Mahendra Kumar Jaiswal vs State of C.G. and Others

Prashant Kumar Mishra, J.—This writ petition has been preferred by the then part-time lecturers appointed under the Centrally Sponsored Scheme seeking a direction to the State Government for consideration of their cases for absorption/appointment as Lab Assistant in terms of Circular issued by the erstwhile State of Madhya Pradesh on 23.05.1998 (Annexure P-15). It has been urged that the petitioners were earlier working as Part-time Lecturers/Lab Assistants under different appointment orders issued in the year 1989 to 1994. The erstwhile unified State of Madhya Pradesh issued a Circular dated 23rd May, 1998 interalia providing an opportunity to appear in the selection process of lecturers under the M.P. Education Service (School Branch) Recruitment and Promotion Rules, 1982; the said Rules are relaxed for the Part-time Lecturers/Lab Assistant and they shall be allowed to participate in the selection process for recruitment of lecturers and such lecturers, who are still not eligible to appear in the selection process of lecturers shall be appointed as Lab Assistants, if they possess minimum qualification; Benefit of this relaxation and weightage in the percentage of qualifying examination for appearing in the interview was also provided in the said circular. Placing strong reliance on this circular, learned counsel for the petitioners would submit that the authorities in the State of Chhattisgarh were also processing the matter, however, no decision has been taken, therefore, the present writ petitions have been preferred seeking a direction to consider their cases in terms of the said circular dated 23.05.1998.

Opposing the prayer made in the writ petitions, learned State Counsel would submit that these writ petitions are highly belated and the petitioners who are already working as Shiksha Karmis Grade-III having been appointed in the year 2008, no cause of action is surviving for preferring these writ petitions.

Having heard learned counsel for the parties and on perusal of the documents annexed to the writ petitions, it would appear that even in the Circular dated 23.05.1998, no right of appointment was created in favour of the petitioners. The only right in their favour was for giving benefit of relaxation so that they can appear in the selection process of lecturer or in the alternative that of Lab Assistant. Even though the new State of Chhattisgarh was created on 1st November, 2000, the petitioners did not prefer the writ petition soon thereafter or within a reasonable time and waited for 11 years to file these writ petitions in the year 2011 and 2012. One important event had also taken place in the interregnum in as much as in the year 2008 the petitioners were appointed as Shiksha Karmis-Grade-III by order issued by the Directorate of Urban Administration and Development on 08.10.2008, which is available at Page 67 of the Paper Book in W.P.(S). No. 1535/2011. This order clearly states that such part-time professional teachers who have earlier been removed from service are appointed as Shiksha Karmis-Grade-III without following the process of recruitment envisaged under the Chhattisgarh Municipalities Shiksha Karmi (Recruitment and Service Conditions) Rules 2008. Thus it would appear that the petitioners have been appointed as Shiksha Karmis Grade-III on humanitarian considerations as one time measure without compelling them to participate in the process of recruitment.

In the matter of Manak Lal Vs. Dr. Prem Chand, it has been held that " It is true that waiver cannot always and in every case be inferred merely from the failure of the party to take the objection. Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in question. In this judgment Supreme Court relied on English decision in Vyvyan v. Vyvyan (1861) 30 Beav 65 : 54 ER 813 wherein it has been held that "Waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his rights, and that being so, he neglects to enforce them, or chooses one benefit instead of another, either, but not both, of which he might claim''

Having thus derived benefit from the State Government on the basis of their earlier services rendered as Part-time Teachers/Lab Assistants the petitioners still waited for 3 more years to prefer these writ petitions in the year 2011 and 2012.

Considering the matter from any angle i.e., firstly on the principle of delay and laches and secondly on the principle of waiver and election, this Court is of the considered opinion that these writ petitions deserve to be dismissed not only on the ground of inordinate delay and laches but also for the reason that the petitioners are already benefited from their past service as they are already appointed as Shiksha Karmi Grade-III without undergoing any recruitment process, therefore, having elected to obtain one benefit, they are not entitled to maintain this petition on the principle of waiver and doctrine of election. The writ petitions are accordingly dismissed.

W.P.(S) Nos. 3426/2011. 1535/2011 & 1340/2012

HEAD NOTE

If a person being aware of his rights, neglects to enforce them or chooses one benefit instead of another he is not entitled to claim the other relief.