Ramakant Singh v. The State Of Bihar

Patna High Court LPA No.537 of 2013 (2) dt.27-09-2013 3 not in a position to pay salary. Directions were given to create/sanction posts of persons directed to be regularised by order dated 30.4.1993 and pay them salary along with arrears. Pursuant to the aforesaid the appellants have been given salary with effect from 30.4.1993 by order dated 16.9.1995. The appellants represented for payment of salary from 12.12.1980. The appellants were told that the matter is pending consideration in a Full Bench and were advised to await the outcome of the same. In similar circumstances relief has been granted to certain others similarly situated by order dated

17.8.1985. Counsel for the State has opposed the appeal submitting that the order assailed requires no interference. We have considered the submissions on behalf of the parties. By order dated 30.4.1993 a decision was taken to absorb them in the services of the University. The order stated that after absorption payment of salary may commence. The formalities for creation of posts etc. shall be done by the State Government later. There can be no two opinions from the plain language of the letter that the absorption was not with retrospective effect but prospective. If the University intended retrospective absorption nothing prevented it from incorporating that condition in the order itself. If the order is specific in its content and admits of no ambiguity there shall be a presumption that the omission for retrospective absorption was a conscious and deliberate decision. If the absorption was not to the satisfaction of the appellants, it was required to be challenged in a fresh writ application. The challenge could not be in a contempt jurisdiction by alleging that it was not in consonance with the directions for considering their representation only as ordered in CWJC No. 2695 of 1983. In absence of any challenge to the Patna High Court LPA No.537 of 2013 (2) dt.27-09-2013 4 order dated 30.4.1993, it becomes final and conclusive against the appellants no sooner that they accepted salary from 30.4.1993 without demure. The appellants cannot be permitted to accept that part of the order for absorption which suits them and at a much later stage in a writ petition filed in the year 2010 challenge that part of the order dated

30.4.1993 which according to them does not suit them. The appellants cannot blow hot and cold. The law stands well settled that a person cannot seek to retain the benefit of an order and yet challenge another part of the same order, especially when two are integrally connected. Appropriately, if aggrieved it should have been challenged immediately after issuance on 16.9.1995 and not a decade and a half later. In (2013) 5 SCC 470 (Rajasthan State Industrial Development and Investment Corpn. V. Diamond & Gem Development Corpn. Ltd.) the principle has been explained:-

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…….” The reliance on the order dated 12.1.1994 is of no avail to the appellants as it only reiterates the earlier order dated 30.4.1993 and does not modify the same by directing retrospective regularisation. The submission for violation of Article 14 by discrimination with regard to persons similarly situated in an order dated 17.6.1985 can be of no avail to the appellants. Two contempt applications were filed in 1991 and 1993 without any challenge to the order for regularisation dated

30.4.1993 complaining discrimination meted out to them by order dated Patna High Court LPA No.537 of 2013 (2) dt.27-09-2013 5

17.6.1985. There is no reason why the Court should not presume that they were themselves very diffident on the aspect of discrimination as otherwise they would have legitimately challenged it in a fresh proceeding as violating their fundamental right under Article 14 of the Constitution. A claim for arrears of salary constitutes primarily a money claim. If the limitation for preferring a money claim is three years under the Limitation Act, to overcome that bar the appellants cannot take recourse to the extra ordinary jurisdiction for the same relief. We have also gone through the pleadings of the writ application. The appellants contended that after their absorption on

30.4.1993 and payment of salary from that date by order dated 16.9.1995 they filed a representation. Surprisingly para 17 of the writ application does not mention the date of filing of the representation much less has any copy of the same been appended to the writ application. In a writ application documents constitute the primary evidence. The pleadings of the writ application does not contain a whisper of an explanation that if the cause of action accrued on 30.4.1993 and again on 16.9.1995, despite being aware of alleged discrimination having been meted out on 17.6.1985 why the writ application was chosen to be filed decades later in the year 2010. There has to be a difference between those who approached the Courts in time and are vigilant about protection of their rights and those who do not. The latter constitute a separate class to whom relief claimed on parity can still be denied. The appellants seek to rely on orders in CWJC No. 4703 of

1999. We have already distinguished the case of the appellants as barred by gross delay. In conclusion, for reasons discussed we do not find any reason Patna High Court LPA No.537 of 2013 (2) dt.27-09-2013 6 to interfere with the order under appeal. The appeal is dismissed. (Navin Sinha, J) (Vikash Jain, J) Snkumar/-