JUDGMENT
B.S. Chauhan, J.
1.The instant writ petition has been filed by the petitioners for setting-aside of the judgment and order of the Rajasthan Civil Service Appellate Tribunal, Jodhpur (hereinafter called “the Tribunal”), dated 18.3.1997 (Annexure. 1), by which the order dated 14.6.1996 (Annexure.5) by which petitioner No. 3 had relieved the respondent No. 1 from service accepting her application for voluntary retirement, has been quashed.
2. The factual gamut of the case reveals that respondent No. 1, while working as a teacher with the petitioners, applied for voluntary retirement on 12.8.1984 (Annexure.2) on the premises that she had competed her qualifying service on 12.11.1984 and, therefore, she may be permitted to avail of the benefit of voluntary retirement with effect from 12.11.1984. Respondent No. 1, after submitting the said application, did not join her duty for a long time and after more than two years of submission of her application, she filed S.B. Civil Writ Petition No. 2245/1986 before this Court for seeking direction to the Department to grant her all retiral benefits including pension, gratuity, G.P.F. and State Insurance amounts etc. The Department took a stand in that writ petition that the respondent No. 1 was not entitled to seek such reliefs as she had not completed the qualifying service and it was short by ten months; moreover, she had committed a misconduct of remaining absent without any cause or leave for a period of about two years and ten months. This Court took a lenient view and disposed of the writ petition vide judgment and order dated 9.7.1987. The relevant part of the Division Bench order runs as under-
The period of qualifying service according to the calculation made by the learned Counsel for the petitioners is 19 years two months and thirteen days. If this is the position, the petitioner would be placed in a very precarious situation if she does not get any relief in the matter having served the department for such a long period, it will not be proper to deprive her of the benefit accruing out of this service….The writ petition in the above circumstances cannot be allowed. However, in view of the above, we dispose of the writ petition with a direction to non-petitioner No. 2 to allow the petitioner to complete her qualifying period of service. The petitioner shall report on duty before non-petitioner No. 2 within two weeks.
(Emphasis added).
3. In view of the aforesaid order, respondent No. 1 joined he duty on 14.6.1987. At the time of joining, she made an application that she was joining just to complete her qualifying service so that after completing the aid period, she might avail the benefits of voluntary retirement. Respondent No. 1 in spite of completing the qualifying service on 16.5.1988, remained in service as the Department did not pass any appropriate formal order of voluntary retirement. Thereafter respondent No. 1 filed an application on 17.1.1991 withdrawing her application dated 17.1.1991 but passed the order dated 14.6.1995 (Annexure.5) in pursuance of the order of the Division Bench of this Court dated 9.7.1987 and the effect of the said order has been as under-
(i) Respondent Smt. Basant Parakh would be deemed to have voluntarily retired with effect from 16.5.1988;
(ii) service rendered by her after 16.5.1988 would not be computed for the purpose of determining the amount of pension;
(iii) the payment made for the service rendered by her after 16.5.1988 would not be recovered;
(iv) her period of absenteeism for two years nine months and nineteen days from 12.11.1984 to 31.8.1987 would be treated as extraordinary leave (without pay).
4. Being aggrieved and dissatisfied, respondent No. 1 challenged the said order before the Tribunal by filing Appeal No. 284/1995 and at the same time she also preferred Writ Petition No. 1905/1995 before this Court which was dismissed by this Court with costs, giving her liberty to persue the remedy before the Tribunal. In the said writ petition, respondent No. 1 had challenged the vires of Rule 244(1) of the Rajasthan Service Rules, 1951 as well as the order dated 14.6.1996 (Annexure.5).
5. Before the Tribunal, learned Counsel for the Department submitted that the unauthorised absence of the respondent No. 1 for a period of about two years and ten months had been condoned in pursuance of the judgment of the Division Bench of this Court dated 9.7.1998, otherwise Department could have initiated the disciplinary proceedings and terminated her service and she could not be permitted to take benefit of her own mistake for remaining absent for such a long period and such a misconduct would not put premium on her own fault. The relation of master-servant continued earlier as petitioner’s application for voluntary retirement had not been accepted. Mere filing the application would not bring the relationship of master-servant to an end after expiry of the notice period. Vide Dr. Baljeet Singh v. State of Haryana .
6. The Tribunal quashed the order dated 14.6.1996 (Annexure.5) vide judgment and order dated 28.3.1997 (Annexure. 1) and allowed the appeal of the respondent No. 1 directing the Department to treat her in continuous service as if no such order had ever been passed, with all consequential benefits and she would continue in service till either she retires on attaining the age of super annuation or her services are terminated otherwise by due process of law. Hence this writ petition by the State.
7. Heard Mr. M.R. Singhvi, learned Counsel for the petitioner and Mr. Akshaya Parakh for the respondent No. 1.
8. Mr. Akshya Parakh, learned Counsel for the contesting respondent raised a preliminary objection regarding the cognizance of the instant petition by the Single Bench of this Court. He placed reliance upon a judgment of the Hon’ble Supreme Court in L. Chandra Kumar v. Union of India and Ors. , wherein it has been held by the Apex Court that the judgment and order of the Tribunal constituted under Article 323-A or 323-B of the Constitution of India, would be ameanable to writ jurisdiction before a Division Bench of the High Court. In the instant case, the impugned order has been passed by the Rajasthan Civil Services (Appellate) Tribunal, which has been constituted under the provisions of Section 3 of the Rajasthan Civil Services (Service Matters Appellate Tribunal) Act, 1976 (Act No. 34 of 1976) i.e., under the Statute enacted by the Rajasthan Legislature. The Act had received the assent of the President of India on 7.5.1976. The provisions of Articles 323-A and 323-B have been inserted by the Constitution (42nd Amendment) Act, 1976 w.e.f. 3.1.1977 and in absence of any provision that any Service Tribunal constituted under the State Act would be deemed to have been constituted under the Constitutional provisions, the respondent No. 2, Tribunal, cannot be said to have been constituted under the provisions of Articles 323-A and 323-B of the Constitution. L. Chandra Kumar is an authority dealing with the Tribunals, whose judgments/orders could not have earlier been challenged before the High Court in Appellate/Writ jurisdiction. Thus, the submission is devoid of any merit.
9. Under the provisions of Rule 55 of the Rajasthan High Court Rules, 1952 (hereinafter called “the Rules”), the judgment and order of the respondent No. 2, Tribunal, is cognizable by the Single Bench, as it stood amended vide notification No. 5/SRO/95 dated 22.8.1995. Earlier, it had to be challenged before the Division Bench as provided by the Notification No. 7/SRO dated 22.4.1989. In absence of challenging the validity of such rule, the submission made by Mr. Parakh is not tenable. Moreover, he could not satisfy the Court as how the respondent No. 1 would be adversely affected if the petition is entertained by the Single Bench as she certainly does not lose the right of special appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 nor would it affect her right to file Special Leave Petition under Article 136 of the Constitution before the Hon’ble Supreme Court. The issue has to be tested on the touch-stone of Doctrine of Prejudice. Vide Managing Director, ECIL Ltd. v. B. Karunakar ; State Bank of Patiala v. S.K. Sharma ; Maj. G.S. Sodhi v. Union of India and Ors. S.K. Singh v. Central Bank of India 1996 (6) SCC 416; and Monika Jain v. State of Rajasthan and Ors. 1998 (1) RLW 710.
10. Respondent No. 1 had been granted the limited relief by this Court only to complete her qualifying service. This Court had taken a very lenient view on compassionate ground and the Department had condoned her unauthorised absence for a period of about two years and ten months and did not consider it proper to initiate disciplinary proceedings and remove her from service. While joining, in her application dated 14.7.1987, respondent No. 1 made it clear that she had joined only to complete the qualifying service so that she could get the retrial benefits. It is settled law that no person can be allowed to take benefit of his own mistake and the other side cannot be put in a disadvantageous position. Vide G.S. Lamba and Ors. v. Union of India and Ors. ; and T. Srinivasan v. T. Varalakshmi 1998 (3) SCC 122.
11. The Tribunal failed to appreciate that law does not permit a person to blow hot and cold in the same breath in R.L. Gosain v. Yashpal Dhir AIR 1993 SC 352, the, Hon’ble Supreme Court has 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 of its validity, and then turn round and say it is void for the purpose of securing some other advantage.
12. Once a party has taken-up a definite stand and the Court has given a decision on that footing, he cannot subsequently be allowed to take an inconsistent position with regard to the same matter. A party cannot play ‘fast and loose”, “blow hot and cold” to the detriment of the other side. Vide Maruleshwar Prasd v. Kanhaiya Lal ; and Bar Council of Delhi v. Surjit Singh . Similar view had been reiterated in Smt. Swaranlata v. Union of India . In Iftikhar Ahmed v. Syed Meharban Ali , the Apex Court placed reliance upon judgments in Chandu. Lal v. Khalilur Rehman AIR 1950 PC 17; and Sheoparsan Singh v. Ramanandan Prasad Narain Singh AIR 1916 PC 78. In the latter, it has been held as under-
The rule of res-judicata while founded on ancient precedent is dictated by a wisdom which is for all time and that the application of the rule by the Courts should be influenced by no technical considerations of form out by matter of substance within the limits allowed by law.
13. The Court had placed reliance on Rambhaj v. Ahmed Sayyed Akhatar Khan AIR 1938 Lah. 571, wherein it has been observed as under-
The reason d’etre of the rules is to confer finality n the decisions arrived at by Competent Courts between interested parties after genuine contest: and to allow persons who had deliberately chosen a position to probate it and not to blow hot now when they were blowing cold before would be completely to ignore the whole foundation of the rule.
14. The same view has been reiterated by the Hon’ble Supreme Court in Babu Ram v. Indrapal Singh 1988 (6) SCC 358. In P.R. Deshpande v. Maruti Balram Haribatti , the Hon’ble Supreme Court has observed as under-
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 rule, a person may be precluded by his actions or conduct or silence when it is duty to speak from asserting a right which he otherwise would have had.
15. Similarly, in Ganpat Ladha v. Shashi Kant Vishnu Sinde , the Apex Court has observed as under –
If the quest for certainty in law is often baffled, as it is according to Judge Jerome Frank in Law and the Modern Mind, the reasons are mainly two: firstly, the lack of precise formulation of even statutory law so as to leave lacunae and loopholes in it giving scope to much avoidable disputation: and, secondly, the unpredictability of the judicial rendering of the law after every conceivable as well as inconceivable aspect of it has been explored and subjected to forensic debate. Even the staunchest exponents of legal realism, who are apt to treat the quest for certainty in the administration of justice in accordance with law, in an uncertain world of imperfect human beings, to be practically always futile and domed to failure, will not deny the desirability and the beneficial effects of such certainty in law as may be possible. Unfortunately, there are no infrequent instances where what should have been clear and certain, by applying well-established canons of statutory construction becomes befogged by the vagaries, if one may use a possible strong word without disrespect, of judicial exposition divorced from these canons’…Even that certainty and predictability in the administration of justice in accordance with law which is possible only if lawyers and Courts care to scrupulously apply the law clearly declared by this Court, would not be attainable if this elementary duty is overlooked.
16. In view of the Division Bench judgment of this Court, the contesting respondent was allowed to serve for a period of about ten months just in order to complete the qualifying service and she did not withdraw her resignation within that period, rather she filed an application after the expiry of about four years on 7.1.1991 and the case does not fall within the ambit of the settled proposition of law that an employee can withdraw the resignation prior to the date of its acceptance, as laid down by the Hon’ble Supreme Court in Raj Kumar v. Union of India and Ors. ; Union of India v. Gopal Chandra Balram Gupta v. Union of India and Ors. AIR 1937 SC 2354 Punjab National Bank v. P.K. Mittal 1989 (suppl.) 2 SCC 175; Moti Ram v. Paramdeo and Anr. ; and Nand Keshau Prasad v. Indian Farmers Fertilizer Co-operative Ltd. and Anr. . She had no right to continue after completion of the qualifying service and if she has wrongly been allowed by the Department to continue, it would not confer any benefit on her.
17. Under these circumstances, the respondent No. 1 was not entitled to withdraw her application for voluntary retirement after joining the service in pursuance of the order of this Court. A Division Bench of this Court, in Dr. G.D. Harsh v. R.S.S.C.A. 1989 (1) RLW 449, placed reliance upon the judgment of the Hon’ble Supreme Court in Jawahar Lal v. Union of India and Ors. , and held that in case both the parties are found at fault, the plaintiff must always fail and the Court need not render any aid to the cause of the plaintiff as rendering any assistance to such a plaintiff would be contrary to the principles of public policy i.e. “ex dolo malo non oritur action” meaning thereby that no court will lend its aid to a man who founds his cause of action upon an illegal act.
18. Thus, in the instant case, the Tribunal ought not to have interfered in the case at all when both the parties were at fault.
19. In a similar case in Radha Kishun v. Union of India and Ors. , the Hon’ble Supreme Court had examined a case where the employee reached the age of superannuation on 31.5.1991 but he remained in service till May 30, 1994. As he was not paid the salary for a period of three years and his claim was rejected by the High Court, the Apex Court did not grant any relief. The Court observed as under-
It would be an obvious case of absolute irresponsibility on the part of the Office concerned in the Establishment in the concerned Section for not taking any action to have the petitioner retired from service on his attaining superannuation. It is true that the petitioner worked during that period but when he is not entitled to continue in service as per law, he has no right to claim the salary etc. It is not the case that he was re-employed in public interest, after attaining the age of superannuation. Under these circumstances, we do not find any illegality in the action taken by the Authorities in refusing to grant the benefit. We cannot accept the contention and give legitimacy to the illegal action taken by the Authorities. If the contention is given acceptance, it would be field-day for manipulation with impugnity and one would get away on the plea of equity and misplaced sympathy. It cannot and should not be given countenance.
20. Thus, it may be a case where the person concerned for allowing the respondent No. 1 to continue in service after completing the qualifying service may be liable for facing the disciplinary proceedings but it is not a case where the Tribunal ought to have granted any relief to her. Moreover, the contesting respondent has unduly been enriched by giving her the salary for a period of eight years from 1988 to 1996 and, thus, she could not have any complaint or cause of action to approach the Tribunal.
21. The submission made by Mr. Singhvi that the contesting respondent is habitually abusing the process of the Court is full of substances as for the same relief she had filed a large number of cases before various forums. The particulars of the same are as under-
Case Number Name of the Forum
D.B. Civil Writ Petition No. 2245/1986 High Court
Case No. 590/1990 Consumer Forum
S.B. Civil Writ Petition No. 3623/1991 High Court
D.B. Civil Writ Petition No. 1905/1995 High Court
Civil Appeal No. 284/1995 Rajasthan Civil
Services Appellate Tribunal
Civil Suit No. 666/1997 Additional Munsif & Judicial
Magistrate No. 2, Jodhpur
22. It is evident from the aforesaid particulars that the respondent No. 1 had endeavoured to abuse the process of the Court considering that the entire legal system has been created only to be abused by her.
23. In Dr. Buddhi Kota Subbarao v. K. Parasaran , the Hon'ble Supreme Court has observed as under -
No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner he wishes. However, access to justice should not be misused as a licence to file misconceived and frivolous petitions.
24. In S.B. Civil Writ Petition, 504/1998, Kartik Narain v. Karan Singh, decided on 1.5.1996, this Court has held that the writ petition cannot be entertained by this Court when the Civil Court had been approached by the petitioner for the same relief. The same view has been taken by a Division Bench of this Court in D.B. Civil Special Appeal No. 380/1996, decided on 15.7.1994, as well as in J.S. Rawat v. National Air Port Authority and Ors. 1991 (1) RLR 210; Mangi Lal v. R.S.R.T.C. and Ors. 1991 (2) RLR 466; and Ramcharan Das v. State of Rqjasthan and Ors. 1986 RLR 680. Thus, on the basis of the aforesaid judgments, it is held that no person can be permitted to choose two forums for the same relief as it amounts to abuse of the process of the Court. Similar view has been reiterated by the Supreme Court in K.K. Modi v. K.N. Modi .
25. In view of the above, the writ petition succeeds and is accordingly allowed. The impugned judgment and order of the Tribunal dated 18.3.1997 (Annexure. l) is set-aside. The Competent Authority is directed to initiate disciplinary proceedings against the person responsible for keeping the contesting respondent in service after completing the qualifying service. There shall be no order as to costs.
26. In the last, Mr. Parakh has orally prayed for Certificate of Fitness to Appeal before the Hon’ble Supreme Court under Article 132 of the Constitution. As the instant case does not involve any substantial question of law as to the interpretation of the provisions of the Constitution of India, nor there is any ambiguity in/or dodubt of correctness of the judgment of the Hon’ble Supreme Court in L. Chandra Kumar (supra), the prayer for grant of Certificate of Fitness is rejected.