M.C. Jain, J.
1. This is a plaintiff's appeal against the judgment and decree dated February 1, 1971 of the learned Senior Civil Judge, Bikaner, whereby he reversed the judgment and decree of the learned Munsif, Bikaner dated August 31, 1968.
2. This appeal raises a very short question as to whether the plaintiff -appellant's repatriation to the Ferozapur-Delhi Division is justified.
3. The necessary facts relevant for the decision of the appeal may briefly be stated as under : The Railway Service Commission selected the candidates for appointment to the posts of Guard Gr.C, The appellant's name is contained in the list 'B' appended to the Railway Service Commission's letter dated September 8, 1954 (Ex. A/4) addressed to the General Manager, Northern Railway, New Delhi. List 'B' consisted of 73 names for the Delhi & Ferozpur Division, in which the appellant's name appeared at Section No. 69, After selection, the appellant was sent for training to the Training School, Saharanpur. The General Manager, Northern Railway, New Delhi informed the Superintendent Training School, Northern Railway, Saharanpur by his letter dated 27-7-55 (Ex. 1) that on completion of the training the probationary Guards may be allotted temporarily to the division according to their choice in order to keep them near to their home station. It was also informed to the Superintendent that the question of reposting such of the candidates as have been posted to the different divisions as above, nearer to their home stations, will be considered later as & when possible. Copy of this letter was forwarded to the Divisional Superintendent, Northern Railway, Bikaner Division. The Superintendent, Railway Training School, Sharanpur issued posting order dated August 6, 1955 (Ex. 14) and it was stated that the probationary Guards including the plaintiff are posted in their Division for undergoing practical line training for a period of 15 days before they are actually employed against the working post. The appellant's name appeared at Section No. 2 and the division allotted was Bikaner by letter dated August 22, 1955. In Bikaner Division, the appellant was temporarily posted at Bikaner. Five probationary Guards were posted temporarily pending further adjustment. The appellant gave option for the Bikaner Division, as is evident from Exhibit-18. On completion of the training, the appellant was allotted Bikaner Division, as is evident from the merit lists December 14, 1955 (Ex. 8). In the order of merit, the appellant's name appeared at Section No. 27 & the Division was shown as Bikaner. The appellant was then confirmed by the Divisional Personnel Officer, Bikaner vice order dated January 13, 1958 (Ex. 9). The plaintiff's station is shown as Bikaner and he was confirmed with effect from December 14, 1956. The General Manager, New Delhi vide his order dated January 14, 1959 (Ex. A/5) addressed to the Divisional Superintendent, Northern Railway, Allahabad with a copy to the Divisional Superintendent, Northern Railway Bikaner informed that Shri Govind Prasad Maheshwari has been posted at Bikaner vide the plaintiff-appellant Kantichand. The plaintiff appellant made a representation for mutual transfer with Shri SwaraHsingh, Guard vide Ex. A/3 dated November 10,1960, but his request for mutual transfer was not acceded to. The correspondence produced by the defendants-respondents shows that the General Manager, Northern Railway, New Delhi, continued to ask for relieving the plaintiff-appellant from Bikaner Division, in order to join in the Delhi-Ferozpur Division and it continued till orders dated April 10, 1965 and April 19, 1965 were issued. In the meantime, several representations were also made by the other Guards for effecting repatriation of the plaintiff-appellant and other Guards of other Division. It may also be stated that the seniority & confirmation list of Guard Gr.C Ex. 10) was issued on June 14, 1960 in which, the plaintiff-appellant's name appeared at S. No. 73 and it was also stated therein that the seniority and confirmation list of items No. 1 to 85 were already finalised and relating to the remaining items No. 86 to 146, the appeals and objections were invited within a period of one month. Again on March 5, 1965, further seniority list (Ex. 2) was issued, in which the plaintiff's name appeared at Section No. 43 and it was stated that the seniority of the persons appearing at S.No. 1 to 137 has since been finalised after disposing of the appeals of the staff and appeals and objections were invited in respect of the persons appearing at Section No. 138 to 157. The Divisional Superintendent, Bikaner Division by his letter dated March 16, 1964 (Ex. 11) informed the General Manager, New Delhi that the order for repatriation of the plaintiff appellant was first received in January 1959 and in the meantime, he was confirmed as Guard 'C with effect from December 14, 1956 according to the seniority in the Bikaner Division against the existing vacancy vide order dated January 13, 1958 (Ex. 9). It was also stated by him that the repatriation would really be a hardship to the employee, who is required to lose seniority to the extent of eight years and it was also informed that the authorities of the Bikaner Division as well as the employee were not aware that the plaintiff appellant would eventually be repatriated to other division. By letter dated September 1966 (Ex. 19), the Divisional Superintendent, Northern Railway, New Delhi also informed to the Divisional Superintendent, Bikaner Division that in case, the plaintiff appellant is allotted the Delhi Division, his name shall stand at S, No. 77 in the seniority list of Guard Gr. C. The Divisional Superintendent, Bikaner Division by his letter dated September 9, 1965 (Ex. 22A) informed the General Manager, New Delhi that since, nothing was mentioned in the Head-quarter's letter dated July 27, 1955 that the recruited Guards are subjected to repatriation at a later stage, they were assigned due seniority and confirmed prior to the receipt of the Head-quarter's letter dated August 28, 1961. The plaintiff-appellant based his case on his confirmation and so his lien in Bikaner Division and subsequent appearance of his name in the final seniority lists, and he also based his claim on the ground that the repatriation would be detrimental to his interest as he will loose his seniority and future promotion. The learned Munsif, after trial of the case, decreed the plaintiff's suit and declared that the orders of repatriation are not valid and enforceable against the plaintiff-appellant and it was declared that the plaintiff-appellant is a; hand of the Bikaner Division. The defendants-respondents Were further restrained from effecting the plaintiff's repatriation or minimize his rights, which have accused to the plaintiff as a hand of the Bikaner Division. The Union of India went in appeal against the judgment and decree of the learned Munsif and the learned Senior Civil Judge, Bikaner allowed the appeal and set aside the judgment and decree of the learned Mnnsifand dismissed the plaintiff's suit, hence, this appeal by the plaintiff-appellant.
4. I have heard Mr. M. Mridul, learned Counselfor the appellant & Mr. A.K. Mathur, learned Counselfor the respondents.
5. The only question, which requires for determination in this appeal is as to whether the plaintiff appellant is liable to be repatriated to the Delhi Division.
6. Mr. Mridul learned Counselfor the appellant submitted that the plaintiff-appellant was not aware that he has been allotted the Delhi Division. Even if, it be assumed that the plaintiff-appellant knew that the option has been invited for temporary allotment of the Division, according to the choice, still, the plaintiff-appellant was given to understand that the option has become final as the plaintiff was confirmed in Bikaner Division by the competent authority namely; The Divisional Personnel Officer, Bikaner Division. The post is a division controlled post and so the Divisional Personnel Officer was the competent authority to confirm the plaintiff appellant. Even, the authorities at Bikaner remained under the impression and rightly that the plaintiff-appellant's posting was not subject to his repatriation to the Delhi Division Having once been confirmed as Guard Gr. C in BikanerDivision, the plaintiff is not liable to repatriated.
7. It was urged by Mr. Mridul, that right from 1955, the plaintiff-appellant continued to serve in Bikaner Division and has thus, acquired a right, as he was so represented by the order of confirmation and assignment of seniority. It is not open to the respondents to disturb the appellant's posting in Bikaner Division.
8. On behalf of the defendants-respondents, it is contended that the plaintiff-appellant was selected for the Delhi Division, as is evident from Ex. A/4. The option or the choice was obtained only as a temporary messure so Bikaner Division was allotted to the plaintiff appellant temporarily. The plaintiff-appellant's confirmation and finalisation of the seniority lists are of no consequence, in view of the fact that the plaintiff's original selection was for the Delhi Division.Right from January 14,1959, the General Manager has been insisting for the plaintiff's repatriation & some how, by manoeuvring or otherwise, the plaintiff was not relieved and continued upto 1965 till filing of the suitand afterfiling thesuit, underorders of the Court, the plaintiff continuedto serve in the Bikaner Division. Thus, no right has arisen to the plaintiff to serve in the Bikaner Division.
9. It was also pointed out by Mr. Mathur that in case, the plaintiff-appellant is repatriated, his seniority and promotion etc. will not be affected. The plaintiff-appellant has been promoted as Guard Gr. B. by order dated October 11, 1968 and Guard Gr. A vide order dated July 25, 1979 and subsequent order dated November 30, 1979. The submission of Mr. Mathur in this regard is that the promotion is only provisional and the plaintiff appellant was not confirmed as Guard Gr. 'B' as the plaintiff-appellant's case for repatriation is sub-judice.
10. In the light of the respective contentions advanced on behalf of the parties, it is to be seen as what is effect of plaintiff's confirmation on January 13, 1958 with effect from December 14, 1956. Whether by this confirmation and the respondents' inaction for repatriation prior to January 14, 1959, the respondents' are estopped from repatriating the plaintiff to Delhi Division. This question is further, to be examined in the light as to whether, the plaintiff was aware that he has been selected for the Delhi Division & that the options have been called only for temporary allotment of Division. It is vehemently urged on behalf of the defendants-respondents that the plaintiff-appellant must have knowledge of both the facts namely that he was selected for the Delhi Division and that choice has only been asked for temporary Allotment. The plaintiff in his plaint, has averred that the Superintendent, Training School, Saharanpur called option from the plaintiff in view of the letter of the General Manager, New Delhi dated July 27, 1955 (Ex. 1). In this connection, the learned Senior Civil Judge observed as under:
The plaintiff was selected for the post of Guard Gr. 'C in the Delhi Ferozpur Division. After training, his choice about the division of posting was obtained and he was posted in the Bikaner Division. This posting was subject to re-consideration and the matter was re-considered by the General Manager and the plaintiff was ordered to go back to his parent division in 1959. The learned lower court has held that it has not been proved that the plaintiff was informed about his decision. I am unable to agree with this view. The several representations made by the plaintiff and even his attempt to have a mutual transfer with a willing person go to show that from the very beginning plaintiff was aware of the fact that he had to return to the Division for which he had been selected.
11. The above observations only show that the plaintiff came to know only in 1959 and on having come to know about the repatriation, he made several representations and also made an attempt for mutual transfer. But, on that basis, the learned Senior Civil Judge, Bikaner was wrong to find that the representations and attempt for mutual transfer show that from the very beginning the plaintiff was aware of the fact that he had to return to that division, for which he was selected. It may be pointed out that this conclusion, which has been drawn by the learned Senior Civil Judge, Bikaner that the plaintiff knew from the very beginning that he had to return to the division for which he was selected, does not appear to be correct. There is no material on record to establish that the plaintiff was informed of the division for which he had been selected. Such a knowledge, if attributed to the plaintiff, in the absence of clear proof, would only be presumptive and such a presumption cannot legitimately be drawn. Similarly, only on account of the plaintiff's reference in the pleading to the letter dated July 27, 1955 (Ex. 1), it can not be said that the plaintiff knew that options for the division have been called for only temporarily. That intimation to the plaintiff by which, the option was called, has not been placed on record. If that intimation would have been produced, it would have been clear as to whether it was conveyed that options are being called only for temporary allotment. It may be that the plaintiff might have subsequently come to know when he filed the suit that the options were called in pursuance of the letter of the General Manager to the Superintendent, Training School, Saharnpur dated July 27, 1955. On that basis, the plaintiff might have pleaded that fact. Even if it be assumed that the plaintiff was aware of the letter of the General Manager requiring the Superintendent to call choice for temporary allotment, still the basic question is as to whether the plaintiff knew that he has been selected for Delhi-Ferozpur Division and that at any time, thereafter, he will be liable to be repatriated. It is relevant to mention here that not only the plaintiff, even the authorities in the Bikaner Division, were under the impression that the posting in Bikaner Division is not subject to repatriation to the original division, for which, the plaintiff was selected. Ex. A/4, i.e. the original selection for Ferozpur Division stood modified by the General Manager's letter dated July 27, 1955, in which it has been stated that the question of reposting would be considered later as and when possible. Such a subsequent decision regarding the plaintiff' pre-posting has not also been placed on record. What has been placed on record is Ex. A/5 dated January 14, 1959 that the plaintiff was called upon to proceed to Ferozpur-Division. Govind Prasad Maheshwari was posted in Bikaner Division vice Kanti chand (Ferozpur Division). It does not show that there has been any decision taken for the plaintiff's reposting as contemplated in Ex. 1. However, it can be taken that Ex. A/5 may be the result of such decision as envisaged in Ex. 1 But, if the Divisional Personnel Officer, without reference to the General Manager proceeded to confirm the plaintiff, who was not aware of his original selection for a particular Division, it can safely be said that the plaintiff was given to understand that no decision for the plaintiff's reporting has been made and choice, which he exercised has been accepted by the authorities, and so, he has been duly confirmed in the Bikaner Division. For about 3 1/2 years, no action was taken by the authorities. After lapse of 3 1/2 years and after 1 year of the plaintiff's confirmation, in my opinion, the Railway authorities are estopped from changing the plaintiff's division. The plaintiff came to be confirmed and was assigned seniority. It is relevant to mention here that the learned Senior Civil Judge has found the plaintiff's confirmation to be in order. Although, it was contended before the learned Senior Civil Judge that the Divisional Personnel Officer, Bikaner Division exceeded his powers and confirmation order is not binding on the Union of India. As regards this contention, it was observed that the confirmation order has conferred certain rights on the plaintiff and the same can not be withdrawn because it would result inloss to the plaintiff. Relying on the decision of K. Jagannathan v. District Collector, Kurnool and another : AIR1966AP59 , it was observed that it can be said that the Railway is estopped from saying that the confirmation was made due to a mistake. If, the Railway is estopped from challenging the plaintiff's confirmation, then on the same reasoning, the Railway is also estopped from changing the plaintiff's Division of posting. It is also pertinent to take note of, that from 1955 upto the date of filing of suit and obtaining of interim relief, the plaintiff continued to serve in the Bikaner Division and upto the date of filing the suit, almost, a decade had passed, and in the meantime, two seniority lists were published, in which the plaintiff's seniorty stood finalised. The question of seniority and the plaintiff's confirmation stood finally determined vide seniority list Ex. 10 dated October 14, 1960 referred to above and subsequent seniority list Ex. 2 dated March 5, 1965. Whatever be reason as to why the plaintiff was not relieved from the Bikaner Division, the fact remains that the plaintiff had continued to serve in the Bikaner Division despite Ex. A/5. If the plaintiff would have been relieved immediately on receipt of Ex. A/5, perhaps, he would have been in a position to adjust himself in the Delhi Ferozpur Division. Almost a period of 6 years were allowed to pass. It is true that this circumstance is not of much significance, the plaintiff's confirm action and the Railway's in action for a period of 6 years and their effect has to be taken into consideration. Similarly, a period of 16 years have passed from the date of filing of the suit. Thus, a total period of more than 26 years has passed, so the question of the plaintiff's confirmation and in action on the part of Railway has to be considered in this whole setting. Mr. Mathur tried to canvass that the plaintiff will not loose anything, in case, he is repatriated and reference was made to the statement of the defendant's witness Ved Prakash, who is working in the personnel Branch, Delhi Division. He has stated in examination in chief, that in case, the plaintiff is repatriated to his parent region, he will not suffer any seniority nor he, will lose any promotion and no monetary loss will be caused. This is simply a said statement and a perusal of his cross examination would show that he has no knowledge about the position, which the plaintiff would have in the Delhi Division. On the contrary, from the letters Ex. 11 and Ex. 19, it would be clear that there would be loss of 8 years seniority and the plaintiff's position would be at S No. 77 in the seniority list. Mr. Mathur could not explain as to whether the plaintiff would stand promoted in Ferozpur Division, on the date, on which the plaintiff has been promoted in the Bikaner Division as Guard Gr. B and A. It may be mentioned that the comparative position of the plaintiff in the two divisions has not been produced and proved. In the absence thereof, it cannot be found that the plaintiff would not in any way suffer in seniority and promotion etc. Thus, the plaintiff's repatriation when he has already been confirmed in the Bikaner Division may result in loss of seniority and future promotion etc. and so he may be adversely effected.
12. In University of Delhi v. Ashok Kumar and Anr. : AIR1968Delhi131 , the provisional admission given to the students was disapproved by the University There was inordinate delay on the part of the University in scrutinizing the various applications and coming to a decision whether to confer or to reject the provisional admissions already made by the Principals of Colleges. In this context, it was observed as under:
It is not merely a positive or active declaration that can be the basis for a plea of estoppel but also an act or omission can constitute such basis. An estoppel may arise from silence as well as words. However, to constitute an 'estoppel by silence' or 'acquiescence', it must appear that the party to be estopped must be sound in equity and good conscience to speak and that party claiming estoppel relied upon such silence or acquiescence and was mislead thereby to change his position to his prejudice.
13. In K.K. Jaco v. The Madurai University and Anr. : AIR1978Mad315 the plea of estoppel was accepted against the University and cancellation of the petitioner's admissionwas quashed.Admission was cancelled after 4-5 months of admission.
14. The Registrar, University of Madras v. Sundra Shetti and others AIR 1956 mad 309 is also a similar case relating to admission to a college.
15. In K. Jagannathans case (supra) the petitioner was allowed to appear for competitive examination being duly qualified. After having passed the same, he was appointed as probationer for two years. The petitioner was discharged after the expiry of the probationary period on the ground that he was not qualified to appear for competitive examination. The petitioner became over age at the time of discharge. The principle of estoppel was applied and the order of discharge was held to be illegal.
16. In Rajeshwar Nath v. Union of India 1980 RLW 299 the petitioner was given appointment at the age of 25 years and 2 months. Although, Class-IV employee could be appointed only upto the age of 25 years. It was held that it was not open to the Railway, after a period of 15 years to throw a Railway employee out of employment.
17. In the light of the above authorities, it may be stated that the principle of estoppel can be attracted to the facts of the present case. The plaintiff, who gave a choice for the Bikaner Division, was allowed to serve the Bikaner Division from 1955 to 1958. He was not informed that he has been selected for the Delhi Division. In January 1958, the Divisional Personnel Officer confirmed him by which action, the plaintiff was given to understand that his choice of the Division has been finalised and even as confirmed Guard Gr. C, he continued to serve for about an year. Thus it was only after 4 years that for the first time, he was required to go to Delhi Division. It was not open to the Railway to disturb the plaintiff after 4 years, which can not be considered as a reasonable time and action on the part of the Railway may operate prejudicial or detrimental to the interest of the plaintiff-appellant by way of loss of seniority and future promotions. Viewing in, this light, in my opinion, the judgment and decree of learned Senior Civil Judge, Bikaner can not be maintained and deserves to be set aside.
18. Accordingly, the appeal is allowed, the judgment and decree of the learned Senior Civil Judge is set aside and the decree of learned Munsif is restored. In the facts and circumstances of the case, the parties are left to bear their own costs throughout.