# The Development Commisioner & Ors v. Dr. Alok Kumar & Anr

- **Citation:** (2023) 2 ILRA 917
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-31
- **Case number:** Special Appeal No. 576 of 2022
- **Bench:** Rajesh Bindal, C.J. J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-development-commisioner-ors-v-dr-alok-kumar-anr-49754
- **Pages:** 7

## Headnote

A. Service Law - Temporary/Regular
Appointment - IICT Service Rules, 2016: Rule
8.2 of the General Service Rule falling under
Chapter-II - 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. 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. 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 9)

Acquiescence would mean a tacit or
passive
acceptance.
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. (Para 9)

In the case in hand, respondent no.1 accepted
the terms of his appointment and thereafter
joined as Director, hence, he cannot be allowed
to approbate and reprobate. Even no issue was
raised by him immediately after joining as
Director with reference to his terms of
appointment. The issue was not raised even till
the completion of his initial term of appointment
i.e. three years which expired on March 31,
918 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

2 All. The Development Commissioner & Ors. Vs. Dr. Alok Kumar & Anr.
917
was not collected by GNIDA, a claim for
refund of stamp duty as against it would
not be sustainable. But whether GNIDA is
liable for damages / loss, is a question left
open for the first respondent to raise at the
appropriate
stage
in
an
appropriate
proceeding before the appropriate forum in
accordance with the law. The judgment of
the Apex Court in ITC Ltd. (supra) where
option was given to make a claim for
refund of stamp duty from Development
Authority cannot be taken as a precedent
laying down any binding principle of law.
The Apex Court to do substantial justice
between the parties has power under Article
142 of the Constitution of India, which is
not available to us. The issue no.(vi) is
decided accordingly.

32. For all the reasons recorded
above, we are unable to agree with the view
taken by the learned Single Judge. The
appeal is consequently allowed. The
impugned judgment and order of the
learned Single Judge, dated 01.12.2020, is
set aside. The writ petition of the first
respondent, subject to above, is dismissed.
There is no order as to costs.
----------
(2023) 2 ILRA 917
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.01.2023

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE J.J. MUNIR, J.

Special Appeal No. 576 of 2022

The Development Commisioner & Ors.
 ...Appellants
Versus
Dr. Alok Kumar & Anr. ...Respondents

Counsel for the Appellants:
Sri Ashok (Sr. Advocate), Sri Shashi Shankar
Tripathi

Counsel for the Respondent:
Sri R.K. Ojha(Sr. Advocate), Sri Shivendu Ojha,
Sri Prateek Rai, Sri Sanjay Kumar Om.

A. Service Law - Temporary/Regular
Appointment - IICT Service Rules, 2016: Rule
8.2 of the General Service Rule falling under
Chapter-II - 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. 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. 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 9)

Acquiescence would mean a tacit or
passive
acceptance.
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. (Para 9)

In the case in hand, respondent no.1 accepted
the terms of his appointment and thereafter
joined as Director, hence, he cannot be allowed
to approbate and reprobate. Even no issue was
raised by him immediately after joining as
Director with reference to his terms of
appointment. The issue was not raised even till
the completion of his initial term of appointment
i.e. three years which expired on March 31,
918 INDIAN LAW REPORTS ALLAHABAD SERIES
2022. Six months' extension was granted. Even
at that stage, no issue was raised. It is only
when fresh advertisement for recruitment on
the post of Director was published, respondent
no.1 raised the issue, hence, the petition filed
by respondent no.1 was barred on account of
delay and laches also. (Para 10)

B. 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 filling 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. 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 11)

None of the Rules cited by respondent no.1 will
confer any right on him as there is no bar
therein for appointment on temporary basis or
for a fixed tenure. (Para 11)

Special appeal allowed. (E-4)

Precedent followed:

U.O.I. & ors. Vs N. Murugesan & ors., (2022) 2
SCC 25 (Para 4)

Precedent distinguished:

1. Somesh Thapliyal Vs Vice Chancellor, H.N.B.
Garhwal University, (2021) 10 SCC116 (Para 5)

2. Krishna Rai & ors. Vs Banaras Hindu
University & ors., AIR 2022 SC 2924 (Para 5)

Present
special
appeal
assails
the
judgment and order dated 14.10.2022
passed by the learned Single Judge.
(Delivered by Hon'ble Rajesh Bindal, C.J.
& Hon'ble J.J.Munir, J.)

ORDER

1. Order dated October 14, 2022
passed by the learned Single Judge has
been challenged by filing the present intraCourt appeal.

2. It is a case in which respondent
no.1, who was a regular employee working
with U.P. Textile Technology Institute,
Kanpur
(hereinafter
referred
to
as
''Institute') as a Professor, was appointed as
the Director of the Indian Institute of
Carpet Technology (hereinafter referred to
as ''IICT') vide order dated November 15,
2018. It was for a period of three years or
on his attaining age of 60 years, whichever
is earlier. Respondent no.1 accepting the
terms of the appointment, joined on the
post and worked till the expiry of three
years. Thereafter, vide letter dated April 1,
2022, he was granted extension for a period
of six months i.e. upto September 30, 2022.
A writ petition was filed in this Court for
quashing the advertisement dated August
19, 2022 published for selection to the post
of Director, IICT; order dated July 6, 2022
vide which direction was issued for
initiating process of selection of new
Director of IICT, Bhadohi; order dated July
26, 2022 vide which request was made for
publishing advertisement for the post of
Director,
IICT
in
the
employment
newspaper and for allowing respondent
no.1 to continue on the post, till he attains
the age of superannuation.

3. Learned Single Judge while
quashing the orders dated July 6 and July
27, 2022 and also the advertisement dated
August
19,
2022
declared
that
the
respondent no.1 is entitled to work on the
2 All. The Development Commissioner & Ors. Vs. Dr. Alok Kumar & Anr.
919
post of Director, IICT, till he attains the age
of superannuation in terms of Rule 8.2 of
the General Service Rule falling under
Chapter-II of IICT Service Rules, 2016 i.e.
65 years.

4. The argument raised by learned
counsel for the appellants is that in
pursuance of the advertisement issued,
respondent no.1, working with the Institute
as a Professor, applied for the post. He was
selected and appointed on purely temporary
basis for a period of three years or on his
attaining age of 60 years, whichever is
earlier. Further extension was to be
considered by the Executive Committee
depending upon his performance and
suitability for the post. Respondent no.1
had
consciously
and
unconditionally
accepted the terms of appointment and
joined. Respondent no. 1 is a well educated
person and the case does not involve
unequal bargaining power. Respondent
no.1, having accepted the terms of
appointment, continued working without
raising any issue for a period of three years.
As process for regular selection to the post
of Director got delayed, he was granted
extension for a period of six months vide
letter dated April 1, 2022, which was to
expire on September 30, 2022. Before
expiry
of
aforesaid
period,
an
advertisement was issued on August 19,
2022 for selection to the post of Director,
IICT. It was at this stage that respondent
no.1 filed writ petition, which was too late
and barred by principles of acquiescence
and estoppel. In fact, after expiry of the
extension granted to respondent no.1, he
had handed over charge of the post on
September 30, 2022 and thereafter he had
joined his parent Department i.e. U.P.
Textile Technology Institute, Kanpur. At
this stage, this is too late for respondent
no.1 to have claimed that he should be
allowed to continue as the Director of the
Institute. The Institute is merely a society.
The rules or instructions issued by it as
such have no force of law as these are not
framed
under
Article
309
of
the
Constitution of India. The appointment of
respondent no.1 being temporary, as it was
specifically mentioned in the appointment
letter, will not confer any right on him for
treating him a Director appointed on
regular basis. In support of the arguments,
reliance has been placed on the judgment of
Hon'ble the Supreme Court in Union of
India and others vs. N. Murugesan and
others1.

5. On the other hand, learned counsel
for respondent no.1 submitted that as the
advertisement
did
not
mention
that
appointment of respondent no.1 will be on
temporary basis for a fixed tenure, the
condition put in the appointment letter was
totally illegal. The fact that even the
probation period was mentioned in the
appointment letter shows that the intention
of the appointing authority was to offer
regular appointment to respondent no.1,
otherwise in a tenure post probation period
is never mentioned. In support of argument,
reliance has been placed on judgments of
Hon'ble the Supreme Court in Somesh
Thapliyal vs. Vice Chancellor, H.N.B.
Garhwal University2 and in Krishna Rai
and others vs. Banaras Hindu University
and others3.

6. Heard learned counsel for the
parties and perused the paper book.

7. What emerges from the facts on
record are that respondent no. 1 was
working as a Professor in the Institute. An
advertisement was issued by IICT for
appointment as Director of IICT on
November 15, 2018. Respondent no.1
920 INDIAN LAW REPORTS ALLAHABAD SERIES
being successful was appointed. The letter
of appointment clearly stated that the same
was on purely temporary basis for a tenure
of three years, which may be extended, in
case, his work is found to be satisfactory.

8. The terms of appointment also
provided that there would be probation of two
years. Respondent no.1 specifically accepting
the terms on which he was offered
appointment, joined on the post and worked
for three years. As the process of recruitment
could not be initiated, respondent no.1 was
granted extension for a period of six months
on April 1, 2022. The same was to expire on
September 30, 2022. Still without raising any
finger, respondent no.1 continued on the post
accepting the terms for extension of service.
An advertisement was issued in Employment
News, August 13-19, 2022 for recruitment to
the post of Director, IICT. It was at this stage
that respondent no.1 approached this Court
raising the issue that his appointment at the
initial stage should have been treated as
regular appointment and not temporary or
one for a fixed tenure. As on date, the fact
remains that after expiry of extended period
of six months on September 30, 2022,
respondent no.1 had already relinquished his
charge as Director of IICT and has returned
back to his parent cadre in the Institute and
joined
there.
Respondent
no.1
had
consciously
accepted
the
terms
of
appointment and joined. It may be out of
place, if not mentioned here, that respondent
no.1 is not an illiterate employee where
bargaining power was not there. He is a well
educated person, who was already working in
the Institute as a Professor and was offered
appointment as Director of IICT. His case is
not of unequal bargaining power.

9. The facts of the present case are
identical to the case of N.Murugesan and
others' case (supra). In the aforesaid case
before Hon'ble the Supreme Court, an
advertisement was made to fill up the post
of Director General of Central Power
Research Institute (CRPI), either by direct
recruitment or on deputation as per the
Rules. The respondent therein applied for
the post on direct recruitment. An order of
appointment was issued by the Ministry of
Power, which was accepted by the
respondent. The respondent went on
performing his part of duties without any
demur. On finding his tenure coming to an
end, he submitted a representation taking a
stand that since his appointment was made
by way of direct recruitment, he should be
treated as regular employee and, therefore,
is entitled to continue till the date of his
superannuation. However, the extension of
term of respondent was not found in the
interest of the Institute and another person
was recruited and selected as the new
Director
General.
Aggrieved,
the
respondent filed two writ petitions before
the High Court of Karnataka questioning
the relieving order given to him and also to
the advertisement issued for recruitment of
new Director General. The Single Judge
dismissed the writ petitions on the ground
of delay and laches. The appeals filed by
the respondent before the Division Bench
was allowed without granting an order of
reinstatement
by
compensating
the
respondent. The other relief sought by the
respondent was also not considered and
granted. The said order of the Division
Bench was the bone of contention before
Hon'ble
the
Supreme
Court.
While
dismissing
the
appeal,
Hon'ble
the
Supreme Court in N.Murugesan and
others' case (supra) opined that such
cases are governed by principles of delay,
laches,
acquiescence
followed
by
approbation and reprobation. Relevant
paragraphs 25, 26, 37 and 38 are being
reproduced hereinbelow :
2 All. The Development Commissioner & Ors. Vs. Dr. Alok Kumar & Anr.
921

"25. 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. 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.

26. These phrases are borrowed from
the Scots 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. 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.

x x x x

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 was
made on 30.12.2014, followed by others.
The conduct speaks for itself. Hence, on the
principle governing delay, laches and
acquiescence, followed by approbation and
reprobation, respondent no. 1 ought not to
have been granted any relief by invoking
Article 226 of the Constitution of India. On
the interpretation of the rules, we have
already
discussed
that
there
is
no
prohibition in law for a tenure appointment.
We are dealing with a post that stands at the
top realm of the administration. There is an
intended object and rationale attached to
the post. It is the incumbent of the post who
has to carry forward the object and vision
in the field of research. As noted earlier,
922 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

10. In the case in hand, respondent no.1
accepted the terms of his appointment and
thereafter joined as Director, hence, he cannot
be allowed to approbate and reprobate. Even
no issue was raised by him immediately after
joining as Director with reference to his terms
of appointment. The issue was not raised
even till the completion of his initial term of
appointment i.e. three years which expired on
March 31, 2022. Six months' extension was
granted. Even at that stage, no issue was
raised. It is only when fresh advertisement for
recruitment on the post of Director was
published, respondent no.1 raised the issue,
hence, the petition filed by respondent no.1
was barred on account of delay and laches
also.

11. None of the Rules cited by
respondent no.1 will confer any right on him
as there is no bar therein for appointment on
temporary basis or for a fixed tenure. Hon'ble
the Supreme Court in N.Murugesan and
others' case (supra) has held in paragraph 32
as follows :

"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 filling 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."

12. As far as judgment in Somesh
Thapliyal's case (supra) is concerned, the
same has been considered by Hon'ble the
Supreme Court in N.Murugesan and
others' case (supra). The concept of
bargaining power applied by Hon'ble the
Supreme Court in Somesh Thapliyal's
case (supra) is also missing in the present
case. As far as judgment in Krishna Rai's
case (supra) is concerned, it was reiterated
that there can be no estoppel against law.
The said case was with respect to
interpretation of statutory Rules framed
under Article 309 of the Constitution of
India. In the present case, there are no such
Rules framed under Article 309 of the
2 All. C/m Intermediate College Natauli & Anr. Vs. State of U.P. & Ors.
923
Constitution of India and, as such, the
theory of no estoppel against statute is not
applicable.

13. For the reasons mentioned above,
in our view, the impugned order dated
October 14, 2022 passed by the learned
Single Judge cannot be legally sustained.
The same is hereby set aside and as a
consequence, the writ petition filed by
respondent no.1 is dismissed.

14.

The
Special
Appeal
is,
accordingly, allowed.
----------
(2023) 2 ILRA 923
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.02.2023

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ-A No. 8155 of 2022
along with other connected Cases

C/m Intermediate College Natauli & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Rakesh Chandra Tewari

Counsel for the Respondents:
C.S.C., Rishabh Tripathi

A.
Education
Law
-
Appointment/
Selection - U.P. Intermediate Education Act,
1921 - The Uttar Pradesh Secondary Education
(Services Selection Board) Act, 1982 - Sections
2(a), 2(1), 10, 11, 12, 16, 34 & 35 - The Uttar
Pradesh Secondary Education Services Selection
Board Rules, 1998 - Rules 10, 11, 12, 12(6),
12(8) & 13 - The U.P. Secondary education
Services
Selection
Board
(Procedure
and
Conduct of Business) First Regulations, 1998 -
Regulation 8(6) - It is well settled that the
requirement of eligibility is to be satisfied
as on the cut off date prescribed in the
advertisement and subsequently acquired
qualification would not make a person
eligible. (Para 65)

In
present
case,
the
eligibility
for
consideration
in
terms
of
the
Advertisement No. 03 of 2013 has to be
the
eligibility
as
on
the
last
date
prescribed
in
the
advertisement
and
subsequently acquired qualification would
not
make
the
person
eligible
for
consideration for selection. The steps taken
by the Board in March, 2022 whereby it called
the list of two senior most teachers of the
various institutions with a view to give them a
chance to participate in the selection process in
terms of the right vested in them by virtue of
Rule 12(6) of the 1998 Rules, were nothing but
a band aid solution on a deep wound and were
bound to fail as the said teachers, did not have
the eligibility as they were admittedly not the
senior
most
teachers
in
terms
of
the
requirement as specified in the Advertisement
No. 03 of 2013. (Para 39, 67)

Criteria for selection cannot be altered by
the authorities in the middle or after the
process of selection has commenced and
the only proper recourse was to recall the
foregoing advertisement and issue a fresh
advertisement as per the Rules. (Para 48)

B. The Board has clearly restricted the
pool of available candidates available for
selection
and
has
not
followed
the
mandate as prescribed u/s 11 of the 1982
Act of conducting the written examination
as soon as they are notified. (Para 66)

Rule 13 makes it mandatory for the Inspector to
make the appointments immediately after the
selection is done. From the scheme of the Act
and the Rules framed thereunder, it is clear that
the powers conferred upon the Board for
making the selection to the post of Headmaster
have to be initiated by issuance of an
advertisement and has to culminate in the
selections made by the Board after following the
mandatory provisions as contained in Rule 12.
The said exercise has to be conducted by
the Board as soon as the vacancies
notified u/s 10(1) of the 1982 Act, which