Special Leave Petition C No 4325 of 1992
From the Judgment and Order dated 631992 of the Punjab and Haryana High Court in Civil Revision No 2830 of 1991
Dr AM Singhvi and Ms Kirti Misra for the Appellant
DV Sehgal SM Sarin PN Puri Ranbir Singh Yadav and GK Bansal for the Respondent
The Judgment of the Court was delivered by SC AGRAWAL J
This petition for special leave to appeal arises out of proceedings for eviction initiated by the respondent landlord against the petitioner tenant under section 13A of the East Punjab Urban Rent Restriction Act 1949 hereinafter referred to as the Act  as amended by Act No 2 of 1985
The proceedings relate to a residential house in Chandigarh which was let out to the petitioner by the respondent
The respondent was initially employed as Accounts Officer with the Finance Department of the Government of Haryana
In 1969 he went on deputation with the Haryana Agricultural University hereinafter referred to as the University 
His services were transferred to the University by the Government of Haryana with effect from November 1 1975 and while he was employed on the post of Comptroller in the University he retired from service with effect from February 28 1991
Claiming to be a specified landlord  within the meaning of section 2hh of the Act the respondent moved a petition seeking eviction of the petitioner under section 13A of the Act before the Rent Controller Chandigarh
The said petition was dismissed by the Rent Controller by order dated August 5 1991 on the view that the respondent did not fall within the ambit of the definition of specified landlord  since he had failed to show that he was holding or has held an appointment in a public service or post in connection with the affairs of the Union or of the State
The respondent filed a revision petition before the High Court under section 18 A8 of the Act which was allowed by the High Court by judgment dated March 6 1992
The High Court held that the respondent at the time of his retirement from the post of Comptroller in the University was holding an appointment in connection with the affairs of the State and hence he is a specified landlord within the meaning of section 2hh of the Act
The High Court further found that the respondent had fully satisfied the conditions as contained in section 13 A of the Act and he was entitled to recover the possession of the premises in dispute from the petitioner
Allowing the revision the High Court set aside the order of the Rent Controller and accepted the petition filed by the respondent under section 13 A of the Act for ejectment of the petitioner
The High Court further directed as under However the respondent is allowed one month s time to vacate the premises provided he pays the entire arrears of rent within 15 days from today and also files an undertaking with the Court of the Rent Controller to the effect that he shall hand over the vacant possession of the premises on the expiry of aforesaid period
 On March 16 1992 the petitioner moved a petition in the high Court under section 151 CPC seeking three months time to vacate the house and for waiving the requirement of filing of an undertaking
The said petition was rejected by the High Court by order dated March 18 1992
Thereafter the petitioner submitted an undertaking dated March 20 1992 before the Rent Controller wherein the petitioner after referring to the direction contained in the order of the High Court dated March 6 1992 gave the following undertaking That the respondent hereby gives undertaking that he will vacate the premises and shall handover the vacant possession of the premises on the expiry of one month from 6392 as per the order of Hon ble High Court subject to his rights for filing SLP in the Hon ble Supreme Court against the order of eviction
The respondent has already sent draft for the rent for the month of March 1992 to the petitioner and he is not in arrears of rent
 On March 21 1992 the petitioner filed the special leave petition under Article 136 of the Constitution in this Court
On the said petition the following order was passed on March 26 1992 To come up in normal course
In the meantime no dispossession to be effected
 On April 9 1992 an order was passed in the following terms Issue notice returnable within two weeks
In the meantime stay of eviction to continue 
In response to the said notice the respondent filed a counter affidavit on April 18 1992 wherein an objection has been raised that in view of the undertaking given by him the petitioner cannot invoke the jurisdiction of this Court under Article 136 of the Constitution
Shri DV Sehgal the learned senior counsel appearing for the respondent has submitted that in view of his having taken the benefit of direction contained in the order of the High Court allowing him one month s time to vacate the premises on his filing an undertaking that he shall hand over vacant possession of the premises on the expiry of aforesaid period and his having submitted a written undertaking in accordance with the said direction the petitioner is precluded from assailing the judgment of the High Court by invoking the jurisdiction of this Court under Article 136 of the Constitution
Shri Sehgal has urged that the fact that the petitioner has qualified his undertaking by using the words subject to his rights for filing SLP in the Hon ble Supreme Court against the order of eviction would not alter the position
In support of his aforesaid submission Shri Sehgal has placed reliance on the decisions of this Court in Thacker Hariram Motiram vs Balkrishan Chatbrabhu Thacker  Ors 1989 Supp
2 SCC 655 Vidhi Shanker vs Heera Lal 1987 Supp
SCC 200 and Ramchandra Jai Ram Randive vs Chandanmal Rupchand  Ors 1987 Supp
SCC 254
Dr AM Singhvi the learned counsel appearing for the petitioner has however laid stress on the fact that the undertaking had to be given by the petitioner in the peculiar circumstances arising on account of this Court being closed due to vacations from March 16 1992 to March 20 1992
Dr Singhvi has submitted that the petitioner has not taken any undue advantage by giving the undertaking inasmuch as before giving the under taking he had moved an application for extension of time before the High Court wherein he had clearly indicated that he intended to file a special leave petition in this Court against the order of the High Court dated March 6 1992 and this was also expressly stated in the undertaking filed in the Court wherein it is mentioned that the undertaking was subjected to his right to file the special leave petition in this Court against the order of eviction
Dr Singhvi has urged that in view of the aforesaid facts and circumstances the decisions on which reliance has been placed by Shri Sehgal would have no application to the present case
In view of the judgment of the High Court allowing the petition for eviction filed by the respondent the petitioner was liable to be evicted from the premises forthwith
Under the direclions given by the High Court the petitioner could continue in occupation of the premises for a period of one month on his i paying the entire arrears of rent within 15 days from the date of the judgment and ii filing an undertaking with the court of Rent Controller to the effect that he shall hand over the vacant possession of the premises on the expiry of the period of one month
The petitioner made an effort to obtain extension of time for vacating the premises without furnishing the undertaking and he filed a petition for the purpose before the High Court
The said petition was however dismissed by the High Court
Having failed in his attempt to obtain extension of time for vacating the premises without furnishing an undertaking the petitioner had two options open to him i to avail the protection from eviction from the premises for 3a period of one month by tiling an undertaking as directed or ii not to avail the said protection and run the risk of immediate eviction
The petitioner chose the first option
In order to avail the protection from eviction from the premises for a period of one month he filed the requisite undertaking in the court of the Rent Controller within the period of 15 days prescribed under the directions of the High Court
The statement in the undertaking that it was subject to the rights of the petitioner to file special leave petition in this Court against the order of eviction does not in our view have any effect on the legal consequences flowing as a result of the filing of the undertaking by the petitioner
By furnishing the said undertaking the petitioner elected to avail the protection from eviction from the premises and he enjoyed the said protection till the passing of the order by this Court on March 26 1992 staying dispossession of the petitioner
Having elected to avail the protection from eviction under the order dated March 6 1992 passed by the High Court by filing the requisite undertaking the petitioner cannot be permitted to assail the said order
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 any 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
See Verschures Creameries Ltd vs Hull and Netherlands Steamship Co Ltd 1921 2 RB 608 at p612 Scrutton LJ
According to Halsbury s Laws of England 4th Edn
Vol 16 after taking an advantage under an order for example for the payment of costs a party may be precluded from saying that it is invalid and asking to set it aside
para 1508
In Thacker Hariram Motiram vs Balkrishan Chatbrabhu Thacker  Orssupra this Court was dealing with a similar situation
The High Court while deciding the second appeal in an eviction matter gave the appellant tenant one year s time subject to his giving an undertaking within a period of three weeks stating that vacant possession would be handed over within the aforesaid time
The appellant gave an undertaking in accordance with the said terms wherein he undertook that he would vacate and give vacant possession of the suit premises by December 31 1985 ie to say after one year if by that time no stay order from the Supreme Court is received as I intend to file an appeal in the Supreme Court
It was held that in view of the said undertaking the petitioner could not invoke the jurisdiction of this Court under Article 136 of the Constitution and he should abide by the terms of the undertaking and it was observed This undertaking filed by the appellant in our opinion is in clear variation with the oral undertaking given to the learned Judge which induced him to give one year s time
a We do not wish to encourage this kind of practice for obtaining time from the court on one plea of filing the undertaking and taking the different stand in applications under Article 136 of the Constitution p655 Similarly in Vidhi Shanker vs Heera Lal supra and Ramchandra Jai Ram Randive vs Chandanmal Rupchand  Ors
supra this Court declined to exercise its discretion under Article 136 of the Constitution in cases where the petitioner had given an undertaking in the High Court and had obtained time to vacate the premises on the basis of such undertaking
We are therefore of the opinion that the petitioner having given an undertaking in pursuance to the directions given by the High Court in the Judgment dated March 6 1992 and having availed the protection from eviction on the basis of the said undertaking cannot be permitted to invoke the jurisdiction of this Court under Article 136 of the Constitution and assail the said judgment of the High Court
In that view of the matter we do not consider it necessary to deal with the submissions urged by Dr Singhvi that the respondent being an employee of the University at the time of his retirement was not a specified landlord  under section 2hh of the Act
The special leave petition is accordingly dismissed but without any orders as to costs
VPR Petition dismissed


Summary:
35 posts in super time grade of Central Health Services were sanctioned and proposals were sent to the Union Public Service CommissionUPSC for convening departmental Promotion Committee DPC meetings for selection of candidates
UPSC approved to amend Rule 46 of Central Health service Rules of 1982
It also approved the method recruitment field of selection and principles of seniority to fill up the 35 posts as one time measure in the absence of notified recruitment rules
The Commission also stipulated that these 35 posts were to be treated as common posts to be included in the category of floating posts for the teaching and non teaching sub cadres mentioned in Rule 46 of Central Health Services Rules 1982
The eligibility condition stipulated was three years as Professor failing which 17 years of regular service in Group A 
The Communication of UPSC together with the eligibility list of Professors was circulated and errorsobjections etc
were to be intimated to the Ministry within one month
The DPC met and selected candidates
Respondent No1 was assigned 14th rank and Respondent No3 was assigned 4th rank
The selected candidates were promoted and appointed
Respondent No1 filed an application before the Central Administrative Tribunal claiming that he was senior to respondent No3 and others doctors and since the promotion was only on the basis of seniority and directed that Respondents arrayed in the application before it
Being aggrieved by the Tribunal s order Union of India preferred the first of the two appeals
Respondent No3 in that appeal has preferred the other appeal
On behalf of the appellantsrespondent No3 it was contended that Rule 410ii and iii as amended merely prescribed the procedure for preparation of eligibility test that the procedure has not been prescribed in any other Rule as the posts were created as floating posts that the posts did not pertain to any particular super speciality or sub cadre if ProfessorDirector and so the criteria for preparation of eligibility list gad to be prescribed for determining inter se ranking between the sub cadres that merely because Rule 410iii contained the word suitability  it did not supersede alter or amend the criteria for selection and that the word suitability  has to be understood in the light of the guidelines of DPC
Allowing the appeals this Court HELD 11
If there is to be an assessment of merit the principle of selection is involved
on the contrary if it were merely a seniority cum fitness there is no need to associate the Union public Service Commission as pointed out in the guidelines
All these lead only to one conclusion that these are selection posts
That is dealt with apart from Rule 4 sub rule 10 clause iii and also under paragraph 612 of the guidelines issued by the Government of India
According to the guidelines the Departmental Promotion Committee is to devise its own method and procedure for objective assessments of suitability of candidates
It is note worthy in Paragraph 631 that the procedure for the preparation of the panel for promotion by the Departmental promotion Committee is delineated
51 CD 12
Paragraph 7 of the guidelines deals with non selection method and it dispenses with the requirement to make a comparative assessment of the records
In such a case what is required is to categorise the officers as fit or not yet fit for promotion on the basis of assessment of the record of service
Therefore the word suitability in Rule 410iii having regard to the nature of the post and grade could only mean suitability for the purposes of being selected to the said post
51 G H 52 A 2
It is a common case between the parties that these 35 floating posts were created by sub rule 10 of rule 4 in a addition to the authorised strength
If as per the rule for the post falling under authorised strength the method of selection is adopted it must equally apply to the post created in addition to the authorised strength
A careful reading of Rule 84ii reveals that departmental promotion to higher post in the respective special cadres and specialities within the sub cadre concerned shall be made on the basis of selection on merit
It implies that should vacancy arise in a particular speciality  this method is to be adopted
In contradistinction to this under Rule 410iii even though one of the floating or common posts may be held by a particular person of a particular speciality the said post can go to a person not belonging to that speciality
Comprises of 29 specialities
Thus it follows the word selection used in Rule 8 4ii is with reference to inter se merit of persons belonging to a particular speciality with regard to the vacancy occurring in that speciality52 D H 3
The first respondent was served with a copy of letter dated 3111988 in which the appellant clearly stated that the 20 posts of DirectorProfessor of super time grade are to be filled by selection method viz merit with regard to seniority
Therefore the decision of Government of India had been conveyed to the first respondent and he should have immediately voiced his protest
Of course the failure to protest would not deprive him of a legitimate right if he is entitled to in law
53 AB 4
After examination of the character roll of the senior most eligible officers the committee assessed the officers
The first respondent was rated as very good while the rating for respondents 2 to 5 was outstanding
So they go en bloc above the first respondent since the first respondent is merely very good
This is because of the application of clause Ii of paragraph 631
of the guidelines
It was on this basis the Departmental Promotion Committee assigned rank No 14 to the first respondent
Pursuant to this the President of India issued the order of promotion dated 17th January 1990
Paragraph 3 of the order clearly states that the promotions will be personal to the officers concerned and the posts presently held by them will stand upgraded to the super time grade in the scale in terms of the Ministry s order dated 1531989
Hence the Tribunal was in error in merely adopting seniority as the basis of promotion and not merit
53 C G