2021 (10) TMI 1375 - SC - Indian Laws

Doctrine of approbate and reprobate - Filling up of post of Director-General either by direct recruitment or on deputation in tune with CPRI (Pay, Recruitment and Promotion) Rules, 1989 - HELD THAT - 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. 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 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 - The Division Bench was not right in holding that the highest constitutional authority on the executive side was misled by the lower officials. There are 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. 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 - 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. 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. The appeals filed by the Respondent deserve to be dismissed. Once it is held that the Respondent is not entitled to any extension, the consequential benefits cannot be granted - appeals filed by the Appellants stand allowed.

Issues Involved:
1. Delay, laches, and acquiescence in approaching the court.
2. Tenure-based appointment versus regular employment.
3. Appropriation and reprobation by the respondent.
4. Validity of the relieving order and the subsequent recruitment process.
5. Applicability of the doctrine of fairness and legitimate expectation.
6. Interpretation of the rules governing the appointment of the Director-General.

Detailed Analysis:

1. Delay, Laches, and Acquiescence in Approaching the Court:
The court emphasized that the respondent's delay in challenging the terms of his appointment and seeking relief was significant. The respondent first raised the issue of being a permanent employee only near the end of his tenure, which indicated acquiescence. The principles of delay, laches, and acquiescence were thoroughly discussed, highlighting that the respondent's conduct, including his late representations, barred him from seeking relief under Article 226 of the Constitution.

2. Tenure-Based Appointment Versus Regular Employment:
The court clarified that the rules did not prohibit tenure-based appointments. The appointment of the respondent as Director-General on a tenure basis was valid and within the discretion of the employer. The court noted that direct recruitment does not necessarily imply regular employment, and the rules allowed for tenure appointments. The respondent's claim that he should be treated as a regular employee was rejected based on the clear terms of his appointment.

3. Appropriation and Reprobation by the Respondent:
The court applied the doctrine of approbate and reprobate, emphasizing that the respondent could not accept the benefits of his tenure appointment and later challenge its terms. The respondent's conduct of accepting the appointment and only challenging it near the end of his tenure was seen as an attempt to blow hot and cold, which is impermissible under the law.

4. Validity of the Relieving Order and the Subsequent Recruitment Process:
The court found that the relieving order issued to the respondent was valid and could not be construed as a termination. The decision to go for fresh recruitment was taken at the highest level, including approval from the Cabinet Secretary and the Hon'ble Minister. The court rejected the Division Bench's inference that the highest constitutional authority was misled by lower officials, affirming that the decision was made consciously and in the interest of the society.

5. Applicability of the Doctrine of Fairness and Legitimate Expectation:
The court discussed the doctrine of fairness, stating that it applies more rigorously in employer-employee relationships involving state instrumentalities. However, the respondent could not claim legitimate expectation against the clear terms of his tenure appointment. The court held that the employer's decision was not arbitrary and was made in the larger public interest.

6. Interpretation of the Rules Governing the Appointment of the Director-General:
The court interpreted the rules governing the appointment, concluding that there was no statutory bar to a tenure-based appointment. The rules allowed for discretion in appointing the Director-General on a tenure basis, and the respondent's appointment was in line with these rules. The court emphasized that the employer's decision to appoint the respondent on a tenure basis was valid and within its discretion.

Conclusion:
The appeals filed by the appellants were allowed, setting aside the impugned order of the Division Bench. The respondent's appeals were dismissed, and he was not entitled to any relief. The court upheld the validity of the tenure-based appointment and the subsequent recruitment process, emphasizing the principles of delay, laches, acquiescence, and the doctrine of approbate and reprobate.

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