Letters Patent Appeal No. 499 of 2013 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.499 of 2013 In Civil Writ Jurisdiction Case No. 220 of 2011 ====================================================== 1. Deepak Kumar Son Of Late Dinesh Kumar Resident Of Village - Asta, P.O. Asta, P.S. Tharthari, District - Nalanda Versus .... .... Appellant/s 1. The State Of Bihar 2. The Collector Cum Chairman, District Compassionate Committee, Nawada 3. The Director, Self Employment Rural Development, Nawada 4. The Assistant Commissioner, Finance, Nawada 5. The District Education Officer, Nawada 6. The Office Superintendent, Nawada 7. The Block Development Officer, Nawada .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Chitranjan Sinha, Sr. Advocate Mr. Surya Nilam For the Respondent/s : Mr. Gyan Shankar, AC to GP 6 ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA and HONOURABLE MR. JUSTICE VIKASH JAIN
Legal Reasoning
ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 2 13-08-2013 Heard learned Counsel for the appellant and the respondent. The present appeal arises from the order dated 22.1.2013 dismissing CWJC No. 220 of 2011. Learned Counsel for the appellant submitted that his father died in harness on 28.8.1996. The District Establishment Committee recommended him for compassionate appointment on 22.8.2000 but issuance of the appointment letter was delayed till 6.9.2011. In the meantime on 20.12.2000 the Finance Department bifurcated the post of Clerk into Lower Division Clerks and Upper Division Clerks. Those appointed prior to the cut off date were kept in the latter category. The appellant was denied that benefit and appointed in the former category. Patna High Court LPA No.499 of 2013 (2) dt.13-08-2013 2 There is no justification for the same and it amounts to the respondents taking advantage of their own wrong. Reliance was also placed on a Bench decision in CWJC No. 15956 of 2006 disposed on 11.3.2011 in which the relief as presently claimed was granted on similar facts. Counsel for the State has opposed the appeal submitting that recommendation did not vest a right to appointment. The appointment made on 6.9.2011 was accepted without demur. The writ petition has been filed belatedly after ten years. There has to be a difference between those who approached the Court in time and those who do not. We have considered the submissions of the parties. A recommendation for appointment does not tantamount to appointment. After a recommendation is made it may fructify into an appointment or it may not fructify. If there is a delay in the recommendation fructifying, the reason can be various and unless it is not specifically asserted that it was done malafide to either favour someone or to illegally deny a benefit for extraneous reasons, it is not possible to hold that the appointment would be deemed from the date of recommendation. Even otherwise if the appellant was appointed on 6.9.2011 and he accepted it without demur there has to be an explanation why the claim made belatedly after ten years should be accepted. In service matters delay is always fatal and any acceptance of the claim today would also impose an unnecessary financial burden on the respondent, an aspect to which we cannot shut our eyes. Additionally, the Appellant having accepted appointment on 6.9.2011 on the post of Upper Division Clerk and enjoyed the benefit of the same cannot retain the appointment and question it simultaneously. The principle of blowing hot ands cold or approbate or reprobate has been noticed in (2013) 5 SCC 470 (Rajasthan State Industrial Development and Investment Corpn. v. Diamond & Gem Development Corpn. Ltd. ) observing Patna High Court LPA No.499 of 2013 (2) dt.13-08-2013 3 as follows:- “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 16. Thus, 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 estoppels 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 it is his duty to speak, from asserting a right which he would have otherwise had.” Those who are vigilant in approaching the Court for grant of relief and those who are not vigilant fall in the category of a fence sitter, waiting and watching the outcome of litigation preferred by others form a separate class. If similarly situated persons moved this Court in the year
Decision
2006 and the writ petition came to be disposed in 2011 nothing precluded the appellant from instituting his claims in time also. This principle of law is well enunciated. Delay is sufficient justification and classification to deny relief based on a claim for parity. In (2007) 12 SCC 779 (Nadia Distt. Primary School Council v. Sristidhar Biswas) it was observed as follows:- “11. In the present case, the panel was prepared in 1980 and the petitioners approached the court in 1989 after the decision** in Dibakar Pal2. Such persons should not be given any benefit by the court when they allowed more than nine years to elapse. Delay is very significant in matters of granting relief and courts cannot come to the rescue of the persons who are not vigilant of their rights. Therefore, the view taken by the High Court condoning the delay of nine years cannot be countenanced.” Patna High Court LPA No.499 of 2013 (2) dt.13-08-2013 4 Similar view has been taken in (2008) 17 SCC 668 (Punjab Small-Scale Industries & Export Corpn. Ltd. v. Jhujhar Singh). In CWJC No. 15956 of 2006 the only premise on which the relief came to be granted was that the recommendation had been made for the post of Clerk before bifurcation. The questions considered y us did not fall for discussion. For reasons discussed, it is not possible for us to grant that relief to the appellant. The appeal is dismissed. (Navin Sinha, J) (Vikash Jain, J) Snkumar/-