Ramchandra Prasad vs The State Of Bihar & Ors on 30 August, 2011

                  IN THE HIGH COURT OF JUDICATURE AT PATNA
                                   CWJC No.691 of 2010
              1. Ramchandra Prasad S/O Late Dular Prasad Singh R/O
              Indrapuri Road No.1,P.S.Pataliputra, Distt-Patna
                                       Versus
              1. The State Of Bihar , Through The Principal Secretary Cum-
              Agriculture Production Commissioner Bihar, Patna
              2. The Joint Director Agriculture Engineeering Bihar,Patna
              3. The Deputy Director Agriculture , Engineering Work Shop
              Patna
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3. 30.08.2011 Heard learned counsel for the petitioner and

the State.

The petitioner superannuated in 2004. On

27.12.2002 the respondents cancelled the super time

scale granted from 1.1.1996 and directed consequent

recovery. In C.W.J.C. 160 of 2003 this Court permitted

him to pursue the matter departmentally. The

respondents by a fresh order dated 9.12.2009 have

affirmed the cancellation order and in lieu thereof have

granted him second A.C.P.

Learned counsel for the petitioner fairly

acknowledges that in pursuance of the same the

monetary benefits of the second time bound promotion

has been accepted by him. It is however submitted that

denial of super time scale was not based on any

misrepresentation and that it was not granted contrary to

law.

The petitioner cannot retain the benefit of the

second A.C.P. under the order and yet at the same time
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challenge that part of the same order by which he is

denied the benefit of super time scale. This principle of

blowing hot and cold and the impermissibility of

approbate and reprobate has been explained in (1992) 4

SCC 683 (R.N. Gosain v. Yashpal Dhir) at Paragraph-10

as follows:-

“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”.

The writ application is dismissed.

P. Kumar                                     ( Navin Sinha, J.)