Gujarat High Court
Daxaben Bhanubhai Kakadiya vs State Of Gujarat on 2 September, 2025
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/26488/2022 JUDGMENT DATED: 02/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 26488 of 2022
With
CIVIL APPLICATION (DIRECTION) NO. 1 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 26488 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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Approved for Reporting Yes No
√
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DAXABEN BHANUBHAI KAKADIYA
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR PJ KANABAR(1416) for the Petitioner(s) No. 1
MR ADITYA PATHAK, AGP for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 02/09/2025
ORAL JUDGMENT
1. Heard learned Advocate Mr. P.J. Kanabar for the petitioner and learned AGP Mr. Aditya Pathak for the respondent-State.
2. The present writ petition is taken up for hearing in context of a Civil Application preferred by the present petitioner seeking interim direction. With consent of the parties, the petition is taken up for final disposal.
3. Issue Rule returnable forthwith. Learned AGP Mr. Pathak waives service for the respondents.
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4. By way of this petition, the petitioner has sought for the following prayers :
"12.A) YOUR LORDSHIPS may be pleased to admit this Special Civil Application;
B) YOUR LORDSHIPS may further be pleased to issue a writ of mandamus or any other appropriate writ, Order or direction in the nature of mandamus directing the respondents to declare that the petitioner is required to be promoted w.e.f. 04/10/'19 on the post of Senor Clerk Class-III, under the respondents and Your Lordships may further be pleased to direct the respondents to promote the petitioner and may kindly be directed to be paid the difference in the salary etc. within the time frame in the facts and circumstances of the case and in the interest of justice;
C) Pending admission, hearing and final disposal of the present petition, YOUR LORDSHIPS may be pleased to direct the respondents to treat the petitioner as Senior Clerk Class-III and may further be pleased to direct the respondents to pay the salary etc. of the said post to meet with the ends of justice;
D) Such other(s) and further relief(s) which this Hon'ble Court may deem fit to be granted in the interest of justice."
5. It is the case of the petitioner that the petitioner had appeared in a selection process conducted by the Gujarat Subordinate Services Section Board, Gandhinagar, for the post of Clerk in the Road and Building Department of the State and whereas vide communication dated 14.06.2013, the petitioner was declared successful and whereas vide an order dated 17.07.2013, the petitioner had been posted in the Office of Executive Engineer, Road and Building Department, Navsari. Page 2 of 37 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:39:01 IST 2025
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6. It appears that the original appointment of the petitioner was on fixed pay for a period of five years and whereas the petitioner upon completion of five years, had been regularized on the post in question vide an order dated 17.07.2018 in the pay scale of Rs. 5200-20200. It appears that the petitioner had been transferred from Navsari to Surat vide an order dated 19.04.2018.
7. It appears that the Road and Building Department in the State of Gujarat is divided in three zones namely, Ahmedabad Zone, Vadodara Zone and Surat Zone. The petitioner being in the Vadodara Zone, after her marriage had sought to be transferred at her own request to the Ahmedabad Zone and whereas vide an order dated 01.02.2019, the State through the Road and Building Department, Vadodara Zone, had accepted the request of the petitioner for being transferred to Ahmedabad Zone. The order inter alia stated that the petitioner would be required to forgo her seniority and would not be entitled to any benefit basis on the seniority of the petitioner at the Vadodara Zone. It is further observed that the petitioner would be placed as junior most in the cadre of Junior Clerk in the Ahmedabad Zone.
8. It appears that after joining at the Ahmedabad Zone, the respondents had initially issued a seniority list on 31.08.2019, where the Page 3 of 37 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:39:01 IST 2025 NEUTRAL CITATION C/SCA/26488/2022 JUDGMENT DATED: 02/09/2025 undefined name of the petitioner had not reflected, more particularly on account of the seniority list being with regard to the seniority position in the cadre of Junior Clerk as on 01.01.2017.
8.1 It appears that the respondents had issued a fresh seniority list on 02.03.2022 reflecting the seniority position as on 01.01.2022 in the cadre of Junior Clerk in the Ahmedabad Zone and whereas name of the petitioner figured at Serial No.171. It appears that vide an order dated 04.10.2019, the respondents had issued promotion orders for employees working in the cadre of Junior Clerk to the post of Senor Clerk and whereas the name of the petitioner did not figure in the said list. It is the case of the petitioner that the petitioner and few other employees had made representation against the same, more particularly submitting that the petitioner and such other persons had passed the Lower Level Departmental Examination. In response thereto, it was intimated by the Superintending Engineer to the Executive Engineer vide note dated 21.10.2021 that since the petitioner had joined the post of Junior Clerk in the Ahmedabd Zone, through inter-zone transfer at her own request, therefore her request was rejected. It further appears that pursuant to the seniority list dated 02.03.2022, promotion orders appear to have been issued to Junior Clerks vide orders dated 10.08.2022 and 15.08.2022 and Page 4 of 37 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:39:01 IST 2025 NEUTRAL CITATION C/SCA/26488/2022 JUDGMENT DATED: 02/09/2025 undefined whereas it is the case of the petitioner that the case of the petitioner not being considered, the petitioner claims to be prejudiced. It is also the case of the petitioner that since the petitioner had passed the Lower Level Departmental Examination on 03.06.2019, the case of the petitioner ought to have been considered for promotion. It is also the case of the petitioner that waiving of seniority on account of inter-zonal transfer would not mean that the petitioner would not be eligible for promotion and whereas it is submitted that the period of experience put in by the petitioner ought to be considered for the post of promotion. The petitioner has therefore approached this Court questioning her non-promotion.
9. Learned Advocate Mr. P.J. Kanabar for the petitioner would submit that while the request of the petitioner for inter-zonal transfer was with a condition that the petitioner would lose her earlier seniority, yet, there is no statutory bar which could be relied upon to make an employee forgo her seniority. It is submitted in the alternative that while the petitioner would be placed in the bottom of the seniority list, yet, her experience i.e. experience of having worked in the Surat Zone could not get washed away on account of the inter-zonal transfer. It is submitted that since the petitioner had passed the Departmental Examination and had become eligible for promotion, her case ought to have been Page 5 of 37 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:39:01 IST 2025 NEUTRAL CITATION C/SCA/26488/2022 JUDGMENT DATED: 02/09/2025 undefined considered by the respondents. It is further submitted that two employees namely (i) Shree P.D. Pandor and (ii) Shree V.R. Bhatol, who were transferred on inter-zone basis, were considered for promotion vide promotion order dated 04.10.2019, whereas the petitioner's case had not been considered.
9.1 Learned Advocate Mr. Kanabar in support of his submissions would rely upon the following decisions :
(i) Renu Mullick Vs. Union of India, reported in AIR 1994 SC 1152;
(ii) Scientific Advisor To Raksha Mantri Vs. V.M. Joseph, reported in AIR 1998 (5) SCC 305;
(iii) Union of India Vs. C.N. Ponnappan, reported in 1996 (1) SCC 524;
(iv) Union of India Vs. Vijayita Sinha W/o Niraj Kumar, reported in 2015 JX (Guj) 58, [SCA No. 4698 of 2010, dated 07.01.2015]; and
(v) Rameshbhai Dalsangbhai Kuniya Vs. State of Gujarat, reported in 2022 JX (Guj) 364 [SCA No. 9530 of 2019, dated 02.05.2022]
10. At this stage, it is pertinent to mention that since the Recruitment Page 6 of 37 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:39:01 IST 2025 NEUTRAL CITATION C/SCA/26488/2022 JUDGMENT DATED: 02/09/2025 undefined Rules which lay down the conditions of promotion for the post of Senior Clerk from Junior Clerk had not been annexed with the petition, learned AGP Mr. Pathak had been directed to provide copy of the same and whereas copy has been provided to this Court as well as to the learned Advocate for the petitioner.
11. The present petition is vehemently opposed by learned AGP Mr. Pathak for the respondent-State. Learned AGP would submit that the Recruitment Rules provide that promotion to the post of Senior Clerk, Class - III in the subordinate service of the Non Secretariat Department and Offices of the State of Gujarat is regulated by the Senior Clerk, Class-III, in the subordinate service of the Non Secretariat Departments and Offices of the State of Gujarat Recruitment Rules, 2015. Learned AGP would submit that for promotion to the post of Senior Clerk, Junior Clerk would have to put in not less than 5 five years service and should have passed the departmental examination as prescribed by the Government and should also have passed the qualifying examination for computer knowledge in accordance with the provisions of the Gujarat Civil Services Computer Competency Training and Examination Rules, 2006. Learned AGP would submit that though the petitioner fulfills the criteria, yet, since she is at Serial No. 171 in the seniority list of the Junior Page 7 of 37 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:39:01 IST 2025 NEUTRAL CITATION C/SCA/26488/2022 JUDGMENT DATED: 02/09/2025 undefined Clerk in the Ahmedabad Zone, and since her turn for promotion has yet not arisen, more particularly since persons above her have not yet been promoted and since it is not the case of the petitioner that any person junor to the petitioner in the list has been promoted, therefore the case of the petitioner would be considered as and when her turn comes. It is submitted by the learned AGP that the petitioner, having obtained inter- zonal transfer wherein the condition prescribed was of waiving seniority in the Surat Zone, would not be entitled to turn around and submit that her seniority could not be wiped away and she is entitled to claim benefit accruing from the same. Learned AGP would submit that upon the petitioner accepting the inter-zonal transfer, the petitioner was placed in the bottom of the seniority as on date and whereas it is now not open for the petitioner to claim that she should be entitled to seniority, counting the period put in by the petitioner had her former zone. Thus submitting, learned AGP would request that this Court may not consider the present petition and may reject the same.
12. Heard learned Advocates for the respective parties who have not submitted anything further and perused the documents on record including the judgments relied upon by the learned Advocate for the petitioner.
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13. Having heard the learned Advocates for the parties, the following questions arises for consideration of this Court.
(i) Whether the respondents had erred in denying promotion to the petitioner as a senior clerk?
(ii) Whether the petitioner would be eligible to contend that in absence of any statutory rules, the petitioner would not lose her seniority upon her transfer on her own request on inter zonal transfer basis?
14. For examining the above questions, at the outset, undisputed facts, which would give better understanding of the dispute, are required to be stated. The petitioner had joined services as junior clerk, Class-III in the R & B Division, Vadodara, posted at Navsari. Upon completion of 5 years of service, the petitioner's services were regularized on 17.07.2018. The petitioner had applied for inter zonal transfer from Vadodara Zone to Ahmedbad Zone vide her application dated 03.07.2018 along with an undertaking that she would be ready to forgo her seniority upon inter zonal transfer. The petitioner had been transferred to Ahmedabad on inter zonal basis vide order dated 01.02.2019 on the condition that she would forgo her seniority in the Vadodara zone and would be placed in the seniority list as junior most Junior Clerk in the Ahmedabad Zone. The petitioner had resumed service as Junior Clerk on 14.02.2019 and Page 9 of 37 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:39:01 IST 2025 NEUTRAL CITATION C/SCA/26488/2022 JUDGMENT DATED: 02/09/2025 undefined whereas the petitioner had appears in the departmental examination namely lower level examinations conducted by the Gujarat Subordinate Services Selection Board and as per the result of such examination declared on 03.06.2019, the petitioner had been declared successful. A final seniority list of Junior Clerks, Class-III, in the Ahmedabad Zone, had been published on 31.08.2019, with the seniority position as on 01.01.2017, which did not reflect the name of the petitioner. On 04.10.2019, the respondents issued promotion orders of 67 Junior Clerks, to the post of Senior Clerks. The petitioner and other similarly situated employees had submitted a representation on 30.07.2021 requesting that they may be promoted on vacant posts since they have cleared the examination. It appears that thereafter, numbers of promotion orders were issued and certain representations were preferred by the petitioner and whereas representation preferred by the petitioner was rejected vide noting dated 21.10.2021 by the Superintending Engineer.
15. It would also be relevant to mention here that the respondents had published seniority list of the Ahmedabad Zone on 02.03.2022 showing the position as on 01.01.2022 and whereas, the petitioner's name figures at Serial No. 171 in the said seniority list. It would also be apposite to note at this stage that neither the averments made by the petitioner in the Page 10 of 37 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:39:01 IST 2025 NEUTRAL CITATION C/SCA/26488/2022 JUDGMENT DATED: 02/09/2025 undefined writ petition nor the oral submissions made by the learned Advocate, reflect a contention that either fixation of seniority position in Ahmedabad Zone was erroneous or that any employee junior to the petitioner as per the seniority list of the Ahmedabd Zone, has been promoted to the post of Senior Clerk.
16. At this stage, it would also be relevant to refer to the rules governing promotion to the post of senior clerk i.e. Senior Clerk, Class- III, in the subordinate service of the Non Secretariat Departments and Offices of the State of Gujarat Recruitment Rules, 2015. Rule 3 of the said Rules being relevant for the present purpose is reproduced hereinbelow for benefit.
"3. Appointment to the post of Senior Clerk, Class-III, in the subordinate service of the Non Secretariat Departments and Offices of the State of Gujarat shall be made either-
(a) by promotion of a person of proved merit and efficiency from amongst the persons who :
(i) have worked for not less than five years in the cadre of Junior Clerk, Class-III, in the subordinate service of the concerned Non Secretariat Department and Office;
(ii) have passed the departmental examination as may be prescribed by the Government; and
(iii) have passed the qualifying examination for computer knowledge in accordance with the provisions of the Gujarat Civil Services Computer Competency Training and Page 11 of 37 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:39:01 IST 2025 NEUTRAL CITATION C/SCA/26488/2022 JUDGMENT DATED: 02/09/2025 undefined Examination Rules, 2006.
Provided that where the appointing authority is satisfied that a person having experience specified in sub-clause (i) above is not available for promotion and that it is necessary in the public interest to fill up the post by promotion even of a person having experience for a lesser period; it may, for reasons to be recorded in writing, promote such person who possesses experience of a period of not less than two thirds of the period specified in sub-clause (i) above; or
(b) by direct selection."
16.1 A perusal of the rules would reveal that the post of Senior Clerk, Class-III, could be filled in by promotion of a person with proved merit and efficiency, who has worked for at least 5 years in the cadre of Junior Clerk, Class-III, passed the departmental examination as prescribed by the Government and passed the CCC examination with regard to Computer Competency Training.
17. Having appreciated the rule position, now this Court would consider the issues framed based upon submissions of the parties.
18. The first question being that whether the petitioner was entitled to promotion as a Senior Clerk with effect from 04.10.2019, and whether the respondents had erred in denying the same, it would be apposite to observe that the claim for promotion from the date 04.10.2019, is based upon promotion order of the said date promoting 67 Junior Clerks to the Page 12 of 37 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:39:01 IST 2025 NEUTRAL CITATION C/SCA/26488/2022 JUDGMENT DATED: 02/09/2025 undefined post of Senior Clerks on the basis of final seniority list of Junior Clerks, Class-III, in the Ahmedabad Zone, which had been published on 13.08.2019 with the seniority position as on 01.01.2017, in which seniority list the name of the petitioner did not figure since the petitioner had joined the services in the Ahmedbad Zone on 14.02.2019. In other words, the petitioner was not born on the cadre of Ahmedabad Zone prior to 14.02.2019.
19. As noticed hereinabove, relying upon decisions of the Hon'ble Supreme Court, Division Bench of this Court as well as Co-ordinate Bench of this Court, it had been contended by learned Advocate Mr. Kanabar that the services rendered by the petitioner prior to the inter zonal transfer ought to have been taken into account for the purposes of considering the case of the petitioner for promotion to the post of Senior Clerk. Before dealing with the said submission, it would be apposite to refer to the decisions relied upon by learned Advocate Mr. Kanabar in support of his submissions.
20 The first decision relied upon is in case of Renu Mullick (supra) by the Hon'ble Supreme Court and whereas paragraphs No. 3 to 11 thereof being relevant for the present purpose are quoted hereinbelow for benefit.
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NEUTRAL CITATION C/SCA/26488/2022 JUDGMENT DATED: 02/09/2025 undefined "3. Renu Mullick, the appellant, joined service in the Directorate of Statistics and Intelligence, Central Excise and Customs, New Delhi on 17.12.1974 as Lower Division Clerk (LDC). She was promoted to the post of Upper Division Clerk (UDC) on May 10, 1981. She was transferred, on her own request, to Allahabad by the Order dated 30.07.1987, and she joined as UDC on 4.08.1987 in the Central Excise Collectorate at Allahabad.
4. Executive instructions dated 20.05.1980, issued by the Central Board of Excise and Customs provide for inter- collectorate transfers on the conditions specified therein. The relevant conditions in para 2(ii) and para 3 are as under:
"2. (ii) The transferee will not be entitled to count the service rendered by him in the former Collectorate for the purpose of seniority in the new charge. In other words, he will be treated as a new entrant in the Collectorate to which he is transferred and will be placed at the bottom of the list of the temporary employees of the concerned cadre in the new charge;
3. A written undertaking to abide by the requisite terms and conditions may be obtained from the employees seeking transfers before the transfers are actually effected."
5. The appellant gave the necessary undertaking in the following words:
"I hereby agree to and undertake to comply with the conditions detailed below:
(1) My seniority will be fixed below the last temporary UDC in the Allahabad Collectorate, i.e. I will be treated as a fresh entrant in the cadre of UDC in the new charge.
(2) No transfer, travelling allowance and joining time etc., will be admissible to me as a result of this transfer.
(3) I will not be considered for further confirmation Page 14 of 37 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:39:01 IST 2025 NEUTRAL CITATION C/SCA/26488/2022 JUDGMENT DATED: 02/09/2025 undefined and promotion in the Directorate of S & I, Central Excise and Customs, New Delhi.
I will be adjusted against a direct recruit and unreserved vacancy in the grade of UDC."
6. It is not disputed that on joining Central Excise Collectorate, Allahabad, the appellant was placed at the bottom of the seniority list in accordance with the government instructions quoted above. The appellant does not make any grievance about the fixation of her seniority in the new charge at Allahabad.
7. In the year 1991, the appellant along with several other UDCs was considered for promotion to the post of Inspector by the Departmental Promotion Committee in accordance with the Central Excise and Land Customs Department Group 'C' Posts Recruitment Rules, 1979 (the Rules). Rule 4 read with the Schedule to the Rules lays down the eligibility qualifications for promotion to the post of Inspector. The relevant extract is reproduced hereunder:
"Inspector:Promotion by selection from UDC with 5 years' service or UDC with 13 years of total service as UDC and LDC taken together subject to the condition that they should have put in a minimum of two years of service in the grade of UDC...."
Note 3: If a junior person is considered for promotion on the basis of his completing the prescribed qualifying period of service in that grade, all persons senior to him in the grade shall also be considered for promotion, notwithstanding that they may not have rendered the prescribed qualifying period of service in that grade but have completed successfully the prescribed period of probation."
8. To clarify Note 3 quoted above, Office Memorandum dated 19.07.1989, was issued which is in the following terms:
"When juniors who have completed the eligibility Page 15 of 37 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:39:01 IST 2025 NEUTRAL CITATION C/SCA/26488/2022 JUDGMENT DATED: 02/09/2025 undefined period are considered for promotion, their seniors would also be considered irrespective of whether they have completed the requisite service provided they have completed the probation period in order to ensure that seniors who might have joined later due to various reasons are not overlooked for promotion."
9. On 11.11.1989, the appellant and 79 other candidates were promoted to the post of Inspector. The promotion order stated that the same was provisional and subject to further revision or modifications, if any. The appellant joined as Inspector at Allahabad and continued to serve in that capacity till the impugned order of reversion was passed. On 20.02.1992, the Additional Collector (P & V), Central Excise and Customs, Allahabad, passed an order reverting the appellant from the post of Inspector. No reason was assigned in the order of reversion. No opportunity, whatsoever, was afforded to the appellant before passing the said order. The appellant challenged the order of reversion before the Central Administrative Tribunal, Allahabad. Before the Tribunal, the respondents took the stand that on transfer from Delhi to Allahabad, the service rendered by the appellant at Delhi was wiped off for all purposes including for determining her eligibility under the Rules for promotion to the post of Inspector. The Tribunal dismissed the application of the appellant.
10.We are of the view that the Tribunal fell into patent error in dismissing the application of the appellant. A bare reading of para 2(ii) of the executive instructions dated 20.051980 shows that the transferee is not entitled to count the service rendered by him/tier in the former collectorate for the purpose of seniority in the new charge. The later part of that para cannot be read differently. The transferee is to be treated as a new entrant it) the collectorate to which he is transferred for the purpose of seniority. It means that the appellant would come up for consideration for promotion as per her turn in the seniority list in the transferee unit and only if she has put in 2 years' service in the category of UDC. But when she is so considered, her past service in the previous collectorate cannot be ignored for the purposes of determining her eligibility as per Rule 4 aforesaid. Her seniority in the previous collectorate is taken away for the purpose of counting her seniority in the new charge Page 16 of 37 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:39:01 IST 2025 NEUTRAL CITATION C/SCA/26488/2022 JUDGMENT DATED: 02/09/2025 undefined but that has no relevance for judging her eligibility for promotion under Rule 4 which is a statutory rule. The eligibility for promotion has to be determined with reference to Rule 4 alone, which prescribes the criteria for eligibility. There is no other way of reading the instructions aforementioned. If the instructions are read the way the Tribunal has done, it may be open to challenge on the ground of arbitrariness.
11.The provisions of the Rules reproduced above lay down that a UDC with 5 years' service or UDC with 13 years of total service as UDC and LDC taken together subject to the condition that he should have put in a minimum of 2 years of service in the grade of UDC, is eligible to be considered for promotion to the post of Inspector. The Rule nowhere lays down that 5 years or 13 years have to be spent in one collectorate. There is no indication, whatsoever, in the Rule that the service period of 5 years and 13 years is not applicable to an officer who has been transferred from one collectorate to another on his own request. On the plain language of the Rule the appellant, having served the department for more than 5 years as UDC and also having completed 13 years composite service as UDC and LDC including 2 years' minimum service as UDC, was eligible to be considered for promotion to the post of Inspector. The Tribunal failed to appreciate the elementary rules of interpretation and fell into patent error in non-suiting the appellant."
20.1 The above decision has been referred to almost in its entirety since it clearly appears that the said decision is the first decision, where the Hon'ble Supreme Court has inter alia held that previous services of an employee who had been transferred at her request on the condition of her seniority in the transferred place could not be ignored for the purpose of determining eligibility for promotion. It appears that the petitioner before the Hon'ble Supreme Court had joined services as an LDC in the Central Page 17 of 37 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:39:01 IST 2025 NEUTRAL CITATION C/SCA/26488/2022 JUDGMENT DATED: 02/09/2025 undefined Excise and Customs Collectorate, Delhi, in the year 1974 and she was promoted as a UDC in the year 1981, she had requested for transfer to Central Excise Collectorate, Allahabad, and vide order dated 30.07.1987 her request had been acceded to on the condition that employee will not be entitled to count services rendered in the former Collectorate for the purpose of seniority in the transferred Collectorate. An undertaking to such effect was also required, which the petitioner had given. The petitioner therein like the petitioner herein had not made any grievance as regards fixation of her seniority at the transferred place i.e. Central Excise Collectorate, Allahabad. The petitioner and other 79 employees were promoted to the post of Inspector in the year 1989 on provisional basis subject to further revisions and she had continued on such post till she was reverted on 20.02.1992, without affording any opportunity or without assigning any reason. The petitioner had challenged the same before the Central Administrative Tribunal, Allahabad and whereas the Tribunal had rejected the application on the ground that services rendered by appellant at the former Collectorate i.e. Delhi were wiped out for all purposes including for the purpose of considering case of the petitioner for promotion as Inspector.
20.2 The Hon'ble Supreme Court has quoted the relevant rule for Page 18 of 37 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:39:01 IST 2025 NEUTRAL CITATION C/SCA/26488/2022 JUDGMENT DATED: 02/09/2025 undefined promotion to the post of Inspector in the above quoted portion and whereas relying upon the rules, the Hon'ble Supreme Court had set aside the decision of the Tribunal. The rule inter alia stating that promotion to the post of Inspector would be by selection from the post of UDC of persons who have put in 5 years services as UDC or with total 13 years service as UDC and LDC taken together with a condition that the candidate should have put in at least 2 years in the cadre of UDC. The said rule subject to Note 3 of the said rules which inter alia states that if a junior person is considered for promotion on the basis of his completing the prescribed qualifying period of service in that grade, all persons senor to him in the grade irrespective of not having rendered the prescribed qualifying period of service (as referred to hereinabove) shall be considered subject to having successfully completed the period of probation. The Hon'ble Supreme Court has also referred to Office Memorandum dated 19.07.1987 which had clarified Note 3 referred to hereinabove and whereas the Office Memorandum states that Note 3 has been brought into effect to ensure that seniors who have joined later for various reasons are not overlooked for promotion. 20.3 The Hon'ble Supreme Court having considered the relevant rule position read with the Office Memorandum has laid down that for being Page 19 of 37 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:39:01 IST 2025 NEUTRAL CITATION C/SCA/26488/2022 JUDGMENT DATED: 02/09/2025 undefined considered for promotion, the period of service rendered in the previous Collectorate could not be ignored and whereas it is observed that while services of the previous Collectorate were taken away for the purpose of counting her seniority in the new charge but the said position would be irrelevant for judging eligibility of the candidate for promotion under Rule 4 which is a statutory rule. The Hon'ble Supreme Court has held that the period of service rendered in the earlier position had to be taken into account while considering the case for promotion and whereas the same having not been done, the Tribunal had fell in error and whereas the decision of the Tribunal had been set aside. It would thus appear to this Court that the Hon'ble Supreme Court was seized of a case where statutory rule laid down a certain period, to be treated as a minimum qualifying period for an employee to be considered for promotion to a higher post and whereas the department had while considering the case of the petitioner not taken into account previous services rendered by her prior to the request transfer leading to the interference by the Hon'ble Supreme Court.
21. The next decision relied upon by the petitioner is in case of Scientific Advisor To Raksha Mantri (supra) where the Hon'ble Supreme Court was considering the case of respondent therein, who had Page 20 of 37 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:39:01 IST 2025 NEUTRAL CITATION C/SCA/26488/2022 JUDGMENT DATED: 02/09/2025 undefined requested for transfer on compassionate ground subject to being placed in the bottom of seniority list. The case of the respondent for promotion had not been considered appropriately, more particularly services rendered by the petitioner prior to transfer having not been taken into account for determining eligibility for promotion, the Hon'ble Supreme Court had interfered, more particularly relying upon law laid down by the Hon'ble Supreme Court in an earlier decision in case of Union of India Vs. C.N. Ponnappan, reported in 1996 1 SCC 524. Paragraphs No. 6 and 7 of the said decision being relevant for the present purpose are quoted hereinbelow for benefit.
"6. From the facts set out above, it will be seen that promotion was denied to the respondent on the post of Senior Store keeper on the ground that he had completed 3 years of regular service as Store keeper on 7.06.1980 and, therefore, he could not be promoted earlier than 1980. In coming to this conclusion, the appellants excluded the period of service rendered by the respondent in the Central Ordnance Depot, Pune, as a Store Keeper for the period from 27.04.1971 to 6.061977. The appellants contended that, since the respondent had been transferred on compassionate ground, on his own request to the post of Store Keeper at Cochin and was placed at the bottom of the Seniority list, the period of 3 years of regular service can be treated to commence only from the date on which he was transferred to Cochin. This is obviously fallacious inasmuch as the respondent had already acquired the status of a permanent employee at Pune where he had rendered more than 3 years of service as a Store Keeper. Even if an employee is transferred at his own request, from one place to another, on the same post, the period of service rendered by him at the earlier place where he held a permanent post and had acquired permanent status, cannot be excluded from consideration for determining his Page 21 of 37 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:39:01 IST 2025 NEUTRAL CITATION C/SCA/26488/2022 JUDGMENT DATED: 02/09/2025 undefined eligibility for promotion, though he may have been placed at the bottom of the seniority list at the transferred place. Eligibility for promotion cannot be confused with seniority as they are two different and distinct factors. (Emphasis Supplied)
7. This Court in Union of India & Ors. vs. C.N. Ponnappan, AIR 1996 SC 764 : 1996(1) SCC 524, has held that, where an employee is transferred from one unit to another on compassionate ground and is placed at the bottom of the seniority list, the service rendered by him at the earlier place from where he has been transferred, being regular service, has to be counted towards experience and eligibility for promotion."
21.1 The law laid down as could be evidenced from the above quoted portion being that period of service rendered by an employee at an earlier place prior to transfer could not be excluded for determining eligibility for promotion.
21.2 As noticed, the Hon'ble Supreme Court having referred to decision of C.N. Ponnappan (supra), though the said decision is relied upon, the same is not reproduced herein.
22. The next decision relied upon by learned Advocate for the petitioner being the decision in case of Union of India Vs. Vijayita Sinha W/o Niraj Kumar (supra), wherein the Hon'ble Division Bench was concerned with a petition whereby an employee in the cadre of LDC had been transferred on inter regional basis subject to losing her seniority Page 22 of 37 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:39:01 IST 2025 NEUTRAL CITATION C/SCA/26488/2022 JUDGMENT DATED: 02/09/2025 undefined and whereas the said employee though had appeared in a departmental examination for the post of UDL while at Delhi and had cleared the same, had her promotion order withdrawn and whereas she was not permitted to appear in the Gujarat region, since she did not complete the requisite period of 3 years as an LDC. The Hon'ble Division Bench relied upon decision of Renu Mullick, C.N. Ponnappan and Scientific Advisor To Raksha Mantri (supra), had confirmed the decision of the Tribunal which had set aside order of quashing promotion given to the petitioner. Observations of the Hon'ble Division Bench at paragraphs No. 5, 6, 8, 9 and 10 being relevant for the present purpose are reproduced herein below for benefit. Paragraph No. 7 thereof is not relied upon since the said paragraph quotes from the decision of the Hon'ble Supreme Court referred to hereinabove.
"5. Facts are not in dispute. The respondent had completed three years of service as LDC in Delhi region. She had applied for examination for the promotional post of UDC on limited departmental examination. Minimum length of service required for eligibility was three years as LDC. Before the examination could be conducted, she was transferred to Gujarat region at her request. Such transfer was on condition that she would be placed at the bottom of the seniority in the cadre of LDC in Gujarat region. Her request for appearing in examination from Gujarat region in view of transfer was accepted. She passed the examination. She was also offered promotion in Gujarat region. Nothing has been pointed out to suggest that there were no vacancies in Gujarat region for promotion to the post of UDC in the quota of limited departmental examination or that other candidates who passed along with the Page 23 of 37 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:39:01 IST 2025 NEUTRAL CITATION C/SCA/26488/2022 JUDGMENT DATED: 02/09/2025 undefined respondent were senior to her.
6. The short question therefore, calls for consideration is was the department correct in holding that the employee was not eligible for appearing in limited departmental examination from Gujarat region? This is solely on the basis that she had completed three years as LDC in Delhi region and not in Gujarat region. Undisputedly, the rules require minimum service of three years for an LDC to be eligible for appearing in the limited departmental examination for accelerated promotion to the post of UDC. Nothing has been brought to our notice to point out that the statutory regulation prescribed any such requirement insisting that such service must be in the region from where the candidate seeks such promotion.
xxx xxx xxx
8. In the rejoinder before the Tribunal, the employee had also pointed out that in the past consistently the department had granted such promotions to various employees ignoring the inter regional transfers at the request of the employees. Treating the original applicant in present case differently was discriminatory.
9. Under the circumstances, the decision of the department to deny promotion considering the respondent ineligible for appearing in the examination in the Gujarat region was illegal. Consequential decision not to promote her in Gujarat region was also unlawful. In fact, the decision of the department to offer promotion to the respondent in the Delhi region defies logic. By the time, such promotion was offered she had already been transferred to Gujarat region and had no roots left in Delhi region. How could an LDC from Gujarat region be promoted as UDC of Delhi region where seniority in both cadres were maintained region wise, is a fundamental question. Be that as it may, when we hold that the respondent was eligible for appearing in the examination from Gujarat region, subsequent issues become insignificant.
10. The contention that the respondent applied from Gujarat region is wholly meritless. She had applied from Delhi region when she was an LDC at Delhi. Before the examination was taken she was transferred to Gujarat region. Because of that she applied to the department to appear in examination from Gujarat. The department Page 24 of 37 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:39:01 IST 2025 NEUTRAL CITATION C/SCA/26488/2022 JUDGMENT DATED: 02/09/2025 undefined could not have permitted her to appear from Delhi region. The very fact that the department allowed her to appear in the examination would mean that candidature from the Gujarat region was accepted. As noted, had she not been an LDC from Delhi region, the department could not have permitted her to appear in the examination from Delhi region."
22.1 The law laid down being a reiteration of the position as laid down by the Hon'ble Supreme Court that period of service at Delhi could not have been ignored and whereas the petitioner was entitled to appear in the examination from Gujarat also.
23. The next decision relied upon by learned Advocate for the petitioner is in case of Rameshbhai Dalsangbhai Kuniya (supra) and whereas it would appear that the said decision also reiterates the decision of the Hon'ble Supreme Court in the Scientific Advisor To Raksha Mantri (supra), which is relied upon by a later decision of the Hon'ble Supreme Court in case of State of Maharashtra Vs. Uttam Powar, reported in 2008 (2) SCC 646.
24. From the above discussion, the law as having been laid down by the Hon'ble Supreme Court being that upon an employee being transferred at her own request, subject to losing of her seniority then also the period of service rendered by the employee at the previous posting prior to transfer should be taken into account for considering her Page 25 of 37 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:39:01 IST 2025 NEUTRAL CITATION C/SCA/26488/2022 JUDGMENT DATED: 02/09/2025 undefined eligibility for promotion.
25. Having considered the law laid down by the Hon'ble Supreme Court as reiterated by the Division Bench of this Court and the learned Co-ordinate Bench of this Court, this Court would now consider whether the proposition would apply in the facts of the present case and would in any way advance the case of the present petitioner. The promotional rules as quoted hereinabove require that the employee should have worked for not less than 5 years in the cadre of Junior Clerk for being considered for promotion and have passed the departmental examination. From perusal of the order of promotion of Junior Clerks, annexed with the petition and from the averments made in the petition and considering the submissions made by the learned Advocate for the petitioner, it would clearly appear that, as of now, promotion had not been issued to any employee junior to the petitioner in Ahmedabad Zone, more particularly considering the seniority position of the petitioner. The seniority position of the petitioner, as noticed, being at Serial No. 171 in the seniority list showing position as on 01.01.2022. It would appear in this regard that while the petitioner has put in the requisite number of years for being considered for promotion even before her transfer to the Ahmedabad Zone and after being transferred to Ahmedbad Zone the petitioner had also passed the Page 26 of 37 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:39:01 IST 2025 NEUTRAL CITATION C/SCA/26488/2022 JUDGMENT DATED: 02/09/2025 undefined departmental examination, yet, her case has not been considered, since she has been placed at the lowest position of the seniority upon her transfer to Ahmedabad Zone. To this Court it would appear that while the law laid down by the Hon'ble Supreme Court is being that services rendered in the previous place, even in case of a request transfer subject to losing of seniority, would have to be taken into consideration for the purpose of eligibility, yet, such an issue could have been raised by the petitioner only if the petitioner had not been considered for promotion on the ground of not having completed the period of eligibility, while on the other hand, employees junior to the petitioners as per the seniority list as on 01.01.2022 had been considered and promoted. The entitlement of the petitioner for being considered for promotion, would be as it appears from the factual scenario, in due course i.e. as per her seniority position and since it is not the case of the petitioner that she has been overlooked for promotion inspite of persons below her in the seniority list, being considered and promoted, the petitioner was entitled to be considered for promotion.
26. To this Court, it would appear that the petitioner is mixing up the issue of entitlement with the issue of eligibility. While an employee may have completed requisite criteria for being eligible for promotion, that Page 27 of 37 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:39:01 IST 2025 NEUTRAL CITATION C/SCA/26488/2022 JUDGMENT DATED: 02/09/2025 undefined would not by itself entitle the employee to be considered for promotion. As observed hereinabove, entitlement would in due course as per the seniority position and merely on account of an employee being eligible, the employee would be able to claim entitlement. To this Court, it would appear that it is possible for an employee to claim discrimination in the matter of promotion, if the employee though eligible and entitled, is not considered for promotion and whereas, it would be a complete misnomer or a fallacy to contend that discrimination merely on the ground that though eligible, the candidate has not been considered. To this Court, there is a stark difference between eligibility and entitlement. The petitioner though eligible, has not yet reached the position for being entitled, and therefore, the law laid down by the Hon'ble Supreme Court, the Division Bench of this Court as well as the learned Co-ordinate Bench of this Court, would not advance the cause of the petitioner.
27. As such, the petitioner's prayer for being considered for promotion with effect from 04.10.2019 also appears to be extraordinarily optimistic, since the order of promotion takes into consideration seniority position as on 01.07.2017 as the benchmark for promotion. The petitioner having not been born in the cadre of Ahmedabad Zone on 01.07.2017, by no stretch of imagination, the petitioner would be entitled to be considered for Page 28 of 37 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:39:01 IST 2025 NEUTRAL CITATION C/SCA/26488/2022 JUDGMENT DATED: 02/09/2025 undefined promotion with effect from the date in question. As such, it would appear to this Court that from the above discussion that no cause of action has arisen in favour of the petitioner for claiming discrimination in promotion since as such, as per her seniority position, the petitioner has not yet become entitled for promotion.
28. Again, what would be relevant at this stage is that while the Hon'ble Supreme Court in case of Scientific Advisor To Raksha Mantri (supra) has held that eligibility for promotion cannot be confused with seniority and they are two different and distinct factors and whereas to this Court it would appear that in the said case, the respondent therein, had been considered for promotion i.e. his entitlment for promotion had crystallized and whereas the issue was with regard to considering the past services rendered by him for the purpose of giving him deemed date promotion on ad-hoc basis with person who was immediate senior to him. The facts has noticed hereinabove being that the respondent and his immediate senior having been promoted, there was no question of entitlement and thus the next question of the period of service rendered by him in the pre-transferred post, being taken into consideration making the respondent eligible for ante-dating of his order of promotion.
29. Having regard to the above discussion, to this Court it would Page 29 of 37 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:39:01 IST 2025 NEUTRAL CITATION C/SCA/26488/2022 JUDGMENT DATED: 02/09/2025 undefined appear that the past services rendered by the petitioner in the Vadodara Zone would be required to be counted while considering her eligibility for promotion to the post of Senior Clerk, yet, as it clearly appears that the petitioner is not yet entitled for being considered for promotion considering her seniority position and since it appears that there is no discrimination meted out to her in the matter of promotion to the post of Senior Clerk, the issue No.1 is answered accordingly.
30. Insofar as the issue No.2 is concerned, as regards there being no statutory rules which permit the respondents to transfer an employee on inter zone basis by relinquish her seniority position. To this Court it would appear that the petitioner would be precluded, rather, estopped taking such a contention, since the petition is bereft of any prayer in that regard. The prayer, as noticed above, being for promotion as to the post of Senior Clerk from a particular date, there does not appear to be any prayer for a direction that the order of transfer is bad in law, since there is no statutory rules which permit the respondents to transfer the petitioner on the condition giving up her seniority.
31. Again, it would appear to this Court that it would not be open for the petitioner to take such a contention at this stage, more particularly having regard to the fact that in her application for transfer, the petitioner Page 30 of 37 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:39:01 IST 2025 NEUTRAL CITATION C/SCA/26488/2022 JUDGMENT DATED: 02/09/2025 undefined has given an undertaking voluntarily that she would be giving up her seniority position at the Vadodara Zone, for the purpose of her being transferred to Ahmedabad Zone. The respondents having taken the said application and the undertaking into consideration while transferring the present petitioner, it would not be open for the petitioner to now turn around and contend that the respondents should not have placed her at the bottom of the seniority.
32. Again, to this Court it would appear that the position of law with regard to such a circumstance, is well settled. A litigant cannot be permitted to take advantage and disadvantage of a particular action at the same time. If a litigant is taking advantage and enjoying the fruits of a particular action, the litigant cannot be permitted to turn around to question the disadvantages occurring from the very same action. The observations of the Hon'ble Supreme Court in case of Union Of India Versus N.Murugesan Etc., reported in 2022 (2) SCC 25 at paragraphs No. 26 and 27 being relevant for the present purpose are reproduced hereinbelow for benefit.
"26. These phrases are borrowed from the Scott's law. They would only mean that no party can be allowed to accept and reject the same thing, and thus one cannot blow hot and cold. The principle behind the doctrine of election is inbuilt in the concept of approbate and reprobate. Once again, it is a principle of equity Page 31 of 37 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:39:01 IST 2025 NEUTRAL CITATION C/SCA/26488/2022 JUDGMENT DATED: 02/09/2025 undefined coming under the contours of common law. Therefore, he who knows that if he objects to an instrument, he will not get the benefit he wants cannot be allowed to do so while enjoying the fruits. One cannot take advantage of one part while rejecting the rest. A person cannot be allowed to have the benefit of an instrument while questioning the same. Such a party either has to affirm or disaffirm the transaction. This principle has to be applied with more vigour as a common law principle, if such a party actually enjoys the one part fully and on near completion of the said enjoyment, thereafter questions the other part. An element of fair play is inbuilt in this principle. It is also a species of estoppel dealing with the conduct of a party. We have already dealt with the provisions of the Contract Act concerning the conduct of a party, and his presumption of knowledge while confirming an offer through his acceptance unconditionally.
27. We would like to quote the following judgments for better appreciation and understanding of the said principle:
- Nagubai Ammal v. B. Shama Rao, 1956 SCR 451:
"But it is argued by Sri Krishnaswami Ayyangar that as the proceedings in OS. No. 92 of 1938-39 are relied on as barring the plea that the decree and sale in OS. No. 100 of 1919-20 are not collusive, not on the ground of res judicata or estoppel but on the principle that a person cannot both approbate and reprobate, it is immaterial that the present appellants were not parties thereto, and the decision in Verschures Creameries Ltd. v. Hull and Netherlands Steamship Company Ltd. [(1921) 2 KB 608], and in particular, the observations of Scrutton, LJ, at page 611 were quoted in support of this position. There, the facts were that an agent delivered goods to the customer contrary to the instructions of the principal, who thereafter filed a suit against the purchaser for price of goods and obtained a decree. Not having obtained satisfaction, the principal next filed a suit against the agent for damages on the ground of negligence and breach of duty. It was held that such an action was barred. The ground of the decision is that when on the same facts, a person has the right to claim one of two reliefs and with full knowledge he elects to claim one and obtains it, it is not open to him thereafter to go back on his election and claim the alternative Page 32 of 37 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:39:01 IST 2025 NEUTRAL CITATION C/SCA/26488/2022 JUDGMENT DATED: 02/09/2025 undefined relief. The principle was thus stated by Bankes, L.J.:
"Having elected to treat the delivery to him as an authorised delivery they cannot treat the same act as a misdelivery. To do so would be to approbate and reprobate the same act".
The observations of Scrutton, LJ on which the appellants rely are as follows:
"A plaintiff is not permitted to 'approbate and reprobate'. The phrase is apparently borrowed from the Scotch law, where it is used to express the principle embodied in our doctrine of election - namely, that no party can accept and reject the same instrument:
Ker v. Wauchope [(1819) 1 Bli 1, 21] : Douglas-Menzies v. Umphelby [(1908) AC 224, 232] . The doctrine of election is not however confined to instruments. 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. That is to approbate and reprobate the transaction".
It is clear from the above observations that the maxim that a person cannot 'approbate and reprobate' is only one application of the doctrine of election, and that its operation must be confined to reliefs claimed in respect of the same transaction and to the persons who are parties thereto. The law is thus stated in Halsbury's Laws of England, Vol. XIII, p. 464, para 512: "On the principle that a person may not approbate and reprobate, a species of estoppel has arisen which seems to be intermediate between estoppel by record and estoppel in pais, and may conveniently be referred to here. Thus a party cannot, after taking advantage under an order (e.g. payment of costs), be heard to say that it is invalid and ask to set it aside, or to set up to the prejudice of persons who have relied upon it a case inconsistent with that upon which it was founded; nor will he be allowed to go behind an order made in ignorance of the true facts to the prejudice of third parties who have acted on it".
- State of Punjab v. Dhanjit Singh Sandhu, (2014) 15 SCC 144:
"22. The doctrine of "approbate and reprobate" is only a species of Page 33 of 37 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:39:01 IST 2025 NEUTRAL CITATION C/SCA/26488/2022 JUDGMENT DATED: 02/09/2025 undefined estoppel, it implies only to the conduct of parties. As in the case of estoppel it cannot operate against the provisions of a statute. (Vide CIT v. V. MR. P. Firm Muar [CIT v. V. MR. P. Firm Muar, AIR 1965 SC 1216]).
23. 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 Maharashtra SRTC v. Balwant Regular Motor Service [Maharashtra SRTC v. Balwant Regular Motor Service, AIR 1969 SC 329] .) In R.N. Gosain v. Yashpal Dhir [R.N. Gosain v. Yashpal Dhir, (1992) 4 SCC 683] this Court has observed as under:
(SCC pp. 687-88, para 10) "10. 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'."
25. The Supreme Court in Rajasthan State Industrial Development and Investment Corpn. v. Diamond and Gem Development Corpn. Ltd. [Rajasthan State Industrial Development and Investment Corpn. v. Diamond and Gem Development Corpn. Ltd., (2013) 5 SCC 470 : (2013) 3 SCC (Civ) 153] , made an observation that a party cannot be permitted to "blow hot and cold", "fast and loose"
or "approbate and reprobate". Where one knowingly accepts the benefits of a contract or conveyance or an order, is estopped to deny the validity or binding effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience.
26. It is evident that the doctrine of election is based on the rule of estoppel, the principle that one cannot approbate and reprobate is inherent in it. The doctrine of estoppel by election is one among the species of estoppel in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, by way of his actions, or conduct, or silence when he has to speak, from asserting Page 34 of 37 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:39:01 IST 2025 NEUTRAL CITATION C/SCA/26488/2022 JUDGMENT DATED: 02/09/2025 undefined a right which he would have otherwise had."
- Rajasthan State Industrial Development & Investment Corpn. v. Diamond & Gem Development Corpn. Ltd., (2013) 5 SCC 470 :
15. A party cannot be permitted to "blow hot-blow cold", "fast and loose" or "approbate and reprobate". Where one knowingly accepts the benefits of a contract, or conveyance, or of an order, he is estopped from denying the validity of, or the binding effect of such contract, or conveyance, or order upon himself. This rule is applied to ensure equity, however, it must not be applied in such a manner so as to violate the principles of what is right and of good conscience. [Vide Nagubai Ammal v. B. Shama Rao [AIR 1956 SC 593] , CIT v. V. MR. P. Firm Muar [AIR 1965 SC 1216] , Ramesh Chandra Sankla v. Vikram Cement [(2008) 14 SCC 58 : (2009) 1 SCC (L&S) 706 : AIR 2009 SC 713] , Pradeep Oil Corpn. v. MCD [(2011) 5 SCC 270 : (2011) 2 SCC (Civ) 712 : AIR 2011 SC 1869] , Cauvery Coffee Traders v. Hornor Resources (International) Co.
Ltd. [(2011) 10 SCC 420 : (2012) 3 SCC (Civ) 685] and V. Chandrasekaran v. Administrative Officer [(2012) 12 SCC 133 :
(2013) 2 SCC (Civ) 136 : JT (2012) 9 SC 260] .]
16. Thus, it is evident that the doctrine of election is based on the rule of estoppel-the principle that one cannot approbate and reprobate is inherent in it. The doctrine of estoppel by election is one among the species of estoppel in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, by way of his actions, or conduct, or silence when it is his duty to speak, from asserting a right which he would have otherwise had.""
32.1 Considering the law laid down by the Hon'ble Supreme Court as above, it would clearly appear that the law does not permit a person to accept and reject the same thing i.e. to blow hot and cold at the same time. It is also held that a person cannot take advantage of a transaction claiming the same to be valid and having taken advantage thereof, be Page 35 of 37 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:39:01 IST 2025 NEUTRAL CITATION C/SCA/26488/2022 JUDGMENT DATED: 02/09/2025 undefined permitted to turn around and say that it is void for the purpose of securing some other advantage. While it is true that the doctrine of approbate and reprobate is a species of the doctrine of estoppel an implies to the conduct of parties and whereas it would not operate against the provisions of a statute, yet, there is no provision brought to the notice of this Court, whereby the above proposition has been specifically precluded. That is to say that no statute, laying down that seniority would not be lost upon a candidate accepting a request transfer, is brought to the notice of this Court, hence the said proposition would not be relevant.
33. To this Court it would appear that in addition to the transfer at the request of the petitioner with an undertaking to forgo the seniority from the transferee place and the petitioner being estopped from taking such submission based upon doctrine of approbate and reprobate, it would also appear to this Court that such a contention should not be permitted since the condition to lose seniority upon a request transfer is based upon sound public policy. To this Court it would appear that for the purpose of efficient administration, transfers, which are otherwise not permissible, more particularly since the same would disturb the administrative set up of both the transferee and the transferred place, are not normally encouraged and in an extreme situation, if an employee cannot but seek Page 36 of 37 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:39:01 IST 2025 NEUTRAL CITATION C/SCA/26488/2022 JUDGMENT DATED: 02/09/2025 undefined for the transfer, then the same should be at a cost to the employee. The cost being the factor of losing the seniority. The sound public policy also on the ground that the employee upon being transferred at his own request, if he is permitted to retain his original seniority position, more particularly when the seniority lists of such employees are separately maintained in both the transferee and transferred place, then it would be an injustice upon employees who are juniors to the employees seeking for the transfer in the transferred place to have a person alien to the set up, placed above the said employees. It is to prevent such a situation of heart burning and an apparent injustice that such a policy of forgoing seniority is contemplated and whereas on such ground also, the submission of the petitioner cannot be countenanced. The second issue is answered accordingly.
34. Having regard to the discussion, observations and conclusion arrived at hereinabove, to this Court, it would appear that no interference of this Court is warranted in the present case, hence the present petition stands disposed of as rejected. Consequently, the Civil Application also stands disposed of.
(NIKHIL S. KARIEL,J) BDSONGARA Page 37 of 37 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Wed Sep 03 2025 Downloaded on : Thu Sep 04 00:39:01 IST 2025