JUDGMENT 1. - This writ petition involves question of great academic and constitutional importance as to whether an employee who was, though appointed on temporary basis for a short duration but his services were subsequently extended and regularised by the Department on completation of more than 240 days of service, whether-it will be just and proper to terminate the services of such an employee, who was subsequently regularised in service by the Department and thus having become a regular employee of the Nagar Parishad, whether the services of such an employee could be terminated subsequently at a much later stage on the ground that he was found lacking in requisite qualification and was also overage? Whether at one stage the employee was considered so efficient that he was transferred to City Transport Service in place of Junior Engineer, whether such a candidate can be non-suited by the appointing authority at a much later stage on the ground that the employee d eo s- not have the requisite qualifications for appointment on the post of Mechanic? Whether doctrine of waiver and promissory estoppel would not be attracted and made applicable to such type of cases?. 2. The facts giving rise to the filing of this writ petition, briefly stated, are that the petitioner was appointed as a Mechanic in the Nagar Parishad, Kota(respondent herein) on 9-11-74 for a period of 28 days and thereafter his services were extended from time to time by giving temporary breaks of every 28 days. 3. That prior to his appointment as a Mechanic with the respondent the petitioner had also worked on the post of Mechanic in Punjab Roadways and Bhakra Dam etc. and had gained sufficient experience as per the certificates issued by the concerned authorities vide Annex-1 and 2 respectively. 4. That subsequently the services of the petitioner were terminated by the respondent on 1st July,1976. Thereafter the petitioner challenged the termination before the Labour Commissioner but since the conciliation proceedings did not materialise the matter was referred to the State Government for reference to the Industrial Tribunal, Kota. 5. 4. That subsequently the services of the petitioner were terminated by the respondent on 1st July,1976. Thereafter the petitioner challenged the termination before the Labour Commissioner but since the conciliation proceedings did not materialise the matter was referred to the State Government for reference to the Industrial Tribunal, Kota. 5. That it has been further contended in the writ petition that in reply to the statement of claim filed by the petitioner before the learned Tribunal, the respondent took the plea that the services of the petitioner had to be terminated on the ground that he was found lacking in requisite technical and educational qualifications and he was also overage. 6. That the learned Tribunal after recording necessary evidence and after hearing both the parties passed an Award on 10th June,1981 whereby the retrenchment of the petitioner was set aside and the learned Tribunal directed that the petitioner be taken back in service with all back-wages and consequential benefits as admissible to him in accordance with the Rules vide Annex-3. 7. That in compliance of the directions given by the learned Tribunal, the respondent vide its order dated 30th November,1981 took the petitioner back on duty on the post of Mechanic vide Annexure-4. 8. That subsequently vide order dated 12th November, 1982 the Commissioner of the respondent transferred the petitioner to Garage Department in place of Junior Engineer since the petitioner was found fully conversant with Tractor repairs and was considered to be an experienced mechanic by the respondent vide Annexure-5 dated 12.4.82. By the impugned Award dated 23rd October, 1978 the learned Tribunal while directed reinstatement of the petitioner had also directed to initiate a Departmental Enquiry with regard to the age and educational qualifications of the petitioner after serving prior notice to the petitioner in accordance with the Rules. It has been further contended by the petitioner that the aforesaid directions of the Tribunal with regard to the Departmental Enquiry concerning the educational qualifications of the petitioner at the time of appointment as a Mechanic as well as in respect of age as on the date of appointment was not complied with by the respondent. The petitioner was thereafter simply asked to furnish the requisite certificates of age and qualification vide order dated 5th March,1982 and which direction was duly complied with by the petitioner by furnishing the requisite- certificates vide Annex-7 to 9 respectively. The petitioner was thereafter simply asked to furnish the requisite certificates of age and qualification vide order dated 5th March,1982 and which direction was duly complied with by the petitioner by furnishing the requisite- certificates vide Annex-7 to 9 respectively. Thereafter the petitioner heard nothing from the respondent till 2nd February,1989 when by the impugned order dated 2nd February,1989(Annex-10) the services of the petitioner were terminated by the respondent on the ground that since the petitioner did not possess the requisite educational qualifications as well as was overage as on the date of appointment, hence he was not eligible for appointment as a Mechanic and accordingly his services were terminated by the impugned order with a further direction that the petitioner shall be entitled to compensation in compliance with the requirement of Section 25-F of the Industrial Disputes Act, 1947(hereinafter to be referred as `the Act'). 9. It is in the above circumstances that the petitioner being aggrieved by the impugned order of termination dated 2nd February,1989 filed this writ petition challenging the impugned order of termination on the ground, inter-alia, that the petitioner was appointed as a Mechanic on regular basis vide order dated 30th September,1981 and hence his services could not be terminated by the respondents in manner as it has been done. It has been further urged on behalf of the petitioner in the grounds that since the petitioner was in regular Cadre/Service and was governed by Service Regulations, as applicable to the regular employees of the respondent, the services of the petitioner could not be terminated without due process of law. It has further been contended on behalf of the petitioner that he was neither issued any show-cause notice nor any charge-sheet containing allegations against the petitioner and no disciplinary enquiry was conducted against the petitioner as per the directions of the learned Tribunal and hence the impugned order of termination is violative of provisions of Article 311 of the Constitution and is not sustainable in law. It has been further contended on behalf of the petitioner that since the petitioner had not concealed anything from the appointing authority at the time of appointment and had furnished the requisite educational certificates as well as the date of birth certificate in proof of his age he cannot be non-suited after a gap of more than 16 years of regular service which he rendered to the respondent as on the date of the passing of the impugned order. 10. In the reply filed on behalf of the respondent, it has been contended chat since the petitioner has got alternative remedy under, the Act he should approach the Industrial Tribunal by raising an industrial dispute which he has not availed of and the petitioner has already been paid one month's wages in lieu of notice and compensation for retrenchment as per Section 25-F of the Act. 11. It has been further contended by the respondent that since disputed questions of fact about the qualification and age of the petitioner were involved which require appreciation of evidence, this writ petition is not maintainable and the proper remedy is by way of raising industrial dispute before the Labour Court. The respondents have further denied the regular appointment of the petitioner as Mechanic on permanent basis and have contended that the services of the petitioner were terminated in accordance with law and as per the provisions of the Act. The respondents have further contended that since the services of the petitioner stood terminated in the year 1976, therefore there was no question of submitting the certificate in the year 1977 which could not be taken into consideration at a later stage. 12. In support of his contentions advanced at the bar the learned counsel for the petitioner has placed reliance o the following decisions:- 1. Shiv Dass Khajuria v. State of J & K, reported in AIR 1959 J & K,13 . 2. M. K. Raghavan v. The Municipal Council, Jharsuguda and Another, reported in AIR 1973 Orissa,186 . 3. Turner Morrison and Co. Ltd. v. Hungerford Investment Trust Ltd., reported in AIR 1972 S.C. 1311 . 13. Shiv Dass Khajuria v. State of J & K, reported in AIR 1959 J & K,13 . 2. M. K. Raghavan v. The Municipal Council, Jharsuguda and Another, reported in AIR 1973 Orissa,186 . 3. Turner Morrison and Co. Ltd. v. Hungerford Investment Trust Ltd., reported in AIR 1972 S.C. 1311 . 13. In the matter of Shiv Dass Khajuria v. State of J. & K. (supra) the question which had arisen for consideration of the High Court was as to whether the order of discharge of an employee without giving opportunity of hearing or show-cause can be sustained and whether the impugned order would amount to violation of Article 311 of the Constitution of India.lt was held by the High Court that the order of discharge amounted to an order of dismissal and was without jurisdiction as it was passed in violation of the provisions of Section 126 of J and K. which gives a fundamental right to a Government servant that he cannot be dismissed, removed or reduced in rank without being given reasonable opportunity of showing cause against the proposed action to be taken against him. It was further held by the High Court that the plea that the petitioner's appointment was itself in violation because of his misrepresentation, cannot be sustained after the Department having chosen to appoint the petitioner he would certainly be clothed with all the rights and safeguards which the Constitution provides and these rights cannot be taken away merely by the fact that there was misrepresentation at the time of appointment since such matters are absolutely extraneous and irrelevant for the purpose of decision of the case. 14. In the matter of M.K. Raghavan v. The Municipal Council, Jharsuguda and Anr. (supra), the question which had arisen for consideration of the Division Bench of the Orissa High Court was as to whether the rule of estoppel as envisaged under Section 115 of the Evidence Act(1872) can in appropriate cases be viewed as, creating right by its operation? It was held by the High Court that in appropriate' cases rule of estoppel can be viewed as substantive rule of law creating or defeat in a right which would not exist or be taken away but for that doctrine." 15. It was held by the High Court that in appropriate' cases rule of estoppel can be viewed as substantive rule of law creating or defeat in a right which would not exist or be taken away but for that doctrine." 15. It was further held by the High Court that since the appointing authorit had admittedly accepted the candidature of the petitioner both regarding hit educational qualification at the time of his appointment and since the appointment was not conditional upon verification of the educational qualification, it was held that it must, therefore, be assumed that both at the time of appointment as also at the time of inspection, the respective opposite parties were satisfied that the petitioner was qualified for the post to which he was appointed. It was further held by the High Court that to allow the opposite party to take a contrary view would be prejudicial to the petitioner and that the petitioner has changed his position to such an extent that he cannot, later on, be subjected to the impugned situation which cannot relieve him of the consequences of the representation expressed in the action of the opposite parties. The High Court while placing reliance upon the judgment of the Apex Court reported in AIR 1960 SC 100 held that it is a settled law that an admission of the adversary, if not satisfactorily explained, is the best piece of evidence and goes a long way in establishing the claim. Estoppel and admission thus operate as a bar against the present stand of the opposite parties. Consequently the termination order was quashed by the High Court and the petitioner was directed to be reinstated in service. 16. In Anglo Afgan Agencies's case, reported in AIR 1968 SC 718 , the Apex Court applied the rule of estoppel for supporting the claim for a mandamus. In Century Spinning Mills' case, reported in AIR 1971 SC 1021 , the Apex Court held that law is not powerless to raise in appropriate cases an equity against the representing authority to compel performance of the obligation arising out of the repesentation. 17. In the matter of Turner Morrison and Co.Ltd. v. Hungerford Investment Trust Ltd. (supra), the question which had arisen before the Apex Court was regarding the distinction to 3 concepts, namely, estoppel, waiver and abandonment. 17. In the matter of Turner Morrison and Co.Ltd. v. Hungerford Investment Trust Ltd. (supra), the question which had arisen before the Apex Court was regarding the distinction to 3 concepts, namely, estoppel, waiver and abandonment. It was held by the Apex Court that the distinction between the aforesaid 3 concepts is fine but real. It was further held that estoppel is a rule of equity and it has gained new dimensions in recent years, and that a new class of estoppel i.e. promissory estoppel has come to be recognised by the Courts in India as well as in England. It was further held by the Apex Court as under:- "Where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relation between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the party who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relationship as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself so introduced, even though it is not supported in point of law by any consideration, but only by his word. But that principle does not create any cause of action which did not exist before, so that, where a promise is made which is not supported by any consideration, the promisee cannot bring an action on the basis of that promise." 18. In reply to contentions advanced by the learned counsel for the petitioner, learned counsel for the respondent has contended that since the petitioner was found lacking both in his educational and technical qualifications as also the age, the respondent was justified in terminating his services. In support of this contention learned counsel for the respondent has placed reliance upon the judgments of the Apex Court in the matter of Dr. Prit Singh v. S.K. Mangal and Others, reported in 1993 Supp(1) SCC, 714 and in the matter of Smt. Ravinder Sharma and another v. State of Punjab and others, reported in JT 1994 (6) S.C. 531 . 19. In the matter of Dr. Prit Singh v. S.K. Mangal and Others, reported in 1993 Supp(1) SCC, 714 and in the matter of Smt. Ravinder Sharma and another v. State of Punjab and others, reported in JT 1994 (6) S.C. 531 . 19. In the matter of Dr. Prit Singh(supra), the question which had arisen for consideration of the Apex Court was regarding the eligibility of a candidate at the time of appointment on the basis 'of the requisite qualifications as on the date of appointment. It was held by the Apex Court that if the person was not eligible for not possessing the requisite qualification on the date of appointment, he would not become eligible on subsequent amendments of the qualification requirement. 20. In the matter of Smt. Ravindra Sharma(supra), the question which had arisen for consideration of the Supreme Court was as to whether the appellant, who had not concealed her qualifications at the time of appointment but when the appellant was found lacking in the educational qualifications whether estoppel should be pleaded in such a situation and whether the services of the appellant in such a situation could be regularised of not ? It was held by the Apex Court that since the services of the appellant were not regularised by the Government and since the appointment was clearly against Regulation 7, the appointment was liable to be set aside. It was further held that it was for the appropriate authority to consider the regularisation of the candidate on merits with effect from the date of acquiring necessary qualifications as per Regulation 7 which the Government is at liberty to do so. It was further held that the estoppel cannot be pleaded against the Statute. 21. It was further held that it was for the appropriate authority to consider the regularisation of the candidate on merits with effect from the date of acquiring necessary qualifications as per Regulation 7 which the Government is at liberty to do so. It was further held that the estoppel cannot be pleaded against the Statute. 21. I have heard the learned counsel for the parties and examined the rival claims and contentions as well as the documents placed on the record and I am of the considered opinion that with due respect to the aforesaid judgments of the Apex Court, the ratio of the said decisions cited by the learned counsel for the respondents are neither attracted nor applicable to the facts of the present case in as much as the services of the petitioner already stood regularised as on the date of his termination and since the petitioner was a regular employee of the respondent having put in about 16 years of regular service with the respondent his services could not be terminated at such belated stage on the ground that he was found lacking in requisite educational qualifications and was overage as the same was within full knowledge of the respondents at the time of giving initial appointment to the petitioner which stood subsequently regularised. I am further of the considered opinion that since there was no concealment with regard to the educational qualifications as well as the age by the petitioner at the time of his initial appointment and further on the direction of the learned Tribunal no Departmental Enquiry was initiated by the respondent with regard to the age or educational qualification (sic).Consequently the impugned order of termination is ex-facie illegal and unwarranted and not sustainable in law. I am informed by the learned counsel that the petitioner was taken back on duty by the respondent vide order dated 30th September,1981 (Annex-4) and thereafter the petitioner was also given regular pay-scale of Mechanic vide order dated 4.2.82(Annex-6) and as on the date of the passing of the impugned order of termination the petitioner had rendered about 16 years of continuous service. 22. 22. I am thus of the considered opinion that it will be wholly improper and inequitable to relegate the petitioner to the position which existed prior to his appointment and the petitioner cannot be non-suited for the reason that he was found lacking in educational qualification or was overage since the respondents have by their own conduct, act and acquisence waived the said conditions by not only appointing the petitioner but also regularising his services at a later stage and hence they are bound by the principle of promissory estoppel from pleading to the contrary. I am further of the opinion that since the petitioner was not appointed conditionally upon verification of the educational qualifications, the ratio of the aforesaid decisions of the Apex Court cited by the learned counsel for the respondents are not attracted to the facts of the present case since the management of the respondent had raised no such dispute as per the findings recorded by the Tribunal and his appointment was held just and proper by the respondent itself. It was at a later stage while discrepency was detected on objection being raised by the Audit Party, which, in my opinion, is not tenable in the facts and circumstances of the case since the respondent has waived the said conditions by implication and by its own conduct. Clause (iii)- of Rule 12 of the Rajasthan Municipal(Subordinate and Ministerial Service) Rules,1963 provides that the upper age limit may be relaxed upto 10 years with prior written approval of the State Government in any exceptional case or in respect of posts requiring technical qualifications. In this case, admittedly the respondent had not sought prior approval of the State Government for relaxing the age of the petitioner since he was found overage i.e. 34 years as on the date of appointment i.e. 9.11.1974 against the requirement of maximum age of 28 years under the Rules of 1963. I am further of the considered opinion that the respondent had by its own conduct by allowing the petitioner to continue in service for a long period of time had waived the said condition by not seeking prior approval of the State Government before appointing the petitioner as required under the Rules of 1963. 23. I am further of the considered opinion that the respondent had by its own conduct by allowing the petitioner to continue in service for a long period of time had waived the said condition by not seeking prior approval of the State Government before appointing the petitioner as required under the Rules of 1963. 23. As a result of the above discussion, the writ petition is allowed and the impugned order dated 2nd February,1989 is quashed and set aside and the respondent is directed to take the petitioner back on duty on the post of Mechanic which he was holding prior to his termination with all consequential benefits as admissible to the petitioner from the date of his termination. This order should be complied with by the respondent within a period of 2 months from the date of filing a certified copy of this order by the petitioners. The parties are directed to bear their own costs.Writ Petition Allowed. *******