Parshotam Lal vs State of Jammu and Kashmir

T.S. Doabia, J.

Counsels heard.

With the consent of the parties, the petition is taken up for final disposal.

Petitioners were given appointment on daily wages basis as Warders. They were to work with the Superintendent District Jail Kathua and Sub Jail

Hiranagar. They have continued to work for almost six years. When their claims for regularisation were being considered, they were not

regularised on the ground that they were not medically fit.

The medical unfitness which is attributed to them is that they stammer. The petitioners are present in the Court. They were questioned. They were

quick in their responses. They, however, do stammer a little bit.

I am of the opinion that the petitioners are entitled to the same treatment as was given to other employees and more particularly, the employees

whose names are mentioned in paragraph 9 of the writ petition. According to the petitioners, there was some medical unfitness in the case of above

persons also.

It is further submitted that the petitioners have become overage and, therefore, at this belated stage, to throw them out of service would operate

harshly.

I am of the opinion that there is merit in the contention of the learned counsel for the petitioner.

It be seen that the petitioner were initially given appointment more than six years back. They have continued to work with the department. Now

they have become over age. It was incumbent upon the authorities to decline initial appointment on the ground that they were medically unfit.

Having not done that and having retained them in service for almost six years, the respondentauthorities would not be within their rights to throw

them out at this stage. This is more so, when there was no concealment of any fact on the part of the petitioners. The authorities knew about the

physical disability of the petitioners. The principles of equitable estoppel would thus be attracted to the facts of this case. With regard to the

principle of estoppel, it would be apt to refer to the decision of Madras High Court reported as Registrar, University of Madras v. Sundara Shetti

and others, AIR 1956 Madras 309 and also to a decision of Andhra Pradesh High Court reported as K. Jagannadham v. District Collector,

Kurnool, AIR 1966 Andhra Pradesh 59. In both the cases, initially benefit was given. There was no remissness on the part of the persons who

were given the benefits. They had not concealed anything from the authorities. Under these circumstances, the Madras High Court as well as

Andhra Pradesh High Court relied upon the principles of equitable estoppel and granted the relief.

It be seen that in the case of Registrar, University of Madras v. Sundara Shetti and others (supra), the petitioner appeared for Secondary School

Leaving Certificate Examination held by Government of Madras in March 1952. Certificate was given by the University that he is eligible for

admission to the University course of studies. He got admission in Madras University. While he was so undergoing his course of study, he was

informed by the Principal of the College that his admission is liable to be cancelled as his name was not found mentioned in the list of candidates

eligible for University course of study. This was challenged in the High Court. While dealing with this aspect of the matter Rajamannar, CJ.

observed :

It was not suggested by the University that the petitioner in this case knew that he had not been declared eligible and that his action was mala fide

in embarking on a course of University study.

Nor was it suggested that he had procured endorsement of eligibility by fraud or improper means. In these circumstances, we consider that a

mandamus should issue both to the University of Madras and to the Principal of the Thiagaraja College to forbear from preventing the petitioner to

complete his intermediate course and appear for the intermediate examination in the due course.

This principle of equitable estoppel was made applicable by the Andhra Pradesh High Court in K. Jagannadhan v. District Collector Kurnool

(supra). In this case petitioner was discharged on the ground that he was not competent to appear for competitive examination. There was no

concealment of facts on the part of the petitioner. The order of Government cancelling the appointment of the petitioner was quashed. The learned

Single Judge placed reliance on an unreported Division Bench decision of that Court in writ petition No. 332/57. This was noticed in para 9 and

reads as under :

A more direct decision was rendered on 9.12.1960 by a Division Bench of this Court composed of Chandra Reddy, CJ. and Ramachandra Rao,

J. in W.P. No. 3432 of 1957 (Andhra Pradesh). The facts of that case are very close to the facts of the present case. The petitioner applied to the

Service Commission for permission to sit for a competitive examination and it was granted. He passed the examination. Some time later, he was

informed that he was selected provisionally for appointment as Lower Division Clerk in the Office of Director of Agriculture and Fisheries Andhra.

In pursuance of this, he was duly appointed and was given training for three months from 5.7.1956 to 4.10.1956. But in April 1957, the Public

Service Commission sent a memorandum to him that he should have obtained 35 per cent of marks in the optional subject in his H.S.C.

examination for admission to the Ministerial Service Examination held by them and that as he had secured only 30 per cent in the optional subject

in H.S.C. examination, he did nor possess the minimum general educational qualification and that he was therefore, not eligible ""for appointment as

a clerk by direct recruitment"" and his provisional selection as a clerk was consequently cancelled. This order was impugned in a writ petition filed

under Article 226. The Division Bench allowed this writ petition and quashed the aforesaid order passed by the Public Service Commission. The

learned Chief Justice stated :

We do not think that this order can be allowed to stand. There can be little doubt that at the time when the petitioner sent in his application he had

also sent a certificate of marks obtained by him, which revealed that he had secured only 30 per cent in the optional subject. Notwithstanding this,

the petitioner was permitted to sit for the competitive examination and he was declared to have passed the test and it was only when he came out

successful in the examination that he was appointed as a clerk to serve in Department of Agriculture. Thereafter, he was working for a number of

months in different places in Andhra Pradesh in that department. That being the position, it is not open to the Public Service Commission to cancel

his selection and remove him from service.

These decisions do apply to the facts of the present case.

Same view was expressed by Patna High Court in the case of Arya Kumar v. State of Bihar, 1973(1) SLR 744

I am of the opinion that the principles of equitable estoppel would operate in facts and circumstances of this case. The petitioners have remained in

service on daily wage basis for a period of more than six years. To throw them out now at this stage when they have become overage would

operate harshly qua the petitioner. The medical defect pointed out is not such which renders them unfit for performing the duties physically. This is

more so when they have already served the department for six years without any complaint.

This petition is accordingly allowed. The petitioners would be entitled to regularisation and they would not be declared unfit merely on the medical

unfitness noticed above.

Disposed of accordingly.