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2001 DIGILAW 237 (RAJ)

R. K. Vyas v. M. D. S. University Ajmer

2001-02-12

B.S.CHAUHAN

body2001
Honble CHAUHAN, J.–The instant writ petition has been filed for quashing the impugned notice dt.12.1.2001 (Annx. 7), by which petitioner has been asked to show cause as why his appointment as Registrar of the University, vide order dated 27.2.99 (Annx. 5), be not revoked and further to declare that the said appointment order dated 27.2.99 (Annx. 5) is valid and the respondents be directed to treat the petitioner as confirmed after deleting Clauses (1) and (2) contained in the appointment letter. (2). The facts and circumstances giving rise to this case are that the respondent University had issued an advertisement on 5.3.98 (Ann. 3) for the sole post of Registrar. A large number of candidates applied in pursuance of the same but only ten of them, including the petitioner, were called for interview. The Selection Committee, headed by the learned Vice Chancellor- respondent No.2, met on 6.11.98 and after assessing the eligibility and suitability of said candidates prepared a select list wherein the name of one Mr. Raj Kishore Sharma was recommended. The Selection Committee also included the name of the petitioner in the reserve list. The recommendations of the Committee were placed before the Board of Management of the University (hereinafter called ``the Board) on 9.11.98 and it approved the appointment of Mr. Raj Kishore Sharma as the Registrar, who joined and retired on 28.2.99. The Vice Chancellor, vide letter dated 27.2.99 (Annx. 5) appointed the petitioner as the Registrar on temporary basis till further orders, subject to confirmation of the Board and petitioner joined therein. Subsequently, case of the petitioner was placed before the Board for approval but it is still pending as it has neither been approved nor disapproved. However, vide order dated 11.8.2000, the Board appointed a Three Members Committee to investigate whether petitioner was qualified for the post of the Registrar; whether there has been some change in the eligibility prior to filling up the post; whether his appointment could have been made from the reserve list; and whether the Board, at the time of approval of the selection, also approved any reserve list? The enquiry on these issues is still pending. However, there has been some communications with the Chancellor of the Universities, viz. His Excellency the Governor, wherein certain orders were passed in respect of appointment of the petitioner as the Registrar. The enquiry on these issues is still pending. However, there has been some communications with the Chancellor of the Universities, viz. His Excellency the Governor, wherein certain orders were passed in respect of appointment of the petitioner as the Registrar. In pursuance of the same, the respondent No.2, issued impugned notice dated 12.1.2001 (Annx. 7) that as the appointment of the petitioner was prima facie illegal, why his services be not terminated. Petitioner submitted the reply to the impugned notice on 16.1.2001, but without waiting any final order thereon, he has approached this Court. (3). Respondents have filed reply, through Mr. R.N. Mathur, learned Additional Advocate General, only to the stay application, but at the time of hearing for admission, learned counsel for the parties suggested that the matter be disposed of finally treating the reply to the application for interim relief as the reply to the main petition also. The matter was, thus, heard finally. (4). Mr. Mathur has raised the preliminary objection regarding maintainability of the writ petition against the show cause notice by submitting that the petition is not only premature but it is also not maintainable as the show cause notice cannot be challenged in the writ jurisdiction. Mr. Prem Asopa, learned counsel for the petitioner has submitted that the petition is maintainable as the impugned show cause notice has been issued without authority of law and the Authority ought to have waited for the report of the Committee appointed by the Board. (5). It is settled legal proposition that a show cause notice cannot be challenged in the writ jurisdiction unless the authority, which has issued it, is found to be having no jurisdiction in the matter, as held by the Constitution Bench of the Honble Supreme Court in Calcutta Discount Co. Ltd. vs. Income Tax Officer (1), wherein the Court observed as under:- ``It is well settled, however, that though the writ of prohibition or certiorari will not be issued against an executive authority, the High Courts have power to issue, in a fit case, an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority, acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Court, it is well settled, will issue appropriate orders or directions to prevent such consequences. (6). Where such action of an executive authority, acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Court, it is well settled, will issue appropriate orders or directions to prevent such consequences. (6). A similar view has subsequently been reiterated by the Honble Apex Court in M.P. Industries Ltd. vs. Income Tax Officer & Ors., (2), State of Madras vs. Madurai Mills Co. Ltd. (3), M/s. S.B. Gurbaksh Singh vs. Union of India & Ors. (4), Titaghur Paper Mills Co. Ltd. vs. State of Orissa (5), Chief of Army Staff & Ors. vs. Maj. Dharam Pal Kukrety (6), Union of India vs. Brij Fertilizers (P) Ltd. (7), Union of India & Ors. vs. Upendra Singh (8), Ex. En. Bihar State Housing Board vs. Ramesh Kumar Singh (9), Union of India vs. Metal Bus Co. of India Ltd. (10) and Whirlpool Corporation vs. Registrar of Trade Marks & Ors. (11): (7). While dealing with a similar issue in State of U.P. vs. Brahm Datt Sharma & Anr. (12), the Honble Supreme Court observed as under:- ``When a show cause notice is issued to a Government servant under the statutory provision seeking upon him to show cause, ordinarily the Government servant must place his case before the Authority concerned by showing cause and the Court should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued pulpably without any authority of law. An order violating fundamental principles of law and causing substantial injustice to a party may also be examined in a writ jurisdiction. (8). Thus, in view of the above, there can be no dispute to the settled legal proposition that if an authority purports to take any action which is prima facie shown to be null and void and devoid of any jurisdiction, the show cause notice can also be challenged in writ jurisdiction and the proceedings can be quashed even at the stage of show cause notice. Moreso, when it is found by the Court that the show cause notice is flagrantly unjust, it may not allow the technical objections to stand in the way of granting the equitable relief. (9). Mr. Moreso, when it is found by the Court that the show cause notice is flagrantly unjust, it may not allow the technical objections to stand in the way of granting the equitable relief. (9). Mr. Asopa has submitted that the show cause notice has to be examined by this Court in the writ jurisdiction as the same is without jurisdiction and the learned Vice Chancellor is bound to give effect to the decision taken by the Board under Statute I (Clause 13(b), which had appointed a Committee vide resolution dated 14.7.2000 and the petitioner cannot be removed unless the Board takes a decision on the report of the Committee or passes an order otherwise. (10). As per proviso (2) to Sub-section (4) of Section 19 of the University of Ajmer Act, 1987 (hereinafter called ``the Act, 1987), the Vice Chancellor is competent to take such a step only in case the action so reported is not approved by the Board. The said provision reads as under:- ``The Vice Chancellor shall, where immediate action is called for, have power to make an order so as to exercise any power or perform any function which is exercised or performed by any Authority under this Act or the Statutes. Provided that such action shall be reported to the Authority as would have in the ordinary course dealt with the matter for approval. Provided further that if the action so reported is not approved by the said Authority, not being the Board of Management, the matter shall be informed and in case the Authority being the Board of Management, the matter shall be referred to the Chancellor, whose decision shall be final. (11). It has been submitted by Mr. Asopa that the aforesaid provisions of Section 19 enables the Vice Chancellor to make a reference to the Chancellor only and only in case the matter is not approved by the Board. In the instant case, the matter has been referred to the learned Chancellor, His Excellency the Governor, when the matter is seized by the Board. It has neither been approved nor disapproved, rather the Board appointed a Committee to examine the correctness/ genuineness of the appointment of the petitioner. In support of the submissions, Mr. In the instant case, the matter has been referred to the learned Chancellor, His Excellency the Governor, when the matter is seized by the Board. It has neither been approved nor disapproved, rather the Board appointed a Committee to examine the correctness/ genuineness of the appointment of the petitioner. In support of the submissions, Mr. Asopa has placed reliance upon a Full Bench judgment of the Allahabad High Court in Shakir Hussain vs. Chandoo Lal & Ors., (13), wherein it has been held that an order seeking approval should be held good until disapproved. As the matter is still pending before the Board, it has to be held to be good until disapproved after receiving the report of the Committee or otherwise. (12). Moreso, Sub-section (5) of Section 19 of the Act, 1987 empowers the Vice Chancellor, on being satisfied that any action taken or order made by any authority, is not in the interest of the University or beyond the powers of such Authority, he may require the Authority to review its order and in case the Board refuses or fails to review its action or order within sixty days of the date on which the Vice Chancellor has so required, the matter may be referred to the Chancellor for final decision. The learned Vice Chancellor has not asked the Board to review its action or the order regarding examination of genuineness of appointment of the petitioner, thus, making reference to the learned Chancellor was unwarranted. (13). In Chandra Kishore Jha vs. Mahavir Prasad & Ors., (14), Haresh Dayaram Thakur vs. State of Maharashtra & Ors. (15) and Delhi Administration vs. Gurdip Singh Uban & Ors. (16), the Apex Court held that where a statute prescribes a procedure for doing something, the said procedure requires strict adherence. (14). In has been hither to uncontroverted legal position that where a statute requires to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods or mode of performance are impliedly and necessarily forbidden. (14). In has been hither to uncontroverted legal position that where a statute requires to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods or mode of performance are impliedly and necessarily forbidden. (Vide Taylor vs. Taylor (17), Nazir Ahmad vs. King Emperor (18), Rao Shiv Bahadur Singh vs. State of Vindh- Pradesh (19), Deep Chand vs. State of Rajasthan (20), Patna Improvement Trust vs. Lakshmi Devi (21), State of U.P. vs. Singhara Singh (22), Chandra Mohan vs. State of U.P. (23), Nike Ram vs. State of H.P. (24), Ramchandra Keshav Adke vs. Govind Joti Chavare (25), Chettiam Veettil Ahmad vs. Taluk Land Board (26), State of Bihar vs. J.A.C. Saldanna (27), A.K. Roy vs. State of Punjab (28), K. Prasad vs. Union of India (29), State of Mizoram vs. Biakchhawana (30), and J.N. Ganatra vs. Morvi Municipality Morvi (31). (15). The inherent executive power cannot be exercised in the matters covered by rules in a manner inconsistent with the statutory rule, (Vide Sant Ram Sharma vs. State of Rajasthan & Ors. (32). (16). Therefore, action taken by the learned Vice Chancellor referring the matter to the Chancellor cannot be held to be in consonance with the statutory requirement. (17). Mr. Mathur has submitted that only one post had been advertised, the same stood exhausted after making the appointment of Mr. Raj Kishore Sharma and as the reserve list had never been approved by the Board, petitioner had wrongly been appointed and the same requires to be rectified. Mr. Asopa has submitted that the Selection Committee headed by the learned Vice Chancellor, vide its Resolution dated 6.11.98 (Schedule-A), had recommended the name of Raj Kishore Sharma and it also recommended the name of the petitioner in the reserve list. Schedule-A provides that the said reserve list has also been approved by the Board in its meeting dated 9.11.98; however the photo copy of the proceedings of the Board have been filed by the respondents and there is nothing therein to show that the reserve list-also stood duly approved by the Board. Schedule-A mainly contains the signature of the Vice Chancellor after stating that the reserve list was also placed before the Board and stood approved. But had it been so, it could have been signed by the Members of the Board. Schedule-A mainly contains the signature of the Vice Chancellor after stating that the reserve list was also placed before the Board and stood approved. But had it been so, it could have been signed by the Members of the Board. The said proceedings merely referred to appointment of Mr. Raj Kishore Sharma as Registrar and the name of the petitioner or anybody else did not figure therein at all. Thus, there is nothing in the resolution of the Board to show that the reserve list was also approved by the Board. (18). The Rajasthan University (Teachers and Officers Selection for Appointment) Act, 1974 (for short, ``the Act, 1974) provides for procedure of appointment and Section 6 thereof provides for making the recommendation by the Selection Committee to the Syndicate. Sub-section (4) of Section 6 reads as under:- ``The Selection Committee, while making its recommendation to the Syndicate under Sub-section (2), shall prepare a list of candidates selected by it in order of merit and shall further prepare a reserve list in the same order and to the extent of 50% of the vacancy on the post of teachers or officers for which the Selection Committee was constituted under Sub-section (1) of Sec.5 and shall forward the main list and the reserve list alongwith its recommendation to the Syndicate. (19). The issue of entitlement of the candidate, whose name appears in the reserve list, for claiming the appointment is no more res integra as the issue has been dealt with by the Honble Apex Court time and again. In Jatinder Kumar & Ors. vs. State of Punjab & Ors. (33), the Honble Apex Court held that the persons recommended by the Selection Committee for appointment, have no right to be appointed and in case the allegations of malafide etc. are not made out, the principle of promissory estoppel is not applicable. Though the recommendations made by the Selection Committee are directory but it has to be followed strictly if the same are accepted. (20). In State of Bihar & Ors. vs. Secretariat Asstt. Successful Examinees Union 1986, & Ors. are not made out, the principle of promissory estoppel is not applicable. Though the recommendations made by the Selection Committee are directory but it has to be followed strictly if the same are accepted. (20). In State of Bihar & Ors. vs. Secretariat Asstt. Successful Examinees Union 1986, & Ors. (34), the Honble Supreme Court held that even in a case where the examination is held after expiry of an unreasonable period, a large number of vacancies might have come into existence after advertising the vacancies and the same can be filled up only to the extent of the number of vacancies advertised. Filling of future vacancies would violate the rights of persons becoming eligible subsequent to the advertisement. (21). In Gujarat State Dy. Executive Engineers Association vs. State of Gujarat & Ors. (35), the Apex Court held that the waiting list can remain operative only for a period stipulated in the Act/Rules/Circular, explaining further as under:- ``A waiting list prepared in service matters by the Competent Authori- ty is a list of eligible and qualified candidates who, in order of merit, are placed below the last selected candidates. How it should operate and what is its nature, may be governed by the Rules. Usually it is legal with the selection or examination for which it is prepared. For instance, if an examination is held, say for selecting ten candidates for 1990 and the Competent Authority prepared a waiting list then it is in respect of those ten seats only for which selection or competition was held. Reason for it is that whenever selection is held, except where it is for a Single Post, it is normally held by taking into account not only the number of vacancies existing on the date when adverti- sement is issued or applications are invited but even those which are likely to arise in future within one year or so due to retirement etc.... (22). A candidate in the waiting list, in the order of merit, has a right to claim that he may be appointed if one or other selected candidate does not join. But once the selected candidate joins and no vacancy arises due to resignation, retirement etc. (22). A candidate in the waiting list, in the order of merit, has a right to claim that he may be appointed if one or other selected candidate does not join. But once the selected candidate joins and no vacancy arises due to resignation, retirement etc. or for any other reason within the period the list is to operate under the Rules then the candidate from the waiting list has no right to claim appointment to any future vacancy which may arise unless the selection was held for it. He has no vested right except to a limited extent indicated above, or when the appointing authority acts arbitarily and makes appointment from the waiting list by picking and choosing for extraneous reasons, a waiting list prepared in an examination conducted by the Commission does not furnish a source of recruitment. It is operative only for the contingency that if any of the selected candidates does not join then the person from the waiting list may be pushed up and appointed in the vacancy so caused or if there is some extreme urgency, the Government may, as a matter of policy decision, pick up person, in order of merit, from the waiting list. (23). In State of Bihar & Anr. vs. Madan Mohan Singh (36), the Honble Apex Court reiterated a similar view by observing that once the vacancy advertised stands filled up, the process of selection comes to an end and if the waiting list is to be kept alive for the purpose of filling up future vacancy, it would amount to deprivation of right to other candidates who have become eligible subsequent to the said advertisement. (24). In K. Jayamohan vs. State of Kerala & Ors. (37), Honble Supreme Court held that the waiting list can be prepared only to the extent of anticipated vacancies. (25). In Sanjoy Bhattacharjee vs. Union of India & Ors. (38), Apex Court held that a waiting list can be prepared only to fill up the vacancy advertised for the reason that for subsequent vacancy, every one in the open market is entitled to apply for consideration of his candidatures on merit in accordance with law and it would be consistent with the provisions of Articles 14 and 16(1) of the Constitution. A person whose name appears in the wait list, does not have any vested right to an appointment unless he shows that any person below his ranking in the waiting list has been appointed which could give him cause of grievance. (26). In Surinder Singh vs. State of Punjab & Ors. (39), the Apex Court considered a large number of its earlier judgments and approved the law laid down by the Supreme Court in Gujarat State Deputy Executive Engineers Association (supra) and held as under:- ``It would be an improper exercise of power to make appointment over and above those advertised. It is only in rare and exceptional circumstances and in emergent situation that this rule can be deviated from. It should be fairly spelled out as to under what policy such a decision has been taken. Exercise of such power has to be tested on the touch-stone of reasonableness....It is not as a matter of course that the Authority can fill up more posts than advertised. (27). In Pradip Gogoi & Ors. vs. State of Assam & Ors. (40), the Honble Apex Court depricated that practice of filling up the vacancies at a belated stage but also disapproved the process of filling up the future vacancy from the waiting list on the ground that every eligible candidate has a fundamental right under Article 16(1) of the Constitution to lay his name for consideration in his own right of recruitment to an office or post under the State. (28). Thus, it is evident from the aforesaid that a person, whose name appears in the reserve list, does not have any vested right to be appointed and vacancy more than advertised cannot be filled up. However, a particular rule may permit a situation where a person, whose name appears in the waiting list, may be appointed in order of merit in a particular contingency, e.g. resignation/retirement/death of a person appointed from the merit list. (29). In Dr. Uma Kant vs. Dr. Bhikam Lal Jain & Ors. (41), the Honble Supreme Court considered the provisions of the Act, 1974. (29). In Dr. Uma Kant vs. Dr. Bhikam Lal Jain & Ors. (41), the Honble Supreme Court considered the provisions of the Act, 1974. After analysing various provisions of the Act, particularly Sections 3, 4 and 5, the Court came to the conclusion that a Selection Committee must prepare the reserve list containing the names at least half of the number of vacancy advertised and the said select list must have a life as approved by the Competent Authority/Syndicate/Board in case vacancy occurs on account of retirement, promotion or death etc. If a select list duly prepared and approved by the Board is still in life, appointment can be offered to person whose name appears in the waiting list in accordance with the order of merit. In the said case, the Syndicate had approved the waiting list by passing a resolution and fixed its period/life upto six months from the date of approval. It has further resolved as under:- ``As vacancies caused within the cadre during six months of the approval of recommendation, the candidate found suitable and placed in the reserve list, be appointed in the order of priority given by the Selection Committee. (30). In the instant case, the facts are quite distinguishable. There is nothing on record to show that the select list had ever been approved by the Board, there was no resolution fixing the life of the select list nor the Board resolved to appoint the person from the waiting list, knowing it fully well that Mr. Raj Kishore Sharma was likely to retire within a short span of time. Thus, the ration of Dr. Uma Kant (supra) is of no help in the instant case. (31). Mr. Asopa, learned Senior Advocate, has raised the allegation of malafide against respondent No.2, contending that he wanted to undo all the things which have been done by his predecessor Vice Chancellor. (32). It is settled proposition of law that for proving the allegations of malafides, there must be very strong and convincing evidence to establish the same for the reason that there is a presumption in favour of the bonafides of the order unless contradicted by acceptable material. Though the inference of malafides may be drawn by reading in between the lines and taking into account to attending circumstances. Though the inference of malafides may be drawn by reading in between the lines and taking into account to attending circumstances. The inference, must be based on factual matrix as arising from the evidence on record and not on surmises or conjectures. Moreso, the allegations must be of a very high magnitude. (Vide E.P. Royappa vs. State of Tamil Nadu (42), Tara Chand Khatri vs. Municipal Corporation of Delhi (43), M/s. Sukhwinder Pal Bipan Kumar vs. State of Punjab & Ors. (44), Shivajirao Nilangekar Patil vs. Dr. Mahesh Madhav Gosain (45), M. Shankaranarayana vs. State of Karnataka (46), N.K. Jain vs. Union of India (47), State of U.P. vs. Dr. V.N. Prasad (48), Arvind Dattatraya Dhande vs. State of Maharashtra & Ors. (49), Utkal University vs. Dr. Nrusingha Charan Sarangi (50) and Prabodh Sagar vs. Punjab State Electricity Board & Ors. (51). (33). In Kiran Gupta & Ors. vs. State of U.P. & Ors. (52), the Honble Supreme Court held that ``the allegations of malafide may be wild and preposterous to be entertained in the absence of any incontrovertible and irrefragable material to support it and to rebut the presumption of regularity of the official record. Similar view has been reiterated in Kumaon Mandal Vikas Nigam Ltd. vs. Girja Shanker Pant & Ors. (53). (34). Thus, in view of the above, the submissions made on malafides are not of such a magnitude that the Writ Court should take note of it and this issue is not worth further consideration. (35). So far as quashing the Conditions No.1 and 2 of the appointment letter are concerned, Mr. Mathur, learned Additional Advocate General, has submitted that the appointment of the petitioner was temporary subject to approval of the Board. It has not yet been approved. The main conditions incorporated in the terms of appointment letter read as under:- ``The Vice Chancellor, in exercise of the power conferred on him and functions assigned to him under Section 19(3) (4) and Schedule 13-H, has been pleased to appoint Shri Rajendra Kumar Vyas out of the reserve list. This appointment is subject to the following terms and conditions:- (1) The appointment is temporary till further orders subject to confirmation of the Board of Management. He will be placed on probation for one year only after the appointment order is confirmed by the Board of Management. This appointment is subject to the following terms and conditions:- (1) The appointment is temporary till further orders subject to confirmation of the Board of Management. He will be placed on probation for one year only after the appointment order is confirmed by the Board of Management. (2) In case the performance during the temporary period is either found not satisfactory or otherwise found guilty for non- observance of the Code of Conduct, the appointment is likely to be terminated without assigning any reason. (36). The petitioner has accepted the appointment subject to the conditions incorporated therein, including the Conditions No. 1 & 2; thus, he cannot file a petition to declare him as validly appointed, ignoring the terms and conditions incorporated in the appointment letter, nor his appointment has yet been confirmed by the Board. (37). A Constitution Bench of the Honble Supreme Court, in M/s. Pannalal Binjraj & Ors. vs. Union of India & Ors. (54), explained the scope of estoppel observing that once an order is passed against a person and without raising any objection he submits to the jurisdiction or complies with such order, he cannot be permitted to challenge the said order for the reason that such conduct of that person would disentitle him for any relief before the Court. Similar view has been reiterated by the Supreme Court in Manak Lal vs. Dr. Prem Chand Singhvi (55), Dr. G. Sarana vs. University of Lucknow & Ors. (56), Maj. Chander Bhan Singh vs. Latafat Ullah Khan & Ors. (57), Karam Pal vs. Union of India (58), Om Prakash Shukla vs. Akhilesh Kumar Shukla & Ors. (59), Prasun Roy vs. Calcutta Metropolitan Development Authority & Ors. (60), State of Punjab vs. Krishan Niwas (61), Union of India & Ors. vs. N. Chandrasekharan (62), Budhia Swain vs. Gopinath Deb (63) and Suneeta Aggarwal vs. State of Haryana & Ors. (64). (38). In M/s. Power Control Appliances & Ors. vs. Sumeet Machines (P) Ltd. (65), the Apex Court observed as under:- ``Acquiescence is sitting by, when another is invading the right.....It is a course of conduct inconsistent with the claim. It implies positive acts; not merely silence or inaction such as involved in laches. In Harcourt vs. White, 54 ER 382, Sir John Romilly said: It is important to distinguish mere negligence and acquiescence. It implies positive acts; not merely silence or inaction such as involved in laches. In Harcourt vs. White, 54 ER 382, Sir John Romilly said: It is important to distinguish mere negligence and acquiescence. Therefore, acquienscence is one facet of delay....If the acquienscence in infringement amounts to consent, it will be a complete defence as was laid down in Mouson (J.G.) & Co. vs. Boehm. (1884) 26 Ch. D. 406. The acquiescence must be such as to lead to the inference of a licence sufficient to create a new right in the defendant as was laid down in Rodgers vs. Nowill, (1847) 2 DeGM & G. 614. (39). It is settled proposition of law that once an order has been passed, it is complied with, accepted by the other party and derived the benefit out of it, he cannot challenge it on any ground. (Vide M.S.R.T. Corporation vs. Balwant Regular Motor Service, Amravati & Ors. (66). Thus, even on the principles of acquiescence, the petitioner cannot be permitted to raise the issues regarding the terms and conditions incorporated in his appointment letter. (40). In R.N. Cosain vs. Yashpal Dhir (67), the Honble Supreme Court observed as under:- ``Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. (41). Similar view has been taken by the Honble Supreme Court in Babu Ram vs. Indra Pal Singh (68). In P.R. Deshpande vs. Maruti Balaram Haibatti (69), the Honble Supreme Court has observed that the doctrine of election is based on the rule of estoppel- the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppel in pais (or equitable estoppel) which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. The doctrine of estoppel by election is one of the species of estoppel in pais (or equitable estoppel) which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. Similar view has been taken by a Division Bench of this Court in National Insurance Co. vs. K.P. Rohila (70). (42). Thus, in view of the above, it is not permissible for the petitioner to challenge the terms of his appointment at such a belated stage after accepting the same and taking benefit thereof. (43). In succinct, as the petitioner had been appointed subject to the terms and conditions incorporated in his appointment letter and as the appointment of the petitioner is temporary, subject to approval of the Board and Board has not yet approved, petitioner cannot ask this Court to delete Clauses (1) and (2) of his appointment letter. Allegations of malafide alleged herein are not of such a magnitude, which may require judicial notice. However, the learned Vice Chancellor has not acted in strict adherence to the statutory requirement as if he was not satisfied with the order of the Board, he could have asked the Board to review its decision but there was no occasion for him to refer the matter to the Chancellor. The matter has been seized by the Board which has neither approved nor disapproved the appointment of the petitioner and it is for the Board to decide whether it wants to wait for the decision of the Committee appointed by it or is willing to go ahead otherwise. Thus, it is desirable that the learned Vice Chancellor may ask the Board to reconsider its decision or the Board may ask the Committee to submit its report expeditiously or the Board itself may find out the truth on the aforesaid issues referred to the Committee. But till the Board is asked by the learned Vice Chancellor to do something in the matter, it is not proper to dislodge the petitioner from the post. (44). Thus, the petition succeeds and is allowed. The impugned notice dated 12.1.2001 (Annx.7) is hereby quashed. The learned Vice Chancellor is at liberty to ask the Board to reconsider its decision. But till the Board is asked by the learned Vice Chancellor to do something in the matter, it is not proper to dislodge the petitioner from the post. (44). Thus, the petition succeeds and is allowed. The impugned notice dated 12.1.2001 (Annx.7) is hereby quashed. The learned Vice Chancellor is at liberty to ask the Board to reconsider its decision. In the facts and circumstances of the case, there shall be no order as to costs.