, in its train new injustices, andif writ jurisdiction is exercised after unreasonable delay,it may have the effect of inflicting not only hardshipand 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 whichalso weighs with the High Court in deciding whether ornot to exercise such jurisdiction.”

22. In State of Maharashtra v. Digambar [State ofMaharashtra v. Digambar, (1995) 4 SCC 683] three-JudgeBench laid down that: (SCC p. 692, para 19)

“19. Power of the High Court to be exercised underArticle 226 of the Constitution, if is discretionary, itsexercise must be judicious and reasonable, admits ofno controversy. It is for that reason, person’sentitlement for relief from High Court under Article226 of the Constitution, be it against the State oranybody else, even if is founded on the allegation ofinfringement of his legal right, has to necessarilydepend upon unblameworthy conduct of the personseeking relief, and the court refuses to grant thediscretionary relief to such person in exercise of suchpower, when he approaches it with unclean hands orblameworthy conduct.”

23. Recently in Chennai Metropolitan Water Supply andSewerage Board v. T.T. Murali Babu [ChennaiMetropolitan Water Supply and Sewerage Board v. T.T.Murali Babu, (2014) 4 SCC 108 : (2014) 1 SCC (L&S) 38] ,it has been ruled thus: (SCC p. 117, para 16)

“16. Thus, the doctrine of delay and laches should notbe lightly brushed aside. writ court is required to weighthe explanation offered and the acceptability of thesame. The court should bear in mind that it is exercisingan extraordinary and equitable jurisdiction. As aconstitutional court it has duty to protect the rights ofthe citizens but simultaneously it is to keep itself aliveto the primary principle that when an aggrieved person,without adequate reason, approaches the court at hisown leisure or pleasure, the court would be under legalobligation to scrutinise whether the lis at belated stageshould be entertained or not. Be it noted, delay comesin the way of equity. In certain circumstances delay andlaches may not be fatal but in most circumstancesinordinate delay would only invite disaster for thelitigant who knocks at the doors of the court. Delayreflects inactivity and inaction on the part of litigant—a litigant who has forgotten the basic norms, namely,

‘procrastination is the greatest thief of time’ and second,law does not permit one to sleep and rise like phoenix.Delay does bring in hazard and causes injury to thelis.”

24. At this juncture, we are obliged to state that the questionof delay and laches in all kinds of cases would not curb orcurtail the power of the writ court to exercise the discretion.In Tukaram Kana Joshi v. Maharashtra IndustrialDevelopment Corpn. [Tukaram Kana Joshi v. MaharashtraIndustrial Development Corpn., (2013) 1 SCC 353 : (2013)1 SCC (Civ) 491] it has been ruled that: (SCC pp. 359-60, para12)

“12. … Delay and laches is adopted as mode ofdiscretion to decline exercise of jurisdiction to grantrelief. There is another facet. The Court is required toexercise judicial discretion. The said discretion isdependent on facts and circumstances of the cases.Delay and laches is one of the facets to deny exerciseof discretion. It is not an absolute impediment. Therecan be mitigating factors, continuity of cause of action,etc. That apart, if the whole thing shocks the judicialconscience, then the Court should exercise the discretionmore so, when no third-party interest is involved. Thusanalysed, the petition is not hit by the doctrine of delayand laches as the same is not constitutional limitation,the cause of action is continuous and further thesituation certainly shocks judicial conscience.”

And again: (SCC p. 360, para 14)

“14. No hard-and-fast rule can be laid down as to whenthe High Court should refuse to exercise its jurisdictionin favour of party who moves it after considerabledelay and is otherwise guilty of laches. Discretion mustbe exercised judiciously and reasonably. In the eventthat the claim made by the applicant is legallysustainable, delay should be condoned. In other words,where circumstances justifying the conduct exist, theillegality which is manifest, cannot be sustained on thesole ground of laches. When substantial justice andtechnical considerations are pitted against each other,the cause of substantial justice deserves to be preferred,for the other side cannot claim to have vested right inthe injustice being done, because of non-deliberatedelay. The court should not harm innocent parties iftheir rights have in fact emerged by delay on the partof the petitioners. (Vide Durga Prashad v. Controller ofImports and Exports [Durga Prashad v. Controller ofImports and Exports, (1969) 1 SCC 185] , Collector(LA) v. Katiji [Collector (LA) v. Katiji, (1987) 2 SCC 107: 1989 SCC (Tax) 172] , Dehri Rohtas Light RailwayCo. Ltd. v. District Board, Bhojpur [Dehri Rohtas LightRailway Co. Ltd. v. District Board, Bhojpur, (1992) 2SCC 598] , Dayal Singh v. Union of India [DayalSingh v. Union of India, (2003) 2 SCC 593]and Shankara Coop. Housing Society Ltd. v. M.Prabhakar [Shankara Coop. Housing Society Ltd. v. M.Prabhakar, (2011) 5 SCC 607 : (2011) 3 SCC (Civ)56].)”

29. The aforesaid principle is also required to be adopted whileconsidering case involving approbation and reprobation.

DOCTRINE OF FAIRNESS:

30. The doctrine of fairness is inbuilt in every employer andemployee relationship. The said doctrine has to be applied after therelationship come into being rather than at the stage of recruitment.While dealing with recruitment, on the question of suitability and adequacy,substantial discretion is appropriately conferred on the employer. At thatstage, the question is with respect to the need of the employer to completea particular type of work. In an employer and employee relationship, thedoctrine of fairness has to be applied with more vigour when it involvesan instrumentality of the state. Therefore, State is not expected to actadversely to the interest of the employee, and any discrimination shouldbe valid one. Ultimately, one has to see the overwhelming public interestas every action of the instrumentality of the state is presumed to be so.While applying the said principle, one has to be conscious of the fact thatthere may not be legitimate expectation on the part of an employee asagainst the statute. We would like to refer to the following judgment ofthis court on the above principle.

ABCD

A•Assistant Excise Commissioner and Others v. Issac Peterand Other, Issac Peter ; Assistant Excise Commissioner,(1994) 4 SCC 104:

“26. Learned counsel for respondents then submitted thatdoctrine of fairness and reasonableness must be read intocontracts to which state is party. It is submitted that the statecannot act unreasonably or unfairly even while acting under acontract involving State power. Now, let us see, what is thepurpose for which this argument is addressed and what is theimplication? The purpose, as we can see, is that though thecontract says that supply of additional quota is discretionary, itmust be read as obligatory — at least to the extent of previousyear’s supplies — by applying the said doctrine. It is submittedthat if this is not done, the licensees would suffer monetarily.The other purpose is to say that if the state is not able to supplyso, it would be unreasonable on its part to demand the fullamount due to it under the contract. In short, the duty to actfairly is sought to be imported into the contract to modify andalter its terms and to create an obligation upon the state whichis not there in the contract. We must confess, we are not awareof any such doctrine of fairness or reasonableness. Nor couldthe learned counsel bring to our notice any decision laying downsuch proposition. Doctrine of fairness or the duty to act fairlyand reasonably is doctrine developed in the administrativelaw field to ensure the rule of law and to prevent failure ofjustice where the action is administrative in nature. Just asprinciples of natural justice ensure fair decision where thefunction is quasi-judicial, the doctrine of fairness is evolved toensure fair action where the function is administrative. But itcan certainly not be invoked to amend, alter or vary the expressterms of the contract between the parties. This is so, even ifthe contract is governed by statutory provisions, i.e., where itis statutory contract — or rather more so. It is one thing tosay that contract — every contract — must be construedreasonably having regard to its language. But this is not whatthe licensees say. They seek to create an obligation on theother party to the contract, just because it happens to be thestate. They are not prepared to apply the very same rule in

converse case, i.e., where the state has abundant supplies andwants the licensees to lift all the stocks. The licensees willundertake no obligation to lift all those stocks even if the statesuffers loss. This one-sided obligation, in modification of expressterms of the contract, in the name of duty to act fairly, is whatwe are unable to appreciate. The decisions cited by the learnedcounsel for the licensees do not support their proposition. InDwarkadas Marfatia v. Board of Trustees of the Port ofBombay [(1989) 3 SCC 293] it was held that where publicauthority is exempted from the operation of statute like RentControl Act, it must be presumed that such exemption fromthe statute is coupled with the duty to act fairly and reasonably.The decision does not say that the terms and conditions ofcontract can be varied, added or altered by importing the saiddoctrine. It may be noted that though the said principle wasaffirmed, no relief was given to the appellant in that case.Shrilekha Vidyarthi v. State of UP [(1991) 1 SCC 212 : 1991SCC (L&S) 742] was case of mass termination of DistrictGovernment Counsel in the State of UP It was case oftermination from post involving public element. It was caseof non-government servant holding public office, on accountof which it was held to be matter within the public law field.This decision too does not affirm the principle now canvassedby the learned counsel. We are, therefore, of the opinion thatin case of contracts freely entered into with the state, like thepresent ones, there is no room for invoking the doctrine offairness and reasonableness against one party to the contract(State), for the purpose of altering or adding to the terms andconditions of the contract, merely because it happens to be thestate. In such cases, the mutual rights and liabilities of the partiesare governed by the terms of the contracts (which may bestatutory in some cases) and the laws relating to contracts. Itmust be remembered that these contracts are entered intopursuant to public auction, floating of tenders or by negotiation.There is no compulsion on anyone to enter into these contracts.It is voluntary on both sides. There can be no question of theState power being involved in such contracts. It bears repetitionto say that the state does not guarantee profit to the licenseesin such contracts.”

AWORKING RULES :

31. We have already discussed the qualification qua the post ofDirector-General. Recruitment to the post of Director-General is to bemade under the working rules either directly or on deputation. This is onan all-India basis through duly constituted Search-cum-SelectionBCommittee. The only exception is by way of contractual appointmentwhich is for very brief and temporary period, which can be appointedby the President, CPRI, with the approval of the Government of India.

32. The rules per se do not prohibit tenure appointment. Thedefinition of direct recruitment would mean recruitment through processCstipulated under the rules. Therefore, by no stretch of the imagination,one can interpret that all direct recruitments are to be made by regularemployment. Therefore, direct recruitment can also be made for filingup the post on tenure basis. Hence, in the absence of any statutory barunder the rules, tenure appointment made through direct recruitmentby following the due procedure cannot be termed as contrary to law. InDa direct recruitment the appointment on regular or tenure basis is thediscretion of the employer, especially when the rules do not prohibit.Rule 48 speaks of the age of superannuation for regular employee,which will be the completion of sixty years. There is no difficulty inappreciating the said rule, which deals with regular employee aloneEand therefore can have no application while dealing with an appointmentmade on tenure basis. After all, Court of law cannot give differentstatus to an employee than the one which was conferred and acceptedespecially when the same is not prohibited under the rules.

SUBMISSIONS OF THE PARTIES:

FSUBMISSIONS OF THE APPELLANTS:

33. The learned Additional Solicitor General appearing for theappellants submitted that the relief sought by the respondent cannot begranted on the ground of delay, laches, and acquiescence. Similarly, theprinciple governing approbation and reprobation would also disentitle theGrelief, especially when Article 226 of the Constitution is invoked. Therules do not prohibit tenure-based appointment. The respondent madea request only after enjoying his tenure near the end of the period. Itwas also only made for continuance till the date of superannuation. Theimpugned order passed by the appellants is only relieving order. Theperformance assessment under the rules after the first year or subsequentH

thereto has nothing to do with the assessment made for re-appointment.The initial appointment itself was by way of re-employment. Theappointment order clearly states that the respondent is appointed for aninitial tenure of five years or until further orders and re-appointment willbe based on suitability. Clause 48 of the rules is only applicable to regularemployees, indicating the upper age limit to remain in service and thus,cannot be an enabling one to tenure-based appointee. Therecommendation of the Search-Cum-Selection Committee and by wayof the cabinet note is not binding while considering the tenure of therespondent. All the materials were placed before the “ACC”, andthereafter, conscious decision was taken on both occasions. Suitabilityand adequacy are the discretion of the employer alone. There is noarbitrariness involved in not considering the extension. The Division Benchhas not considered the materials in the correct perspective.

34. On the relief sought by the respondent, it is submitted thateven the period of superannuation is over, and the private respondenthas been selected on merit on the recommendation of the Search-cum-Selection Committee. No specific plea has been raised with respect tohis continuance as the representation was made on the ground that therespondent should be considered as regular employee. Thus, the appealsfiled by the respondents are also to be dismissed.

SUBMISSIONS BY THE RESPONDENTS:

35. Mr. Prashant Bhushan, in his own inimitable style, submittedthat the Division Bench has gone through the files while recording itsfindings which do not warrant any interference. There is clear violationof Articles 14 and 16 of the Constitution of India. On the first occasion,there is nothing to infer that relevant materials have been considered,and on the second, “ACC” has not been put on notice on the adversereport. The adverse report itself has been prepared by persons junior tothe respondent, and therefore, the same ought to be eschewed. There isno power or authority in passing the impugned termination order. Sincethe very case of the respondent is that he should be continued till thedate of his superannuation, the impugned order passed by the appellantsis not mere relieving order but termination. The Division Bench hasnot considered the other relief sought by the respondent, and thereforein light of the findings rendered, the writ petitions are liable to be allowedin toto. There are no statutory rules for tenure appointment, and hencethe respondent should have been treated as regular employee. The

Aannual performance reports of the respondent found him to be“outstanding”. The President, CPRI-GC, does not have the power toterminate, as the “ACC” being the appointing authority, alone has theright.

36. There is no inordinate delay in approaching the Court as theBrespondent was under the bona fide impression and the legitimateexpectation that since the rules do not permit tenure-based appointment,he is to continue till the date of superannuation. In fact, the respondentmade multiple representations to the appellants seeking rectification inthe terms of his appointment letter. mere delay in approaching theemployer by way of representations and the High Court would notCconstitute estoppel, especially when the terms are not in consonancewith the rules, as held in the judgment of this Court in Somesh ThapliyalVs. HNB Garhwal University, 2021 SCC Online SC 659.

DISCUSSION:

D37. We have already dealt with the principles of law that mayhave bearing on this case. There is no element of an unequal bargainingpower involved. Nobody has forced the respondent to enter into acontract. He indeed was an employee of the society for 23 years. Wedo not wish to go into the question as to whether it is case of re-employment or not, as the fact remains that the respondent wanted theEjob, which is why there was an unexplained and studied reluctance toraise the issue of him being permanent/regular employee, but only atthe 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 principleFgoverning delay, laches, and acquiescence, followed by approbation andreprobation, respondent no. 1 ought not to have been granted any reliefby invoking Article 226 of the Constitution of India. On the interpretationof the rules, we have already discussed that there is no prohibition in lawfor tenure appointment. We are dealing with post that stands at theGtop realm of the administration. There is an intended object and rationaleattached to the post. It is the incumbent of the post who has to carryforward the object and vision in the field of research. As noted earlier,there is certainly an overwhelming public interest involved. The employer,has load of discretion available. In the absence of any arbitrariness,one cannot question its wisdom. After all, decision has been taken atHthe highest level. We cannot infer that materials have not been placed

before taking the decision. The Division Bench was not right in holdingthat the highest constitutional authority on the executive side was misledby the lower officials. We find no place for such an inference. consciousdecision has been made to go for tenure appointment in the interest ofsociety. Similarly, conscious decision was also made to go for freshrecruitment.

39. There is marked difference between the assessments madeduring the respondent’s tenure and the one made for continuation afterthe completion of the tenure. No question of being junior or seniorarises as materials have been placed for assessment by differentdepartment. The assessment was done by the highest authorities, asapproved by the Secretary to the Government of India and by the Hon’bleMinister concerned apart from the Cabinet Secretary. What waschallenged is only relieving order, which cannot be given the characterof termination. The Division Bench has misconstrued direct recruitmentto mean an appointment to permanent post. We are dealing with directrecruitment to post of primary importance, i.e. Director-General, whichis to be filled on tenure basis. The rules as perused and understood byus do not prohibit tenure appointment. In the absence of any prohibitionand mandatory mode of appointment, the appellant’s decision in goingfor tenure appointment is perfectly in order.

40. We find, much water has already flown under the bridge. Theprivate respondent has already been appointed in 2016 after followingthe due procedure and continues to date. The respondent is an ex-employee of the first appellant-Society and, having put in 23 years ofservice, knows its functioning very well. Thus, in our considered view,the order passed by the Division Bench cannot be sustained in the eyeof the law.

41. Mr. Prashant Bhushan, made reliance upon the decisionrendered by this Court in Somesh Thapliyal V. HNB GarhwalUniversity, 2021 SCC OnLine SC 659. We are of the view that it isnot case in point. In the said decision, rules were in place for regularemployment, and the post filled was bottom-line post. The concept ofbargaining power was thus rightly applied by this Court. The grievancewas also in tune with the rules, and there was no justification for acontractual appointment, whereas in the case at hand, we are dealingwith tenure-based appointment. Thus, the facts being different, theratio has no application.

A42. On reading the appointment order, we could not identify theexistence of automatic extension. The order is very explicit in sayingthat it is subject to suitability, and such suitability for re-appointmenthaving been considered, this Court is not expected to substitute its view.The non-consideration of the report by the “ACC” also would not befatal, as the Cabinet Secretary himself has approved it, and so also theBother higher authorities. The respondent has not shown any substantialprejudice. Even if one assumes that these materials have not been placedbefore “ACC”, we believe that there may not be any need for suchapproval for two reasons. Firstly, the first appellant found that therespondent is not suitable for re-appointment, which was approved byCthe other authorities. Therefore, the employer has taken consciousdecision in the interest of the society. Secondly, it is not case of extensionin which case maybe the confirmation by “ACC” would have beenwarranted. We may also note that all the appellants, including the Hon’bleMinister, have approved the subsequent decision to go for freshrecruitment by taking note of the larger public interest.D

43. In light of the discussion made, the appeals filed by therespondent deserve to be dismissed. Once we hold that the respondentis not entitled to any extension, the consequential benefits cannot begranted. Thus, both on the assessment of facts and the concept of law,we are constrained to hold that the respondent is not entitled to anyErelief.

44. Accordingly, the appeals filed by the appellants stand allowedby setting aside the impugned order under challenge, and as aconsequence, the appeals filed by the respondent are dismissed. Nocosts.

Divya Pandey

Appeal disposed of.