ट्रांसफर लेने के बाद नए जिले में पूरानी सीनियरिटी के आधार पर प्रमोशन की मांग की याचिका खारिज - -
याची ने बागपत में ट्रांसफर लेने के लिए स्वेच्छा से सीनियरिटी छोड़ी थी, बाद में पे प्रोटक्शन/प्रमोशन को बहाल करने की दोबारा कोर्ट द्वारा कोशिश की, जहां कोर्ट ने याचिका खारिज कर दी
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 58
Case :- WRIT - A No. - 22896 of 2018
Petitioner :- Vipin Kumar And 11 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Neeraj Shukla
Counsel for Respondent :- C.S.C.,Rajesh Yadav
Hon'ble Ashwani Kumar Mishra,J.
Petitioners were initially appointed as Assistant Teachers in Primary Institutions run by the U.P. Basic Education Board in different districts of the State of Uttar Pradesh in the years 2007-2011. Their appointments were made in accordance with the provisions of U.P. Basic Education (Teachers) Service Rules, 1981 (hereinafter referred to as, 'the Rules of 1981). They worked satisfactory and thereafter, petitioners were promoted to the post of Headmaster of Primary Pathshalas or Assistant Teachers in Junior Basic Schools. Their promotions were made on different dates in the years 2014 and 2015. On 23.06.2016, a transfer policy was issued by the State Government permitting the transfer of such teachers to their desired district. This transfer policy is contained in Annexure No. 2 to the writ petition. Clause (2) of the transfer policy clearly provides that there is no vested right of transfer as such and that, their claim would be considered as per the exigency which included the existence of vacant post in the district where transfer itself was being sought by them. The transfer policy further contemplated that upon transfer, the teachers would be placed at the bottom of the cadre, in which they are being transferred. Clause (2) of the transfer policy, contained in the Government Order dated 23.06.2016, is reproduced hereinafter:-
"2- mYys[kuh; gS fd m0iz0 csfld f'k{kk ¼v/;kid½ lsok fu;ekoyh 1981 ¼;Fkk la'kksf/kr½ ds fu;e&4 ds vuqlkj ifj"knh; v/;kidksa dk lsok dk laoxZ LFkkuh; fudk; dk gSA izR;sd tuin esa nks LFkkukuh; fudk; xzkeh.k ,oa uxj {ks= ifjHkkf"kr gSA fu;ekoyh ds fu;e&21 ds vuqlkj v/;kidksa dk LFkkukUrj.k ,d LFkkuh; fudk; ls nwljs LFkkuh; fudk; esa v/;kid ds Lo;a ds vuqjks/k ij fd;s tkus dk izkfo/kku gSA ,slh fLFkfr esa vUrtZuinh; LFkkukUrj.k v/;kid dk vf/kdkj ugh gS] fQj Hkh v/;kidksa ds Lo;a ds vuqjks/k ,oa ifjfLFkfrtU; dkj.kksa ds n`f"Vxr okafNr tuinksa esa miyC/k fjfDr ds lkis{k LFkkukUrj.k ij fd;k tk;sxkA vr% LFkkukUrj.k ds Ik'pkr ,d LFkkuh; fudk; ls nwljs LFkkuh; fudk; esa LfkkukUrfjr gksdj tkus ij v/;kid ml LFkkuh; fudk; laoxZ dh T;s"Brk dze esa dfu"Bre ekuk tk;sxkA"
Petitioners, pursuant to the aforesaid transfer policy, made applications for their transfer to Baghpat, while they were posted in other districts of the State of Uttar Pradesh. Their plea of transfer was not considered as there existed no vacancy on the post of Headmaster of Primary Institution or the post of Assistant Teacher in the Junior Basic School. In terms of the policy, therefore, petitioners could not have been transferred to the post that they were holding pursuant to their promotions, made in the year 2014-15. It appears that petitioners, in their anxiety to be transferred to Baghpat, gave an application for being reverted to their substantive post of Assistant Teachers and also, gave an undertaking that they be transferred to Baghpat on the post of Assistant Teacher in terms of the policy. Such application, supported with undertaking given on affidavit by the petitioners, was then made basis for petitioners to be demoted to the post of Assistant Teacher in Primary Institutions and then, transferred to Baghpat on the post of Assistant Teachers in Primary Institutions. It is relevant to note that vacancy at Baghpat existed on the post of Assistant Teacher in Primary Institution and the petitioners were posted, accordingly.
Having succeeded in obtaining transfer to the desired district, the petitioners then started attempts to, somehow, get back what they had lost in the process of ensuring their transfer to Baghpat. Representations, accordingly, were made by them that petitioners' salary be restored to the level they were already drawing by applying the principles of pay protection. A further prayer was made that the petitioners be placed at the bottom of the cadre of Headmaster of Primary Institutions/Assistant Teachers in Junior Basic Schools and that, they be not placed at the bottom of the seniority of Assistant Teachers in Primary Institutions. This prayer of the petitioner, apparently, has not been considered and therefore, petitioner have approached this Court for a direction upon the respondents to ensure their joining on the post of Headmaster of Primary Institution or Assistant Teacher in Junior Basic Schools. Prayer, made in the writ petition, reads as under:-
"(i) Issue a writ, order or direction in the nature of mandamus commanding the respondents to ensure the joining of the petitioners on the post of Head Master of the primary institutions or Assistant Teacher in Junior High School in view of the fact that they have already been promoted on the said post before their transfer to the District - Baghpat and pay them salary along with the arrears on that account; so that justice be done."
Shri V.K. Singh, learned counsel assisted by Shri Neeraj Shukla, learned counsel for the petitioner, has invited attention of this Court towards various orders passed in writ petitions filed by other persons with similar grievance, upon which a direction has been issued for consideration of their claim by the District Basic Education Officer. It is also alleged that in some of the places, an order has also been passed in their favour, including some observations contained in the order of the Secretary, U.P. Basic Shiksha Parishad, Prayagraj. Seeking parity with those orders, learned counsel for the petitioners submits that petitioners ought not to be discriminated and that, consequent upon their transfer, they be placed at the bottom of the seniority at the promoted post and not on the post of Assistant Teacher in Primary Institutions.
Prayer made in the writ petition is opposed by Shri Rajesh Yadav for the Board and learned Standing Counsel for the State - respondents. Submission is that petitioners have no right, now, to claim continuance on the post of Headmasters in the Primary Institutions/Assistant Teachers in Junior Basic Schools once they have already given up their status as such in order to seek transfer to their desired district.
I have heard learned counsel for the parties and have perused the materials brought on records.
At the very outset, it would be relevant to note that Assistant Teacher of a Primary Institution is a member of a cadre, which is restricted to a local area, with his appointing authority being District Basic Shiksha Adhikari. Ordinarily, such persons are not liable to be transferred to a different local area/district. Provisions, however, exist in the Rules of 1981 for permitting such inter-district transfer or transfer from rural local area to an urban local area. Rule 4(1) of the Rules of 1981 reads as under:-
"4. Strength of the Service. - (1) There shall be separate cadres of service under these rules for each local area.
(2) ......
Provided that the appointing authority may leave unfilled or the Board may hold in abeyance and post or class of posts without thereby entitling any person to compensation:
Provided further that the Board may, with the previous approval of the State Government, create from lime to time such number of temporary posts as it may deem fit."
"Local Area" is defined under rule 2(i) in following words:-
"2. Definitions:- (i) "Local Area" means the area over which a local body exercises jurisdiction;"
Rule 2(b) defines "appointing authority" to be the 'District Basic Education Officer', which is reproduced hereinafter:-
"2. Definitions:- (b) "Appointing Authority" in relation to teachers referred to in Rule 3 means the District Basic Education Officer;"
Rule 21 of the Rules of 1981 deals with procedure for transfer, which is reproduced hereinafter:-
"21. Procedure for transfer - There shall be no transfer of any teacher from the rural local area to an urban local area or vice versa or from one urban local area to another of the same district or from local area of one district to that of another district except on the request of or with the consent of the teacher himself and in either case approval of the Board shall be necessary."
From the statutory scheme, which regulates the service condition of Assistant Teachers in Primary Institutions, it is clear that an Assistant Teacher of a Primary Institution has no right to be transferred from one local area to another or from one district to another, except on consent/request of the Teacher and with the consent of the teacher himself with the approval of the Board. The Board is defined as Uttar Pradesh Board of Basic Education, constituted under section 3 of the U.P. Basic Education Act, 1972.
It is not in issue that policy, for the purposes of regulating the grant of promotion for transfer by the Board, has been laid down by the State Government vide Government Order dated 23.06.2016. The policy clearly stipulates that transfer can be made only upon existence of vacancy. Undisputed position is that there existed no vacancy on the post of Headmaster in a Primary Institution or Assistant Teacher in Junior Basic School at Baghpat. Petitioners, on the date of issuance of policy in the year 2016, were holding the post of Headmasters in the Primary Institutions or Assistant Teachers in Junior Basic Schools. Since there existed no vacancy on the post of Headmaster of the Primary Institution or Assistant Teacher in Junior Basic School, therefore, in terms of the transfer policy, they could not have been transferred to Baghpat. Realizing this fact, petitioners, voluntarily, got themselves demoted to the post of Assistant Teachers only with the intent of being considered for transfer to their desired district. An undertaking was clearly given by stating that they would have no objection in that regard, nor they would claim any right on the promoted post. It is in that context that they have been transferred on the post of Assistant Teachers in Primary Institutions run by the Board at Baghpat. Petitioners have joined without any protest and are working as such. It is in this background that an attempt is made to claim what has been lost in their zeal to be placed in the district of their liking. Petitioners, therefore, cannot take plea of probate and approbate at the same time; in as much as, petitioners, having given up certain rights to seek benefit, cannot then be permitted to turn around and regain the loss which they have voluntarily suffered in the process. Following observations of the Apex Court in State of Punjab and Others Vs. Dhanjit Singh Sandhu reported in (2014) 15 SCC 144 would be apposite in the facts of the present case:-
"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 SRTCv. 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'."
24. This Court in Babu Ram v. Indra Pal Singh [Babu Ramv. Indra Pal Singh, (1998) 6 SCC 358] and P.R. Deshpande v.Maruti Balaram Haibatti [P.R. Deshpande v. Maruti Balaram Haibatti, (1998) 6 SCC 507] , has observed that: (P.R. Deshpande case [P.R. Deshpande v. Maruti Balaram Haibatti, (1998) 6 SCC 507] , SCC p. 511, para 8)
"8. The doctrine of election is based on the rule of estoppel--the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppel in pais (or equitable estoppel) which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had."
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 it is his duty to speak, from asserting a right which he would have otherwise had."
The writ petition is, accordingly, dismissed.
It may, however, be appropriate to clarify that in terms of the transfer policy, petitioners would be placed at the bottom of the cadre of Assistant Teachers in Primary Institutions. Their claim for further promotion would, however, be examined considering their placement in the seniority list, consequent upon their transfer and if they are entitled to benefit of promotion, etc. as per such placement, then it would not be denied to them merely because they have accepted demotion in the past to secure their transfer.
Order Date :- 31.10.2018
Amit Mishra
UPTET / टीईटी / TET - Teacher EligibilityTest Updates / Teacher Recruitment / शिक्षक भर्ती / SARKARI NAUKRI NEWS
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http://joinuptet.blogspot.com
Shiksha Mitra | Shiksha Mitra Latest News | UPTET 72825 Latest Breaking News Appointment / Joining Letter | Join UPTET Uptet | Uptet news | 72825 Primary Teacher Recruitment Uptet Latest News | 72825 Teacher Recruitment Uptet Breaking News | 72825 Primary Teacher Recruitment Uptet Fastest News | Uptet Result 2014 | Only4uptet | 72825 Teacher Recruitment Uptet News Hindi | 72825 Teacher Recruitment Uptet Merit cutoff/counseling Rank District-wise Final List / th Counseling Supreme Court Order Teacher Recruitment / UPTET 72825 Appointment Letter on 19 January 2015A | 29334 Junior High School Science Math Teacher Recruitment,
CTET, TEACHER ELIGIBILITY TEST (TET), NCTE, RTE, UPTET, HTET, JTET / Jharkhand TET, OTET / Odisha TET ,
Rajasthan TET / RTET, BETET / Bihar TET, PSTET / Punjab State Teacher Eligibility Test, West Bengal TET / WBTET, MPTET / Madhya Pradesh TET, ASSAM TET / ATET
, UTET / Uttrakhand TET , GTET / Gujarat TET , TNTET / Tamilnadu TET , APTET / Andhra Pradesh TET , CGTET / Chattisgarh TET, HPTET / Himachal Pradesh TET
याची ने बागपत में ट्रांसफर लेने के लिए स्वेच्छा से सीनियरिटी छोड़ी थी, बाद में पे प्रोटक्शन/प्रमोशन को बहाल करने की दोबारा कोर्ट द्वारा कोशिश की, जहां कोर्ट ने याचिका खारिज कर दी
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 58
Case :- WRIT - A No. - 22896 of 2018
Petitioner :- Vipin Kumar And 11 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Neeraj Shukla
Counsel for Respondent :- C.S.C.,Rajesh Yadav
Hon'ble Ashwani Kumar Mishra,J.
Petitioners were initially appointed as Assistant Teachers in Primary Institutions run by the U.P. Basic Education Board in different districts of the State of Uttar Pradesh in the years 2007-2011. Their appointments were made in accordance with the provisions of U.P. Basic Education (Teachers) Service Rules, 1981 (hereinafter referred to as, 'the Rules of 1981). They worked satisfactory and thereafter, petitioners were promoted to the post of Headmaster of Primary Pathshalas or Assistant Teachers in Junior Basic Schools. Their promotions were made on different dates in the years 2014 and 2015. On 23.06.2016, a transfer policy was issued by the State Government permitting the transfer of such teachers to their desired district. This transfer policy is contained in Annexure No. 2 to the writ petition. Clause (2) of the transfer policy clearly provides that there is no vested right of transfer as such and that, their claim would be considered as per the exigency which included the existence of vacant post in the district where transfer itself was being sought by them. The transfer policy further contemplated that upon transfer, the teachers would be placed at the bottom of the cadre, in which they are being transferred. Clause (2) of the transfer policy, contained in the Government Order dated 23.06.2016, is reproduced hereinafter:-
"2- mYys[kuh; gS fd m0iz0 csfld f'k{kk ¼v/;kid½ lsok fu;ekoyh 1981 ¼;Fkk la'kksf/kr½ ds fu;e&4 ds vuqlkj ifj"knh; v/;kidksa dk lsok dk laoxZ LFkkuh; fudk; dk gSA izR;sd tuin esa nks LFkkukuh; fudk; xzkeh.k ,oa uxj {ks= ifjHkkf"kr gSA fu;ekoyh ds fu;e&21 ds vuqlkj v/;kidksa dk LFkkukUrj.k ,d LFkkuh; fudk; ls nwljs LFkkuh; fudk; esa v/;kid ds Lo;a ds vuqjks/k ij fd;s tkus dk izkfo/kku gSA ,slh fLFkfr esa vUrtZuinh; LFkkukUrj.k v/;kid dk vf/kdkj ugh gS] fQj Hkh v/;kidksa ds Lo;a ds vuqjks/k ,oa ifjfLFkfrtU; dkj.kksa ds n`f"Vxr okafNr tuinksa esa miyC/k fjfDr ds lkis{k LFkkukUrj.k ij fd;k tk;sxkA vr% LFkkukUrj.k ds Ik'pkr ,d LFkkuh; fudk; ls nwljs LFkkuh; fudk; esa LfkkukUrfjr gksdj tkus ij v/;kid ml LFkkuh; fudk; laoxZ dh T;s"Brk dze esa dfu"Bre ekuk tk;sxkA"
Petitioners, pursuant to the aforesaid transfer policy, made applications for their transfer to Baghpat, while they were posted in other districts of the State of Uttar Pradesh. Their plea of transfer was not considered as there existed no vacancy on the post of Headmaster of Primary Institution or the post of Assistant Teacher in the Junior Basic School. In terms of the policy, therefore, petitioners could not have been transferred to the post that they were holding pursuant to their promotions, made in the year 2014-15. It appears that petitioners, in their anxiety to be transferred to Baghpat, gave an application for being reverted to their substantive post of Assistant Teachers and also, gave an undertaking that they be transferred to Baghpat on the post of Assistant Teacher in terms of the policy. Such application, supported with undertaking given on affidavit by the petitioners, was then made basis for petitioners to be demoted to the post of Assistant Teacher in Primary Institutions and then, transferred to Baghpat on the post of Assistant Teachers in Primary Institutions. It is relevant to note that vacancy at Baghpat existed on the post of Assistant Teacher in Primary Institution and the petitioners were posted, accordingly.
Having succeeded in obtaining transfer to the desired district, the petitioners then started attempts to, somehow, get back what they had lost in the process of ensuring their transfer to Baghpat. Representations, accordingly, were made by them that petitioners' salary be restored to the level they were already drawing by applying the principles of pay protection. A further prayer was made that the petitioners be placed at the bottom of the cadre of Headmaster of Primary Institutions/Assistant Teachers in Junior Basic Schools and that, they be not placed at the bottom of the seniority of Assistant Teachers in Primary Institutions. This prayer of the petitioner, apparently, has not been considered and therefore, petitioner have approached this Court for a direction upon the respondents to ensure their joining on the post of Headmaster of Primary Institution or Assistant Teacher in Junior Basic Schools. Prayer, made in the writ petition, reads as under:-
"(i) Issue a writ, order or direction in the nature of mandamus commanding the respondents to ensure the joining of the petitioners on the post of Head Master of the primary institutions or Assistant Teacher in Junior High School in view of the fact that they have already been promoted on the said post before their transfer to the District - Baghpat and pay them salary along with the arrears on that account; so that justice be done."
Shri V.K. Singh, learned counsel assisted by Shri Neeraj Shukla, learned counsel for the petitioner, has invited attention of this Court towards various orders passed in writ petitions filed by other persons with similar grievance, upon which a direction has been issued for consideration of their claim by the District Basic Education Officer. It is also alleged that in some of the places, an order has also been passed in their favour, including some observations contained in the order of the Secretary, U.P. Basic Shiksha Parishad, Prayagraj. Seeking parity with those orders, learned counsel for the petitioners submits that petitioners ought not to be discriminated and that, consequent upon their transfer, they be placed at the bottom of the seniority at the promoted post and not on the post of Assistant Teacher in Primary Institutions.
Prayer made in the writ petition is opposed by Shri Rajesh Yadav for the Board and learned Standing Counsel for the State - respondents. Submission is that petitioners have no right, now, to claim continuance on the post of Headmasters in the Primary Institutions/Assistant Teachers in Junior Basic Schools once they have already given up their status as such in order to seek transfer to their desired district.
I have heard learned counsel for the parties and have perused the materials brought on records.
At the very outset, it would be relevant to note that Assistant Teacher of a Primary Institution is a member of a cadre, which is restricted to a local area, with his appointing authority being District Basic Shiksha Adhikari. Ordinarily, such persons are not liable to be transferred to a different local area/district. Provisions, however, exist in the Rules of 1981 for permitting such inter-district transfer or transfer from rural local area to an urban local area. Rule 4(1) of the Rules of 1981 reads as under:-
"4. Strength of the Service. - (1) There shall be separate cadres of service under these rules for each local area.
(2) ......
Provided that the appointing authority may leave unfilled or the Board may hold in abeyance and post or class of posts without thereby entitling any person to compensation:
Provided further that the Board may, with the previous approval of the State Government, create from lime to time such number of temporary posts as it may deem fit."
"Local Area" is defined under rule 2(i) in following words:-
"2. Definitions:- (i) "Local Area" means the area over which a local body exercises jurisdiction;"
Rule 2(b) defines "appointing authority" to be the 'District Basic Education Officer', which is reproduced hereinafter:-
"2. Definitions:- (b) "Appointing Authority" in relation to teachers referred to in Rule 3 means the District Basic Education Officer;"
Rule 21 of the Rules of 1981 deals with procedure for transfer, which is reproduced hereinafter:-
"21. Procedure for transfer - There shall be no transfer of any teacher from the rural local area to an urban local area or vice versa or from one urban local area to another of the same district or from local area of one district to that of another district except on the request of or with the consent of the teacher himself and in either case approval of the Board shall be necessary."
From the statutory scheme, which regulates the service condition of Assistant Teachers in Primary Institutions, it is clear that an Assistant Teacher of a Primary Institution has no right to be transferred from one local area to another or from one district to another, except on consent/request of the Teacher and with the consent of the teacher himself with the approval of the Board. The Board is defined as Uttar Pradesh Board of Basic Education, constituted under section 3 of the U.P. Basic Education Act, 1972.
It is not in issue that policy, for the purposes of regulating the grant of promotion for transfer by the Board, has been laid down by the State Government vide Government Order dated 23.06.2016. The policy clearly stipulates that transfer can be made only upon existence of vacancy. Undisputed position is that there existed no vacancy on the post of Headmaster in a Primary Institution or Assistant Teacher in Junior Basic School at Baghpat. Petitioners, on the date of issuance of policy in the year 2016, were holding the post of Headmasters in the Primary Institutions or Assistant Teachers in Junior Basic Schools. Since there existed no vacancy on the post of Headmaster of the Primary Institution or Assistant Teacher in Junior Basic School, therefore, in terms of the transfer policy, they could not have been transferred to Baghpat. Realizing this fact, petitioners, voluntarily, got themselves demoted to the post of Assistant Teachers only with the intent of being considered for transfer to their desired district. An undertaking was clearly given by stating that they would have no objection in that regard, nor they would claim any right on the promoted post. It is in that context that they have been transferred on the post of Assistant Teachers in Primary Institutions run by the Board at Baghpat. Petitioners have joined without any protest and are working as such. It is in this background that an attempt is made to claim what has been lost in their zeal to be placed in the district of their liking. Petitioners, therefore, cannot take plea of probate and approbate at the same time; in as much as, petitioners, having given up certain rights to seek benefit, cannot then be permitted to turn around and regain the loss which they have voluntarily suffered in the process. Following observations of the Apex Court in State of Punjab and Others Vs. Dhanjit Singh Sandhu reported in (2014) 15 SCC 144 would be apposite in the facts of the present case:-
"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 SRTCv. 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'."
24. This Court in Babu Ram v. Indra Pal Singh [Babu Ramv. Indra Pal Singh, (1998) 6 SCC 358] and P.R. Deshpande v.Maruti Balaram Haibatti [P.R. Deshpande v. Maruti Balaram Haibatti, (1998) 6 SCC 507] , has observed that: (P.R. Deshpande case [P.R. Deshpande v. Maruti Balaram Haibatti, (1998) 6 SCC 507] , SCC p. 511, para 8)
"8. The doctrine of election is based on the rule of estoppel--the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppel in pais (or equitable estoppel) which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had."
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 it is his duty to speak, from asserting a right which he would have otherwise had."
The writ petition is, accordingly, dismissed.
It may, however, be appropriate to clarify that in terms of the transfer policy, petitioners would be placed at the bottom of the cadre of Assistant Teachers in Primary Institutions. Their claim for further promotion would, however, be examined considering their placement in the seniority list, consequent upon their transfer and if they are entitled to benefit of promotion, etc. as per such placement, then it would not be denied to them merely because they have accepted demotion in the past to secure their transfer.
Order Date :- 31.10.2018
Amit Mishra
UPTET / टीईटी / TET - Teacher EligibilityTest Updates / Teacher Recruitment / शिक्षक भर्ती / SARKARI NAUKRI NEWS
UP-TET 2011, 72825 Teacher Recruitment,Teacher Eligibility Test (TET), 72825 teacher vacancy in up latest news join blog , UPTET , SARKARI NAUKRI NEWS, SARKARI NAUKRI
Read more: http://naukri-recruitment-result.blogspot.com
http://joinuptet.blogspot.com
Shiksha Mitra | Shiksha Mitra Latest News | UPTET 72825 Latest Breaking News Appointment / Joining Letter | Join UPTET Uptet | Uptet news | 72825 Primary Teacher Recruitment Uptet Latest News | 72825 Teacher Recruitment Uptet Breaking News | 72825 Primary Teacher Recruitment Uptet Fastest News | Uptet Result 2014 | Only4uptet | 72825 Teacher Recruitment Uptet News Hindi | 72825 Teacher Recruitment Uptet Merit cutoff/counseling Rank District-wise Final List / th Counseling Supreme Court Order Teacher Recruitment / UPTET 72825 Appointment Letter on 19 January 2015A | 29334 Junior High School Science Math Teacher Recruitment,
CTET, TEACHER ELIGIBILITY TEST (TET), NCTE, RTE, UPTET, HTET, JTET / Jharkhand TET, OTET / Odisha TET ,
Rajasthan TET / RTET, BETET / Bihar TET, PSTET / Punjab State Teacher Eligibility Test, West Bengal TET / WBTET, MPTET / Madhya Pradesh TET, ASSAM TET / ATET
, UTET / Uttrakhand TET , GTET / Gujarat TET , TNTET / Tamilnadu TET , APTET / Andhra Pradesh TET , CGTET / Chattisgarh TET, HPTET / Himachal Pradesh TET
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