Per Mansoor Ahmad Mir, J.

1. This Letters Patent Appeal is directed against the judgement and order dated 16-5-2007 passed in SWP No. 750/2000 by the writ court, whereby writ petition of the appellant came to be dismissed. The short controversy involved in this appeal is whether appellant is estopped from claiming retrospective benefits after exercising option and accepting his adjustment/appointment as Junior Stenographer (English) with prospective date.

2. In order to determine the controversy, it is necessary to notice the brief facts of the case.

3. It appears that material facts averred by the appellant are not in dispute. Respondents have admitted that the appellant was appointed as Urdu Stenographer in the year 1994 vide Government order No. 298-GAD of 1984 dated 13-12-1984. He was allowed to undergo training in English Stenography at his request and completed the said training in the year 1993. He was granted one increment in terms of rules with the intervention of the court. There-after he made representations for up-gradation of his post, but his request was not acceded to by the respondents. However, he was given option for change of his cadre and was offered the post of Junior Stenographer (English) in the J&K Secretariat (Subordinate) Service. Besides him, other three officials namely Jan Mohammad, Ghulam Hassan Thokar and Mohammad Ashraf were also given the same offer. The offer was out come of decision made by the Establishment Committee on 8-7-1997.

4. The petitioner showed his willingness for the change of his cadre with retrospective effect, but his option was not accepted. He was advised to exercise specific option, whether he would like to be appointed as Junior Stenographer (English) with prospective date or would like to be transferred along with post to the Financial Commissioners office, who administers the cadre of Urdu Stenographers. The appellant accepted the offer, exercised option and made request that he be appointed as Junior Stenographer (English) with prospective date. A copy of the option so submitted by him was placed on record by the respondents before the writ court, which reads as under:-

"...... In reference your letter No. GAD (Estt) 70/78-II dated 25-9-1997 regarding encaderment as Junior Stenographer English. It is therefore, requested that I may kindly be appointed as Jr. Scale stenographer English with prospective date."

5. The respondents specifically pleaded in their counter that the appellant is caught by law of estoppel and cannot turn round. He filed rejoinder, wherein he has not denied the said factum, but averred that option so exercised, would not debar and disentitle him from agitating his grievances. It is profitable to reproduce relevant para of the rejoinder hereunder:-

"....... However, giving that option, he has not lost any of his rights, for, it being well settled that there can be no estoppel against legal or fundamental rights. It being petitioners legal as well as fundamental rights to seek promotion/up-gradation and the respondents having denied the same to him, therefore, the question of his giving option for his encaderment as Jr. Stenographer (English) prospectively in the Secretariat Service will not impinge all his rights. Even after giving his option, the petitioner is not stopped from agitating his grievances with the respondents......."

6. Writ court after hearing learned counsel for the parties and considering the matter, held and found that the petitioner is caught by his conduct. He has made election and cannot turn round, thereby is caught by law of estoppel. The writ court accordingly dismissed the writ petition.

7. Learned counsel for the appellant argued that the option exercised would not come in the way of seeking the enforcement of his legal and fundamental rights and in this connection he placed reliance on the judgement of the apex court reported in AIR 1986 SC 180, 2000(3) SCC 588 and AIR 1998 SC 2909.

8. Keeping in view the above said facts, the writ p

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