Smt. Madhu Bala v. State of H.P & Anr.

a judgment, dated 26.07.2010 passed by this Court in CWP(T) No. 14932 of 2008, titled Neelam Kaushal vs. State of HP and Others, this Court also issued following directions in such like matters, relevant para-13 whereof, reads as under:-

13. In view of the aforesaid discussion, this petition is disposed of with the following directions: a. That no promotions made prior to 26th April 2010 shall be affected by the outcome of this petition. However, since the promotions made after 26th April,2010 were made expressly subject to the result of this petition they shall abide by the following directions. b. That henceforth and w.e.f 26th April,2010 before making any promotions to the post of Lecturers or Head Masters an option shall be sought from the concerned employee . c. Once an employee gives an option he/she will not be permitted to change the option. d. Once an employee opts to be promoted as Lecturer/ Head Master he can not claim that he should be considered for the other post. 4 ( 2026:HHC:31442 ) e. The Principal Secretary (Education) to the Government of Himachal Pradesh, the Director of Higher Education and Director of Elementary Education i.e respondents No. 1 to 3 are made personally responsible for compliance of these directions in letter and spirit. f. All promotions, if any, made after 26th April,2010 shall be reviewed and after seeking options of the employees in terms of the aforesaid directions the promotions shall be made. The petition is disposed of in the aforesaid terms. No order as to costs.

It is further the case of the petitioner that she was promoted against the post of Lecturer (Biology) vide Annexure P-3, i.e. office order dated 18.09.2010. According to her, she joined her duties as a Lecturer, but at the relevant time when she was promoted as such, no prior option was sought from her as to whether she wanted to be promoted against the post of Lecturer or Headmaster.

Learned counsel for the petitioner argued that in light of the fact that paid promotion was unilaterally conferred upon the petitioner without seeking her option, she is legally entitled to be considered for the post of Headmaster also and the act of the 5 ( 2026:HHC:31442 ) respondents of not seeking her option for promotion to the post of Headmaster on the ground that she has already been promoted to the post of Lecturer is bad in law.

Learned counsel submitted that in terms of the law declared by this Court, as the promotion of the petitioner against the post of Lecturer was without seeking her option, she cannot be denied the right of being promoted against the post of Headmaster. He submitted that once it was clearly borne out from the record that the petitioner was not given any option before her promotion to the post of Lecturer (Biology), she cannot be denied the right of consideration against the post of Headmaster, and it is incumbent upon the department to seek the option of the petitioner for promotion against the post of Headmaster also.

Learned counsel has also referred to the judgments appended with the petition to justify the contention of the petitioner.

Learned counsel also submitted that the petitioner had earlier approached this Court by way of CWP No. 10080 of 2025, 6 ( 2026:HHC:31442 ) titled Madhu Bala vs. State of HP and Others, which was disposed of on 24/6/2025 by permitting her to make a representation to the Authorities. He submitted that the representation of the petitioner has been rejected in terms of Annexure P-8, order dated 17/11/2025. Said order, being against the law settled by this Court, is liable to be quashed and set aside and the petition deserves to be allowed in terms of the prayers made therein.

No other point was raised. On the other hand, learned Deputy Advocate General submitted that as far as the legal position enunciated by the learned counsel for the petitioner is concerned, the same is not in dispute. However, according to him, these judgments have no applicability in the facts of this case. Learned Deputy Advocate General drew the attention of this Court to the promotion letter, Annexure P-3, dated 18/9/2010 and submitted that in terms of this office order, the petitioner was given the option to accept or not to accept the promotion against the post of Lecturer and the outcome of acceptance of the promotion was also mentioned therein. He submitted that the judgments, on which the petitioner is relying 7 ( 2026:HHC:31442 ) upon, are in the facts where unilateral promotions were made against the post of Lecturer etc., without giving any opportunity to the TGT concerned to exercise option. He submitted that here, the right to exercise option was given clearly and expressly in terms of the promotion order. He submitted that the petitioner accepted promotion against the post of Lecturer, knowingly well the contents of office order dated 18/9/2010, and therefore, she cannot now be allowed to approbate and reprobate by arguing that she was promoted against the post of Lecturer without affording any option to her to opt for either of the two channels of promotion. Accordingly, he submitted that as there is no merit in the writ petition, the same deserves to be dismissed.

In counter thereto, learned counsel for the petitioner submitted that the option should have been sought from the petitioner before the process of promotion was started, and the so called option contained in the promotion order does not suffice the purpose. He submitted that the option means an option sought prior to the issuance of promotion order, and accordingly he again stated that the petition be allowed as prayed for. 8 ( 2026:HHC:31442 )

I have heard learned counsel for the parties and have also carefully gone through the pleadings as well as the documents on record.

As far as the legal proposition that in case of two promotion avenues being there from one feeder post, option has to be sought from the incumbent holding the feeder post as to, which of the two promotional channels the incumbent intends to be considered for promotion is concerned, the same being a settled legal position, calls for no discussion.

If an incumbent holding the feeder category post is unilaterally promoted to one of the promotional posts without seeking any option from him or her, then the same cannot act as an estoppel and such an incumbent can always claim promotion to the other promotional post also.

However, what has to be seen in the present case is whether in terms of the contents of office order dated 18/9/2010, an option was given to the petitioner by the Department before promotion to opt for promotion against the post of Lecturer or not. 9 ( 2026:HHC:31442 )

Office order, Annexure P-3, in terms whereof the petitioner was promoted against the post of Lecturer School Cadre, demonstrates that in terms of this office order, TGT teachers mentioned therein were promoted against the post of Lecturer School Cadre. In this office order, it was clearly and categorically mentioned that the concerned Principal/Headmaster will relieve the promoted TGT immediately by taking either of the two irrevocable options in writing with entry made in service book, copy whereof will be pasted in the service book, i.e., (i) that he/she opts for promotion as Lecturer (School Cadre) and may not be considered for the promotion as Headmaster; and (ii) that he/she opts the promotion as Headmaster only and may not be considered for the promotion as Lecturer (School Cadre). The relevant portion of the order is quoted herein below:

In continuation to this Directorate office order Even No. dated 13.07.2010 on the recommendations of the Departmental Promotion Committee the following in-service TGTs possessing the Master Degree in the different subjects are hereby promoted as Lecturer (School-Cadre) in the respective subjects, on regular basis in the pay scale of Rs. 10300-34800+ 4200 Grade Pay on notional basis w.e.f.13.07.2010 and posted in Govt. Sr. Sec. 10 ( 2026:HHC:31442 ) Schools as shown against their names subject to the conditions that no complaint /inquiry/vigilance case and disciplinary proceedings are pending against the individual concerned. He/ She should report for duty to the concerned Principal within stipulated period .The concerned Principal/Headmaster will relieve the promoted TGTs immediately by taking either of the following irrevocable options in writing with entry made in the service book and the copy of the same will also be pasted in the service book. i) That he/she opts for promotion as Lecturer (School Cadre) and may not be 1 considered for the promotion as Headmaster. ii) That he/she opts the promotion as Headmaster only and may not be considered for the promotion as Lecturer (School cadre).

Thus, it is evident from the contents of office order dated 18/9/2010 that a clear option was given to the persons in the feeder category whose names were mentioned in this promotion order that they could opt for promotion against the post of Lecturer (School Cadre) and thus forego their right of consideration for promotion as Headmaster, or they could opt for promotion against the post of Headmaster only and thus, may state that they may not be considered for promotion as Lecturer (School Cadre). 11 ( 2026:HHC:31442 )

Incidentally, this office order was dealing with TGTs, who were to be promoted as Lecturer School Cadre, and thus it was not a case that the persons referred to or mentioned in the promotion order were Class-IV employees, who were rustic villagers or people possessing minimal educational qualification. Obviously, as it was mentioned in the office order that the concerned Principal/Headmaster will relieve the promoted TGT by taking either of the irrevocable options in writing mentioned therein, the petitioner was relieved by the concerned Principal or Headmaster only after she opted for promotion as Lecturer School Cadre and gave up her right of being considered for promotion as Headmaster. In this backdrop, now a complete somersault on the part of the petitioner after more than a decade to the effect that she be considered and promoted against the post of Headmaster is nothing but an abuse of the process of law.

At this stage, this Court would like to refer to the judgment of the Hon’ble Supreme Court in Union of India & Ors. vs. N. Murugesan and others, (2022)2 SCC 25, in which, the Hon’ble 12 ( 2026:HHC:31442 ) Supreme Court has been pleased to hold as under on acquiescence, approbate and reprobate: “24. We have already discussed the relationship between acquiescence on the one hand and delay and laches on the other.

25. Acquiescence would mean a tacit or passive acceptance. It is implied and reluctant consent to an act. In other words, such an action would qualify a passive assent. Thus, when acquiescence takes place, it presupposes knowledge against a particular act. From the knowledge comes passive acceptance, therefore instead of taking any action against any alleged refusal to perform the original contract, despite adequate knowledge of its terms, and instead being allowed to continue by consciously ignoring it and thereafter proceeding further, acquiescence does take place. As a consequence, it reintroduces a new implied agreement between the parties. Once such a situation arises, it is not open to the party that acquiesced itself to insist upon the compliance of the original terms. Hence, what is essential, is the conduct of the parties. We only dealt with the distinction involving a mere acquiescence. When acquiescence is followed by delay, it may become laches. Here again, we are inclined to hold that the concept of acquiescence is to be seen on a case-to-case basis. “Approbate and reprobate

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 13 ( 2026:HHC:31442 ) 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:

27.1 Nagubai Ammal v. B. Shama Rao, AIR 1956 SC 593 “23. 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 14 ( 2026:HHC:31442 ) 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 relief. The principle was thus stated by Bankes, L.J.: (Verschures Creameries Ltd. Case, (1921) 2 KB 608 (CA) ‘…….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 Bligh PC 1, p. 21] : Douglas-Menzies v. Umphelby [(1908) AC 224, p.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 15 ( 2026:HHC:31442 ) 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”.

27.2 State of Punjab vs. Dhanjit Singh Sandhu, (2014) 15 SCC 144: “22. The doctrine of “approbate and reprobate” is only a species of estoppel, it implies only to the conduct of parties. As in the case of estoppel it cannot operate against the 16 ( 2026:HHC:31442 ) provisions of a statute. (Vide CIT v. MR. 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 vs. Yashpal Dhir (R. N. Gosain vs. 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. (2013) 5 SCC 470 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. 17 ( 2026:HHC:31442 )

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 a right which he would have otherwise had.”

27.3 Rajasthan State Industrial Development and Investment Corpn. vs. Diamond & Gem Development Corpn. Ltd., (2013) 5 SCC 470: “I. Approbate and reprobate

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] .] 18 ( 2026:HHC:31442 )

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.”

This Court again reiterates that herein it is not a case that unilaterally without intimating the petitioner that she was having an option either to accept promotion against the post of Lecturer or forego the same, she was promoted against the post of Lecturer. The office order clearly and categorically mentioned that if the promoted incumbent was opting for promotion to the post of Lecturer, then the incumbent has to state in writing that she may not be considered for promotion against the post of Headmaster and vice versa also.

The petitioner acquiesced to the conditions of the promotion order and now she cannot be allowed to approbate and reprobate by firstly having accepted the terms and conditions of the promotion order, and now by making an attempt to wriggle out 19 ( 2026:HHC:31442 ) from the same. The promotion order specifically mentioned that upon acceptance of the said promotion, the incumbent shall be giving up the right of promotion to the other promotion channel. All these facts were in the notice of the petitioner, yet she decided to accept the promotion, meaning thereby that she accepted all the terms and conditions which were contained in the promotion order.

Therefore, the contention of the petitioner that the promotion against the post of Lecturer does not bar her from seeking promotion against the post of Headmaster, or that the act of the respondents of promoting the petitioner in terms of Annexure P-3 against the post of Lecturer is in violation of the law declared on the issue by this Court in terms of the judgments appended with the writ petition, is totally unsustainable and is rejected. This Court again reiterates that filing of this petition is nothing but abuse of the process of law.

Pending applications, if any, also stand disposed of. 29th July, 2026. (jai) (Ajay Mohan Goel) Judge