Bichitrananda Behera vs State Of Orissa And Ors.

2023 INSC 902 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. OF 2023 (@ SPECIAL LEAVE PETITION (CIVIL) NO.16238 OF 2017)

BICHITRANANDA BEHERA … APPELLANT

VERSUS

STATE OF ORISSA AND OTHERS … RESPONDENTS

R1: State of Orissa represented through the Commissioner- cum- Secretary, State of Orissa School and Mass Education Department R2: Director, Secondary Education R3: Inspector of Schools, Puri Circle, Puri R4: Managing Committee, Gram Panchayat High School, Sailo R5: Pramod Kumar Mohanty S/o Narayan Mohanty R6: The State of Odisha Board of Secondary Education R7: Judhistir Khuntia S/o Late Kulamani Khuntia R8: Kanhu Chaan Nayak S/o Late Khanduri Nayak

J U D G M E N T

Signature Not VerifiedAHSANUDDIN AMANULLAH, J. Digitally signed by POOJA SHARMA Date: 2023.10.11 17:03:33 IST Reason: Heard learned counsel for the parties. 2

2. Leave granted.

3. The present appeal is directed against the

Judgment dated 18.01.2017 in F.A.O. No.497 of 2008

(hereinafter referred to as the “Impugned Judgment”)

passed by the High Court of Orissa at Cuttack

(hereinafter referred to as the “High Court”) whereby

the appeal filed by the appellant against judgment

dated 15.11.2008 in GIA Case No.39 of 2005 of the

State Education Tribunal, Orissa (hereinafter referred

to as the “Tribunal”) directing the Respondents No.1 &

2 to approve the appointment of Respondent No.5 on the

post of Physical Education Trainer (hereinafter

referred to as “PET”) in the Gram Panchayat School,

Sailo at Nadhana (hereinafter referred to as the

“School”), District Puri and release of block grant in

his favour with effect from1 01.01.2004, has been

dismissed.

1 Hereinafter shortened and referred to as “w.e.f.”. 3

THE FACTUAL PRISM:

4. The School was established in the year 1987 and

was also recognized. On 29.11.1990, the first Managing

Committee of the School was constituted and as a stop-

gap arrangement, a retired government school Physical

Education Trainer was appointed on the post of PET on

18.05.1991. The Managing Committee was reconstituted

by the Inspector of Schools, Puri Circle, Puri vide

order dated 15.12.1992. However, the Inspector of

Schools on 28.12.1992 modified the composition of the

Managing Committee by substituting some names. The

approval given to the Managing Committee constituted

on 28.12.1992 was challenged by the Secretary of the

Managing Committee constituted on 15.12.1992, in

O.J.C. No.80 of 1993 before the High Court, which by

interim order dated 11.01.1993, stayed the operation

of the order dated 28.12.1992 reconstituting the

Managing Committee. The Managing Committee constituted

on 15.12.1992 appointed the appellant on the post of 4

PET on 14.05.1994. However, the interim order dated

11.01.1993 of the High Court was vacated on

18.12.1995, as term of the Managing Committee approved

on 15.12.1992 stood expired. When on the

recommendation of the proposal submitted by the

outgoing Managing Committee, the new Managing

Committee was reconstituted and approved on

03.07.1996, the same was again challenged in O.J.C.

No.6687 of 1996. By a common order dated 23.07.1999 in

both the Writ Petitions (O.J.Cs. No.80 of 1993 and

6687 of 1996), the High Court quashed the order of

approval dated 03.07.1996 and directed the Inspector

of Schools to remain in-charge of the management of

the School. Later, when applications were invited to

receive block grant(s) under the Grant-in-Aid Order,

2004 with effect from 01.01.2004, the Inspector of

Schools passed an order on 02.04.2005 approving the

appointment of teaching and non-teaching staff, where

the name of appellant found place and he was held

entitled to receive the Block Grant. 5

5. This led to Respondent No.5 filing GIA Case

No.39 of 2005 under Section 24-B of the Orissa

Education Act, 1969 challenging the approval order of

the appellant before the Tribunal. The Respondent No.5

claimed to be continuing as the PET in the school in

question w.e.f. 10.01.1993 on the basis of Resolution

dated 07.01.1993 issued by the Managing Committee

constituted on 28.12.1992. The Tribunal vide judgment

dated 15.11.2008 quashed the order dated 02.04.2005 by

which approval was given to the service of the

appellant and further directed approval of the

appointment of Respondent No.5 and for release of

block grant in his favour w.e.f. 01.01.2004. The

challenge by the instant appellant to the same before

the High Court came to be rejected by the Impugned

Judgment.

SUBMISSIONS BY THE APPELLANT:

6. Learned counsel for the appellant submitted that

the advertisement dated 20.04.1994 was issued by the 6

Managing Committee constituted on 15.12.1992 much

after stay was granted in its favour, and interviews

were conducted on 11.05.1994 for the PET and 3 other

posts.

7. It was submitted that the appellant, along with

three others, was appointed on 14.05.1994 and was

still working, being duly qualified and rendering

service uninterruptedly.

8. Learned counsel submitted that though the claim

of the Respondent No.5 is based on his appointment

letter and joining letter of the year 1993, but he has

failed to produce any document to establish his

continuity in service from 1993 to 2005 or even

thereafter. It was contended that the appointment

letter and resolution of the Managing Committee in

favour of the Respondent No.5 was void and fabricated

as Respondent No.5 was appointed within 14 days of the

constitution of the Managing Committee on 28.12.1992 7

i.e., on 10.01.1993 which is one day before the stay

order of the High Court dated 11.01.1993. It was

submitted that despite the dates clearly indicating a

sham process of appointment, the Tribunal and the High

Court granted relief to the Respondent No.5 only on

the basis of the aforesaid two documents without any

document/record showing that the Respondent No.5

actually performed his duties in the School so as to

entitle his service being approved, which is a

condition precedent for salary in the shape of grant-

in-aid/block grant. It was contended that after due

verification/perusal of the Managing Committee’s

Resolution Book and Staff Attendance Register from

1994 to 2005 and other material(s) like Inspection

Report dated 11.07.2006, it was established that

Respondent No.5 was appointed and also worked, as a

teacher in another school viz. the Sri Thakur

Nigamananda High School, Terundia.

9. Learned counsel submitted that facts have been

duly verified from the records of advertisement, 8

resolution, appointment letter, attendance register

and renewal register pertaining to the appellant by

the competent authority; and in this background, he

was approved by the order dated 02.04.2005 as eligible

to receive block grant.

10. Learned counsel further submitted that the

Inspector of Schools in his counter affidavit has

clearly stated that there is no other appointee and

also no record available, either in the School or in

the Inspectorate, relating to the appointment of

Respondent No.5. Thus, it was contended that the

Tribunal has not given any finding with regard to the

records relating to the appointment of Respondent No.5

and the High Court has also clearly erred in ignoring

the relevant factual matrix as disclosed in the

concerned contemporaneous records duly verified by the

competent authority of the State. It was further

contended that the two fora below have wrongly

interpreted the term ‘Competent Management’ in the 9

order dated 23.07.1999, which was only in reference to

sending of a proposal with regard to the future

reconstitution of the Managing Committee and has no

relevance on the issue of appointment having been made

by the Managing Committee constituted on 15.12.1992,

which in no way can be said to be incompetent or

illegal even on the principle of ‘de facto doctrine’,

more so, when the Managing Committee constituted on

15.12.1992 had managed the school for six years and

the High Court has not invalidated any action or

decision taken by it during the said period.

11. It was contended that even on merit, on the day

the Respondent No.5 is said to have been appointed

i.e., 10.01.1993, he did not possess BPED or CPED

qualification and thus, could not have been appointed.

He further submitted that the recommendation for

renewal in favour of the appellant was sent every year

as per the requirement and he was also assigned

election duty on three occasions.

10

SUBMISSIONS OF THE STATE:

12. Learned counsel for the State has filed the

counter-affidavit. The State has supported the case

put forth by the appellant.

SUBMISSIONS ON BEHALF OF RESPONDENT No.5:

13. Learned counsel for Respondent No.5, per contra,

submitted that the High Court in its order dated

23.07.1999 has noted that the Managing Committee

constituted on 28.12.1992 was the only competent

Managing Committee which has appointed the Respondent

No.5, hence the same is valid. It was submitted that

the appellant, having been appointed by the Managing

Committee constituted on 15.12.1992, could not have

been so appointed without lawful termination of the

service of Respondent No.5 and most importantly, the

order dated 23.07.1999, having not been challenged,

had attained finality. With regard to the 11

qualification of Respondent No.5 i.e., his non-

fulfilment of the criteria of appointment on

10.01.1993, learned counsel submitted that, later, on

03.06.1996, Respondent No.5 did acquire the training

qualification of B.P.Ed. which was permissible for in-

service candidates as per Rule 16 of the Orissa

Education (Recruitment and Conditions of Service of

Teachers and Members of the Staff of Aided Educational

Institutions) Rules, 1974. In this connection,

reliance was placed by learned counsel on the decision

in Bibekananda Das v State of Orissa, 1997 (II) OLR

122, holding that a teacher appointed prior to

18.12.1993, without having the training/qualification

for the post, cannot be terminated or denied approval,

but such employee was to be allowed to undergo

training in course of his employment and on completion

of the training, he/she would become entitled to

trained scale of pay. Thus, it was submitted that

Respondent No.5’s appointment cannot be said to be

illegal for lack of training/qualification at the time 12

of appointment and moreover, it was submitted that in

the counter-affidavit filed on behalf of the Board of

Secondary Education, Orissa, it has been stated that

both the appellant and the Respondent No.5 were

untrained at the time of their respective appointments

and thus, no benefit on this score can accrue to the

appellant. Even apropos the stand of the appellant and

the Inspector of Schools showing that Respondent No.5

was continuing in service from 04.01.1995 to

18.08.2002 in the Sri Thakur Nigamananda High School,

Terundia, it was contended that the same is false and

fabricated as the said school obtained permission only

in 2000 and recognition was granted in 2002. On this

issue, it was submitted that at best, even if the

Respondent No.5 was appointed in some other school,

still his appointment in the present school would not

be nullified, as there can be, possibly, a charge of

misconduct, for which proceedings can be or could have

been initiated, but no such proceedings have in fact

been initiated. Insofar as the stand taken by the 13

appellant that he has continuity on the post is

concerned, learned counsel submitted that continuing

in service for a long period would not make an ab

initio invalid appointment valid.

ANALYSIS, REASONING AND CONCLUSION:

14. Having considered the matter, the Court finds

that in the face of competing submissions and rival

claims of the appellant and the Respondent No.5, a

balanced view is to be taken of the events which have

actually taken place, keeping in mind the law.

15. On the factual scenario, the appellant was

appointed by the Managing Committee constituted on

15.12.1992 and given appointment on 14.05.1994 during

the time when a stay order granted by the High Court

in favour of the Managing Committee constituted on

15.12.1992 was continuing i.e., since 11.01.1993.

Thus, the appointment made by the said Managing 14

Committee (constituted on 15.12.1992) of the appellant

cannot be labelled illegal per se nor termed void ab

initio. From the record it also transpires that the

then incumbent, namely Kapil Sasmal, who was appointed

as PET in the School, continued till 15.10.1993, when

he was terminated by the Managing Committee for

absence vide resolution No.39 dated 15.10.1993. Thus,

in the absence of the post being vacant on 07.01.1993,

the appointment of Respondent No.5 on the said single

post held by Mr. Kapil Sasmal, Respondent No.5 could

not have been appointed by way of the resolution dated

07.01.1993 followed by the appointment letter, which

came to be issued on 10.01.1993. We may, in addition,

note that when the interim order dated 11.01.1993

passed in OJC No.80 of 1993 was vacated, the term of

the Managing Committee approved on 15.12.1992 was

already over. Therefore, from 11.01.1993 till

14.12.1995, the Committee constituted on 15.12.1992

was functioning in terms of the interim order of the

High Court. It is also noteworthy that the High Court 15

only took a view with regard to reconstitution of the

Managing Committee and even in its final order dated

23.07.1999, there is no whisper that any/all action(s)

taken by the Managing Committee constituted on

15.12.1992, even though in terms of the interim order

of the High Court, would lose their efficacy and/or

validity.

16. It is also noted that the Respondent No.5, for

the first time, raised the issue before the Tribunal

challenging the approval order dated 02.04.2005 of the

appellant on the basis of resolution dated 07.01.1993

of the Managing Committee constituted on 28.12.1992.

In the period of over 12 years (from 07.01.1993 to

04.05.2005), Respondent No.5 had not moved before any

forum, be it a Court of Law or a Tribunal or an

Authority asserting his claims qua the solitary post

of PET in the School in question.

16

17. On the legal aspect, since the Managing

Committee constituted on 15.12.1992 continued for its

full term by virtue of the interim order of the High

Court dated 11.01.1993 and even in the final order

disposing of the case on 23.07.1999, no adverse

comment made on actions taken by the said Managing

Committee, coupled with the fact that the appellant

continued to discharge the duties on the post right

since his appointment on 14.05.1994, which is

documented in the school register and verified by the

Inspector of Schools, with his having been sent on

election duty thrice, in our view, are sufficient

pointers that the appellant had actually worked and

continued on the post. Further, there was no complaint

before any authority, either with regard to the

appellant not joining or discharging his duty or the

Respondent No.5 being prevented from joining or

discharging his duty, from any quarter, much less,

Respondent No.5 himself, till 2005. Even with regard

to the finding of Respondent No.5 having worked in 17

another school during the period in question, such

finding has not really been contested. In any event,

the material sought to disprove such factual assertion

is not quite forthcoming from the record.

18. An issue that deserves some attention, as per

Respondent No.5, is that since the Sri Thakur

Nigamananda High School, Terundia got permission in

2000 and received recognition in 2002, the Respondent

No.5 could not have been working there from 04.01.1995

to 18.08.2002. In this context, it is not incorrect to

point out that it is fairly well-known that schools

are started much prior to getting official

permission/recognition, which follows after many

years, if at all. Moreover, in the present case, the

competent authorities have come to a finding, upon

scrutiny and verification of relevant records about

the factum of Respondent No.5 having worked in the Sri

Thakur Nigamananda High School, Terundia from 18

04.01.1995 to 18.08.2002, which this Court has no

reason to disbelieve.

19. The decision by a Division Bench of the High Court

in Bibekananda Das (supra), is not of any help to the

Respondent No.5 as we have not delved into the issue

of eligibility for appointment on the post of PET on

the relevant date(s).

20. On an overall circumspection, thus, in the present

case the Respondent No.5 should have been non-suited

on the ground of delay and laches, which especially in

service matters, has been held consistently to be

vital, juxtaposed with the sign of acquiescence. To

the mix, we add that the State has supported the

factual circumstances concerning the appointment of

the appellant, his continuance in service as also the

Respondent No.5 having worked during the said period

in another school viz. the Sri Thakur Nigamananda High

School, Terundia. Notably, the Respondent No.5 does 19

not, from the record before us, appear to have

approached the authorities in the interregnum.

21. Profitably, we may reproduce relevant passages

from certain decisions of this Court:

(A) Union of India v Tarsem Singh, (2008) 8 SCC 648:

“To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved 20

issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.” (emphasis supplied)

(B) Union of India v N Murugesan, (2022) 2 SCC 25:

"Delay, laches and acquiescence

20. The principles governing delay, laches, and acquiescence are overlapping and interconnected on many occasions. However, they have their distinct characters and distinct elements. One can say that delay is the genus to which laches and acquiescence are species. Similarly, laches might be called a genus to a species by name acquiescence. However, there may be a case where acquiescence is involved, but not laches. These principles are common law principles, and perhaps one could identify that these principles find place in various statutes which restrict the period of limitation and create non- consideration of condonation in certain 21

circumstances. They are bound to be applied by way of practice requiring prudence of the court than of a strict application of law. The underlying principle governing these concepts would be one of estoppel. The question of prejudice is also an important issue to be taken note of by the court.

Laches

21. The word “laches” is derived from the French language meaning “remissness and slackness”. It thus involves unreasonable delay or negligence in pursuing a claim involving an equitable relief while causing prejudice to the other party. It is neglect on the part of a party to do an act which law requires while asserting a right, and therefore, must stand in the way of the party getting relief or remedy.

22. Two essential factors to be seen are the length of the delay and the nature of acts done during the interval. As stated, it would also involve acquiescence on the part of the party approaching the court apart from the change in position in the interregnum. Therefore, it would be unjustifiable for a Court of Equity to confer a remedy on a party who knocks its doors when his acts would indicate a waiver of such a right. By his conduct, he has put the other party in a particular position, and therefore, it would be unreasonable to facilitate a challenge before the 22

court. Thus, a man responsible for his conduct on equity is not expected to be allowed to avail a remedy.

23. A defence of laches can only be allowed when there is no statutory bar. The question as to whether there exists a clear case of laches on the part of a person seeking a remedy is one of fact and so also that of prejudice. The said principle may not have any application when the existence of fraud is pleaded and proved by the other side. To determine the difference between the concept of laches and acquiescence is that, in a case involving mere laches, the principle of estoppel would apply to all the defences that are available to a party. Therefore, a defendant can succeed on the various grounds raised by the plaintiff, while an issue concerned alone would be amenable to acquiescence. Acquiescence

24. We have already discussed the relationship between acquiescence on the one hand and delay and laches on the other.

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 23

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 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.” (emphasis supplied)

(C) Chairman, State Bank of India v M J James, (2022)

2 SCC 301:

"36. What is a reasonable time is not to be put in a straitjacket formula or judicially codified in the form of days, etc. as it depends upon the facts and circumstances of each case. A right not exercised for a long time is non- existent. Doctrine of delay and laches as well as acquiescence are applied to non-suit the litigants who approach the 24

court/appellate authorities belatedly without any justifiable explanation for bringing action after unreasonable delay. In the present case, challenge to the order of dismissal from service by way of appeal was after four years and five months, which is certainly highly belated and beyond justifiable time. Without satisfactory explanation justifying the delay, it is difficult to hold that the appeal was preferred within a reasonable time. Pertinently, the challenge was primarily on the ground that the respondent was not allowed to be represented by a representative of his choice. The respondent knew that even if he were to succeed on this ground, as has happened in the writ proceedings, fresh inquiry would not be prohibited as finality is not attached unless there is a legal or statutory bar, an aspect which has been also noticed in the impugned judgment.

This is highlighted to show the prejudice caused to the appellants by the delayed challenge. We would, subsequently, examine the question of acquiescence and its judicial effect in the context of the present case. xxx

38. In Ram Chand v. Union of India [Ram Chand v. Union of India, (1994) 1 SCC 44] and State of U.P. v. Manohar [State of U.P. v. Manohar, (2005) 2 SCC 126] this Court observed that if the 25

statutory authority has not performed its duty within a reasonable time, it cannot justify the same by taking the plea that the person who has been deprived of his rights has not approached the appropriate forum for relief. If a statutory authority does not pass any orders and thereby fails to comply with the statutory mandate within reasonable time, they normally should not be permitted to take the defence of laches and delay. If at all, in such cases, the delay furnishes a cause of action, which in some cases as elucidated in Union of India v. Tarsem Singh [Union of India v. Tarsem Singh, (2008) 8 SCC 648 : (2008) 2 SCC (L&S) 765] may be continuing cause of action.

The State being a virtuous litigant should meet the genuine claims and not deny them for want of action on their part. However, this general principle would not apply when, on consideration of the facts, the court concludes that the respondent had abandoned his rights, which may be either express or implied from his conduct. Abandonment implies intentional act to acknowledge, as has been held in para 6 of Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P. [Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P., (1979) 2 SCC 409 : 1979 SCC (Tax) 144] Applying this principle of acquiescence to the precept of delay and laches, this Court in U.P. 26

Jal Nigam v. Jaswant Singh [U.P. Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464 : (2007) 1 SCC (L&S) 500] after referring to several judgments, has accepted the following elucidation in Halsbury's Laws of England : (Jaswant Singh case [U.P. Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464 : (2007) 1 SCC (L&S) 500] , SCC pp. 470-71, paras 12-

13) “12. The statement of law has also been summarised in Halsbury's Laws of England, Para 911, p. 395 as follows:

‘In determining whether there has been such delay as to amount to laches, the chief points to be considered are:

(i) acquiescence on the claimant's part; and

(ii) any change of position that has occurred on the defendant's part.

Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay 27

are most material. Upon these considerations rests the doctrine of laches.’

13. In view of the statement of law as summarised above, the respondents are guilty since the respondents have acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious 28

financial repercussions on the financial management of the Nigam. Why should the court come to the rescue of such persons when they themselves are guilty of waiver and acquiescence?”

39. Before proceeding further, it is important to clarify distinction between “acquiescence” and “delay and laches”. Doctrine of acquiescence is an equitable doctrine which applies when a party having a right stands by and sees another dealing in a manner inconsistent with that right, while the act is in progress and after violation is completed, which conduct reflects his assent or accord. He cannot afterwards complain. [See Prabhakar v. Sericulture Deptt., (2015) 15 SCC 1 : (2016) 2 SCC (L&S) 149. Also, see Gobinda Ramanuj Das Mohanta v. Ram Charan Das, 1925 SCC OnLine Cal 30 : AIR 1925 Cal 1107] In literal sense, the term acquiescence means silent assent, tacit consent, concurrence, or acceptance, [See Vidyavathi Kapoor Trust v. CIT, 1991 SCC OnLine Kar 331 : (1992) 194 ITR 584] which denotes conduct that is evidence of an intention of a party to abandon an equitable right and also to denote conduct from which another party will be justified in inferring such an intention. [See Krishan Dev v. Ram Piari, 1964 SCC OnLine HP 5 : AIR 1964 HP 34] Acquiescence can be either direct with full knowledge and express 29

approbation, or indirect where a person having the right to set aside the action stands by and sees another dealing in a manner inconsistent with that right and in spite of the infringement takes no action mirroring acceptance. [See “Introduction”, U.N. Mitra, Tagore Law Lectures — Law of Limitation and Prescription, Vol. I, 14th Edn., 2016.] However, acquiescence will not apply if lapse of time is of no importance or consequence.

40. Laches unlike limitation is flexible. However, both limitation and laches destroy the remedy but not the right. Laches like acquiescence is based upon equitable considerations, but laches unlike acquiescence imports even simple passivity. On the other hand, acquiescence implies active assent and is based upon the rule of estoppel in pais. As a form of estoppel, it bars a party afterwards from complaining of the violation of the right. Even indirect acquiescence implies almost active consent, which is not to be inferred by mere silence or inaction which is involved in laches. Acquiescence in this manner is quite distinct from delay. Acquiescence virtually destroys the right of the person. [See Vidyavathi Kapoor Trust v. CIT, 1991 SCC OnLine Kar 331 : (1992) 194 ITR 584] Given the aforesaid legal position, inactive acquiescence on the part of the 30

respondent can be inferred till the filing of the appeal, and not for the period post filing of the appeal.

Nevertheless, this acquiescence being in the nature of estoppel bars the respondent from claiming violation of the right of fair representation.” (emphasis supplied)

22. For reasons aforesaid, the judgments of the High

Court as also the Tribunal deserve to be, and are

accordingly, set aside.

23. The appellant is held entitled to continuance on

the post of PET in the School, with service counted

from 14.05.1994. As a sequel thereto, all

consequential benefits, to be determined as per

records, shall flow.

24. The appeal stands allowed in the afore-mentioned

terms. No order as to costs.

25. However, for complete justice, we cannot leave

Respondent No.5 in the lurch, given the time taken by 31

the adjudicatory process. As such, in exercise of

power under Article 142 of the Constitution of India,

we direct the State of Odisha to grant a lump-sum of

INR 3 lakhs to Respondent No.5. Further, if any monies

were paid to Respondent No.5, the same shall also not

be recovered. This paragraph shall not constitute

precedent.

....................J. [VIKRAM NATH]

......................J. [AHSANUDDIN AMANULLAH]

NEW DELHI OCTOBER 11, 2023