@JUDGMENTTAG-ORDER
M.M. Sundresh, J.@mdashIn view of the common issue involved, all the Writ Petitions have been taken up together and a common order is passed.
2. Facts in brief:
2.1. A Government Order was passed by the first Respondent in G.O. Ms. No. 1317, Home (Police.9) Department, dated 08.09.1997 deciding to fill up 1000 vacancies for the post of Sub-Inspector of Police, as existed in different ranges to the State of Tamil Nadu. The Tamil Nadu Uniformed Services Recruitment Board issued a notification dated 02.04.1998 in pursuant to the Government Order passed in G.O. Ms. No. 1317, Home (Police.9) Department, dated 08.09.1997 calling for applications to fill up 1000 vacancies for the post of Sub-Inspector of Police. It has been specifically mentioned in the said notification that, the selection would be made on a range wise basis at the respective ranges. 11 ranges have been earmarked for the purpose of selection. Each range has been given number of posts to be filled up separately with specific posts for men and women.
2.2. By the Government Order passed in G.O. Ms. No. 1247, Home (Police.3) Department, dated 10.09.1998, the earlier orders were revised directing different types of recruitment to fill up the posts, totaling to 997 vacancies. Subsequently, selection was made as per the Government Order passed in G.O. Ms. No. 1421, dated 24.09.1997 on zonal wise basis. Accordingly, a separate cut off mark was fixed for each zone. As could be seen, there were variations in the cut off marks fixed for each zone. For example, cut off marks was fixed at 78% to Chennai Zone for open competition and at 58% for the very same category to the Ramanathapuram zone.
2.3. Based upon the cut off marks fixed for each zone, the selected candidates numbering about 881 were divided into two batches. Accordingly, the first batch of candidates who have got higher marks in each zone formed the first batch and they were sent for training to the Police Training College on 16.04.1999 and the second batch was sent on 22.05.2000. The selected candidates have also been informed about the selection and the batch in which they would be sent for training. After the completion of the training, examinations were conducted for two batches separately. Accordingly for the first batch, the examination was conducted earlier, which was followed by the second batch.
2.4. The prescription of Rule 25(a) of Special Rules for Tamil Nadu Police Subordinate Service is that "the seniority has to be fixed on the date on which a selected joins duty". The selected candidates joined their posts after completion of the training, which is inclusive of six months practical training and posting in an independent station. Accordingly, they completed the probation period of 2 1/2 years and joined the service.
2.5. About 53 candidates who lost their selection to the post of Sub-Inspector of Police in the year 1997-98, approached the State Administrative Tribunal by filing Original Application in O.A. No. 9825 of 1998 and etc., challenging the zonal wise selection. The Tribunal held that, the zonal wise selection conducted by the Respondents was not in accordance with law. A challenge was made to the orders passed by the Tribunal before the Division Bench of this Court in W.P. No. 17639 of 2001 etc., batch. By a common order dated 25.02.2005, the Division Bench of this Court has passed the following orders:
73. In such circumstances, we pass the following order:
i) The selection of both of Sub-Inspectors of Police (Men and Women) pursuant to the selection made for the vacancies notified for the year 1997-98 by resorting to zone-wise selection was invalid inasmuch as such zone-wise selection was impermissible under Special Rules governed for Tamil Nadu Police Sub-ordinate Service.
ii) Having regard to the fact that such selection and appointment came to be made as early as far back as in the year 1999, at this distant point of time, applying the ratio of the Hon''ble Supreme Court referred to in earlier paragraphs (i.e.para 61 to 64), we are not inclined to set aside the said selection.
iii) Even as regards the 53 candidates with reference to whom the Directorate of Vigilance and Anti-corruption has submitted its final report holding that their selection was tainted with mal-practices, we hold that while their appointments cannot be set aside at the present juncture, their continuation in service will depend upon the final outcome of the criminal proceedings pursuant to the final report dated 18.06.2004.
iv) The concerned 53 persons should be informed about our orders relating to them by a specific notice to be issued to them.
v) While modifying the order of the Tribunal, we hold that from amongst the applicants who are the contesting Respondents both Men and Women covered by W.P. Nos. 17639 to 17660 of 2001, 17822 to 17827, 17830, 17899 to 17903 and 18349 to 18356 of 2003, such of those contesting Respondents who have secured the lowest cut off marks in the category, namely, OC, BC, MBC, SC and ST after the interview, should be directed to undergo medical test and after following the usual formality of police verification about their antecedents, and in the event of those contesting Respondents ultimately, coming out successful, should be placed on probation and sent for police training which should be followed by their appointment and regularization as per the prescribed regulations.
vi) Such of the contesting Respondents who were not called for interview, shall be called for interview and after coming out successful in the interview, if their cut off marks is more than the last cut off marks in the respective category, they shall be directed to undergo medical test and after following the usual formality of police verification about their antecedents, and in the event of those contesting Respondents ultimately, coming out successful, should be placed on probation and sent for police training which should be followed by their appointment and regularization as per the prescribed regulations.
vii) The above said direction will also hold good in respect of the applicants who have filed O.A. Nos. 10211 and 10324 of 1998, 1354, 4693 and 6796 of 1999, 955, 4212, 5668, 5669, 5671, 6659 and 8616 of 2000, 2557, 6301 and 6746 of 2001, 1920, 2189, 2286, 2424, 3073, 3633, 3745, 3751, 3999, 4194, 5001, 5142, 5518, 5546, 5687, 5688, 6412, 6429, 6458 and 6459 of 2002 and 18,19, 129, 330, 388, 389, 796, 2130 of 2003.
viii) The other Original Applications, namely, O.A. Nos. 2579, 2715, 3864, 3929, 3930, 4084 of 2003 and 26, 78, 207, 1625 and 1626 of 2004 as well as W.P. Nos. 32253, 32255, 32499, 33155, 33136, 22344, 22015, 23063 and 34275 of 2004 are dismissed on the ground of delay and laches.
ix) The Petitioners-State Government are directed to take steps against the concerned Officers in accordance with the Tamil Nadu Pension Rules, based on the outcome of the criminal proceedings.
2.6. The said order was passed by the Division Bench after affording an opportunity to all the selected candidates, by ordering advertisement. Before the Division Bench, some of the Petitioners herein were also heard through their counsels who made submissions in support of the zonal wise selection. Thereafter, the Division Bench found that, instead of setting aside the selection, it would be appropriate to accommodate the 49 candidates who would otherwise be eligible for the zonal wise selection. In other words, the Division Bench was pleased to hold such of those candidates, who approached the Tribunal within the time and pursued their legal remedy and who would have been selected had the State wise selection is made, alone would be selected. The judgment of the Division Bench became final between the parties and as seen from a perusal of the judgment, even though it was held that, the zonal wise selection was bad in law, the selected candidates were not disturbed, but the eligible, affected candidates who approached the Court were directed to be accommodated.
2.7. The 49 candidates who have been selected in pursuant to the orders passed by the Division Bench were appointed on 18.01.2006. One of the said selected candidate is the third Respondent in W.P. No. 26866 of 2009. In pursuant to the representation made by the candidates, who have been selected in pursuant to the orders of this Court, an order was passed by the first Respondent in G.O. Ms. No. 534, Home (Police.3) Department, dated 06.07.2009, fixing their seniority with the first batch of the selected candidates. Thereafter, a representation dated 27.07.2009 was given by the Petitioners stating that, their seniority should be fixed along with the candidates selected in the first batch, based upon the marks obtained in the final examination conducted in the Police Training College. Since no orders have been passed in pursuant to the representation made by the Petitioners, the present Writ Petitions have been filed seeking a Writ of Mandamus, directing the Respondents 1 and 2 to fix seniority of the Petitioners on par with the direct recruits, who have been sent for training in the first batch on 16.04.1999, based upon the marks secured in the Police Training College at the end of the institutional training and a consequential direction has to be sought to declare the ''B'' list for further promotion as Inspector of Police, based upon the seniority to be fixed on that basis.
3. Submissions of the Petitioners:
3.1. Mr. K. Venkatramani, learned senior counsel appearing for the Petitioners submitted that, the judgment and the ratio laid down therein rendered by the Division Bench has become final against the Respondents and therefore binding on them. Once it has been declared that the zonal wise selection is bad in law, the Petitioners are entitled to get the consequential benefits. The Petitioners who have acquired higher marks in the examination conducted at the Police Training College, cannot be discriminated. When the bifurcation of the selected candidates into two batches is unlawful, then it cannot be the basis for fixing inter se promotion. The Petitioners are in a better position than the 49 candidates, who have been selected and appointed in the year 2006 in pursuant to the orders of this Court. When benefits have been given to those candidates, the same cannot be denied to the Petitioners.
3.2. The learned senior counsel further submitted that, Rule 25(a) of Special Rules for Tamil Nadu Police Subordinate Service would not be a bar, since the inter seniority list has not been published so far. It is further submitted that, there is no question of delay, laches or acquiescence on the part of the Petitioners, since the inter se seniority list has not been published. The learned senior counsel also submitted that, Rule 35(f) of the Tamil Nadu Service Manual cannot be made applicable, as it prescribes an application for revision of the seniority, which is not the case in the Writ Petitions. In other words, the learned senior counsel contended that, in the absence of any seniority being fixed, there is no question of limitation for giving an application for the revision of the same. In support of his contentions, the learned senior counsel has made reliance upon the following judgments:
1.
2.
3.
4. W.A. No. 211 OF 2009 DATED 21.04.2009
3.3. Hence the learned senior counsel submitted that the Writ Petitions will have to be allowed.
4. Submissions of the Respondents 1 and 2:
4.1. The learned Advocate General appearing for the Respondents 1 and 2 submitted that, the Writ Petitions are liable to be dismissed for laches, delay or acquiescence on the part of the Petitioners. The zonal wise selection was made as per the earlier orders and following the earlier procedure. There is no malafide on the part of the Respondents 1 and 2 in adopting the zonal wise selection. The Petitioners were very much aware of the zonal wise selection. The notification published in the newspapers prescribed the method of selection. The subsequent communication sent to the Petitioners indicating their provisional selection, also made it very clear that, the Petitioners form part of the second batch. The Petitioners being fence sitters cannot wait for nearly 10 years and thereafter, file the Writ Petitions. The Government Order passed in G.O. Ms. No. 534, Home (Police.3) Department, dated 06.07.2009 has not been given effect to. The said Government Order is under review, since it was felt by the Respondents 1 and 2 that it would result in numerous litigations. The Petitioners, being a party to the Writ Petitions before the Division Bench, cannot agitate their rights after having given up the same. The examination conducted for the two batches of candidates are distinct and different. Therefore, the marks obtained therein cannot be compared with each other. The mere fact that the Petitioners have given a representation on 27.07.2009 would not entitle them to get over the laches on their part. In support of the said contention, the learned Advocate General has made reliance upon a recent judgment of the Honourable Apex Court in
5. Submissions of the Respondent No. 3:
5.1. Mr. Su. Srinivasan, learned Counsel appearing for the impleaded third Respondent submitted that, the Writ Petitions are liable to be dismissed on the ground of laches. In pursuant to the Government Order passed in G.O. Ms. No. 534, Home (Police.3) Department, dated 06.07.2009, a letter was sent by the second Respondent recommending the placement of 49 selected candidates at the bottom of the second batch. Rule 25(a) of Special Rules for Tamil Nadu Police Subordinate Service clearly stipulates the date of joining as the date of seniority and therefore, there cannot be a Writ of Mandamus contrary to the rules. The Petitioners have not challenged the selections made in favor of the candidates belonging to the first batch. The Writ Petitions are also not maintainable for not following Rule 35(f) of the Tamil Nadu Service Manual, inasmuch as no application was given within 3 years for the fixation of seniority. In support of his contention, the learned Counsel has made reliance upon the following judgments:
1.
2.
3.
4.
5.
5.2. Hence the learned Counsel submitted that, the Writ Petitions will have to be dismissed as devoid of merits.
6. The factual matrix involved in these Writ Petitions are not in dispute. In pursuant to the Government Order passed, a notification was issued by the Tamil Nadu Uniformed Services Recruitment Board to fill up the vacancies in the cadre of Sub-Inspector of Police. The notification and the consequential letter of provisional selection clearly indicate the factor of zonal wise selection. All the candidates including the Petitioners took part in the selection process knowing fully well that, appointment would be based upon the zonal wise selection. Original Applications have been filed by the 53 affected persons in the year 1998 in O.A. Nos. 9825 of 1998 and etc., batch. The Division Bench after holding that, the process of selection was not correct and in accordance with law, did not set aside the selection already made and it merely paved way for the induction of otherwise meritorious and eligible candidates. It is also to be noted that, a cut off period has been fixed by the Division Bench by holding that persons who approached the Court subsequently cannot be extended the benefit. A specific finding has been given by the Division Bench that the status quo need not be disturbed in view of the fact that the appointment came to be made as early as in the year 1999. Therefore, the Division Bench was quiet conscious about the delay factor and the consequential appointments made therein. Keeping that in the mind, it was made clear that, the appointment made need not be disturbed. The Division Bench was also pleased to dismiss the subsequent Writ Petitions on the ground of laches.
7. The Petitioners were made known about the pendency of the earlier proceedings since publications were allowed to be made and some of the Petitioners got themselves impleaded in pursuant to the same. They have been heard through their counsel. It is pertinent to note that the Petitioners took a stand in support of Respondents 1 and 2 in the earlier round of litigations, along with the candidates who got selected in the first batch. Accordingly, the Petitioners took a different plea that the zonal wise selection was just and proper. Therefore, the Petitioners cannot be allowed to change their stand. The Petitioners cannot take advantage of an order passed in their favor, when it is convenient for them and thereafter, change the same by contending that the selection made was not correct.
8. Rule 25(a) of Special Rules for Tamil Nadu Police Subordinate Service prescribes the starting point for seniority among the selected candidates. Admittedly, all the candidates who have written the examination covering both batches, joined their respective services. Therefore, the seniority would count from the date of joining. Hence, the contention of the learned senior counsel appearing for the Petitioners that, the Writ Petitions are not contrary to Rule 25(a) of Special Rules for Tamil Nadu Police Subordinate Service and Rule 35(f) of the Tamil Nadu Service Manual cannot be countenanced. Merely because a seniority list has not been published, it cannot be said that the Petitioners can approach this Court after a period of nearly 10 years. By the operation of Rule 25(a) of Special Rules for Tamil Nadu Police Subordinate Service, the seniority has come into play. In other words, in view of the admitted position that the candidates selected joined the duty in pursuant to the examination conducted to the first batch as a consequent thereon, the other candidates who have been selected under the second batch, automatically became their junior in the cadre of Sub-Inspector of Police. Hence, the contention of the learned senior counsel for the Petitioners in this regard cannot be countenanced.
9. As submitted by the learned Advocate General, examinations have been conducted separately for the first and second batch. The question papers were admittedly different for the first batch and the second batch. Therefore, the marks obtained for the questions set differently for two different batches cannot be a factor to fix the inter se seniority by clubbing them together. The evaluation done for one batch is different from another. Therefore, the different evaluations made cannot be joined for the purpose of fixing inter se seniority among them. Hence, this Court finds that there is no justification for having a common seniority along with candidates belonging to two batches.
10. The arguments of the learned senior counsel appearing for the Petitioners regarding the Government Order passed in G.O. Ms. No. 534, Home (Police.3) Department, dated 06.07.2009 has no factual basis. As submitted by the learned Advocate General, the said Government Order has not been given effect to. There was a subsequent recommendation made by the second Respondent to the first Respondent recommending a review of the same in view of the likelihood of the rights of the different parties being affected, which might ultimately reach before the Court of law. Therefore, inasmuch as the said Government Order having not given effect to, the Petitioners cannot take advantage of the same.
11. Effect of non-joinder of necessary and proper parties:
11.1. The Writ Petitions are also not maintainable without impleading the parties which are likely to be affected. The Petitioners seek to have a common seniority list notwithstanding the date of assumption of office and notwithstanding the different examinations conducted for two batches. In order to consider the case of the Petitioners, the affected parties, namely the candidates, who have been selected under the first batch ought to have been impleaded and heard. The Petitioners for the reasons known to them, have not impleaded them and therefore, this Court is of the considered view that, they being proper and necessary parties, the Writ Petitions are liable to be dismissed.
12. Delay, Laches and Acquiescence:
12.1. The Petitioners have not given any reason for approaching this Court after nearly 10 years. Probably they thought to agitate their rights after the issuance of the Government Order passed in G.O. Ms. No. 534, Home (Police.3) Department, dated 06.07.2009. It cannot be said that, the Petitioners are not aware of their rights. In the meanwhile, rights have been accrued in favor of those candidates, who have been placed over and above the Petitioners. The Petitioners have also not established that by forming a common seniority list among the two batches of candidates. They would become seniors to those candidates who have been selected in the first batch. Therefore, the Petitioners being the fence-sitters, the discretionary and extraordinary remedy under Article 226 of the Constitution of India cannot be extended to them.
13. In
28. It is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. No party can claim the relief as a matter of right as one of the grounds for refusing relief is that the person approaching the Court is guilty of delay and the latches. The Court exercising public law jurisdiction does not encourage agitation of stale claims where the right of third parties crystallizes in the interregnum. (vide
29. Thus, in view of the above, the settled legal proposition that emerges is that once the seniority had been fixed and it remains in existence for a reasonable period, any challenge to the same should not be entertained. In K.R. Mudgal (supra), this Court has laid down, in crystal clear words that a seniority list which remains in existence for 3 to 4 years unchallenged, should not be disturbed. Thus, 3-4 years is a reasonable period for challenging the seniority and in case someone agitate the issue of seniority beyond this period, he has to explain the delay and laches in approaching the adjudicatory forum, by furnishing satisfactory explanation.
14. In
7. It is not disputed that the Respondent-writ Petitioners herein participated in the process of selection knowing fully well that the educational qualification was clearly indicated in the advertisement itself as BPE or graduate with diploma in Physical Education. Having unsuccessfully participated in the process of selection without any demur they are stopped from challenging the selection criterion inter alia that the advertisement and selection with regard to requisite educational qualifications were contrary to the Rules.
8. In Madan Lal v. State of J&K this Court pointed out that when the Petitioners appeared at the oral interview conducted by the members concerned of the Commission who interviewed the Petitioners as well as the contesting Respondents concerned, the Petitioners took a chance to get themselves selected at the said oral interview. Therefore, only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed writ petitions. This Court further pointed out that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted.
9. In the present case, as already pointed out, the Respondent-writ Petitioners herein participated in the selection process without any demur; they are stopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process without participating in the selection process. This has not been done.
10. In a recent judgment in Marripati Nagaraja v. Govt. of A.P., SCR at p.516, this Court has succinctly held that the Appellants had appeared at the examination without any demur. They did not question the validity of fixing the said date before the appropriate authority. They are, therefore, stopped and precluded from questioning the selection process.
11. We are of the view that the Division Bench of the High Court could have dismissed the appeal on this score alone as has been done by the learned Single Judge.
15. Similarly, in
15. As to delay and laches on the part of the writ Petitioner, there is substance in the argument of learned Counsel for the Appellant Company. It is well settled that under Article 226 of the Constitution, the power of a High Court to issue an appropriate writ, order or direction is discretionary. One of the grounds to refuse relief by a writ court is that the Petitioner is guilty of delay and laches. It is imperative, where the Petitioner invokes extraordinary remedy under Article 226 of the Constitution, that he should come to the court at the earliest reasonably possible opportunity. Inordinate delay in making the motion for a writ is indeed an adequate ground for refusing to exercise discretion in favor of the applicant.
16. Under the English law, an application for leave for judicial review should be made "promptly". If it is made tardily, it may be rejected. The fact that there is breach of public law duty does not necessarily make it irrelevant to consider delay or laches on the part of the applicant. Even if leave is granted, the question can be considered at the time of final hearing whether relief should be granted in favor of such applicant or not. (Vide R. v. Essex County Council, 1993 COD 344).
17. In R. v. Dairy Produce Quota Tribunal II (1990) ACC 738 : (1990) 2 All ER 434 : (1990) 2 WLR 1302, the House of Lords stated:
The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision.
18. The underlying object of refusing to issue a writ has been succinctly explained by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd (1874) 5 PC 221: 22 WR 492 thus;
Now the doctrine of laches in courts of equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation, in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as it relates to the remedy.
(emphasis supplied)
19. This Court has accepted the above principles of English law. In
16. The Honourable Apex Court in
18. We do not think it is necessary to burden this judgment with reference to various decisions of this Court, where it has been emphasized time and again, that, where there is inordinate and unexplained delay and third party rights are created in the intervening period, the High Court would decline to interfere. However, if the delay is properly explained, and if the third party rights is not going to be effected, the High Court may entertain the petition and consider the case of the aggrieved person on merits.
17. The said ratio has been reiterated by the Honourable Apex Court in
19. It is well settled and needs no restatement at our hands that under Article 226 of the Constitution, the jurisdiction of a High Court to issue appropriate writs particularly a writ of Mandamus is highly discretionary. The relief cannot be claimed as of right. One of the grounds for refusing relief is that the person approaching the High Court is guilty of unexplained delay and the laches. Inordinate delay in moving the court for a Writ is an adequate ground for refusing a Writ. The principle is that courts exercising public law jurisdiction do not encourage agitation of stale claims and exhuming matters where the rights of third parties may have accrued in the interregnum.
18. The Division Bench in a recent judgment in Secretary to Government v. A Eswaramoorthy (2011) 1 MLJ 1313 it is rendered recently after considering the question of delay and laches, has held as follows:
29. As found in the impugned order that letter dated 30.01.2009 itself would show that the second Respondent did not verify the answers even after the examination. This Court found that there was bona fide mistake committed in setting key answers, and the verification was not done only to prevent leakage of question papers. If any direction is to be issued, it would certainly unsettle the selection process which was already completed, and it would give room for many claims from various parties making the issue very complicated. At this point of time, if the directions of the learned singe judge are given effect, more candidates would possibly be eligible for appointment, and it would compel the government to make appointments more than advertised and it would be against settled position of law. In Union of India v. Easwersingh Khatri (1992) Suppl. 3 SCC 84.
"Fence Sitters"
30. No doubt the Petitioners had legitimate expectation about the selection and they are also not responsible for the problem. However, the Petitioner approached the Court only in 2009 for the first time. The Hon''ble Supreme Court in Shiba Shankar Mohapatra and Ors. v. State of Orissa and Ors. (supra) held as follows:
28. It is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. No party can claim the relief as a matter of right as one of the grounds for refusing relief is that the person approaching the Court is guilty of delay and the latches. The Court exercising public law jurisdiction does not encourage agitation of stale claims where the right of third parties crystallizes in the interregnum. (vide
(emphasis supplied).
Hence, the Petitioners who approached the Court for the first time are definitely "fence sitters". In view of that, the writ petitions filed by those Petitioners who approached the Court for the first time in 2009 are dismissed on the ground of delay.
19. In view of the above said legal principle and applying the same to the facts involved in the present case, this Court has got no hesitation to hold that, the Writ Petitions are liable to be dismissed, considering the question of delay, laches and acquiescence on the part of Petitioners.
20. Doctrine of Stopple and Approbate and Reprobate:
20.1. The matter can be looked at from a different angle as well. The Petitioners joined with the selected candidates of the first batch in defending the case against the 53 candidates in a batch of Writ Petitions filed in W.P. No. 17639 of 2001 etc. batch. They were not only aware of the decision made therein, but also took a stand in support of the zonal wise selection. It is also seen that, the Petitioners have been appointed in pursuant to the zonal wise selection. That is the reason why they took a stand in support of the said selection process. Therefore, having got the benefit under a decision made by the Respondents 1 and 2, the Petitioners cannot now turn around and challenge the same. They have also participated in the selection process by accepting to be a part of the second batch of candidates sent to the training. When that is a position, the Petitioners are clearly stopped from challenging the decision made by the Respondents 1 and 2 in dividing the selected candidates into two batches. In this connection, it is useful to refer to the judgment of the Honourable Apex Court in
21. In
21. The unconditional acceptance of the terms of the package and the benefit which the Appellant derived under the same will stop the Appellant from challenging the recovery of the dues under the package or the process of its determination. No dispute has been raised by the Appellant and rightly so in regard to the payment of outstanding licence fee or the interest due thereon. The controversy is limited to the computation of liquidated damages of Rs. 8 crores out of which Rs. 7.3 crores was paid by the Appellant in the beginning without any objection followed by a payment of Rs. 70 lakhs made on 29.05.2001.
22. Although the Appellant had sought waiver of the liquidated damages yet upon rejection of that request it had made the payment of the amount demanded which signified a clear acceptance on its party of the obligation to pay. If the Appellant proposed to continue with its challenge to demand, nothing prevented it from taking recourse to appropriate proceedings and taking the adjudication process to its logical conclusion before exercising its option. Far from doing so, the Appellant gave up the plea of waiver and deposited the amount which clearly indicates acceptance on its part of its liability to pay especially when it was only upon such payment that it could be permitted to avail of the migration package. Allowing the Appellant at this stage to question the demand raised under the migration package would amount to permitting the Appellant to accept what was favorable to it and reject what was not. The Appellant cannot approbate and reprobate.
23. The maxim qui approbat non reprobat (one who approbates cannot reprobate) is firmly embodied in English common law and often applied by courts in this country. It is akin to the doctrine of benefits and burdens which at its most basic level provides that a person taking advantage under an instrument which both grants a benefit and imposes a burden cannot take the former without complying with the latter. A person cannot approbate and reprobate or accept and reject the same instrument.
24. In
"Having thus, almost in terms, offered to be redeemed under the usufructuary mortgage in order to get payment of the other mortgage debt, the Appellant, Their Lordships think, cannot now turn round and say that redemption under the usufructuary mortgage had been barred nearly seventeen years before he so obtained payment. It is a well-accepted principle that a party cannot both approbate and reprobate. He cannot, to use the words of Honyman, J. in Smith v. Baker 1873 LR 8 CP 350 at p.357:
.. at the same time blow hot and cold. He cannot say at one time that the transaction is valid, and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and at another time say it is void for the purpose of securing some further advantage.
25. The view taken in the above decision has been reiterated by this Court in
48. It is a fundamental principle of general application that if a person of his own accord, accepts a contract on certain terms and works out the contract, he cannot be allowed to adhere to and abide by some of the terms of the contract which proved advantageous to him and repudiate the other terms of the same contract which might be disadvantageous to him. The maxim is qui approbat non reprobat (one who approbates cannot reprobate). This principle, though originally borrowed from Scots law, is now firmly embodied in English common law. According to it, a party to an instrument or transaction cannot take advantage of one part of a document or transaction and reject the rest. That is to say, no party can accept and reject the same instrument or transaction (per Scrutton, L.J., Verschures Creameries Ltd. v. Hull & Netherlands Steamship Co. Ltd. (1921) 2 KB 608;)
26. The decision of this Court in
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.
(See Verschures Creameries Ltd. v. Hull & Netherlands Steamship Co. Ltd. (1921) 2 KB 608 Scrutton, L.J.) According to Halsbury''s Laws of England, 4th Edn., Vol.16:
1508. Examples of the common law principle of election.-After taking an advantage under an order (for example for the payment of costs) a party may be precluded from saying that it is invalid and asking to set it aside.
27. In America stopple by acceptance of benefits is one of the recognized situations that would prevent a party from taking up inconsistent positions qua a contract or transaction under which it has benefited. American Jurisprudence, 2nd Edn., Vol.28, pp.677-80 discusses "stopple by acceptance of benefits" in the following passage:
Stopple by the acceptance of benefits.-Stopple is frequently based upon the acceptance and retention, by one having knowledge or notice of the facts, of benefits from a transaction, contract, instrument, regulation which he might have rejected or contested. This doctrine is obviously a branch of the rule against assuming inconsistent positions.
As a general principle, one who knowingly accepts the benefits of a contract or conveyance is stopped to deny the validity or binding effect on him of such contract or conveyance.
This rule has to be applied to do equity and must not be applied in such a manner as to violate the principles of right and good conscience.
28. For the reasons set out by us hereinabove, we have no hesitation in holding that the Appellant was not entitled to question the terms of the migration package after unconditionally accepting and acting upon the same.
22. Therefore, following the ratio laid down by the Honourable Apex Court in the above said decision, referred supra, this Court is of the view that, these Writ Petitions are also liable to be dismissed on the ground of stopple as well as on the maxim "qui approbat non reprobat
23. The judgments relied upon by the learned senior counsel appearing for the Petitioners are not applicable to the facts on hand. In the said judgments, the relief was granted inspite of the delay considering the fact that, the delay was not due to the Petitioners and no third party right has crept in. Therefore, this Court is of the view that the judgments relied upon by the learned senior counsel appearing for the Petitioners, do not support their case.
24. Hence, on a consideration of the facts and law discussed above, this Court is of the considered view that, the Writ Petitions are liable to be dismissed and accordingly, they are dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
