Union Of India vs N Murugesan on 7 October, 2021


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Supreme Court of India

Union Of India vs N Murugesan on 7 October, 2021

Author: Sanjay Kishan Kaul

Bench: Sanjay Kishan Kaul, M.M. Sundresh

                                                                                   REPORTABLE

                                     IN THE SUPREME COURT OF INDIA
                                      CIVIL APPELLATE JURISDICTION


                                    CIVIL APPEAL NOS.2491-2492 OF 2021

  UNION OF INDIA AND OTHERS                                                     …APPELLANTS

                                                     VERSUS

  N MURUGESAN ETC.                                                            …RESPONDENTS

                                                      WITH



                                       CIVIL APPEAL NOS. 2493-2494 OF 2021



                                                 JUDGMENT

M.M. SUNDRESH, J.

1. Heard Shri KM Nataraj, learned Additional Solicitor General appearing for the

appellant and Shri Prashant Bhushan, learned counsel for the respondent. There

is no representation on behalf of Shri VS Nandakumar who has been arrayed as

a private respondent and whose recruitment and selection was also challenged

by Respondent No.1. We have also perused the documents filed and written

submissions placed by the parties.

Signature Not Verified

Digitally signed by
RASHI GUPTA
Date: 2021.10.07
17:19:14 IST
Reason:

1

2. As the present appeals are filed by both contesting parties challenging the same

impugned judgment, for the sake of brevity they are disposed of by a common

order. Civil Appeal No. 2491-2492 of 2021 is taken up as a lead case, and the

parties arrayed thereunder are to be taken in the same manner for the other

cases as well.

PRIMARY FACTS:

3. Central Power Research Institute (CPRI) is an autonomous body registered as a

society under the Karnataka Societies 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.

2

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 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.

6. An advertisement was made on 16.05.2009 to fill up the post of Director-

General either by direct recruitment or on deputation in tune with CPRI (Pay,

Recruitment and Promotion) Rules, 1989 (Working Rule No.1). The

respondent had applied for the said post being eligible to be appointed on

direct recruitment.

7. The working rule referred to above deals with various categories of 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 recruitments as noted earlier by us.

One is by way of deputation, and the other is by direct recruitment.

Qualification with respect to age restriction is 55 years for direct recruitment,

while the same is extended by one more year for deputation. On the

3
educational qualification part, from the requisite degrees, it would also involve

15 years of experience in the fields mentioned thereunder. A performance

review is also mandated on completion of one year of service after

appointment as Director-General, in the case of direct recruitment. The

evaluation is made by the Search-cum-Selection Committee consisting of

experts in the field. The period of deputation is capped at three years,

extendable up to five years.

8. From the above, we could gather in clear terms that the post of Director-

General carries a very high degree of importance. The fact that the age limit is

fixed at 55 years of completion, being the maximum with 15 years of

experience also indicates the rationale behind the qualification fixed.

9. The Ministry of Power, after due deliberation on the recommendation made by

the Search-cum-Selection Committee in favour of the respondent, sought the

approval of “ACC” to the post of Director-General, CPRI from the date he

assumes charge up to the date of his retirement on superannuation (31.05.2019)

or until further orders, whichever is earlier.

10.The file was circulated to the Hon’ble Minister and then to the Hon’ble Prime

Minister in pursuance of the recommendations made by the Cabinet Secretary.

After considering the relevant materials, the Hon’ble Prime Minister as

4
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 also made to the President,

CPRI Governing Council. This was followed by a series of representations, one

after the other, perhaps knowing full well that time was running out.

5

13.Meanwhile, performance assessments were made as mandated under the rules,

which were found satisfactory. On the question of considering his eligibility for

a further term of extension, a detailed study was undertaken, resulting in a

report dated 05.02.2015. This report in clear terms, indicated that it would not

be in the interest of the institute to extend the tenure-based appointment for a

further period. On such report being placed before all the authorities, including

the Hon’ble Minister, a conscious decision was made by the employer to go for

fresh recruitment. This decision was also approved by all the authorities. In this

connection, we may note that there is no clarity with regard to the approval

given by the “ACC” for the extension of service of the respondent. In

pursuance of the advertisement dated 22.02.2015, the private respondent was

recruited and selected as the new Director-General.

14.Under the aforesaid circumstances, the respondent filed two writ petitions

before the High Court of Karnataka questioning the relieving order given to

him by terming it as an order of termination with a further challenge 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 the ground of delay

and laches. It was further held that such a case did not require the invocation of

the discretionary jurisdiction under Article 226 of the Constitution of India.

6

16.Aggrieved by the aforesaid, the respondent filed appeals before the Division

Bench. The Division Bench allowed the appeals without granting an order of

reinstatement by compensating the respondent. Thus, the other reliefs sought

by the respondent were not considered and granted. Against this order of the

Division Bench dated 26.04.2019, these appeals have been filed before us.

17.Before we deal with the submissions made at the Bar, it would be imperative to

deal, appreciate and reiterate the general and settled principles of law while

understanding the rules governing the present case.

THE INDIAN CONTRACT ACT, 1872:

18.Section 3 of the Act concerns itself with an act of communication, acceptance,

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

7
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 an exception for terminating the contract. Under

this provision, a promisee may put an end to the contract unless there exists an

element of acquiescence that could be seen and exhibited through his words or

conduct. Obviously, such a contract which would also involve words or

conduct, is to be seen on the facts of each case.

DELAY, LACHES AND ACQUIESCENCE:

20.The principles governing delay, laches, and acquiescence are overlapping and

interconnected on many occasions. However, they have their distinct characters

and distinct elements. One can say that delay is the genus to which laches and

acquiescence are species. Similarly, laches might be called a genus to a species

by name acquiescence. However, there may be a case where acquiescence is

involved, but not laches. These principles are common law principles, and

perhaps one could identify that these principles find place in various statutes

which restrict the period of limitation and create non-consideration of

8
condonation in certain circumstances. They are bound to be applied by way of

practice requiring prudence of the Court than of a strict application of law. The

underlying principle governing these concepts would be one of estoppel. The

question of prejudice is also an important issue to be taken note of by the

Court.

LACHES:

21.The word laches is derived from the French language meaning “remissness

and slackness”. It thus involves unreasonable delay or negligence in pursuing a

claim involving an equitable relief while causing prejudice to the other party. It

is neglect on the part of a party to do an act which law requires while asserting

a right, and therefore, must stand in the way of the party getting relief or

remedy.

22.Two essential factors to be seen are the length of the delay and the nature of

acts done during the interval. As stated, it would also involve acquiescence on

the part of the party approaching the Court apart from the change in position in

the interregnum. Therefore, it would be unjustifiable for a Court of Equity to

confer a remedy to a party who knocks its doors when his acts would indicate a

waiver of such a right. By his conduct, he has put the other party in a particular

position, and therefore, it would be unreasonable to facilitate a challenge

9
before the Court. Thus, a man responsible for his conduct on equity is not

expected to be allowed to avail a remedy.

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 alleged refusal to perform the original contract, despite adequate

10
knowledge of its terms, and instead being allowed to continue by consciously

ignoring it and thereafter proceeding further, acquiescence does take place.

25.As a consequence, it reintroduces a new implied agreement between the

parties. Once such a situation arises, it is not open to the party that acquiesced

itself to insist upon the compliance of the original terms. Hence, what is

essential, is the conduct of the parties. We only dealt with the distinction

involving a mere acquiescence. When acquiescence is followed by delay, it

may become laches. Here again, we are inclined to hold that the concept of

acquiescence is to be seen on a case-to-case basis.

APPROBATE AND REPROBATE:

26.These phrases are borrowed from the Scott’s law. They would only 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 the doctrine of election is

inbuilt in the concept of approbate and reprobate. Once again, it is a principle

of equity coming under the contours of common 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 while enjoying the fruits. One cannot take advantage of

one part while rejecting the rest. A person cannot be allowed to have the

benefit of an instrument while questioning the same. Such a party either has to

affirm or disaffirm the transaction. This principle has to be applied with more

11
vigour as a common law principle, if such a party actually enjoys the one part

fully and on near completion of the said enjoyment, thereafter questions the

other part. An element of fair play is inbuilt in this principle. It is also a species

of estoppel dealing with the conduct of a party. We have already dealt with the

provisions of the Contract Act concerning the conduct of a party, and his

presumption of knowledge while confirming an offer through his acceptance

unconditionally.

27.We would like to quote the following judgments for better appreciation 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 the
proceedings in OS. No. 92 of 1938-39 are relied on as barring the
plea that the decree and sale in OS. No. 100 of 1919-20 are not
collusive, 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 Company 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 delivery they cannot treat the same act as a
misdelivery. To do so would be to approbate and reprobate
the same act”.

12

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

“A plaintiff is not permitted to ‘approbate and reprobate’.
The phrase is apparently borrowed from the Scotch law,
where it is used to express the principle embodied in our
doctrine of election — namely, that no party can accept
and reject the same instrument: Ker v. Wauchope [(1819) 1
Bli 1, 21] : Douglas-Menzies v. Umphelby [(1908) AC 224,
232] . The doctrine of election is not however confined to
instruments. 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. That is to approbate and
reprobate the transaction”.

It is clear from the above observations that the maxim that a person
cannot ‘approbate and reprobate’ is only one application of the
doctrine of election, and that its operation must be confined to
reliefs claimed in respect of the same transaction and to the
persons who are parties thereto. The law is thus stated
in Halsbury’s Laws of England, Vol. XIII, p. 464, para 512:

“On the principle that a person may not approbate and
reprobate, a species of estoppel has arisen which seems to
be intermediate between estoppel by record and estoppel in
pais, and may conveniently be referred to here. Thus a
party cannot, after taking advantage under an order (e.g.
payment of costs), be heard to say that it is invalid and ask
to set it aside, or to set up to the prejudice of persons who
have relied upon it a case inconsistent with that upon
which it was founded; nor will he be allowed to go behind
an order made in ignorance of the true facts to the
prejudice of third parties who have acted on it”.

 State of Punjab v. Dhanjit Singh Sandhu, (2014) 15 SCC 144:

“22. The doctrine of “approbate and reprobate” is only a species of
estoppel, it implies only to the conduct of parties. As in the case of
estoppel it cannot operate against the provisions of a 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 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.

13

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 Corpn. v. Diamond and Gem Development Corpn.
Ltd. [Rajasthan State Industrial Development
and Investment
Corpn. v. Diamond and Gem Development Corpn. Ltd., (2013) 5
SCC 470 : (2013) 3 SCC (Civ) 153] , made an observation that a
party cannot be permitted to “blow hot and cold”, “fast and loose”
or “approbate and reprobate”. Where one knowingly accepts the
benefits of a contract or conveyance or an order, is estopped to
deny the validity or binding effect on him of such contract or
conveyance or order. This rule is applied to do equity, however, it
must not be applied in a manner as to violate the principles of right
and good conscience.

26. It is evident that the doctrine of election is based on the rule of
estoppel, the principle that one cannot approbate and reprobate is
inherent in it. The doctrine of estoppel by election is one among
the species of estoppel in pais (or equitable estoppel), which is a
rule of equity. By this law, a person may be precluded, by way of
his actions, or conduct, or silence when he has to speak, from
asserting a right which he would have otherwise had.”

 Rajasthan State Industrial Development & Investment Corpn. v.

Diamond & Gem Development Corpn. Ltd., (2013) 5 SCC 470:

“I. Approbate and reprobate

15. A party cannot be permitted to “blow hot-blow cold”, “fast and
loose” or “approbate and reprobate”. Where one knowingly accepts
the benefits of a contract, or conveyance, or of an order, he is
estopped from denying the validity of, or the binding effect of such
contract, or conveyance, or order upon himself. This rule is applied
to ensure equity, however, it must not be applied in such a manner
so as to violate the principles of what is right and of good
conscience. [Vide Nagubai Ammal v. B. Shama Rao [AIR 1956 SC
593] , CIT v. V. MR. P. Firm Muar [AIR 1965 SC 1216] , Ramesh
Chandra Sankla v. Vikram Cement
[(2008) 14 SCC 58 : (2009) 1
SCC (L&S) 706 : AIR 2009 SC 713] , Pradeep Oil
14
Corpn. v. MCD
[(2011) 5 SCC 270 : (2011) 2 SCC (Civ) 712 : AIR
2011 SC 1869] , Cauvery Coffee Traders v. Hornor Resources
(International) Co. Ltd
. [(2011) 10 SCC 420 : (2012) 3 SCC (Civ)
685] and V. Chandrasekaran v. Administrative Officer [(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 on the
rule of estoppel—the principle that one cannot approbate and
reprobate is inherent in it. The doctrine of estoppel by election is
one among the species of estoppel in pais (or equitable estoppel),
which is a rule of equity. By this law, a person may be precluded,
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.”

ARTICE 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 the delay which occasioned after the expiry of the
aforesaid respective period applicable to the appropriate
case and the Tribunal should satisfy itself whether the
explanation offered was proper. In the instant case, the
explanation offered was that they came to know of the relief
granted by the Tribunal in August 1989 and that they filed
the petition immediately thereafter. That is not a proper
explanation at all. What was required of them to explain
under sub-sections (1) and (2) was as to why they could not
avail of the remedy of redressal of their grievances before
the expiry of the period prescribed under sub-section (1) or
(2). That was not the explanation given. Therefore, the
Tribunal was wholly unjustified in condoning the delay.”
15

9. Similarly in Jagdish Lal v. State of Haryana [(1997) 6 SCC 538 :
1997 SCC (L&S) 1550] this Court reaffirmed the rule that if a
person chose to sit over the matter and then woke up after the
decision of the Court, then such person cannot stand to benefit. In
that case it was observed as follows: (SCC p. 542)

“The delay disentitles a party to discretionary relief under
Article 226 or Article 32 of the Constitution. The
appellants kept sleeping over their rights for long and woke
up when they had the impetus from Virpal Singh Chauhan
case [Union of India v. Virpal Singh Chauhan, (1995) 6
SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813] . The
appellants desperate attempt to redo the seniority is not
amenable to judicial review at 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 that the
judgment of the Tribunal in R.P. Joshi [R.P. Joshi v. Union
of India, OA No. 497 of 1986 decided on 17-3-1987] gives
relief only to Joshi, the benefit of the said judgment of the
Tribunal cannot be extended to 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 decided on 17-3-1987] . In view of our finding
that the benefit of the judgment of the Tribunal dated 17-3-
1987 could only be given to Joshi and nobody else, even
Dharagupta is not entitled to any relief.”

11. In Govt. of WB v. Tarun K. Roy [(2004) 1 SCC 347 : 2004
SCC (L&S) 225] their Lordships 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
16
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 legally entitled to so
as to deprive others therefrom who may be found to be
entitled thereto by a court of law.”

 Eastern Coalfields Ltd. v. Dugal Kumar, (2008) 14 SCC 295:

“24. As to delay and laches on the part of the writ petitioner, there
is substance in the argument of learned counsel for the appellant
Company. It is well settled that under Article 226 of the
Constitution, the power of a High Court to issue an appropriate
writ, order or direction is discretionary. One of the grounds to
refuse relief by a writ court is that the petitioner is guilty of delay
and laches. It is imperative, where the petitioner invokes
extraordinary remedy under Article 226 of the Constitution, that he
should come to the court at the earliest reasonably possible
opportunity. Inordinate delay in making the motion for a writ is
indeed an adequate ground for refusing to exercise discretion in
favour of the applicant.

25. Under the English law, an application for leave for judicial
review should be made “promptly”. If it is made tardily, it may be
rejected. The fact that there is breach of public law duty does not
necessarily make it irrelevant to consider delay or laches on the
part of the applicant. Even if leave is granted, the question can be
considered at the time of final hearing whether relief should be
granted in favour of such applicant or not. (Vide R. v. Essex
County Council [1993 COD 344] .)

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

(All ER p. 441a-b)

“The public interest in good administration requires that
public authorities and third parties should not be kept in
suspense as to the legal validity of a decision the authority
has reached in purported exercise of decision-making
powers for any longer period than is absolutely necessary
in fairness to the person affected by the decision.”

27. The underlying object of refusing to issue a writ has been
succinctly explained by Sir Barnes Peacock in Lindsay Petroleum
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 not an
arbitrary or a technical doctrine. Where it would be
17
practically unjust to 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) 1 SCC 84 : (1970) 2 SCR 697] this Court ruled that
even in cases of violation or infringement of fundamental rights, a
writ court may take into account delay and laches on the part of the
petitioner in approaching the court. And if there is gross or
unexplained delay, the court may refuse to grant relief 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 a passage from City
and Industrial Development Corpn. v. Dosu Aardeshir
Bhiwandiwala [City
and Industrial Development Corpn. v. Dosu
Aardeshir Bhiwandiwala
, (2009) 1 SCC 168] , wherein this Court
while dwelling upon jurisdiction under Article 226 of the
Constitution, has expressed thus: (SCC p. 175, para 30)

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

(a) adjudication of writ petition involves any complex and
disputed questions of facts and whether they can be
satisfactorily resolved;

(b) the petition reveals all material facts;

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

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

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

(f) grant of relief is against public policy or barred by any
valid law; and host of other factors.”
18

21. In this regard reference to a passage from Karnataka Power
Corpn. Ltd. v. K. Thangappan [Karnataka Power Corpn. 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 be
borne in mind by the High Court when they exercise their
discretionary powers under Article 226 of the Constitution.
In an appropriate case the High Court may refuse to invoke
its extraordinary powers if there is such negligence or
omission on the part of the applicant to assert his right as
taken in conjunction with the lapse of time and other
circumstances, causes prejudice to the opposite party.”

After so stating the Court after referring to the authority in State of
M.P. v. Nandlal Jaiswal [State of M.P
. v. Nandlal Jaiswal, (1986) 4
SCC 566] restated the principle articulated in earlier
pronouncements, which is to the following effect: (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 down that: (SCC p. 692, para 19)

“19. Power of the High Court to be exercised under Article
226
of the Constitution, if is discretionary, its exercise must
be judicious and reasonable, admits of no controversy. It is
for that reason, a person’s entitlement for relief from a
High Court under Article 226 of the Constitution, be it
against the State or anybody else, even if is founded on the
allegation of infringement of his legal right, has to
necessarily depend upon unblameworthy conduct of the
19
person seeking relief, and the court refuses to grant the
discretionary relief to such person in exercise of such
power, when he approaches it with unclean hands or
blameworthy conduct.”

23. Recently in Chennai Metropolitan Water Supply and Sewerage
Board v. T.T. Murali Babu [Chennai Metropolitan 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 not be
lightly brushed aside. A writ court is required to weigh the
explanation offered and the acceptability of the same. The
court should bear in mind that it is exercising an
extraordinary and equitable jurisdiction. As a
constitutional court it has a duty to protect the rights of the
citizens but simultaneously it is to keep itself alive to the
primary principle that when an aggrieved person, without
adequate reason, approaches the court at his own leisure
or pleasure, the court would be under legal obligation to
scrutinise whether the lis at a belated stage should be
entertained or not. Be it noted, delay comes in the way of
equity. In certain circumstances delay and laches may not
be fatal but in most circumstances inordinate delay would
only invite disaster for the litigant who knocks at the doors
of the court. Delay reflects inactivity and inaction on the
part of a 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 a
phoenix. Delay does bring in hazard and causes injury to
the lis.”

24. At this juncture, we are obliged to state that the question of
delay and laches in all kinds of cases would not curb or curtail the
power of the writ court to exercise the discretion. In Tukaram
Kana Joshi v. Maharashtra Industrial Development
Corpn. [Tukaram Kana Joshi v. Maharashtra Industrial
Development Corpn., (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
20
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 moves it after considerable delay
and is otherwise guilty of laches. Discretion must be
exercised judiciously and reasonably. In the event that the
claim made by the applicant is legally sustainable, delay
should be condoned. In other words, where circumstances
justifying the conduct exist, the illegality which is manifest,
cannot be sustained on the sole ground of laches. When
substantial justice and technical considerations are pitted
against each other, the cause of substantial justice deserves
to be preferred, for the other side cannot claim to have a
vested right in the injustice being done, because of a non-
deliberate delay. The court should not harm innocent
parties if their rights have in fact emerged by delay on the
part of the petitioners. (Vide Durga Prashad v. Controller
of Imports and Exports [Durga Prashad v. Controller of
Imports 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 Railway Co.

Ltd. v. District Board, Bhojpur [Dehri Rohtas Light
Railway Co. Ltd. v. District Board
, Bhojpur, (1992) 2 SCC
598] , Dayal Singh v. Union of India [Dayal Singh 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 while considering a case

involving approbation and reprobation.

DOCTRINE OF FAIRNESS:

21

30.The doctrine of fairness is inbuilt in every employer and employee

relationship. The said doctrine has to be applied after the relationship 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 that stage, the question is with

respect to the need of the employer to complete a particular type of work. In an

employer and employee relationship, the doctrine of fairness has to be applied

with more vigour when it involves an instrumentality of the state. Therefore, a

State is not expected to act adversely to the interest of the employee, and any

discrimination should be a valid one. Ultimately, one has to see the

overwhelming public interest as 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 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 Others 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 part
to demand the full amount due to it under the contract. In short, the
22
duty to act fairly is sought to be imported into the contract to
modify and alter its terms and to create an obligation upon the state
which is not there in the contract. We must confess, we are not
aware of any such doctrine of fairness or reasonableness. Nor
could the learned counsel bring to our notice any decision laying
down such a proposition. Doctrine of fairness or the duty to act
fairly and reasonably is a doctrine developed in the administrative
law field to ensure the rule of law and to prevent failure of justice
where the action is administrative in nature. Just as principles of
natural justice ensure fair decision where the function is quasi-

judicial, the doctrine of fairness is evolved to ensure fair action
where the function is administrative. But it can certainly not be
invoked to amend, alter or vary the express terms of the contract
between the parties. This is so, even if the contract is governed by
statutory provisions, i.e., where it is a statutory contract — or
rather more so. It is one thing to say that a contract — every
contract — must be construed reasonably having regard to its
language. But this is not what the licensees say. They seek to create
an obligation on the other party to the contract, just because it
happens to be the state. They are not prepared to apply the very
same rule in converse case, i.e., where the state has abundant
supplies and wants the licensees to lift all the stocks. The licensees
will undertake no obligation to lift all those stocks even if the state
suffers loss. This one-sided obligation, in modification of express
terms of the contract, in the name of duty to act fairly, is what we
are unable to appreciate. The decisions cited by the learned counsel
for the licensees do not support their proposition. In Dwarkadas
Marfatia v. Board of Trustees of the Port of Bombay
[(1989) 3
SCC 293] it was held that where a public authority is exempted
from the operation of a statute like Rent Control Act, it must be
presumed that such exemption from the statute is coupled with the
duty to act fairly and reasonably. The decision does not say that the
terms and conditions of contract can be varied, added or altered by
importing the said doctrine. It may be noted that though the said
principle was affirmed, no relief was given to the appellant in that
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
23
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 the State power being involved in such contracts.
It bears repetition to say that the state does not guarantee profit to
the licensees in such contracts.”

WORKING RULES :

31.We have already discussed the qualification qua the post of Director-General.

Recruitment to the post of Director-General is to be made under the working

rules either directly or on deputation. This is on an all-India basis through a

duly constituted Search-cum-Selection Committee. The only exception is by way

of a contractual appointment which is for a very brief and temporary period,

which can be appointed by the President, CPRI, with the approval of the

Government of India.

32.The rules per se do not prohibit a tenure appointment. The definition of direct

recruitment would mean recruitment through a process stipulated under the

rules. Therefore, by no stretch of the imagination, one can interpret that all

direct recruitments are to be made by regular employment. Therefore, direct

recruitment can also be made for filing up the post on a tenure basis. Hence, in

the absence of any statutory bar under the rules, a tenure appointment made

through direct recruitment by following the due procedure cannot be termed as

contrary to law. In a direct recruitment the appointment on a regular or tenure

basis is the discretion of the employer, especially when the rules do not

prohibit. Rule 48 speaks of the age of superannuation for a regular employee,
24
which will be the completion of sixty years. There is no difficulty in

appreciating the said rule, which deals with a regular employee alone and

therefore can have no application while dealing with an appointment made on a

tenure basis. After all, a Court of law cannot give a different status to an

employee than the one which was conferred and accepted especially when the

same is not prohibited under the rules.

SUBMISSIONS OF THE PARTIES:

SUBMISSIONS OF THE APPELLANTS:

33.The learned Additional Solicitor General appearing for the appellants

submitted that the relief sought by the respondent cannot be granted on the

ground of delay, laches, and acquiescence. Similarly, the principle governing

approbation and reprobation would also disentitle the relief, especially when

Article 226 of the Constitution is invoked. The rules do not prohibit a tenure-

based appointment. The respondent 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

25
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 Division Bench has

not considered the materials in the correct perspective.

34.On the relief sought by the respondent, it is submitted that even the period of

superannuation is over, and the private respondent has been selected on merit

on the recommendation of the Search-cum-Selection Committee. No specific plea

has been raised with respect to his continuance as the representation was made

on the ground that the respondent should be considered as a regular employee.

Thus, the appeals filed by the respondents are also to be dismissed.

SUBMISSIONS BY THE RESPONDENTS:

35.Mr. Prashant Bhushan, in his own inimitable style, submitted that the Division

Bench has gone through the files while recording its findings which do not

warrant any interference. There is a clear violation of Articles 14 and 16 of the

26
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 adverse report. The adverse report itself has been

prepared by persons junior to the respondent, and therefore, the same ought to

be eschewed. There is no power or authority in passing the impugned

termination order. Since the very case of the respondent is that he should be

continued till the date of his superannuation, the impugned order passed by the

appellants is not a mere relieving order but a termination. The Division Bench

has not considered the other relief sought by the respondent, and therefore in

light of the findings rendered, the writ petitions are liable to be allowed in toto.

There are no statutory rules for a tenure appointment, and hence the respondent

should have been treated as a regular employee. The annual performance

reports of the respondent found him to be “outstanding”. The President, CPRI-

GC, does not have the power to terminate, as the “ACC” being the appointing

authority, alone has the right.

36.There is no inordinate delay in approaching the Court as the respondent was

under the bona fide impression and the legitimate expectation that since the

rules do not permit a tenure-based appointment, he is to continue till the date of

superannuation. In fact, the respondent made multiple representations to the

appellants seeking rectification in the terms of his appointment letter. A mere

27
delay in approaching the employer by way of representations and the High

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 Vs. HNB Garhwal University, 2021 SCC Online SC 659.

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 prohibition in law for a tenure appointment. We are

28
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. As

noted earlier, there is certainly an overwhelming public interest involved. The

employer, has a load of discretion available. In the absence of any

arbitrariness, one cannot question its wisdom. After all, a decision has been

taken at the highest level. We cannot infer that materials have not been placed

before taking the decision. The Division Bench was not right in holding that

the highest constitutional authority on the executive side was misled by the

lower officials. We find 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.

39.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. What was challenged is only a relieving order, which

cannot be given the character of a termination. The Division Bench has

misconstrued direct recruitment to mean an appointment to a permanent post.

29
We are dealing with direct recruitment to a post of primary importance, i.e.

Director-General, which is to be filled on a tenure basis. The rules as perused

and understood by us do not prohibit a tenure appointment. In the absence of

any prohibition and mandatory mode of appointment, the appellant’s decision

in going for a tenure appointment is perfectly in order.

40.We find, much water has already flown under the bridge. The private

respondent has already been appointed in 2016 after following the due

procedure and continues to date. The respondent is an ex-employee of the first

appellant-Society and, having put in 23 years of service, knows its functioning

very well. Thus, in our considered view, the order passed by the Division

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, 2021 SCC OnLine SC 659.

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.

30

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 that these materials have

not been placed before “ACC”, we believe that there may not be any need for

such approval for two reasons. Firstly, the first appellant found that the

respondent is not suitable for re-appointment, which was approved by the other

authorities. Therefore, the employer has taken a conscious decision in the

interest of the society. Secondly, it is not a case of extension in which case

maybe the confirmation by “ACC” would have been warranted. We may also

note that all the appellants, including the Hon’ble Minister, have approved the

subsequent decision to go for a fresh recruitment by taking note of the larger

public interest.

43.In light of the discussion made, the appeals filed by the respondent deserve to

be dismissed. Once we hold that the respondent is not entitled to any extension,

the consequential benefits cannot be granted. Thus, both on the assessment of

31
facts and the concept of law, we are constrained to hold that the respondent is

not entitled to any relief.

44.Accordingly, the appeals filed by the appellants stand allowed by setting aside

the impugned order under challenge, and as a consequence, the appeals filed by

the respondent are dismissed. No costs.

…….………………………J.

(SANJAY KISHAN KAUL)

……………………………J.

(M.M. SUNDRESH)

New Delhi
October 07, 2021

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