# UNION OF INDIA AND OTHERS v. N MURUGESAN ETC

- **Citation:** [2021] 10 S.C.R. 253
- **Court:** Supreme Court of India
- **Decided:** 2021-10-07
- **Case number:** Civil Appeal Nos. 2491-2492 of 2021
- **Bench:** Sanjay Kishan Kaul, M. M. Sundresh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-and-others-v-n-murugesan-etc-34639
- **Pages:** 34

## Headnote

Service Law - CPRI (Pay, Recruitment and Promotion) Rules,
1989 (Working Rule No.1) - Direct recruitment - Tenure appointment
- Non-extension of - Respondent no.1 was an ex-employee of
appellant-Central Power Research Institute (CPRI) - Appointed as
Director General thereof through Direct Recruitment for an initial
tenure of five years or until further orders, being eligible for reappointment for a further term up to the date of superannuation -
Sought extension of service towards the end of tenure - Not extended
- Fresh recruitment, private respondent was selected as the new
Director-General - Writ petitions filed by respondent inter alia
questioning his relieving order and challenging the recruitment of
the private respondent - Dismissed by Single Judge on ground of
delay and laches - Appeals, allowed by Division Bench - Held:
Appointment order very explicitly says that extension is subject to
suitability, and such suitability for re-appointment having been
considered, this Court is not expected to substitute its view -
Employer had discretion and in the absence of any arbitrariness,
one cannot question its wisdom - Rules do not prohibit a tenure
appointment - Direct recruitment can also be made for filing up the
post on a tenure basis - Division Bench misconstrued direct
recruitment to mean an appointment to a permanent post -
Respondent not entitled to extension - Further, on the principle
governing delay, laches, and acquiescence, followed by approbation
and reprobation, the respondent ought not to have been granted
any relief - Impugned order set aside - Constitution of India -
Article 226 - Contract Act, 1872 - ss.3, 7, 8, 39 - Acquiescence -
Delay/Laches - Approbation and Reprobation - Doctrine of Election
- Doctrine of Fairness - Karnataka Societies Act, 1960.
Delay/Laches and Acquiescence - Principles governing -
Discussed.
253
[2021] 10 S.C.R. 253
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Doctrines/Principles - Doctrine of Fairness - Employer and
employee relationship - Applicability of - Held: 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.
Constitution of India - Article 226 - Nature of relief -
Extraordinary and discretionary - Discussed.
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 wi

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UNION OF INDIA AND OTHERS
v.
N MURUGESAN ETC.
(Civil Appeal Nos. 2491-2492 of 2021)
OCTOBER 07, 2021
[SANJAY KISHAN KAUL AND M. M. SUNDRESH, JJ.]
Service Law - CPRI (Pay, Recruitment and Promotion) Rules,
1989 (Working Rule No.1) - Direct recruitment - Tenure appointment
- Non-extension of - Respondent no.1 was an ex-employee of
appellant-Central Power Research Institute (CPRI) - Appointed as
Director General thereof through Direct Recruitment for an initial
tenure of five years or until further orders, being eligible for reappointment for a further term up to the date of superannuation -
Sought extension of service towards the end of tenure - Not extended
- Fresh recruitment, private respondent was selected as the new
Director-General - Writ petitions filed by respondent inter alia
questioning his relieving order and challenging the recruitment of
the private respondent - Dismissed by Single Judge on ground of
delay and laches - Appeals, allowed by Division Bench - Held:
Appointment order very explicitly says that extension is subject to
suitability, and such suitability for re-appointment having been
considered, this Court is not expected to substitute its view -
Employer had discretion and in the absence of any arbitrariness,
one cannot question its wisdom - Rules do not prohibit a tenure
appointment - Direct recruitment can also be made for filing up the
post on a tenure basis - Division Bench misconstrued direct
recruitment to mean an appointment to a permanent post -
Respondent not entitled to extension - Further, on the principle
governing delay, laches, and acquiescence, followed by approbation
and reprobation, the respondent ought not to have been granted
any relief - Impugned order set aside - Constitution of India -
Article 226 - Contract Act, 1872 - ss.3, 7, 8, 39 - Acquiescence -
Delay/Laches - Approbation and Reprobation - Doctrine of Election
- Doctrine of Fairness - Karnataka Societies Act, 1960.
Delay/Laches and Acquiescence - Principles governing -
Discussed.
253
[2021] 10 S.C.R. 253
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Doctrines/Principles - Doctrine of Fairness - Employer and
employee relationship - Applicability of - Held: 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.
Constitution of India - Article 226 - Nature of relief -
Extraordinary and discretionary - Discussed.
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
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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
UNION OF INDIA AND OTHERS v. N MURUGESAN ETC.
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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
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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
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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
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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
UNION OF INDIA AND OTHERS v. N MURUGESAN ETC.
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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.
Case Law Reference
[2014] 3 SCR 1121
relied on
Para 27
[2013] 4 SCR 331
relied on
Para 27
[2006] 8 Suppl. SCR 916
relied on
Para 28
[2008] 11 SCR 369
relied on
Para 28
[2015] 12 SCR 285
relied on
Para 28
[1994] 2 SCR 67
relied on
Para 30
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CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.24912492 of 2021.
From the Judgment and Order dated 26.04.2019 of the High Court
of Karnataka at Bengaluru in Writ Appeal Nos.1555 and 1556 of 2018
(S-Res).
With
Civil Appeal Nos.2493-2494 of 2021.
K. M. Nataraj, ASG, Gurmeet Singh Makker, Rajan Kr. Chaurasia,
Ms. Vimla Sinha, Vatsal Joshi, Sharath Nambiar, Prashant Bhushan,
Ms. Alice Raj, Rahul Gupta, Advs. for the Appearing Parties.
The Judgment of the Court was delivered by
M. M. SUNDRESH, J.
1. Heard Shri KM Nataraj, learned Additional Solicitor 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.
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
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voluntarily retired while working as Engineering Officer, Grade-IV w.e.f.
31.03.2008.
5. By the Office Memorandum dated 08.11.1991, the Government
of India, Department of Personnel and Training introduced a procedure
which states that for appointment of certain specified posts, the approval
of "Appointments Committee of the Cabinet" ("ACC") consisting of
the Hon'ble Prime Minister and Hon'ble Home Minister, would be
required. A 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 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 Searchcum-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
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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 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.
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
UNION OF INDIA AND OTHERS v. N MURUGESAN ETC.
[M. M. SUNDRESH, J.]
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private respondent was recruited and selected as the new DirectorGeneral.
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.
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 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.
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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 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.
UNION OF INDIA AND OTHERS v. N MURUGESAN ETC.
[M. M. SUNDRESH, J.]
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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.
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
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
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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.
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
UNION OF INDIA AND OTHERS v. N MURUGESAN ETC.
[M. M. SUNDRESH, J.]
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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".
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
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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. 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
UNION OF INDIA AND OTHERS v. N MURUGESAN ETC.
[M. M. SUNDRESH, J.]
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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.