R.N. Misra, J.
1. The petitioner claims to have passed the final examination in Civil Engineering from the Institute of Engineering Technology at Kum-banad in the State of Tamil Nadu in 1956. Between May 1956 and May, 1959, he served as Overseer under the Collector of Puri and thereafter for six months he served under the Board of Revenue. By order dated 1-4-1961, the Jharsuguda Municipal Council (Opposite party No. 1) appointed him as an Overseer. His order of appointment ran thus:--
'Shri M.K. Raghavan, at present resident of Jharsuguda is appointed as Overseer (Civil) of Jharsueuda Municipality in the scale of Pay of Rs. 110-5-150-EB-8-190 EB-10/2-250/ with usual dearness allowance of Rs. 7.50 n. p.
The appointment is purely temporary and terminable at any time without any notice.
The appointment is subject to production of fitness certificate from Asst. Surgeon, Government Hospital, Jharsuguda; verification of antecedents and character.'
2. In April 1961, the Executive Officer of the Municipal Council wrote to the Deputy Commissoner of Sambalpur pleading for sanction of permanent post of Overseer and mentioned about the petitioner's appointment. On 16th September, 1967, the Director of Urban Local Bodies communicated sanction under Section 75 (11 of the Orissa Municipal Act to the creation of a permanent post of overseer from the date the post had actually been filled up. In the mean time, the Superintending Engineer, Northern Circle of the Public Works Department who happens to be the Inspector of Local Works so far as Jharsuguda Municipality is concerned, in his inspection report made for the year 1964-65 dealing with the petitioner stated:
'There is no Municipal engineer in this Municipality. Sri M.K. Raghavan (petitioner). Municipal Overseer is practically functioning for all technical affairs of the Municipality. He is in charge of execution of all works under the Municipality. He took over charge of the Municipality from 1-4-1961. The Overseer is a qualified one under rules, and gained sufficient experience under the Municipality by executing various types of works for the last four years.'
In April. 1969 the Inspector of Local Works and Superintending Engineer wrote to the Executive Officer of opposite party No. 1:--
'The objection raised by the Audit Officer is genuine. The certificate is not equivalent to the Diploma Course of three years' theory and year's practical in Civil Engineering.
Hence the service of unqualified Overseer Sri M.K. Raghavan may be terminated with due notice.'
The State Government in Urban Development wrote to the said Executive Officer on 22-8-1969 saying:
'In inviting a reference to the letter No. 5997 dated 8-4-1969 from the Inspector of Local Works and Superintending Engineer. Northern Circle on the aforesaid subject (clarification regarding qualification of the Overseer of the Jharsusuda Municipality) I am directed to request that in view of the clarification given therein, necessary action may please be taken immediately.'
The petitioner contended that he had the requisite qualification and attempted to support his stand by producing the certificate obtained by him in 1956. In January, 1970 the Chairman of the Council called upon him to substantiate his stand by proof. The petitioner furnished a detailed explanation and indicated in his letter of 20-2-1970 that four other persons with the qualification of the petitioner were serving under the State Government in corresponding or higher posts. Thus came the impugned order dated 27-4-1970 saving:
'The services of Sri M.K. Raghavan, Overseer are terminated from the date of receipt of this order as he is not qualified as pointed out by the Superintending Engineer P. W. D. (N. C.), Sambalpur and Inspector of Local works vide his letter No. 2-3 WA-7-69-5997 dt. 1969,'
The petitioner, challenges the aforesaid order of termination as illegal and not sustainable.
3. The Municipal Council alone has made a return to the rule nisi. The opposite party No. 2 who is said to have found the petitioner to be not qualified though on an earlier occasion, he had held him to be properly qualified and under whose decision the petitioner's service was ultimately terminated, has not made his appearance in the proceeding to support his conclusion. The Council has Pleaded that the petitioner had a temporary appointment and his services could be terminated with a month's notice and as that has been done, he has no grievance to make. The diploma of the petitioner has not been recognised by the State Government of Orissa or the Chief Engineer. Qualified Overseers and even engineers are available in this State. Lastly it is pleaded that the petitioner had a right of appeal under the Act and the writ petition should not be entertained as the petitioner has not exhausted that statutory remedy open to him.
4. It is well settled that availability of an alternate statutory remedy does not bar the jurisdiction under Article 226 though sound exercise of discretion often stands in the way of invoking the extraordinary jurisdiction. In this case the order was under the direction of the Chairman. An appeal would lie to government. In view of the Government letter referred to above sent to the Executive Officer, we accept Mr. Murty's contention that the petitioner rightly thought that no relief could be had from Government. The preliminary objection, therefore must stand overruled.
5. Section 73 of the Municipal Act vests power in the Municipal Council to determine its establishment but subject to the previous sanction of the State Government. Section 387 (2) (XXIII) authorises the Stale Government to make rules prescribing the qualification of candidates for employment under Section 73. Rule 427 of the Municipal Rules in item 3 prescribes:
'3. Overseer -- (a) Upper subordinate diploma of a College or School of Engineering; or
(b) Lower subordinate diploma of a College or School of Engineering or an equivalent qualification recognised by the Chief Engineer.
6. Mr. Murty for the petitioner contends that the petitioner had produced particulars of his qualification in 1961, when he was given the appointment. The order of appointment was conditional upon certain other formalities being completed but did not refer to verification of educational qualification as a pre-condition to the appointment being effective. The petitioner was found to have the requisite qualification by the opposite party No. 2 as stated in the annual report of inspection for the year 1964-65 and his service was found satisfactory. Until eight years had passed objection on the ground of absence of requisite qualification was not raised. The allegation of the petitioner that four others with similar qualification are in Government service is not refuted. It is true that we have no material on record to show whether for such posts there is any prescription of qualification, but we think, we shall do well to assume that Government have found the diploma of the petitioner not to be worthless in their case: otherwise public appointment in posts of technical nature could not have been given to them.
It is further contended that at the time of appointment in 1961 the petitioner was 25 years old and, as such, if the Municipal Council did not appoint him, he could have looked for alternate employment. After nine years when he was 34 years old he would not find it possible to get into alternate employment. The Municipal Council as also the opposite party No. 2 it is contended, are estopped from raising the dispute over the petitioner's qualification at this belated stage.
7. Mr. Rath for the opposite party No. 1 answers Mr. Murty's contentions by saving that there can be no estoppel against the statute. Since the rule prescribes the qualification, and the petitioner does not possess it there can be no appointment and any appointment erroneously given or made in derogation of the statutory rule cannot stand. Mr. Rath agrees that the Municipal Council has no particular grievance against the petitioner, but in view of the direction of the opposite party No. 2 as reiterated by Government, the termination has followed.
8. It is well settled that estoppel is only a rule of evidence which under certain circumstances can be invoked by a party to an action. It does not create any substantive right or confer any cause of action on the other (AIR 1970 SC 426), but it is capable of being viewed as a substantive rule of law insofar as it helps to create or defeat a right which would not exist or be taken away but for that doctrine (AIR 1954 Mad 402 (403).) In Anglo Afgan Agencies' case. AIR 1968 SC 718 their Lordships applied the rule for supporting the claim for a mandamus. In Century Spinning Mills, case, AIR 1971 SC 1021 their Lordships 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 representation. In Turner Morrison and Co. v. Hungerford Investment (1972) 1 SCWR 887 = (AIR 1912 SC 1311) it has been indicated that the equitable rule of estoppel has gained new dimensions in recent years. In Lever Finance Ltd. v. West Minster (City) LBC. (1970) 3 WLE 732 (CA) an instance of extended doctrine of the rule is available.
9. We have indicated at length the facts of the present case and the sequence of events. In that background is the opposite party No. 2 estopped from disputing the fact that the petitioner was qualified for the Post 2.
10. The opposite party No. 2 whose finding that the petitioner is unqualified is in dispute and has brought about the impugned termination does not enter contest. That authority had admitted the petitioner to have the requisite qualification on an earlier occasion. We have not been told as to how that statement was made then. It is not the case of the opposite parties that the petitioner had misrepresented about his qualification at the time of securing his appointment. As already stated the appointment was not conditional upon verification of educational qualification. 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. To allow the opp. parties to hold to the contrary would be prejudicial to the petitioner. We must say that the petitioner has changed his position to such an extent that he cannot now be subject-ed to the impugned situation as he cannot relieve himself of the consequences of the representation expressed in the action of the opp. parties on those two occasions.
In the two instances (AIR 1968 SC 718 and AIR 1971 SC 1021) their Lordships of the Supreme Court while applying the rule of estoppel overlooked the mandatory requirement of law and notwithstanding the fact that in the ordinary circumstances (that is but for application of the doctrine of estoppel no relief was available) no claim was sustainable, gave relief on basis of estoppel. In the present case, the appointment of the petitioner is disputed on the ground that the diploma held by him is not of the type the rule requires. We must hold that the opposite parties are precluded from disputing that fact. Besides the petitioner is not a person picked up from the street who does not answer at all the specification. He himself served Government for more than three years before his appointment under the Municipality, Again his service was commended by the opposite party No. 2. Persons of his like are indisputably now in employment of Government.
There is another feature In support of his case. The admission of the opposite party No. 2 in the inspection report that the Petitioner is duly qualified has not been properly explained away. It is 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. (AIR 1960 SC 100). The opposite party No. 2 has not cared to appear in the proceeding to explain away his admission. Estoppel and admission thus operate as bar against the present stand of the opposite parties.
11. Mr. Rath reiterated the stand taken in the return that the petitioner was a temporary servant and the termination is in terms of the contract. We agree that there could be termination of the service of a temporary servant by notice, but in the instant case the termination is on the stated ground of want of adequate qualification. It is certainly a stigma and cannot be held to be an order of termination simpliclter.
12. Objection has not been rightly raised to the maintainability of the petition on the ground that the opposite party No. 1 is a municipal council. The service is statutory and the Service Code has also been applied.
13. We therefore, quash the order of termination of service allow the writ application and direct that the petitioner shall be restored to service and be deemed to have been always in service notwithstanding the impugned order. We direct parties to bear their own costs.
B.K. Ray, J.
14. I agree.