Uttarakhand High Court
6 July vs Union Of India & Another on 16 July, 2026
Author: Pankaj Purohit
Bench: Manoj Kumar Tiwari, Pankaj Purohit
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HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition Service Bench No. 452 of 2019
16 July, 2026
Ravinder Kumar
--Petitioner
Versus
Union Of India & another
--Respondents
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Presence:-
Mr. Arvind Vashisth, learned Senior Advocate assisted by Mr.
Sidhant Tiwari and Mr. Rachit Manglik, learned counsel holding
brief of Mr. Vivek Pathak, learned counsel for the petitioner.
Mr. Saurav Adhikari, learned counsel for respondent no.1/Union
of India.
Mr. Rajesh Sharma, learned counsel for respondent no.2.
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Coram :Hon'ble Manoj Kumar Tiwari, J.
Hon’ble Pankaj Purohit, J.
Hon’ble Manoj Kumar Tiwari, J. (Oral)
Petitioner has challenged rejection of his
representation vide order dated 03.09.2019, passed by
Director, Aryabhatta Research Institute of Observational
Sciences (hereinafter referred as “ARIES”). In his
representation, petitioner claimed benefit of Old Pension
Scheme. His claim was turned down by holding that
since petitioner accepted appointment as Manager
(Establishment) in Technology Information Forecasting
and Assessment Council (hereinafter referred as
“TIFAC”), New Delhi, where he served on contract for four
years, and while serving in TIFAC, he subscribed to
Contributory Provident Fund (CPF) Scheme, therefore, in
view of Office Memorandum dated 28.10.2009, issued by
Ministry of Personnel, Public Grievances and Pensions,
he cannot be permitted to join back the Old Pension
Scheme.
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2. Clause 2(c) of the Office Memorandum dated
28.10.2009, which is relied upon for rejecting petitioner’s
claim, is reproduced below:-
“2(c). the pre-existing arrangement of mobility between
State/Central Autonomous Body to Central/State Govt. and
between autonomous bodies that were governed by old pension
schemes in force upto 31/12/2003 vide No.28/10/84-P&PW dated
7/2/1986 and OM No.28/10/84-Pension unit dated 29/8/1984
stand restored although those under CPF etc. will not be allowed
entry into the old pension scheme on appointments from
1/1/2004.”
3. It is not in dispute that petitioner initially
served in All India Radio and Prasar Bharti, Government
of India, from 14.09.1995 to 31.03.2007; after resigning
from Prasar Bharti, he joined service of Indian Institute
of Management (IIM), Lucknow, on 02.04.2007; after
quitting IIM, he joined as Manager (Establishment) in
TIFAC, New Delhi, which did not have the Old Pension
Scheme. While serving in TIFAC, he subscribed to
Contributory Provident Fund (CPF) Scheme. Petitioner
served in TIFAC for four years and seven months between
01.06.2010 and 31.12.2014, and thereafter, he was
appointed in ARIES as Registrar w.e.f. 01.01.2015, and
after serving for a couple of years in ARIES, petitioner
accepted appointment in some other organization where
he is still serving.
4. Learned Senior Advocate appearing for
petitioner submits that while serving in All India Radio,
Prasar Bharti, and Indian Institute of Management,
petitioner was a Member of GPF Scheme, which is also
known as Old Pension Scheme. Therefore, petitioner
cannot be denied re-entry into GPF/Old Pension Scheme
on the strength of Office Memorandum dated 28.10.2009
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merely because petitioner had gone out of the GPF/Old
Pension Scheme for four years and seven months while
serving in TIFAC. It is contended
that Office Memorandum dated 28.10.2009 prohibits
entry of fresh appointees into GPF/Old Pension Scheme,
and it does not restrict re-entry of a person who was
earlier a Member of GPF/Old Pension Scheme. Thus, it is
contended that petitioner continued to be governed
by GPF/Old Pension Scheme till he served in IIM,
Lucknow, i.e. 31.05.2010, therefore, benefit of Old
Pension Scheme cannot be denied to him merely because
he accepted employment in TIFAC, which did not have
Old Pension Scheme, and petitioner had subscribed to
Contributory Provident Fund Scheme while serving in
TIFAC.
5. Per contra, Mr. Rajesh Sharma, learned
counsel appearing for respondent no.2, submits that
petitioner resigned from IIM, Lucknow, on 31.05.2010,
even though Central Government had issued Office
Memo prohibiting entry into Old Pension Scheme on
28.10.2009, therefore, petitioner cannot now raise a
grievance against rejection of his claim for entry into Old
Pension Scheme. He submits that petitioner was aware of
the consequences of his quitting employment of IIM and
accepting employment in TIFAC, which did not have Old
Pension Scheme, therefore, he cannot now raise
grievance against impugned order whereby his request
for entry into Old Pension Scheme was turned down.
6. We find substance in the contention raised on
behalf of respondent no.2. Central Government had made
it clear in the Office Memorandum dated 28.10.2009 that
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henceforth, anyone who is governed by Contributory
Provident Fund Scheme will not be allowed entry into Old
Pension Scheme. In fact, said restriction was made
applicable from 01.01.2004. Learned counsel for
respondent no.2 is right in submitting that
since petitioner resigned from IIM and accepted
employment in TIFAC in 2010 despite stipulation made
in Office Memorandum dated 28.10.2009, therefore, it
shall be deemed that petitioner willingly relinquished
benefit of Old Pension Scheme by joining service in an
organization where Old Pension Scheme was not
applicable.
7. The doctrine of election would thus come into
play, which provides that a person must choose between
two alternative benefits. Hon’ble Supreme Court,
in the case of Union of India & Others vs. N.
Murugesan & Others, reported in (2022) 2 SCC 25 held
has under:-
“Approbate and reprobate
26. These phrases are borrowed from the Scots 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
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 [Nagubai
Ammal v. B. Shama Rao, 1956 SCR 451 : AIR 1956 SC 593] : (AIR
pp. 601-02, para 23)
“23. But it is argued by Sri Krishnaswami Ayyangar that as
the proceedings in OS. No. 92 of 1938-39 are relied on as4
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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 &
Netherlands Steamship Co. Ltd. [Verschures Creameries
Ltd. v. Hull & Netherlands Steamship Co. Ltd., (1921) 2 KB
608 (CA)] , and in particular, the observations of Scrutton,
LJ., at p. 611 were quoted in support of this position. There,
the facts were that an agent 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 [Verschures Creameries Ltd. v. Hull & Netherlands
Steamship Co. Ltd., (1921) 2 KB 608 (CA)] , KB p. 611)
‘… 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, L.J. on which the appellants
rely are as follows: (Verschures Creameries Ltd.
case [Verschures Creameries Ltd. v. Hull & Netherlands
Steamship Co. Ltd., (1921) 2 KB 608 (CA)] , KB pp. 611-12)
‘… 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 at p. 21: 4 ER 1 at p. 8]: Douglas-
Menzies v. Umphelby, 1908 AC 224 at p. 232 (PC)] .
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 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 on5
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it.’
27.2. State of Punjab v. Dhanjit Singh Sandhu [State of
Punjab v. Dhanjit Singh Sandhu, (2014) 15 SCC 144] : (SCC pp.
153-54, paras 22-23 & 25-26)
“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
provisions of a statute. (Vide CIT v. MR. P. Firm
Muar [CIT v. MR. P. 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 v. Yashpal Dhir [R.N. Gosain v. Yashpal Dhir, (1992)
4 SCC 683] this Court has observed as under : (R.N. Gosain
case [R.N. Gosain v. Yashpal Dhir, (1992) 4 SCC 683] , 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 & Investment Corpn. v. Diamond & Gem
Development Corpn. Ltd. [Rajasthan State Industrial
Development & Investment Corpn. v. Diamond & 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 he has to speak, from asserting a right
which he would have otherwise had.”
27.3. Rajasthan State Industrial Development & Investment
Corpn. v. Diamond & Gem Development Corpn. Ltd. [Rajasthan
State Industrial Development & Investment Corpn. v. Diamond &
Gem Development Corpn. Ltd., (2013) 5 SCC 470 : (2013) 3 SCC
(Civ) 153] : (SCC pp. 480-81, paras 15-16)
“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,
1956 SCR 451: 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], Pradeep Oil Corpn. v. MCD (2011) 5 SCC 270 :
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(2011) 2 SCC (Civ) 712], 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 : (2013) 4 SCC (Cri) 587 :
(2013) 3 SCC (L&S) 416] .]
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.”
8. Learned counsel for the Union of India points
out that Old Pension Scheme was done away with
pursuant to a policy decision taken by Central
Government, and anyone who is appointed to a Central
service on or after 01.01.2004 would be governed by New
Pension Scheme. He thus submits that since petitioner
was appointed by direct recruitment in ARIES in the year
2015, therefore, he was a fresh appointee qua ARIES,
and he could have been permitted entry into Old Pension
Scheme only if petitioner was a Member of Old Pension
Scheme in all organizations where he served. He submits
that since petitioner had gone out of Old Pension Scheme
for nearly five years, therefore, he could not have been
permitted entry into Old Pension Scheme in ARIES,
where he was appointed on 01.01.2015.
9. Learned Senior Advocate appearing for the
petitioner contended that what is prohibited is entry
into Old Pension Scheme. However, re-entry of an
employee who was earlier a Member of Old Pension
Scheme is not prohibited. He submits that
since petitioner was a Member of Old Pension Scheme
between 14.09.1995 till 31.05.2010, therefore, petitioner
is not hit by the condition mentioned in Clause 2(c) of
Office Memorandum dated 28.10.2009.
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10. The said contention raised by learned Senior
Advocate for petitioner cannot be accepted. Opening
sentence of Office Memorandum dated 28.10.2009
reveals that Old Pension Scheme was done away with in
respect of Central Government employees, and New
Pension Scheme was introduced from 01.01.2004, and
provisions contained in Central Civil Services (Pension)
Rules, 1972, were amended for making them inapplicable
to those appointed on or after 01.01.2004. However, an
exception was made by Office Memorandum dated
28.10.2009 in respect of Government employees/
Employees of Autonomous Bodies, and it was provided
that if they are governed under Old Non-Contributory
Pension Scheme, then they will be permitted entry
into Old Pension Scheme upon joining service in some
other government organizations.
11. Since petitioner was not governed by Old Non-
Contributory Pension Scheme while serving in TIFAC,
and ceased to be a member of Old Pension Scheme upon
resigning from IIM and accepting employment with
TIFAC, he was, in view of the applicable policy, not
entitled to become a member of Old Pension Scheme
upon joining the service of ARIES.
12. A careful perusal of Clause 1 of Office
Memorandum dated 28.10.2009 read with Clause 2(c)
thereof makes it clear that any person appointed after
01.01.2004 is not entitled to become a member of Old
Pension Scheme. Only exception is a person who has
remained a member of Old Pension Scheme throughout,
wherever he served. Such a person alone is permitted to
be inducted into Old Pension Scheme. Since petitioner
had gone out of Old Pension Scheme in 2010, merely by
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accepting employment in ARIES in 2015, petitioner was
not entitled to become part of Old Pension Scheme,
notwithstanding the fact that before 2010, he was
member of Old Pension Scheme. Thus, re-entry into Old
Pension Scheme is not allowed even to a person who
earlier had been member of Old Pension Scheme but had
accepted employment for some time in an establishment
which did not have Old Pension Scheme. Accordingly,
order passed by Director, ARIES, cannot be faulted.
There is hardly any scope for interference in the matter.
The writ petition is dismissed.
13. We, however, make it clear that this order will
not come in the way of petitioner claiming pro rata
pension or other benefits for the past services rendered
by him in other organizations.
(Pankaj Purohit, J.) (Manoj Kumar Tiwari, J.)
16.07.2026
AK
AVNEET
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Digitally signed by AVNEET KAUR
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Date: 2026.07.21 10:47:40 +05’30’
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