Parshotam Lal vs State of Jammu and Kashmir

Counsel 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 Hiranager. 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 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 pen timers have become over age 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 petitioners were initially given appointment more than six years back. They have continued to work with the department. Now

they have become overage. 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 respondent authorities would not be within their rights to throw

them out at the 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 estopple would thus be attracted to the facts of this case. With regard to the

principle of estopple, it would be apt to refer to the decision of Madras High Court reported as Registrar University of Madras 309 and also to a

decision of Andhra Pradesh High Court reported as K. Jagannadhun versus District Collector Kurnool AIR 1966 Andhra Pradesh 59. In both the

cases, initially benefit was given. There was no remisnesson 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 estopple and granted the relief.

It be seen that in case registrar, University of Madras versus Sundara Shetti and others AIR 1955 Mad. 309, 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 o:

study, he was informed by the principle 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 Rejamannar 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 malafide

in embarking on a course of University study.

No 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 principle of the Thiagaraja College to forbear from preventing the petitioner to

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

This principle of equitable estoppel was made applicable by the Andhra Pradesh High Court in K. Jagarmadhan versus District Collector

Kurnool and another AIR 1966 AP 59, in this case petitioner was discharged on the ground that he was nut competent to appeal 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 Remacbandra Rao,

J in W.P No. 332 of 1957 (Andhra Pradesh). The facts of that case are very close to the facts of the 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 provision allyfor appointment as Lower Division Clerk in the Office of Director of Agriculture and Fisheries

Andhra. In pursuance of this, he was duly appointed was given training for three months from 5.7.1956 to4.10.1956 But in April 1957, the Public

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

examination, he did not 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 the time when the petitioner sent in his

application had also sent a certificate of marks obtained by him, which revealed that he had secured only 30 percent 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 hem from service.

These decisions do apply to the acts of the present case

Same view was expressed by Patha High Court in the case of Arya Kumar versus State of Bihar SLR 741 (sic).

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 or 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 quo the petitioner. The medical defect pointed out is not such which render 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.