Gujarat High Court
Daxaben Bhanubhai Kakadiya vs State Of Gujarat on 2 September, 2025
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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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"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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
