Union of India and Others vs N Murugesan etc.

Service Law – Direct recruitment – Definition of – Held: Direct recruitment would mean recruitment through a process stipulated under the rules – Therefore, it cannot be interpret that all direct recruitments are to be made by regular employment – Direct recruitment can also be made for filing up the post on a tenure basis.

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

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

HELD: 1. THE INDIAN CONTRACT ACT, 1872:

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 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. Section

39 deals with the effect of the refusal of the party to perform a promise wholly. Though the Court is 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. [Paras 18, 19][264-F-H; 265-A-B]

2.1 DELAY, LACHES AND ACQUIESCENCE:

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 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. [Para 20][265-C-E]

2.2 LACHES:

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. Two essential factors to be seen are the length of the delay and the nature of acts done during the interval. 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 before the Court. Thus, a man responsible for his conduct on equity is not expected to be allowed to avail a remedy. 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. [Paras 21-23][265-F-H; 266-A-C]

2.3 ACQUIESCENCE :

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 knowledge of its terms, and instead being allowed to continue by consciously ignoring it and thereafter proceeding further, acquiescence does take place. 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. When acquiescence is followed by delay, it may become laches. The concept of acquiescence is to be seen on a case-tocase basis. [Paras 24, 25][266-D-G]

2.4 APPROBATE AND REPROBATE:

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 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. [Para 26][266-H; 267-A-C]

3. ARTICLE 226 OF THE CONSTITUTION OF INDIA

The Court 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 principle is also required to be adopted while considering a case involving approbation and reprobation. [Paras 28, 29][271-C; 279-D-E]

4. DOCTRINE OF FAIRNESS:

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. [Para 30][279-E-H]

5. WORKING RULES :

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 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. [Para 32][282-C-E]

6.1 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. This Court does not wish to go into the question as to whether it is a case of re-employment or not, as the fact remains that the respondent wanted the job, which is why there was an unexplained and studied reluctance to raise the issue of him being a permanent/regular employee, but only at the fag end of his tenure. The first of the representations were made on 30.12.2014, followed by others. The conduct speaks for itself. Hence, on the principle governing delay, laches, and acquiescence, followed by approbation and reprobation, respondent no.1 ought not to have been granted any relief by invoking Article 226 of the Constitution of India. There is no prohibition in law for a tenure appointment. The Court is 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. 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. The Court cannot infer that materials have not been placed before taking the decision. 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. [Paras 37, 38][284-D-H; 285-A-B]

6.2 What was challenged is only a relieving order, which cannot be given the character of a termination. The Division Bench misconstrued direct recruitment to mean an appointment to a permanent post. The Court is 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 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. [Para 39][285-C-D]

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

6.3 On reading the appointment order, the Court 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”, 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. 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. Once it is held that the respondent is not entitled to any extension, the consequential benefits cannot be granted. The respondent is not entitled to any relief. The impugned order is set aside. [Paras 42-44][286-A-E]

Nagubai Ammal v. B. Shama Rao, 1956 SCR 451; State of Punjab v. Dhanjit Singh Sandhu, (2014) 15 SCC

144 : [2014] 3 SCR 1121; Rajasthan State Industrial Development & Investment Corpn. v. Diamond & Gem Development Corpn. Ltd., (2013) 5 SCC 470: [2013] 4 SCR 331; UP Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464 : [2006] 8 Suppl. SCR 916; Eastern Coalfields Ltd. v. Dugal Kumar, (2008) 14 SCC 295: [2008] 11 SCR 369; State of J&K v. R.K. Zalpuri, (2015) 15 SCC 602: [2015] 12 SCR 285; Assistant Excise Commissioner and Others v. Issac Peter and Other, Issac Peter; Assistant Excise Commissioner, (1994) 4 SCC 104: [1994] 2 SCR 67 – relied on.