Sunder Singh Raghubans vs Embassy of India in Nepal and Another

R.S. Thakur, J.—This appeal u/s 10 of the Letters Patent has been directed against the order of the learned single Judge of this Court dated December 15, 1975, in Civil Writ Petition filed by the Appellant Sunder Singh Raghubans, under Articles 226/227 of the Constitution of India, (CWP No. 28 of 1974).

The case of the Appellant in the writ petition was that he retired as Havildar Clerk from the Army after full completion of his term in the year 1956. Immediately prior to his retirement he had served on the personal staff of the Military and Air Attache in the Indian Embassy in the Kingdom of Nepal from 1952 to 1955 during which period he was treated "as "India based official". On retirement, he was in his village Arla, District Solan, in the State of Himachal Pradesh when he received a telegram from the authorities of the Indian Embassy in Nepal seeking his consent whether he was willing to accept an assignment in the said Embassy on the post of Lower Division Clerk for a period of six months in the military branch in Nepal. The Appellant ex ssed his willingness to work as desired but at the same time also wrote a letter that the terms and conditions of his services may also be spelled out. Meanwhile, he received another telegram calling upon him to join his duties at Kathmandu in Nepal forthwith and in response, the Appellant joined the said post at Kathmandu in November 1958. The Appellant was initially posted as Lower Division Clerk for six months but was ultimately absorbed in a permanent post sanctioned in the Pension Paying Branch under the Indian Embassy at Nepal and upto the date of filing the writ petition he had held various posts, that is, Lower Division Clerk, at the time of first appointment on November 8, 1958 and thereafter Upper Division Clerk, Assistant and then Sub-Treasury Officer as is reflected by Annexure P-3 to the writ petition.

While serving in the new assignment the Appellant found that the terms and conditions of his appointment as also some of other persons similarly situate were not being spelled out by the competent authority. He, however, presumed that having regard to the administrative instructions issued by the President of India on October 6, 1959, (Ann. P-4), September 5, 1960 (Ann. P-5), as reiterated on December 20, 1960 (Ann. P-6), his case would be governed by them and as such he would be treated as "India-based official" but the Respondents failed for a long time to settle the case of the Appellant and others similarly situate or to extend the benefit of those directions aforesaid to him on the pretext that the matter was under consideration. Ultimately the Appellant made a representation to the Under Secretary, Government of India, Ministry of Defence (Pensions/Services), on March 11, 1971 (Ann. P-7) in this behalf which was strongly recommended by the competent authority and after reminders in this behalf, the Respondents in March 1973 informed the Appellant that the Government of India had not agreed to grant the Appellant the allowances as payable to "India-based employee" (Anns. P-10 and P-11). The Appellant then preferred an appeal against this order, (Ann. P-12) in April 1973, but the same was rejected in August 1973 (Ann. P-13) and hence the writ petition, whereby all these orders were challenged as illegal, arbitrary and volatile of his fundamental rights guaranteed by Articles 14 and 16 of the Constitution and prayed for their annulment and for declaration that he was "India-based employee" and eligible to that status since the year 1958 and as such entitled to all emoluments and service benefits from that year from the date of commencement of his service, that is November 8, 1958.

The Respondents in reply affidavit raised a preliminary objection challenging the jurisdiction of this Court to entertain the writ petition. On merits, it was admitted that the Appellant was employed as Lower Division Clerk through a telegram sent to him at his home address in District Solan and thereafter he has worked in various capacities like; Lower and Upper Division Clerk, Assistant and Sub-Treasury Officer. According to the Respondents the terms and conditions of service of the Appellant were at the time of the appointment governed by a letter of the Ministry of Defence, dated April 25, 1956 (Ann. RB) wherein any person employed by the Embassy authorities at Nepal were to be treated as ''locally recruited'' and not "India-based". It has been further clarified by the Respondents in the return that "India-based employee" would be treated as such only in case when he before proceeding to the foreign country was holding a post in India and was expected to return to a post in India at the end of the period of assignment abroad and they consisted of two categories, namely, (i) those recruited in India on scales payable to them at the place of their appointments and (ii) those who are transferred at Government cost for service in Indian employment abroad and all other officials are treated as ''local'' whether recruited in India or abroad. According to the Respondents since the Appellant was not recruited in India but in Nepal he could not be treated as "India-based official" and it was of no consequence if his terms and conditions of appointment were not settled at the time of his appointment as during the course of his employment he had become aware of the fact that his claim for "India-based status" may or may not be allowed. It was denied that the case of the Appellant was governed by the letter of September 5, and December 20, 1960 (Anns. P-5 and P-6 respectively) and that his appointment was governed only by the letter of April 25, 1956 (Ann. RB). It was further stated that in any case the letters of September 5 and December 20, 1960 (supra) were never acted upon and ultimately it was decided that those officials recruited in India should be treated as "local recruits" vide minutes of meetings held on August 17, 1972 (Ann. RF) which decision was conveyed to the authorities concerned on February 23, 1975 (Ann. RG).

The learned single Judge then vide the impugned judgment held that since the cause of action in favour of the Appellant arose, in part, at Solan, within the jurisdiction of this High Court, the Court had jurisdiction to entertain the writ petition. It was further held that this jurisdiction, however, was confined to his first appointment as Lower Division Clerk for a period of six months on temporary basis and not to the period thereafter when he was absorbed permanently and was even promoted to various other posts, as a result of sanctioning of the posts with effect from October 1, 1960 onwards and since those subsequent appointments were not encadered, the Appellant could not be said to be under his original appointment to the service but, on the contrary, he was appointed successively to specific posts and each appointment was a fresh appointment made subsequent to the initial posting in the State of Nepal and, therefore, the Court had no jurisdiction to adjudicate qua those appointments. In other words on the point of jurisdiction the learned single Judge held that the Court had jurisdiction to adjudicate only qua the first appointment of the Appellant, namely, that of Lower Division Clerk with effect from November 8, 1958 upto May 3, 1959 and not with regard to his subsequent appointments.

On merits, it was held that the Appellant was "India-based employee" from the date of his initial appointment on November 8, 1958 and remained so till May 3, 1959 and was entitled to pay and allowances as admissible to "India-based employee" but since there was nothing on record to show as to what were the emoluments payable to an "India-based employee" holding post of a Lower Division Clerk, for its initial period of six months, the Court was not in a position to grant the Appellant any relief even after holding him as "India-based employee" for this period and thus dismissed the writ petition with the following observations:

As regards the period from October 6, 1959, when the. Government of India letter was issued specifically providing for the terms of service of "India-based" employees, I would have been inclined to grant relief to the Petitioner if I had found that this Court had jurisdiction. While denying him relief because of want of jurisdiction, I think it appropriate to observe that the administrative authorities may consider whether the Petitioner should not be granted relief by them out of court without compelling him to judicial proceedings in an appropriate court of law.

During the pendency of this appeal, a C.M.P. No. 974 of 1976 was moved on behalf of the Appellant seeking permission of the Court to bring some subsequent facts on record. It was stated therein that the Appellant was relieved of his duties as Sub-Treasury Officer with effect from March 26, 1976, by the Respondents on false and frivolous grounds. The facts and circumstances leading to this relieving of the Appellant were that the Respondents wanted to induce the Appellant to opt in writing that he was willing to serve on the post in spite of the rescindation of SRO 399 of 1968 and SRO 196 of 1975, as a ''locally recruited staff'' which the Appellant declined on the ground that his writ petition was still pending in this Court whereby he had claimed the status of "India-based employee" and his refusal to this option was illegally, treated as resignation on the part of the Respondents although he had categorically brought to the notice of the authorities concerned telegraphically that he had not resigned from his post as Sub-Treasury Officer.

There are several documents tendered along with this application in support of this assertion which will be taken note of later on. This Court vide order dated June 15, 1976 called upon the Respondents to file reply to this application and observed that they will all be taken into consideration at the time of hearing of the appeal.

The Letters Patent Appeal was filed on March 1, 1976. On March 4, 1985 the Appellant moved an application (CMP No. 181 of 85) for amendment of the writ petition in view of the events which took place subsequent to the judgment impugned in this L.P.A. with a prayer that they be kept in view while granting relief(s) to the Appellant. For instance, when the Appellant refused to sign the option to be treated as ''locally recruited official'' and expressed his desire to proceed on leave, he was sanctioned eighteen days leave with effect from March 8, 1976 to March 25, 1976. After treating this refusal as his resignation while he was on leave at his native place in Solan district, he received a communication from the Indian Embassy in Nepal to the effect that his resignation from service had been accepted with effect from March 26, 1976. The Appellant then repudiated this decision by a telegram/phonogram dated March 23, 1976 but to no avail. He has, therefore, claimed that his relieving from the post of Sub-Treasury Officer with effect from March 26, 1976, be declared as void and of no effect and that he would be deemed to have continued in service in that capacity as "India-based employee" till the age of his superannuation at the age of 58 years on April 1, 1980.

In their counter affidavit on behalf of the Respondents to this amendment petition it was asserted that the subsequent events, as set out, have no relevance to the relief claimed by the Appellant since the main question to be determined in these proceedings is whether the Appellant was an "India-based employee" or an ''employee recruited locally'' in Nepal and has nothing to do with the termination of the service. It was, however, admitted that the Petitioner would have superannuated on April 1, 1980. It was also admitted that the Appellant was relieved of his services with effect from March 26, 1976 since the Appellant while proceeding on eighteen days terminal-leave had conceded that for all intents and purposes he resigned his post.

This Court then on July 8, 1985, ordered that the question of grant of amendment will be considered at the stage of final hearing of the L.P.A.

Before considering the different questions that would arise during the course of the disposal of this appeal, it would be proper to take note of some of the important documents on record of the case.

The first document is Annexure RB which even according to the Respondents governed the appointment of the Appellant at the time of his first appointment on November 8, 1958 which is dated April 25, 1956, whereby the sanction of the President of India with respect to the additional staff at the Indian Embassy in Nepal for arranging payment of pension at Pokhara was conveyed. Para-3 thereof is as under:

I am further to add that this staff will be recruited by the Indian Embassy in Nepal. The terms of service of such of them as are recruited locally--daftry and peons will necessarily be recruited locally--will be the same as are concurrently applicable to similar staff recruited locally by the Embassy. Those who are India-based will however be allowed pay on the following scale, and their other terms and conditions will be as for similar India-based civilians serving on the staff of the Embassy of India in Nepal:

(a) Sub-Treasury Officer Rs. 275-25-500

(b) Upper Division Clerks Rs. 80-5-120-EB-8-200-

10/2-220.

(c)Lower Division Clerks Rs. 65-3-85-EB-4-125-5-130.

Then the telegram (Ann. P-1) dated October 28, 1958, is from Indian Embassy at Nepal to the Appellant asking for his consent to the appointment as Lower Division Clerk in the said Embassy.

Annexure P-2 is another telegram dated November 1, 1958 from the same place to the Appellant which after referring to the letter of the Appellant dated October 29, 1958 asks the Appellant to report at Kathmandu immediately to accompany the Pokhara party.

Annexure P-4 is a copy of letter from the Government of India, Ministry of Defence, New Delhi, dated October 6, 1959, wherein reference has been given to the letter dated April 28, 1958 and has conveyed the sanction of the President of India for additional staff for payment of Gorkha Indian Military Pensioners in Nepal. Therein, regarding terms of service it has again been reiterated that those who are "India-based employee" will be allowed pay on the following scale(s) and their other terms and conditions will be as for similar India-based civilians serving on the staff of the Indian Embassy in Nepal. Then the grades of different categories of officials have been given.

Annexure P-5 is another such letter dated September 5, 1960, whereby the sanction of the President of India to the establishment of all the year round pension paying offices at Pokhara and Dhankutta with effect from October 1, 1960, was conveyed. Then the staff strength both for Pokhara and Dhankutta are separately given. There is an appendix to this letter which shows that the Class IV staff for these establish ments would be recruited locally by the Embassy. As regards Class-Ill staff, it was to be recruited locally as far as possible but if suitable hands were not available locally they were to be recruited from offices in India. As regards their terms of service those recruited from India were to be governed by the terms and conditions as laid down in the Ministry''s letter dated October 6 1959 (Ann. P-4). So far as Class III staff was concerned they were to be recruited from India or promoted from existing staff recruited from India, or deputed from, offices in India and their terms and conditions of service were to be governed by those enunciated, in the letter dated October 6, 1959 (supra) and the rates of pay were liable to be revised.

Annexure P-7 is the representation made by the Appellant to the Under Secretary to the Government of India, Ministry of Defence (Pension/Services), New Delhi, dated March 11, 1971 wherein he has stated that after serving on various posts he was promoted as Sub Treasury Officer, with effect from November 29, 1967, and has been holding this post till the date of this representation but, he has not been so far given emoluments admissible to "India-based employee" to which he is entitled right from the date he was appointed as ''Lower Division Clerk on November 8, 1958. This representation was covered by the Military and Air Attache under whom the Appellant was working vide his letter dated April 18, 1971 (Ann. P-8) wherein it had clearly been stated that the Appellant was recruited from India for pension payment work in Nepal in November 1958 but his case, as of some other persons, for being considered as "India-based" has been under consideration of the Government of India for almost eleven years which is an inordinate delay which had resulted in demoralisation amongst the affected persons thus affecting their efficiency in the discharge of their duties. In fact the last two sentences of the penultimate para of the letter deserve notice which is as follows:

In fact, these Indians are facing considerable hardship, if not humiliation, because they are being treated as ''local recruits'' in an alien country by their own government. This case was placed before the Charged'' affaires who has recorded his recommendation for a favorable consideration.

The Appellant vide a letter dated April, 1972 (Ann. P-9) again reminded the aforesaid Under Secretary when his representation dated March 11, 1971 remained undecided at his hands and it was thereafter that the Army Headquarters at Delhi informed the authorities at Kathmandu vide communication dated February 23, 1973 (Ann. P-11) that, "the Government have not agreed to the grant of India-based pay and allowances to the personnel recruited from INDIA for pension paying offices in NEPAL".

Vide Annexure P-12, dated April 1973, the Appellant then filed an appeal against this order of the Under Secretary to the Secretary, Government of India, Ministry of Defence, which runs into ten full scap closely typed pages setting out in detail how the Pension Paying establishment at Pokhara and Dhankutta in the interior part of Nepal came to be set up not only for payment of pension to the Gorkha Army personnel who had retired from Indian Army but also to look after their welfare and how he had been discharging his duties with all sincerity, devotion and punctuality but was being denied his emoluments which by right were due to him. This appeal, however, also had no better fate and was rejected with the words:

that the appeal submitted by Shri Section Section Raghubans, has been carefully examined in detail and since no new points have been brought in, the government of India regrets its inability to alter its decision already communicated vide letter No. 96964/AG/PS4(b), dated February 23, 1973." -(Ann. P-13).

Some other documents which have bearing to the period when the writ petition was pending and subsequent to the pronouncement of the impugned judgment therein, are as follows:

Vide notification No. 196 dated May 31, 1975 (Ann. PA-11) the recruitment rules for the civilian staff in Pension Payment Offices in Nepal, 1968 published in the notification No. SRO 399, dated December 16, 1968 were rescinded and this was intimated to the Officers-Incharge of Pension Paying Office at Pokhara and Dharan vide communication dated June 30, 1975, (Ann. PA-12).

Annexure PA-9 is the notification dated December 16, 1968, referred to above whereby the rules were made by the President of India under Article 309 of the Constitution regarding the modes of recruitment to the posts of civilians Head Clerk, Assistant, Upper Division Clerk and Lower Division Clerk etc. in the Pension Payment Offices in Nepal. Then the appendix thereto lays down the classification of these posts, their scales of pay and method, of recruitment.

After rescindation of the notification dated December 16, 1968 (Ann. PA-9) vide notification of May 19/31, 1975 (Ann. PA-11) the Respondents vide communication dated December 23, 1975 (Ann. PA-1) issued directions to the Officers-Incharge, Pension Payment Offices at Pokhara/Dharan that the locally recruited staff of Class III and Class IV serving at the said offices should fill in the forms to the effect that despite the rescindation of the notification of 1968 vide notification of 1975, the incumbent was willing (or not willing) to serve in the post he was holding at that time. The Appellant purports to have therein recorded on January 18, 1976 (Ann. PA-3) that in view of this rescindation he was not willing to serve at the post he was holding, namely, the Sub-Treasury Officer as his, writ was still pending. Thereafter the Appellant on January 25, 1976 (Ann. PA-4) again addressed a long letter to the authority concerned which reflects extreme disappointment of the Appellant as according to him despite the fact that he served most sincerely and devotionally at the office set up in the interior of Nepal for payment of pension to the Gorkha Army personnel retired from the Indian Army at Dhankutta, Dharan and Pokhara, the authorities have unjustifiably denied to him his rightful dues, that as he had declined to serve any further in view of the rescindation of the existing rules of recruitment and conditions of service vide notification dated December 16, 1968, he was apprehending that the authorities concerned would do away with his service at any time and that in such a contingency his claims! be settled and in the alternative his grievances on account of non-payment of his rightful dues may be reconsidered and may even be brought to the notice of His Excellency the Ambassador of India in Nepal.

24A. It appears that the authorities concerned treated this representation as his resignation and vide communication dated February 23, 1976 (Ann. PA-6) observed that "as Shri S.S Raghubans has expressed his unwillingness to continue in service and requested to be relieved, his resignation from service has been accepted with effect from March 25, 1976 (F.N.)." On this the office of the Military and Air Attache at New Delhi on March 12, 1976 (Ann. PA-7) passed the following order:

Resignation from service tendered by Shri S.S. Raghubans, Sub-Treasury Officer, Pension Paying Office, Dharan, has been accepted w.e.f. March 26, 1976 (F.N.).

He has been granted 18 days terminal leave from March 8, 1976 to March 25, 1976.

The Appellant, it appears was conveyed this order when he was on leave at his native place and on March 23,1976, he sent phonogram to the Indian Embassy at Kathmandu repudiating the acceptance of his purported resignation as follows:

MBO 12th March erroneous. My status India Based. Never resigned. Unwilling to opt local recruit.

(Ann. PA-8).

During the course of the arguments in this L.P.A. the learned Standing Counsel for the Respondents has brought it to the notice of the Court that there were four other persons who were similarly situate as the Appellant and whose claims as "India-based employee" were under consideration and they have been allowed this "India-based employee status" w.e.f. September 1, 1980, vide Ministry of Defence, notification No. 96964/AG/PS4 (b)/27/B/D (Pension/Services), dated January 7, 1982, but that since by that time the apellant had resigned from service, he could not be extended this benefit.

In view of the above facts and the circumstances on record, now the first question that arises for consideration of this Court is whether the documents which are sought to be placed on record on behalf of the Appellant vide C.M.P. (supra) should be allowed to come on the record and also whether the application for amendment, (C.M.P. No. 181 of 1985) to the writ petition should be allowed?

We are of the opinion that the reply to this poser should be in the affirmative. Admittedly during the pendency of this appeal after rescindation of the rules on December 16, 1968 (Ann. PA-9)(vide notification of 1975), the Respondents called upon the Appellant to opt to continue in service despite the rescindation of the rules to which he declined and also asserted that his appeal whereby he had claimed "India based employee status" was still pending, (although by that time the writ petition had been disposed of but it can be safely presumed that he did not know about it being far away in Nepal). Thereafter, he again represented to the Respondents to reconsider his claim and also set out as to what were the circumstances under which he declined to serve, that is to say, he was not ready to accept the position that he was a ''local recruit''. The Respondents, however, instead of reconsidering this representation, treated it as his resignation and ordered that he would stand retired from service with effect from March 26, 1976, although when this decision was conveyed to the Appellant, he repudiated it vide phonogram dated March 23, 1976, (Ann-PA8). Thus in these circumstances, the Appellant has a right to bring these subsequent events on record by means of these documents. In tact he has also sought the amendment of his writ petition in view of these subsequent developments and we are of the view that not only these documents should be allowed to come on the record of the case but also the amendment sought to be made by the Appellant should be allowed, which is necessary, in our opinion, to give just relief, if any, to the Appellant.

In the counter on behalf of the Respondents to the amendment petition of the Appellant, no serious objection has been taken to the amendment being allowed except that the issues which are sought to be raised by way of amendment, were not relevant to the question which was before this Court in the L.P.A., namely, whether the Appellant was "India based employee" or not We, however, feel that in case the Appellant is held to be "India-based employee", the issue raised in the amended petition would become of importance and relevance, namely, whether the Appellant was rightly treated by the Respondents as having resigned from his post and the resignation has become effective with effect from March 26, 1976 and if not, to what effect? We, therefore, not only allow the C.M.P. and order the placement of the documents submitted herewith on record but also allow the application of the Appellant to amend his writ petition, as desired.

From the narration of the foregoing facts and the circumstances it becomes evident that the Appellant had received this employment at the instance of the Respondents in the Pension Paying Office at Pokhara after he had retired from the regular civil service in the military as Havildar Clerk and immediately before his retirement in the year 1957, he had worked in the office of the Military Attache in the Embassy of Nepal as "India based employee". By the first telegram dated October 28, 1958 (Ann. P-1) the Appellant received a message to give his consent as to whether he was willing to serve in the said office and later on while he was still at his native place at Solan he was offered appointment with direction that he should immediately report for duty at the Indian Embassy at Nepal so that he could be deputed with the party to the Pension Paying Office at Pokhara. Thus we feel that the learned single Judge had correctly held that since the cause of action for the Appellant at least, in part, arose within the State of ''Himachal Pradesh, the High Court had jurisdiction to entertain his writ petition. In fact this position has not been challenged even before us.

We, therefore, hold that the learned single Judge has rightly decided that this Court was competent to entertain the writ petition.

Now comes most important question, namely, whether the Appellant at the time of his initial appointment was "India-based employee" and this status of his remained unchanged throughout the subsequent period he remained in the service of the Respondents? According to the learned single Judge, no doubt, as noticed earlier, the Appellant was initially appointed temporarily for a period of six months as Lower Division Clerk, with effect from November 8, 1958 and thus his status remained as "India-based employee" for a period of six months only, that is, till May 3, 1959 but since that appointment came to an end on the latter date which Was offered to him while he was within the territorial jurisdiction of this Court, this Court had jurisdiction to give the relief to the Appellant only for this period. His subsequent re-appointment, according to the learned single Judge, having taken place within the territory of Nepal subsequent to May 3, 1959, the Court was not competent to adjudicate with respect to the subsequent period for want of jurisdiction. We, however, feel, with great respect, that this view of the learned single Judge that the Court had no jurisdiction to entertain the claim of the Appellant with respect to the period from May 3, 1959 onward, was not proper. There is nothing on the record to show that the initial appointment of the Appellant was only for six months since the Respondents have not placed on record any appointment order in this behalf and thus, apart from the telegram whereby the consent of the Appellant was sought to the employment as L.D.C. for six months in Nepal temporarily, there is nothing to show that he was appointed initially only for six months. It can be safely presumed that when the Appellant reported for duty in the Indian Embassy of Nepal he must have been given an appointment letter specifying the duration of his posting but no such order is on the record nor are there any other such subsequent orders whereby his terms of officiation was extended. Rather the admitted facts reflected by Annexure P-3 are that the Appellant remained in continuous service without any break from November 1958 onwards. For instance from November 8, 1958 to May 3, 1959 he worked as LDC, then from May 4, 1959 to April 30, 1960 as UDC, then he again reverted and worked as LDC from May 1, 1960 to September 22, 1960; and then again he worked as UDC from September 23, 1960 to November 8, 1960; thereafter from November 9, 1960 to August 8, 1961 as Assistant and from August 9, 1961 to November 15, 1961 as Sub-Treasury Officer. Then he was again reverted and worked as Assistant from November 16, 1961 to June 30, 1962. From July 1, 1962 to August 31, 1962, he again worked as Sub-Treasury Officer. Then again he worked as Assistant from September 1, 1962 to October 31, 1962; from November 1, 1962 to February 28, 1963 as Sub-Treasury Officer; from March 1, 1963 to October 24, 1963 as Assistant; from October 25, 1963 to December 31, 1963 he worked as Sub-Treasury Officer; from January 1, 1964 to July 16, 1964 as Assistant; from July 17, 1964 to. August 9, 1964 he again worked as Sub-Treasury Officer; from August 10, 1964 to October 16, 1965, as Assistant; from October 17, 1965 to December 14, 1965 he worked as Sub-Treasury Officer; from December 15, 1965 to January 1, 1966 as Assistant; from January 2, 1966 to March 7, 1966 as Sub-Treasury Officer; from March 8, 1966 to February 7, 1967 as Assistant; from February 8, 1967 to April 23, 1967 as Sub-Treasury Officer; from April 24, 1967 to August 3, 1967 as Assistant, from August 4, 1967 to September 9, 1967 as Sub-Treasury Officer; from September 10, 1967 to November 28, 1967 he worked as Assistant and from November 29, 1967 onwards he worked as Sub-Treasury Officer continuously till March 26, 1976, the date of the acceptance of his purported resignation.

Thus in the face of these facts and circumstances, it cannot be said that his initial contract of service with the Respondents had at any time come to an end or there was any novation of this contract of service. Therefore, in bur opinion, the initial terms and conditions governing the service of the Appellant continued unchanged and without any break at any point of time and, this Court has jurisdiction to adjudicate qua the service of the Appellant in its entirety. In fact this has been at no stage the case of the Respondents that though initially he might be "India-based employee" for a period of six months'' but the subsequent appointment of the Appellant having taken place from time to time within the territory of Nepal, the Court had no jurisdiction to entertain the claim of the Appellant qua that period.

The case of the Respondents on the other hand simpliciter was that since he (the Appellant) was locally recruited by the Indian Embassy at Nepal, this Court had no jurisdiction to entertain the petition. The Respondents have not brought any documents on record whatsoever to show that any fresh appointment orders were issued in favour of the Appellant subsequent to May 3, 1959. In any case it would be highly unjust and inequitable to treat the initial appointment of the Appellant for six months in isolation with the rest of his period of service in face of document Annexure P-3 pointing to the contrary.

Now once it is held that the view of the learned single Judge that this Court had jurisdiction to adjudicate qua the service of the Appellant for the first six months of his employment only, was erroneous and the Court has jurisdiction to adjudicate qua his entire period of service, the remaining part of the question whether the status of the Appellant remained as "India-based employee" throughout his service career becomes quite easy of solution since even the learned single Judge has found that it can by no stretch of imagination be held that the Appellant was not an "India-based employee" during his period of service in the territory of Nepal consequent upon his appointment on November 8, 1958 by his recruitment in India as citizen and domicile of India.

The Respondents, it may be stated, have put very ingenious construction upon this phrase "India-based employee'', namely that only that person can be treated as "India-based" who was taken on its establishment at the time when he was in the regular establishment of the Indian Embassy in Nepal as "India-based employee,'' or who was recruited on any post in India and was then sent on deputation to serve this establishment in Nepal and who was expected to rejoin his post in India after completing his tenure of service over there, that is to say, who has been sent on deputation from any post in India to his establishment and that rest of the personnel whether recruited from India or from Nepal would be treated as ''local recruits''. We have no hesitation in holding that this construction on the part of the Respondents is not only arbitrary but ridiculous on the very face of it. To say that a man recruited for a post in Nepal from India who has his domicile in India at the time of his recruitment is ''local-recruit'' in Nepal, is contradiction in-terms since a person with a residence and domicile in India at the time of the recruitment cannot be said to be a locally recruited person in Nepal. In fact this construction on the part of the Respondents strongly militates against their own documents on record. Although the case of the Appellant is that his terms and conditions of service were governed by the directions contained in two letters, namely, those of October 6, 1959 (Ann. P-4) and September 5, 1960 (Ann. P-5) which have been taken note of earlier, but the Respondents have denied this and asserted that the service of the Appellant was governed by the terms contained in the letter dated April 25, 1956 (Ann. RB) to the writ petition. Although there is no reason why the plea of the Appellant in this behalf be not accepted, but, assuming that his service conditions were governed by the directions contained in the letter of April 25, 1956, even this, in no way, helps the Respondents. As already observed, in para-3 of this letter, it has been categorically stated that the staff will be recruited by the Indian Embassy in Nepal and out of them ''daftris and peons'' will necessarily be recruited locally and their service condition would be same as at that time applicable to similar staff recruited locally by the Embassy. However, those who were "India-based" were to be allowed pay on different scales which have been set out in the letter and it has further been made clear that their other terms and conditions will be as for similar "India-based" civilians serving on the staff of the Embassy of India in Nepal. Thus even if the terms and conditions of service of the Petitioner are governed by this letter since he was unquestionably an "India-based employee" he was not only entitled to the grades set out therein but also to other terms and conditions which governed similar India-based civilians serving on the staff of the Embassy. It may also be noted that even in the letter dated October 6, 1959 (Ann. P-4) the terms and conditions have remained the same. Then in the letter of September 5, 1960 (Ann. P-5) the conditions of service have been given in the appendix thereto. Therein the position in this behalf has been more specifically clarified. It has been stated therein that class IV staff would be locally recruited by the Embassy and their terms and conditions of service would be governed by the directions contained in the letter dated February 16, 1960. As regards class III, as far as possible, they were to be recruited locally but if suitable hands were not available they would be recruited from India or found existing staff or deputed from offices in India and those recruited from India would be governed by the terms and conditions as laid down in the letter of October 6, 1959 (under lining supplied).

Now pausing here for a moment, it has been clearly stated therein that as far as possible class III staff would be recruited locally but if suitable persons are not available they would be (a) recruited from India; or (b) found from existing staff; or (c) deputed from office in India. In this, the case of the Appellant would be governed by (a) as he was recruited from India at the time of his initial appointment and it runs contrary to the construction put by the Respondents on "India based employee", namely, that he should hold a post in India and should be expected to return to his post in India after completing his assignment in Nepal. In fact that situation is governed by (c) as he would be taken on deputation from his post in India.

This position, indeed, is further clarified in the provisions with regard to class II staff wherein it has been clearly laid down that; (a) they will be recruited from India or (b) promoted from the existing staff recruited from India or (c) deputed from any office in India. Even a cursory glance at this clause would clearly point out that the employment of ''locally recruited'' personnel in class II staff is categorically debarred thereunder and this staff has to be manned either by a person (i) recruited from India; or (ii) promoted from the existing staff recruited from India; or (iii) who has been called on deputation from any office in India. Obviously, the case of the Appellant falls within category (ii). It is clear from Annexure P-3 that the Appellant has been, officiating as Sub-Treasury Officer (Class II) from time to time since August 9, 1961 to September 9, 1967 and from November 29, 1967 he had been continuously holding this post till the year 1976. Obviously, he would not have been made to work on this post had he not been treated as "India-based employee", namely, promoted from (he exiling staff recruited from India. It is obvious that at that time the Respondents were treating the Appellant as "India-based employee" and that is why he was not only allowed to officiate as Class-II officer from time to time for a period of five years but was regularly appointed on that post on November 29, 1967 which post he held continuously for nine years.

It is also clear from the record that although the Appellant (and persons similarly situate) was all the time asserting that he was "India-based employee" and he should be paid the dues as such, right from the inception of his employment, but, the Respondents were sleeping over this matter for a number of years and when the Appellant through his justified representations forced this issue upon the Respondents they took a somersault after more than twelve years and started asserting that the Appellant was not entitled to the benefits as "India-based employee" since he was a ''local recruit''. This plea of the Respondents, however, being wholly arbitrary cannot be countenanced at this highly belated stage which flies on the face of the documents referred to above and which have emanated from the Respondents themselves from time to time.

In fact on the facts and in the circumstances of the case the bar of promissory estoppel falls on the way of the Respondents disentitling them to take up the plea that the Appellant was not "India-based employee" but a ''local recruit*. Admittedly, despite his (Appellant''s) letter calling upon the Respondents to settle his terms of employment remained un- responded and consequently no terms and conditions of his employment were settled at the time of his initial appointment. The Appellant, however, was not stranger to the consequences which flow from being treated as "India-based employee" and the circumstances under which a person is treated as such an employee as he had already served in such a capacity in the military wing of the India Embassy at. Nepal. Then in the presence of the directions contained in the communications of the Respondents dated October 6, 1959 (Annexure P-4) and September 5, 1960 (Ann. P-5) and also according to Annexure RB dated April 25, 1956, which even according to the Respondents governed the appointment of the Appellant, the Appellant, as has been observed in the earlier part of the judgment, was justified in assuming that he was "India-based employee" and was pressing for emoluments that he was entitled to thereunder as "India-based employee". The Respondents, however, slept over the matter for more than a decade under the plea that the matter was under consideration. Not only that but when the Appellant represented to the Respondents vide his communication dated March 11, 1971 (Ann. P-7) the same was forwarded by the Military and Air Attache in the Indian Embassy at Nepal vide his covering letter dated April 18, 1971 (Annexure P-8) wherein he had categorically brought to the notice of the Respondents not only that the Appellant was Indian national recruited from India for Pension Payment work in Nepal and was presumed to be "India-based employee" and the government has been sitting over the matter for eleven years which was resulting in inefficiency and demoralization, but has further stated that the Appellant and persons similarly situate were facing "considerable hardship if not humiliation because they were being treated as ''local recruits'' in the alien country by their own government and this case was being recommended even by the Charge-D'' affaires for favourable consideration". Admittedly," the Appellant was employed at the time of his initial appointment by the Indian Embassy at Nepal under the directions of Respondent No. 2 by Respondent No. 1 and the Respondent No. 1 apparently held out a promise to the Appellant and the other similarly situate employees that they would be treated ''India based employees" and indeed aforesaid directions clearly were capable of that construction and no other, and thus while strongly recommending their cases it was also impressed upon Respondent No. 2 that the matter be favorably decided at the earliest. Thus in this fact situation it is obvious that the Appellant was not only entitled to be treated as "India-based employee" under the aforesaid directions but was also being treated as such by the authorities throughout his service for a period of 18 years and the Respondents cannot now be allowed to plead that the Appellant was not an "India-based employee" but a ''local recruit''.

Their lordships of the Supreme Court in Gujarat State Financial Corporation Vs. Lotus Hotels Pvt. Ltd., had thrown out the appeal of the Appellant Corporation on this very plea of promissory estoppel. In that case the Respondent Company had entered into an agreement with the Appellant Corporation where by the latter had undertaken to disburse certain amount of loan to the Respondent Company on certain terms and conditions and after this contract was concluded between the two parties, the Respondent Company incurred certain liabilities towards the construction of a Four Star Hotel at Baroda and thereafter the Corporation went back upon its promise and refused to advance the loan to the Company. A plea, inter-alia, was raised before the Hon''ble Supreme Court that since the dispute interse the parties belonged to the realm of contract and that at the most it was a breach of contract on the part of the Appellant Corporation, the remedy where for by way of damages was some where else, the High Court of Gujarat was not competent to issue a writ of mandamus against the Corporation to perform its part of the contract. The Hon''ble Supreme Court while rejecting this plea held that when on the holding out of a promise by an authority, which is an instrumentality of the government, the other party under that assurance or promise puts itself in a disadvantageous position, the High Court even in its writ jurisdiction is justified in debarring that instrumentality of the government from going back upon its promise and issuing a writ of mandamus against it to fulfil its part of the promise, as the principle of promissory estoppel would certainly stop the Corporation (instrumentality of the government) from backing out of its obligation arising out of a solemn promise made by it to the Respondent. In that judgment para-8 of the earlier judgment of the Supreme Court in Motilal Padampat Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh and Others, was reproduced by their lordships enunciating the principle of promissory estoppel as follows:

The true principle of promissory estoppel, therefore, seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or affect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective of whether there is any pre-existing relationship between the parties or not.

Then in para 12 of the judgment their lordships have observed as follows:

Viewing the matter from a slightly different angle altogether, it would appear that the Appellant is acting in a very unreasonable manner. It is not in dispute that the Appellant is an instrumentality of the government and would be ''other authority'' under Article 12 of the Constitution. If it be so as held by this Court in R.D. Shetty v. International Airport Authority of India the rule inhibiting arbitrary action by the government would equally apply where such corporation dealing with the public whether by way of giving jobs or entering into contracts or otherwise and it cannot act arbitrarily and its action must be in conformity with some principle which meets the test of reason and relevance.

We feel that the observations of their lordships in this judgment are fully applicable to the case before us. Apparently Respondent No. 1 on the directions of Respondent No. 2 and as its agent, recruited the Appellant while he was at his native place in the State of Himachal Pradesh in retirement and thereafter despite the strong recommendation on behalf of Respondent No. 1 to treat the Appellant as "India-based employee", Respondent No. 2 sat over the matter for more than a decade on the plea that the matter is under consideration and then ultimately came out with its own interpretation of the rules and guidelines so as to deprive the Appellant of the benefits flowing from his being treated as "India-based employee" which interpretation on the part of Respondent No. 2 was highly arbitrary and not in conformity with the rules and guidelines so as to meet the test of reason and relevance which the Respondents cannot be allowed to do. In fact, as observed earlier, the Respondents have put construction of "India-based employee" in a manner which is bereft of all commonsense, reason or propriety and is entirely subjective and arbitrary. The Respondents have not denied the existence of the communications dated October 6,1959 (Ann. P-4) September 5, 1960 (Ann. P-5) and. the letter dated December 20, 1960 (Ann. P-6), wherein it was reiterated that with effect from September 1, 1960 civilians clerical supervisor staff at Headquarters of the Military Branch of the Embassy of India in Nepal who are Indian domicile and who have been recruited by the Embassy from India will be governed by the terms and conditions (including pay and allowances) laid down for "India-based staff" under their letter of October 6, 1959, (that is Annexure P-4) but their plea was that the directions contained in these documents were ''not implemented''. This, however, is obviously a plea of convenience and ''escapism'' and cannot be countenanced on the ground of promissory estoppel. We, therefore, hold that the Appellant has been an "India-based employee" right from the date of his first appointment and continued to be so throughout his service and is, therefore, entitled to all the emoluments and other service benefits flowing therefrom eversince his first appointment on November 8, 1958.

Now the next question comes whether the termination of the service of the Appellant with effect from March 26, 1975 is proper and binding upon the Appellant. We are of the opinion that answer to this is in the negative. It is clear that the Appellant had at no time tendered his resignation from the post of Sub-Treasury Officer which he was holding at the time of the impugned termination. The Appellant, in fact, had prior to this date, filed the instant writ petition claiming to be held as "India-based employee" with all the consequential benefits. It was perhaps this writ petition on the part of the Appellant which precipitated the issue and impelled the Respondent to act and act swiftly for the ouster of the Appellant from the service. As the documents on CMP No. 974 of 1976 filed during the pendency of the appeal would show, the Respondents vide notification dated May 31, 1975 (Ann. PA-11) rescinded the recruitment rules for the civilian staff in Pension Payment Offices in Nepal, 1968, published vide notification, Government of India, Ministry of Defence SRO 399 dated December 16, 1968, and then forced the Appellant to sign a proforma on the dotted lines (Ann. PA-2) that despite the rescindation of those rules, the Appellant was willing to serve in the present post as ''local recruit''. The Appellant, however, admittedly declined to do so and intimated on January 18, 1976 (Ann. PA-3) that he was not willing to serve in such circumstances and that his writ was still pending in the High Court. Thereafter the Appellant filed his representation dated January 25, 1976 (Ann. PA-4) and appealed to the Respondents to reconsider the matter and treat him as "India-based employee" but this also fell on deaf ears and the Respondents while treating this representation of the Appellant as resignation directed that his resignation would be effective with effect from March 26, 1976 (FN). In these circumstances we feel that this was no resignation on the part of the Appellant. If at all it was a conditional resignation made under protest. It may, however, be noted that this action on the part of the Respondents to make him sign the proforma that despite rescindation of existing rules he was or was not willing to serve on the post he was holding, was illegal and improper since the letter containing these proformas dated December 23, 1975 (Ann. PA-1) clearly shows that these forms were to be signed by the ''locally recruited staff'' and that too by the ''class III and class IV staff'' serving in the Pension Payment Office (Establishment). The Appellant obviously was at that time holding the class II post of Sub-Treasury Officer and could not have been forced to sign such a proforma. Then again if the Appellant refused to serve the Respondents on the conditions that he was ''local recruit'' he was justified in doing so and the Respondents had no right whatsoever to force him to accept such unreasonable and arbitrary terms setforth by the Respondents and in these circumstances it was improper on the part of the Respondents to relieve the Appellant from his post with effect from March 26, 1976. The legal consequences thereof would be that the Respondents illegally and improperly debarred the Appellant from performing his duties as Sub-Treasury Officer and as such he shall be deemed to have continued to hold his post as Sub-Treasury Officer even subsequent to March 26, 1976 till the date of his superannuation that is April 1,1980 and is entitled to all the consequential service benefits, that is to say, emoluments by way of salary and other benefits and pensionary benefits.

It may also be noted that the order, that the Appellant would be deemed to have resigned with effect from March 25, (sic) 1976, is dated February 23, 1976 (Ann. PA-6) in the said CMP which was subsequently conveyed to the Appellant when he was on leave at his native place in the State of Himachal Pradesh on March 12, 1976. The Appellant thereafter on March 23, 1976 repudiated this through a phonogram No. 3731, and asserted that he never resigned from his post and claimed that his status was "India-based". Thus even if there was any resignation on the part of the Appellant it was to be effective only on March 26, 1967 (sic) whereas he is deemed to have withdrawn it on March 23, 1976 and as such the resignation cannot be said to have become effective on March 26, 1976. See : 1978 (1) SLR 521, Satish Chandra v. Shri Gopal Chandra Misra and Ors.

Hyman Rickover was only too right when he said "if you must sin, sin against God, not against the bureaucracy, God may forgive you, but the bureaucracy never will". The case in hand is a glaring example proving this observation. Here is a man who after his retirement from the Military as Havildar Clerk is recruited on emergency basis while he was in his native place in this State and sent to an interior part of Nepal in the Pension Payment Establishment newly created not only to pay pensions to the Gorkha Military Personnel who had retired from the India Army but also to look after their welfare. He did this job with sincerity and devotion at different places like Pokhara, Dhankutta and Dharan for eighteen years and all these years he has been running from pillar to post crying for justice, that is, to give him his legitimate dues as spelt out by the directions emanating from the Respondents themselves, but the bureaucrats at Delhi kept his case in their cold storage for move than a decade and when the Appellant protested against this bureaucratic strangle hold round his neck which is apparent from his Representation to the Secretary, Government of India of April 1973 (Ann. P-12), pouring his heart regarding the excesses and humiliations he was being subjected to, the bureaucrats, instead of showing even a grain of mercy where in fact it was required in pounds--adopted an attitude of total hostility towards him and thereafter, all of a sudden, became over active to even chase him out of his office.

The Respondents have placed on record a letter dated January 7, 1986 wherein the previous stand qua the Appellant has been maintained. In para-3 thereof, however, it has been stated that the Government of India had decided to give "India-based status" to persons situate as the Appellant with effect from December (sic) 1, 1980 (as per the letter from the Under Secretary to the Government of India, addressed to the Chief of the Army Staff, dated January 7,1982 the prescribed date is September 1, 1980) but that since the Appellant had resigned in March 20 (sic) 1976, he could not be granted "India based status". This is some consolation that at last it dawned upon the Respondents to right a long standing wrong but it appears to be a poor consolation to those who were in situation similar to that of the Appellant as regards the length of service. In any case, it is apparent that even if the Appellant had not been terminated in 1976, he would not have been benefited by this act of magnanimity and condescention on the part of the Respondents since he would have superannuated on April 1, 1980.

In view of the above discussion, the appeal is accepted, the order of the learned single Judge dated December 15, 1975, is set aside, the writ petition is accepted and it is held and declared that the Petitioner has been an "India-based employee" in the service of the Respondents from November 8, 1958 till his superannuation on April 1, 1980 on different posts and was entitled to salary and other allowances for all this period as "India-based employee" along with the retiral benefits like pension and death-cum-retirement gratuity and the communications (Ann. PA-6 and Ann. PA-7) dated February 23, and March 12, 1976, respectively are quashed. A writ shall now issue to Respondents to work out and pay all these monetary benefits to the Appellant within a period of nine months from the date of this judgment. The Respondents shall also pay the costs of this writ petition which is quantified at Rs. 500/-.