IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.8975 of 2009 Yadunandan Prasad Yadav Versus The State Of Bihar & Ors ----------------- 3. 16.08.2011 Heard learned Counsel for the petitioner and the learned Counsel for the State. The petitioner superannuated from service on 31.7.1997 and is before this Court tenaciously pursuing his claim for grant of second time bound promotion and/or selection grade/super time scale. The petitioner filed CWJC No. 2050 of 1998 after his superannuation contending that he had been given first time bound promotion from 1.4.1981 and Junior Selection Grade on 26.4.1995with effect from 13.3.1992. The respondents in their counter affidavit took the stand that “Kalawadhi” for senior selection grade was five years from the date of grant of “junior selection grade”. In other words, the petitioner would become eligible for senior selection grade on 13.3.1997. Prior to the same he became entitled for second time bound promotion before 15.1.1996. His claim for second time bound promotion was under consideration. The Court therefore disposed the writ petition with a direction to consider his claim for second time bound promotion in the next Departmental Promotion Committee meeting. The petitioner preferred LPA No. 1584 of 1999. He contended a genuine apprehension that the scheme for time bound promotion having been abolished from 1.1.1996 the respondents may not consider his claim for time bound promotion notwithstanding their own stand in the writ petition and the direction of the Court. The Division Bench held that 2 his apprehensions were unfounded as there was no reason to believe that the State shall not abide by its own stand taken before the Court that his claim for second time bound promotion matured much before 1.1.1996. There can be no doubt that by virtue of these two orders, the issue of second time bound promotion of the petitioner attained finality inters partes. The finality attached to an order passed inter partes has been noticed in (2008) 11 SCC 18 (Government of Goa Vs A. H. Jaffar and Sons) as follows:- “5……..It needs no reiteration that once the decision is rendered inter partes and attains finality, a different view cannot be taken, more so, when finality is attached by this Court's order.” The petitioner came to this Court again in CWJC No. 9939 of 2002 seeking the relief for notional grant of senior selection grade and super time scale. The writ petition was dismissed as withdrawn on 22.6.2005. The withdrawal of the writ application lends finality again inter partes with regard to that part of the claim. The respondents have then passed the order dated 29.11.2007 denying him the claim for second time bound promotion. The counter affidavit states that he was granted first time bound promotion on 1.4.1981 and junior selection grade with effect from 11.3.1992. He has therefore had two promotions in Junior Class II and second regular promotion on Junior Selection Grade of Bihar Agriculture Service Category-1 (Agronomy). The Court finds it very difficult to appreciate the stand of the respondents. If this was the ground to deny him the second time bound promotion, the ground was clearly available to he respondents when CWJC No. 2050 of 1998 was being disposed on 3 1.11.1999. On the contrary the respondents took a specific stand that he was eligible to be considered for second time bound promotion from a date prior to 1.1.1996. The respondents cannot be permitted to take vacillating stand by blowing hot and cold at different times, taking contradictory stands, questioning their own stand before this Court in an earlier proceeding. Once they took a stand on oath in a counter affidavit they remain bound by it. It was on their contention that this Court declined to go into the claim for senior selection grade. Had the respondents tested his claim for second time bound promotion, from the discussion contained in the order of the Court, there may have been occasion for it to consider his claim for senior selection grade as it appears that he fulfilled “Kalawadhi” for the same. Holding that such vacillating stand by approbate and reprobate between the same parties was not permissible it has been held in (1969) 2 SCC 114 Raja Bajrang Bahadur Singh Vs Jai Narain) at paragraph 10 as follows:- “10………..The litigant was bandied about from court to court and he could not get any relief anywhere. The Oudh Chief Court mitigated the evil by applying the doctrine that a party litigant could not reprobate and approbate in respect of the same matter. A party litigant may not be allowed to take inconsistent positions in court to the detriment of his opponent at successive stages of the same proceeding or in a subsequent litigation growing out of the judgment in the former proceeding, see Bigalow on Estoppel, 6th Edn., pp. 783, 789, Mohammed Mohdi Khan v. Musammat Sharatunnissa. On this principle it was held in Mahadeo Singh v. Pudai Singh3 that where a Revenue Court upheld the plea that it had no jurisdiction to entertain a suit, the party putting forward the plea would be precluded from contending that the civil court could not entertain the suit. Likewise in Saira Bibi v. Chandrapal Singh it was held that when an appeal was originally instituted properly in the revenue court but on objection being raised by a party was dismissed on the ground that the appeal did not lie to that court, it was not open to the party to raise the objection that 4 the appeal could not be entertained by the civil court. This form of estoppel arises when the litigant takes inconsistent pleas as to jurisdiction on different courts. It cannot be pressed into service, where, as in the present case, the court in which the proceeding was originally filed suo motu raised the objection as to jurisdiction. In the present case it does not appear that the respondent raised before the revenue court the objection that it was not competent to entertain the appeals. The doctrine of approbate and reprobate cannot be invoked to preclude the respondent from raising the objection that the appeals did not lie to the civil court. But the effect of upholding his objection is that the appellant is deprived of his right of appeal altogether. His appeals cannot be entertained either by the civil court or by the revenue court.” In conclusion, the order dated 29.11.2007 being self contradictory to the stand taken by the respondents in CWJC No. 2050 of 1998, the Court holds the former to be grossly arbitrary and not sustainable inter partes. The order dated 29.11.2007 is accordingly quashed. The respondents are directed to grant second time bound promotion to the petitioner in accordance with their own stand along with the financial benefits at the revised scale in accordance with law and revision of pension accordingly. Let the same be done within a maximum period of three months from the date of receipt and/or production of a copy of this order. The writ application stands allowed. Snkumar/- (Navin Sinha,J.)