Patna High Court
The Bihar State Power (Holding ) Company ... vs The Bihar State Electricity Employees ... on 31 January, 2024
Author: P. B. Bajanthri
Bench: P. B. Bajanthri
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1554 of 2019
In
Civil Writ Jurisdiction Case No.13542 of 2019
======================================================
1. The Bihar State Power (Holding ) Company Ltd. through Managing
Director, Ist Floor, Jawarhar Lal Marg, Patna- 800001.
2. The Chairman-cum- Managing Director, Bihar State Power (Holding)
Company Ltd., 1st Floor Jawahar Lal Marg, Patna- 800001.
3. The Bihar State Power Transmission Company Ltd. through Managing
Director, 1st Floor Jawahar Lal Marg, Patna- 800001.
4. The Managing Director, Bihar State Power Transmission Company Ltd., 1st
Floor Jawahar Lal Marg, Patna- 800001.
5. The Bihar State Power Generation Company Ltd. through Managing
Director, 1st Floor Jawahar Lal Marg, Patna- 800001.
6. The Managing Director, Bihar State Power Generation Company Ltd. 1st
Floor Jawahar Lal Marg, Patna- 800001.
7. The North Bihar Power Distribution Company Ltd. through the Managing
Director, 1st Floor Jawahar Lal Marg, Patna- 800001.
8. The Managing Director, North Bihar Power Distribution Company Ltd., 1st
Floor Jawahar Lal Marg, Patna- 800001.
9. The South Bihar Power Distribution Company Ltd., through the Managing
Director, 1st Floor, Jawahar Lal Marg, Patna- 800001.
10. The Managing Director, South Bihar Power Distribution Company Ltd. 1st
Floor, Jawahar Lal Marg, Patna- 800001.
11. The General Manager, Human Resources, Bihar State Power Transmission
Company Ltd, 1st Floor, Jawahar Lal Marg, Patna- 800001.
... ... Appellants.
Versus
1. The Bihar State Electricity Employees Association a registered Trade Union
having its Office at Bakarganj, East Gandhi Maidan, P.O. Bankipur, P.S.
Pirbahore, District- Patna- 800004 through the General Secretary Namely
Sanjeev Kumar Sharma, Son of Late Sri Raghunandan Sharma, Resident of
Village- Rajgangapur, P.O. and P.S. Sultanganj, District- Bhagalpur.
2. Kaushik Kumar, Son of Late Ranjeet Singh, Resident of Bakarganj, P.O.
Bankipur, P.S. Bakarganj, District- Patna- 800004.
3. Amit Kumar, Son of Umesh Prasad Sinha, Resident of Bakarganj, Krishna
Gopal Market Near Leather World, P.O. and P.S.- Bankipur, District- Patna-
800004.
4. M.D. Shahbaz Alam, Son of Md. Ali Anshari, Resident of Mohalla-
Dildarganj, P.O. and P.S. Laheriya Sarai, District- Darbhanga- 846001.
... ... Respondents.
======================================================
Appearance :
For the Appellants : Mr. Anand Kumar Ojha, Standing Counsel.
Mr. Ashok K. Karna, Advocate.
Patna High Court L.P.A No.1554 of 2019 dt.31-01-2024
2/28
For the Respondents : Mr. Kumar Kaushik, Advocate.
======================================================
CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE RAMESH CHAND
MALVIYA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)
Date : 31-01-2024
The Bihar State Power (Holding) Company Limited
through the Managing Director, the present L.P.A. is filed in
assailing the order of the learned Single Judge dated 07.08.2019
passed in C.W.J.C. No.13542 of 2019.
2. The brief facts of the case are that on 06.07.2006,
the appellants notified contractual appointment. Pursuant to the
advertisement, members of the Employees Association-
Respondents submitted their application and they were selected
and appointed on 13.12.2006. Such a contract appointment was
for a period of one year and it was extendable from time to time
and they were appointed on consolidated pay of Rs.5000/- per
month. On 03/04 March, 2015, the appellants have taken a
decision "Appointment of the persons engaged on contract on
various post in regular pay-scale" and they proceeded to resolve
as under:
"RESOLVED THAT the personnel engaged
on Contract Basis on the post of Legal
Supervisor-II, Stenographer-II, Junior
Patna High Court L.P.A No.1554 of 2019 dt.31-01-2024
3/28
Line man, Switch Board Operator,
Assistant Operator, Computer Data Entry
Operator, shall be appointed in regular
pay scale on the terms and conditions as
mentioned in Para-7 of the Agenda
Notes."
3. Pursuant to the aforementioned decision,
members of the Respondents-Associations' services were
regularized to the post of Switch Board Operator, Grade-II in
PB-I, Pay Band of Rs.5200-20200, GP-2900 with terms and
conditions. The terms and conditions are as follows:
"(i) The eligibility criteria and the validity of
the educational qualification shall remain the
same as was on the date of engagement on
contractual employment.
(ii ) Such appointment on regularization is
made on the basis of seniority cum merit as
per engagement on contract.
(iii) Such appointment on regularization of
contractual employees is done on the basis of
the screening of prerequisite conditions for
engagement by a screening committee
specially constituted for this purpose.
(iv) The reservation category of the selected
candidates according to the roster policy of
the erstwhile BSEB will remain same as was
fixed at the time of their engagement.
v) Such appointment on regularization in the
time scale of pay of the post is
temporary/provisional and subject to General
Rules of BSPHCL and its subsidiary
companies as amended from time to time.
Patna High Court L.P.A No.1554 of 2019 dt.31-01-2024
4/28
(vi) They may be transferred anywhere
within the jurisdiction of BSPHCL and is
subsidiary companies.
(vii) The seniority of the contractually
engaged employees on appointment and
regularization in regular pay scale shall be
fixed below the employees appointed n
regular pay scale and on consolidated pay
before the date of this appointment. The
inter-se-seniority among the contractually
engaged employee will be fixed on the basis
of the year of their engagement and the
points obtained in the merit list of the
contractual employment.
(viii) If any information given by them with
regard to their qualification, date of birth,
caste & creamy layer certificate, domicile
certificate etc. is found incorrect or if any
discrepancy is found in part or full, at any
time during the period of their employment,
their services will be terminated with
retrospective effect and legal action will be
initiated as well as the pay and allowances
received by them on this account will be
recovered.
(ix) They will have to bring all original
certificates along with the following
documents at the time of joining :-
a. They will be required to submit
their consent along with an affidavit
swan before the Executive
Magistrate to the effect that they are
willing to be appointed on the terms
and condition specified by the
company and that they will not be
entitled to claim any benefit for the
period of service spent on contract
basis if they are appointed in the
time scale of pay of the regular post.
Patna High Court L.P.A No.1554 of 2019 dt.31-01-2024
5/28
b. An affidavit sworn in before the
Executive Magistrate to this effect
that :-
i. The candidate has only one
living spouse in case he/she
is married.
ii. The candidate has not
accepted any dowry (if
married) or will not accept
any dowry (if unmarried).
c. An affidavit sworn in before
Executive Magistrate that they
have not been convicted by any
court of law.
d. A medical fitness certificate
granted by a Civil
Surgeon/Medical Officer of
BSPHCL
e. The following paper related to
engagement on contract
(i) Order of engagement on
contract
(ii) Order of latest extension
on contract
(iii) Last salary statement.
f. If they fail to bring any of the
above mentioned documents/
papers their joining will not be
accepted till they submit the
above papers.
The above persons must submit all the above
mentioned papers in the office of DGM
-Cum-ESE, Tirhut Electric Supply Area,
Muzaffarpur up to 15.04.2015. Their joining
will be accepted only after submission of all
required paper/certificates mentioned in
column no.- (ix).
Patna High Court L.P.A No.1554 of 2019 dt.31-01-2024
6/28
4. In this backdrop, the members of the
Respondents-Association filed C.W.J.C. No.5532 of 2019 in
seeking a direction to extend A.C.P., M.A.C.P. and other service
benefits while counting the service rendered on contract basis
during the intervening period from 13.12.2006 till 31.03.2015.
The aforementioned writ petition was disposed of on 09.04.2019
with a direction to the Respondent-Association to consider
representation to the appellants. The Respondent-Association
had submitted representation on 03.04.2018 and it was rejected
on 29.04.2019. Rejection of the members of the respondents'
claim is the subject matter of C.W.J.C. No.13542 of 2019 and it
was decided in favour of the respondents-members of the
Association to the extent that they are entitled to count the
contract service during the intervening period from 13.12.2006
to 31.03.2015 for the purpose of service benefits towards grant
of A.C.P. and M.A.C.P. and other service benefits.
5. Feeling aggrieved and dissatisfied with the
order of the learned Single Judge, the present L.P.A. is presented
by the Appellants-Company.
6. Learned counsel for the appellants submitted
that the service rendered by the members of the respondents are
not entitled to count the service of intervening period
Patna High Court L.P.A No.1554 of 2019 dt.31-01-2024
7/28
from13.12.2006 to 31.03.2015 for the purpose of service
benefits like M.A.C.P. and other benefits for the reasons that
they have entered into the respective cadre on regular basis on
31.03.2015
vide Annexure-P7 to C.W.J.C. Such regularization
of the members of the respondents are not with retrospective
effect so as to claim any service benefits for contractual service.
The respondents have not questioned the validity of order dated
31.03.2015 related to regularization to the effect that they are
entitled to have the benefit of regularization with retrospective
effect from the date they were initially appointed on contractual
basis, i.e., with effect from 13.12.2006. It is also submitted that
conditions stipulated in the order dated 31.03.2015 insofar as
condition nos.(vii), (viii) and (ix)a have not been questioned. In
other words they have accepted the terms and conditions
stipulated in the order of regularization dated 31.03.2015. It is
further submitted that M.A.C.P. Rules/Schemes is applicable to
only regular holder of the post and not in respect of
adhoc/contract employees during the intervening period from
the inception of M.A.C.P. Rules issued in the year 2010
(M.A.C.P. Scheme dated 07.10.2010). No doubt, M.A.C.P.
Scheme 2010 was modified in respect of paragaph-9 while
substituting the word "adhoc/contract employee" was
Patna High Court L.P.A No.1554 of 2019 dt.31-01-2024
substituted as only "adhoc" In other words, from the inception
of the M.A.C.P. Schemes/Rules issued in the year 2010 insofar
as paragraph-9, the word "contractual employee" has been
substituted to the extent of only "adhoc employees". Since the
members of the respondents are not adhoc employees and they
cannot claim any service benefits towards the M.A.C.P. benefits.
7. In support of the aforementioned contentions,
the learned counsel for the appellants relied on two decisions of
the Hon'ble Supreme Court, namely, (2022) 2 Supreme Court
Cases 25 {Union of India and others Versus N. Murugesan
and others (paragraphs-25, 26 and 27.2)} and (2018) 9
Supreme Court Cases 293 {K. Anbazhagan and another
Versus Registrar General, High Court of Madras and
another (paragraphs-32, 34 and 36)}.
8. It is further submitted that the learned Single
Judge has not appreciated to the extent that the members of the
respondents have not questioned the validity of certain
conditions stipulated in the order of the regularization dated
31.03.2015 and so also has not apprised applicability of
M.A.C.P. Schemes/Rules 2010 read with modified on
27.05.2013 to the extent of replacing of certain words in
paragraph-9 of M.A.C.P. Schemes/Rules 2010. It is also
Patna High Court L.P.A No.1554 of 2019 dt.31-01-2024
submitted that the learned Single Judge has taken note of the
decision of the Hon'ble Supreme Court in the case of Central
Inland Water Transport Corporation Limited and Another
Versus Brojo Nath Ganguly and Another {(1986) 3 SCC 156}
to extend benefits to the respondents. The cited decision has no
assistance to the respondents in the backdrop of regularization
order and its condition read with eligibility clause in the
M.A.C.P. Scheme. There is no challenge to the conditions
stipulated in the order of regularization and so also Para-9 to the
M.A.C.P. It is further submitted that the factual aspect of the
matter is required to be taken note of read with the decision of
the Hon'ble Supreme Court. To that effect, the learned Single
Judge has committed error in extending relief to the members of
the respondents.
9. Per contra, learned counsel for the respondents
submitted that there is no error committed by the learned Single
Judge. He has relied on clause-9 of the regularization order
dated 31.03.2015. It is further submitted that modified M.A.C.P.
notification or letter dated 27.05.2013 which is restricted to the
word "adhoc" while substituting "adhoc and contractual
employee". Contractual employees would also fall under the
definition of adhoc employees. Therefore, the members of the
Patna High Court L.P.A No.1554 of 2019 dt.31-01-2024
respondents are entitled to have the benefit of counting their
contractual service from 13.12.2006 to 31.03.2015 towards
grant of M.A.C.P. benefits. Hence, there is no infirmity in the
order of the learned Single Judge so as to interfere and L.P.A. is
liable to be rejected while affirming the order of the learned
Single Judge.
10. Heard the learned counsels for the respective
parties.
11. Members of the respondents were appointed
on contract basis to various posts on 13.12.2006 and their
services were regularized on 31.03.2015 with the conditions
stipulated cited supra. The respondents have not questioned the
validity of certain conditions imposed in the order of the
regularization in particularly condition nos.(vii), (viii) and (ix) a
and so also their regularization is prospective in nature, i.e., with
effect from 31.03.2015 and they were regular holder of the
various posts only with effect from 31.03.2015. In other words,
they were holders of substantive post w.e.f. 31.03.2015. For the
purpose of extending M.A.C.P. benefits or any other service
benefits, such service is required to be taken only in respect of
regular service rendered by an employee. In the present case,
contractual service from 13.12.2006 to 31.03.2015 cannot be
Patna High Court L.P.A No.1554 of 2019 dt.31-01-2024
counted for the purpose of extending any service benefits. In the
light of conditions imposed in the order of regularization and
Para-9 of M.A.C.P. Scheme. It is to be noted that service
conditions ordinarily notified under Article 309 of the
Constitution of India and eligibility clause invariably it is for
regular employee unless and until regularization order is with
retrospective effect. The respondents have not questioned the
terms and conditions stipulated in the order of regularization,
12. Paragraph-9 of the M.A.C.P. Schemes/Rules
2010 reads as under:
^^9- :ikUrfjr lqfuf'pr o`fÙk mUu;u ;kstuk ds
iz;kstukFkZ ^^fu;fer lsok** fu;fer vk/kkj ij lh/kh HkrhZ
okys xzsM ds in ij ;ksxnku dh frfFk ls izkjaHk gksxh pkgs
og lh/kh HkrhZ ds ek/;e ls gqbZ gks ;k
lek;kstu@iqufuZ;kstu ds ek/;e ls] fu;qfDr iwoZ
izf'k{k.k ij fu;fer fu;qfDr ds iwoZ rnFkZ@lafonk ds
vk/kkj ij dh xbZ lsok dh x.kuk ugha dh tk,xhA
fdUrq] u, foHkkx esa fu;fer fu;qfDr ds iwoZ ,d gh xzsM
osru okys in ij nwljs ljdkjh foHkkx dh fiNyh
ykxrkj fu;fer lsok] tks VwV jfgr gks mls Hkh
:ikUrfjr lqfuf'pr o`fÙk mUu;u ;kstuk ds iz;kstukFkZ
¼u fd fu;fer izksUufr;ksa ds iz;kstukFkZ½ vgZd fu;fer
lsok ds :i esa fxuh tk,xhA fdUrq ,sls ekeys esa
:ikUrfjr lqfuf'pr o`fÙk mUu;u ;kstuk ds v/khu ykHk
nsus ij rcrd fopkj ugha fd;k tk,xk tcrd fd u,
ij ij ifjoh{kk vof/k dks larks"kizn <ax ls iwjk u dj
fy;k tk,A**
Patna High Court L.P.A No.1554 of 2019 dt.31-01-2024
Scheme was modified in respect of substitution of
word "adhoc and contractual employee" are not entitled to that
of "adhoc" employees are entitled to M.A.C.P. Modified
paragraph-9 of 2010 M.A.C.P. Rules issued on 27.05.2013 reads
as under:
^^bl ;kstuk ls lEcfU/kr ladYi la0&7566]
fnukad&14@07@2010 dh dafMdk&9 esa bl ;kstuk esa foÙkh;
mUu;u gsrq vko';d fu;fer lsok dks Li"V fd;k x;k
gS&**:ikarfjr lqfuf'pr o`fÙk mUu;u ;kstuk ds iz;kstukFkZ
^fu;fer lsok* fu;fer vk/kkj ij lh/kh HkrhZ okys xzsM ds in
ij ;ksxnku dh frfFk ls izkjaHk gksxh pkgs og lh/kh HkrhZ ds
ek/;e ls gqbZ gks ;k lek;kstu@iqufuZ;kstu ds ek/;e ls]
fu;qfDr iwoZ izf'k{k.k ij fu;fer fu;qfDr ds iwoZ rnFkZ@laofnk
ds vk/kkj ij dh xbZ lsok dh x.kuk ugha dh tk,xhA fdUrq]
u, foHkkx esa fu;fer fu;qfDr ds iwoZ ,d gh xzsM osru okys
in ij nwljs ljdkjh foHkkx dh fiNyh yxkrkj fu;fer lsok]
tks VwV jfgr gks mls Hkh :ikUrfjr lqfuf'pr o`f Ùk mUu;u
;kstuk ds iz;kstukFkZ ¼u fd fu;fer izksUufr;ksa ds iz;kstukFkZ ½
vgZd fu;fer lsok ds :i esa fxuh tk,xhA fdUrq ,sls ekeys
esa :ikUrfjr lqfuf'pr o`fÙk mUu;u ;kstuk ds v/khu ykHk
nsus ij rcrd fopkj ugha fd;k tk,xk tcrd fd u, in
ij ifjoh{kk vof/k dks larks"kizn <ax ls iwjk u dj fy, tk,A**
fu;fer fu;qfDr ds iwoZ rnFkZ@lafonk ds vk/kkj ij dh xbZ
lsok dh x.kuk ugha fd;s tkus ds izko/kku ds dkj.k rnFkZ :i
ls fu;qDr ,oa ckn esa ljdkj }kjk fu;fer :i ls fu;qDr
fd, x, ,sls dfeZ;ksa dks muds iwoZ dh rnFkZ lsok dh
x.kuk ,e0,0lh0ih0,l0] 2010 ds rgr ugha dh tk jgh gSA
oÙkZeku esa fu;fer fd, tkus ds iwoZ rnFkZ :i ls
fu;qDr dfeZ;ksa dh rnFkZ lsok ,e0,0lh0ih0,l0] 2010 ds
laxr izko/kkuksa ds vkyksd esa x.kuh; djus dk izLrko ljdkj
Patna High Court L.P.A No.1554 of 2019 dt.31-01-2024
ds le{k fopkjk/khu FkkA
lE;d~ fopkjksijkar jkT; ljdkj }kjk :ikarfjr
lqfuf'pr o`fÙk mUu;u ;kstuk] 2010 dh dafMdk&9 esa vafdr
rF; ^^fu;qfDr iwoZ izf'k{k.k ij fu;fer fu;qfDr ds iwoZ
rnFkZ@laofnk ds vk/kkj ij dh xbZ lsok dh x.kuk ugha dh
tk,xh** dk la'kks/ku djrs gq, ;g izfrLFkkfir djus dk fu.kZ;
fy;k x;k gS fd ^^fu;fer fu;qfDr ds iwoZ rnFkZ :i ls dh
xbZ lsok dh x.kuk djrs gq, bUgsa foÙkh; mUu;u vuqekU;
gksxkA** bl dafMdk dh vU; 'kÙksZa ,oa izko/kku ;Fkkor jgsaxs
rFkk rnFkZ fu;qfDr dk osrueku vkfn ,0lh0ih0 dh
vuqekU;rk ds fy, izklafxd gksaxsA**
13. The M.A.C.P. Schemes/Rules 2010 and its
modification on 27.05.2013 may be under Article 309 of the
Constitution of India or under Article 166 of the Constitution of
India and such Scheme is applicable to regular employees
during the intervening period from 07.10.2010 to 26.05.2013.
From 27.05.2013 onwards M.A.C.P. Scheme is applicable to
adhoc employees only and not for contractual employee. It is to
be noted that under M.A.C.P. Rules 2010, M.A.C.P. benefits
were not extended to adhoc employees and contractual
employees. By virtue of decision dated 27.05.2013, the State
Government took a policy decision to the effect that such of
those adhoc employees and their services could be counted for
the purpose of extending M.A.C.P. under 2010 M.A.C.P.
Schemes and it is crystal clear contractual employee have been
Patna High Court L.P.A No.1554 of 2019 dt.31-01-2024
excluded.
14. It is necessary to extract the relevant portion
of the Hon'ble Supreme Court decisions cited on behalf of the
appellants. Paragraphs-25, 26 and 27.2 of the Hon'ble Supreme
Court decision in the case of Union of India and others
Versus N. Murugesan and others {(2022) 2 Supreme Court
Cases 25} read as under:
"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
Patna High Court L.P.A No.1554 of 2019 dt.31-01-2024
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 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
Patna High Court L.P.A No.1554 of 2019 dt.31-01-2024
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.
27.2. State of Punjab v. Dhanjit
Singh Sandhu (2014) 15 SCC 144] :
(SCC pp. 153-54, paras 22-23 &
25-26)
"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. MR. P. Firm Muar [CIT v.
MR. P. Firm Muar, AIR 1965 SC
Patna High Court L.P.A No.1554 of 2019 dt.31-01-2024
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 :
(R.N. Gosain case [R.N. Gosain v.
Yashpal Dhir, (1992) 4 SCC 683] ,
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 & Investment
Patna High Court L.P.A No.1554 of 2019 dt.31-01-2024
Corpn. v. Diamond & Gem
Development Corpn. Ltd.
[Rajasthan State Industrial
Development & Investment
Corpn. v. Diamond & 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 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,
Patna High Court L.P.A No.1554 of 2019 dt.31-01-2024
from asserting a right which he
would have otherwise had."
15. Paragraphs 32, 34 and 36 of the Supreme
Court decision in the case of K. Anbazhagan and another
Versus Registrar General, High Court of Madras and
another {(2018) 9 Supreme Court Cases 293} read as under:
"32. By Direction 10(16), this
Court had directed the State
Governments to ensure
compliance, hence, the terms and
conditions of service of the
appellants were same as those
other judicial officers of the State
as per order of this Court. The
High Court in its judgment
although observed that Fast Track
Courts cannot be said to have
been created in "pensionable
establishment" but the said
conclusion has been arrived at
without considering relevant
materials and without giving any
cogent reasons. We thus are of the
view that appointment of the
appellants was in "pensionable
establishment".
34. In service jurisprudence, the
appointments are made by the
Patna High Court L.P.A No.1554 of 2019 dt.31-01-2024
employer with different
nomenclature/characteristics.
Appointments are made both on
permanent or temporary basis
against permanent post or
temporary post. The appointment
can also be made on ad hoc basis
on permanent or temporary post.
There is one common feature of
appointments of permanent,
temporary or ad hoc appointment
i.e. those appointments are made
against the post whether
permanent or temporary. On the
contrary, for contractual
appointment, there is no
requirement of existence of any
post. A contractual appointment
is not normally made against a
post. Further, contractual
appointments are also not
normally on pay scale. On the
mere fact that the advertisement
as well as the appointment was
made initially for a period of five
years, the nature of appointment
of the appellants cannot be
termed as contractual
appointment. When a
government servant is
Patna High Court L.P.A No.1554 of 2019 dt.31-01-2024
contemplated to hold a certain
post for a limited period it is a
tenure post.
36. The fact that the
advertisement limited the
appointment for a period of five
years only because the posts were
contemplated for five years only,
the appointment of the appellants
at best can be said as "tenure
appointment". Although
temporary, ad hoc and
contractual appointments are
used in contradiction to a regular
and permanent appointment but
between ad hoc appointment and
contract appointment, distinction
is there in service jurisprudence
and both the expressions cannot
be interchangeably used. When
the advertisement against which
the appellants were appointed
and the appointment order
mentions the appointment as ad
hoc appointment, we cannot
approve the view of the High
Court that the nature of the
appointment of the appellants
was only a contractual
Patna High Court L.P.A No.1554 of 2019 dt.31-01-2024
appointment.
16. (2018) 9 Supreme Court Cases 293 {K.
Anbazhagan and another Versus Registrar General, High
Court of Madras and another} decision has some bearing and
its supports the argument of the learned counsel for the
appellants insofar as distinguishing contractual employee and
regular employee. The Hon'ble Supreme Court distinguished
adhoc employee and regular employee in the case of State of
Karnataka and Others vs. Uma Devi reported in (2006) 4
SCC 1 read with full bench decision of this Court in the case of
Ram Sevak Yadav and Another vs. The State of Bihar and
Others in C.W.J.C. Nos. 267 and 472 reported in 2013 (1)
PLJR 964. Therefore, the contentions of the respondents to the
effect that contractual employee could be treated as adhoc
employee is impermissible.
17. The learned Single Judge proceeded to allow
the petition of the respondents with reference to decision in the
case of Central Inland Water Transport Corporation
Limited and another Versus Brojo Nath Ganguly and
Another {(1986) 3 SCC 156}. The aforementioned decision is
distinguishable to the extent that for the purpose of claim of the
respondents are entitled to M.A.C.P. while counting service of
Patna High Court L.P.A No.1554 of 2019 dt.31-01-2024
contractual service during the intervening period from
13.12.2006 to 31.03.2015 read with the conditions stipulated in
the order of regularization and in not questioning Para-9 of the
modified M.A.C.P. dated 27.05.2013 insofar as replacing the
certain words "adhoc and contractual employee" in 2010
M.A.C.P. Schemes/Rules and restricted only to the extent of
adhoc employees. The cited decision is not applicable in view
of the of Hon'ble Supreme Court decision in the case of Nair
Service Society vs. Dr. T. Beermasthan reported in (2009) 5
SCC 545. Paragraph No. 48 thereof reads as under:
"48. Several decisions have
been cited before us by the
respondents, but it is well
established that judgments
in service jurisprudence
should be understood with
reference to the particular
service rules in the State
governing that field.
Reservation provisions are
enabling provisions, and
different State Governments
can have different methods
of reservation. There is no
(Underline supplied)
Patna High Court L.P.A No.1554 of 2019 dt.31-01-2024
challenge to the Rules, and
what is challenged is in the
matter of application alone.
In our opinion the
communal rotation has to be
applied taking 20 vacancies
as a block."
18. The principle laid down in the
aforementioned case is that before taking note of any judicial
pronouncement it is for the Court to analyze the factual aspects
of the matter read with the relevant rules or executive order
governing particular post. In the present case, service
conditions have been stipulated in the order of regularization. If
there are any arbitrariness in the condition stipulated in the order
of regularization, the respondents have failed to question the
same. Further, they have failed to question modified M.A.C.P.
dated 27.05.2013 insofar as replacing certain words in
paragraph-9 of M.A.C.P. 2010 Schemes and it is beneficial to
only ad hoc employee and not to contractual employee.
19. Taking note of these factual aspects as well
as the principle laid down by the various judicial
pronouncements that at no point of time, contractual employees
services could be counted for service benefits unless and until
Patna High Court L.P.A No.1554 of 2019 dt.31-01-2024
regularization order stipulates that regular employees is entitled
to count contractual service towards other service benefits.
Whereas in terms of conditions in the regularization order dated
31.03.2015, Respondents are not entitled to count contractual
service towards M.A.C.P. benefits.
20. In the present case, in fact, conditions
stipulated in the order of the regularization is disadvantage to
the respondents' members. In other words, whatever the service
benefits which were to be given to the regular employee like the
members of the respondents are with prospective effect, namely,
with effect from 31.03.2015, the date on which their services
were regularized.
21. Hon'ble Supreme Court in the case of
Director General, Doordarshan Prasar Bharti Corporation
of India and Anr. Vs. Smt. Magi H Desai-2023 Live Law
(SC) 248 in paragraphs-5 and 9 it is held as under:
"5. We have heard learned counsel for the
respective parties at length.
At the outset, it is required to be noted and it
is an admitted position that for the period
between 1985 till 31.03.1995 the respondent
served as a casual/contractual employee and
her services came to be regularised as per the
Scheme w.e.f. 31.03.1995. As such, under
Patna High Court L.P.A No.1554 of 2019 dt.31-01-2024
the Scheme of Regularisation, there is no
mention that the casual services shall be
counted towards service benefits/ pensionary
benefits. Even as per the clarification issued
by the DOPT in the year 2009, it was
clarified that such appointee is not entitled to
claim any benefit out of the services
rendered by him/her on contractual basis
before he/she was appointed on regular basis
on a government post.
9. Now so far as the submission on behalf of
the respondent that in other departments
under the scheme the employees of such
departments are entitled to their services
rendered as casual/contractual counted for
qualifying service for pensionary/service
benefits is concerned, merely because some
other departments might have such schemes,
the respondent shall not be entitled to the
same benefit in absence of any scheme in the
appellants' department/ department in which
the respondent rendered her services. The
appellant - Doordarshan Prasar Bharti
Corporation of India is an autonomous
independent department/body. As observed
hereinabove, neither the rule nor the
regularisation scheme provide that services
rendered as casual/contractual shall be
treated as temporary service and/or the same
shall be counted for the purposes of
Patna High Court L.P.A No.1554 of 2019 dt.31-01-2024
pensionary/ service benefits."
In the case of K. Anbazhagan and another cited
Supra in paragraph 34 aptly applicable to the present case.
22. Adhoc/contractual employee means an
employee, whose services have been engaged for specific
purpose and for specific period or for work essentially
temporarily in nature. Further, adhoc means appointment for a
particular job for adhoc or temporarily employee. The adhoc
appointments are not contractual. Such a distinction has been
made by the Hon'ble Supreme Court in the case of K.
Anbazhagan and another cited Supra decided on 13.08.2018.
In the cited decision, it is observed that although temporary,
adhoc and contractual appointment are used in contradiction to a
regular and permanent appointment but between adhoc and
contract appointment, distinction is there in service
jurisprudence and both the expressions cannot be
interchangeably used.
23. Contractual employees whose services are
regularized on the basis of past temporary service, shall not be
entitled to any other benefits from the original date of his
joining on contractual basis or from any other retrospective date
as is evident from the conditions stipulated in the order of
Patna High Court L.P.A No.1554 of 2019 dt.31-01-2024
regularization dated 31.05.2015. As long as those conditions are
not questioned before competent forum and such conditions are
set aside in such an event only the respondents are entitled to
have certain benefits with reference to past contractual service.
As on this day whatever the terms and conditions stipulated in
the order of regularization dated 31.03.2015 are intact,
therefore, the learned Single Judge has committed error in
allowing the writ petition.
24. Accordingly, the appellants have made out a
case so as to interfere with the order of the learned Single Judge
dated 07.08.2019 and it is set aside while rejecting C.W.J.C.
No.13542 of 2019.
25. The present L.P.A. stands allowed.
(P. B. Bajanthri, J)
( Ramesh Chand Malviya, J)
P.S./-
AFR/NAFR A.F.R
CAV DATE N.A
Uploading Date 20.02.2024
Transmission Date N.A
