2023 INSC 902 1

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

AHSANUDDIN AMANULLAH, J.

Heard learned counsel for the parties.

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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 from

1

01.01.2004, has been

dismissed.

1

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

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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

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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.

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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

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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 reco gnition 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.

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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

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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 reco gnition 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

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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