JUDGMENT 1. - The instant petition has been filed for seeking directions to the respondents to allow the petitioner to appear in the examination in the paper of Military Law which he could not pass while appearing in Examination-D for substantive appointment on the post of Major; to count the required period of twenty years from the date of actual appointment and not from the date he has been given ante-dated appointment; and to consider the petitioner for promotion to the higher rank. 2. The facts and circumstances giving rise to this case are that petitioner, after completion of Graduation in Engineering in 1974, applied for Short Service Commission. He was selected and after successful completion of training, he was appointed as II/Lieutenant on 21-3-1976. The service conditions of the petitioner are governed by the Special Army Instructions (for short, "S. A. I.") issued by the Competent Authority in the Ministry of Defence from time to time. Petitioner, being technocrat, was granted two years' ante- dated seniority etc. He was granted promotion to the substantive rank of Lieutenant on 19-5- 1976 in terms of S. A. I. I1/S/63. Petitioner was promoted as Captain on 19-5-1980 though he passed Examination-C in 1984. In 1991, he has been given provisional promotion as Acting Major and as he could not pass Examination-D within the stipulated period of twenty years, the respondents are not allowing him to appear in the said examination further and petitioner claims that as he was actually appointed on 21-3-76, he should have been allowed to pass Examination- D up to 21-3-1996 though petitioner had made several attempts and passed all but one paper for Examination-D up to 1994 and he was allowed to appear in the said examination in 1995 but his examination was cancelled. Subsequently, he had been permitted to appear in the said examination in 1997 under the interim order of this Court but the result has not been declared because of the pendency of this petition. 3. Though various issues have been raised at the bar but controversy involved herein lies in a very narrow compass, i.e. whether twenty years' period to pass Examination-D is to be counted from his actual appointment, i.e. 21-3-76 or from the ante-dated reckonable period, i.e. 1994? (sic?) 4. Mr. 3. Though various issues have been raised at the bar but controversy involved herein lies in a very narrow compass, i.e. whether twenty years' period to pass Examination-D is to be counted from his actual appointment, i.e. 21-3-76 or from the ante-dated reckonable period, i.e. 1994? (sic?) 4. Mr. M. D. Purohit, learned counsel for the petitioner has submitted that the S. A. I. dated 31-3-1963 provides that ante-dated grant shall be counted for "purposes of seniority, promotion and increments of pay". It has vehemently been argued that the said S. A. I. does not specifically provide for passing the examination and, therefore, the ante-dated appointment cannot be taken into consideration while counting the said period of twenty years. Mr. Purohit has placed reliance upon a judgment of the Hon'ble Supreme Court in Orissa Small Industries Corporation Ltd. v. Narashimgha Charan Mohanti (1999) 1 SCC 465 wherein while considering the case of promotion, which was governed by the Statutory Rules, the Court held that the benefit of the period giving notional seniority or promotion to the post should not be taken into account as the person has not gained the necessary experience for the reason that he had not actually worked on the post and such a notional benefit is meant for other purposes. On the basis of this, Mr. Purohit has vehemently argued that petitioner did not have the actual experience/working of twenty years from the date of notional appointment and, thus, the period cannot be reckoned from 1974 and it should be counted from the date of actual appointment, i.e. 21-3-1976. 5. Mr. S. S. Lal, learned counsel appearing for the respondents, has submitted that petitioner was given promotion and appointed as a substantive Lieutenant giving the benefit of notional period and he had also been promoted as Capain w.e.f. 19-5-1980 by counting six years' mandatory period from the date of notional appointment. Had it been counted from the date of actual appointment, he could have been promoted as Captain substantively w.e.f. 19-5-1982. Petitioner was appointed as Captain substantively with effect from 19-5-1980 though he passed the examination in 1984. He has been appointed as Acting Major in 1991 counting his period of service from the date of notional appointment and not from the date of actual appointment. Petitioner was appointed as Captain substantively with effect from 19-5-1980 though he passed the examination in 1984. He has been appointed as Acting Major in 1991 counting his period of service from the date of notional appointment and not from the date of actual appointment. If petitioner himself has taken the benefit of promotion in the past from the date of notional appointment, he cannot be permitted to agitate now that for passing Examination-D, the required period of twenty years should be reckoned from the date of actual appointment. 6. I have considered the rival submissions made by the learned counsel for the parties. S. A. I. dated 28-6-1985 reads as under:- "Promotion Examination-Part D. Officer, who failed to qualify in promotional examination Part-D on completion of twenty years' reckon able service. will be issued a show cause notice under the Army Rule 13-A for termination of service. The service of these officers will be terminated as per the provisions contained in Army Rule 13-A." 7. Similarly, Army Instructions Corrigendum dated 1-10-1989 incorporated the similar provisions in verbatim language; however, it further provides as under : "Officers, having ante-dated seniority, will be permitted to serve up to the date of completion of twenty years' Commissioned Service, including the period of their service as Short Service Commissioned Officers to appear in the promotional examination beyond twenty years' reckonable service will be given." Rule 13-A of the Army Rules, 1954 (for short, "the Rules") reads as under "13-A.-Termination of service of an officer by the Central Government on his failure to qualify at an examination or course : (1) When an officer does not appear at, or having appeared fails to qualify at the retention examination or promotional examination..... . ........ the Chief of the Army Staff shall call upon the officer to show cause why he should not be compulsorily retired or removed from service. (2) In the event of explanation being considered by the Chief of the Army Staff to be unsatisfactory, the matter shall be submitted to the Central Government for orders, together with the officers' explanation and the recommendation of the Chief of the Army Staff as to whether the officer should be called upon to retire or called upon to resign. (2) In the event of explanation being considered by the Chief of the Army Staff to be unsatisfactory, the matter shall be submitted to the Central Government for orders, together with the officers' explanation and the recommendation of the Chief of the Army Staff as to whether the officer should be called upon to retire or called upon to resign. (3) The Central Government, after considering the explanation, if any, of the officer and the recommendation of the Chief of the Army Staff, may call upon the officer to retire or resign, and on his refusal to do so, the officer may be compulsorily retired or removed from service on pension or gratuity, if any, admissible to him." 8. In the instant case, it is crystal clear from the aforesaid S. A. Is. issued from time to time that a candidate has to pass the examination within twenty years from the date of notional appointment and not from the date of actual appointment. However, the rules permit continuation of an officer in service for twenty years of actual service and it seems to have been allowed for the reason that after completing actual twenty years' service, the officer may become entitled for pension and other retiral benefits. Petitioner had earlier taken promotions counting his service period from the date of notional appointment. There is no force in the submission made by Mr. Purohit that S. A. I. dated 31-3-1963 does not provide for counting the reckonable service for the purpose of examination as the same expressly provides so for the purpose of "promotion" and promotion depends on passing of the examination. Moreover, the S. A. Is. do not provide for having actual experience. They simply provide for reckonable period. Thus, it has to be counted from the date of notional appointment. Thus, he cannot be permitted to agitate that he should be allowed to pass the Examination-D from the date of actual appointment. 9. In R. N. Gosain v. Yashpal Dhir, AIR 1993 SC 352 , the Hon'ble Supreme Court has observed as under : "Law does not permit a person to both approbate and reprobate. Thus, he cannot be permitted to agitate that he should be allowed to pass the Examination-D from the date of actual appointment. 9. In R. N. Gosain v. Yashpal Dhir, AIR 1993 SC 352 , the Hon'ble Supreme Court has observed as under : "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." 10. Similar view has been taken by the Hon'ble Supreme Court in Babu Ram v. Indrapal Singh, (1998) 6 SCC 358 : ( AIR 1998 SC 3021 ) . In P. R. Deshpandey v. Maruti Balaram Haibatti, (1998) 6 SCC 507 : ( AIR 1998 SC 2979 ) the Hon'ble Supreme Court has observed that the doctrine of election is based on the rule of estoppel-the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppel in pais (or equitable estoppel) which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. Similar view has been taken by a Division Bench of this Court in National Insurance Co. v. K. P. Rohila, 1998 RLW 342 . 11. Thus, it is not open to the petitioner to agitate that he should be given a chance to pass Examination-D within twenty years from the date of actual appointment, i.e. 21-3-1976 and he was eligible to pass the same up to 21-3-96. v. K. P. Rohila, 1998 RLW 342 . 11. Thus, it is not open to the petitioner to agitate that he should be given a chance to pass Examination-D within twenty years from the date of actual appointment, i.e. 21-3-1976 and he was eligible to pass the same up to 21-3-96. Petitioner cannot take any benefit of the fact that he had wrongly been permitted to appear in the said examination in 1995, as the respondents have given an explanation in reply that petitioner was allowed to take Examination-D at Jhansi, for the reason that he had not filled up the column giving the total reckonable service on the first day of examination and they have produced a photostat copy of the examination-form filled-up by the petitioner. In such circumstances, the respondents were justified in cancelling his examination. Similarly, petitioner had been allowed to appear in the said examination in 1997 at Jodhpur Centre under the interim order of the Court and he cannot be permitted to take any benefit of it. 12. It is, also, settled law that no litigant can derive any benefit from mere pendency of case in a Court of Law, as the interim order always merges in the final order to be passed in the case and if the writ petition is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of his own wrongs by getting interim order and thereafter blame the Court. The fact that the writ is found, ultimately, devoid of any merit, shows that a frivolous writ petition had been filed. The maxim "Actus Curiae neminem gravabit" is applicable in such a case, which means that the act of the Court shall prejudice no-one. In such a situation the Court is under an obligation to undo the wrong done to a party by the act of the Court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralised as institution of litigation cannot be permitted to confer any advantage on a suitor from delayed action by the act of the Court. (Vide Dr. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralised as institution of litigation cannot be permitted to confer any advantage on a suitor from delayed action by the act of the Court. (Vide Dr. A. K. Sircar v. State of Uttar Pradesh, 1993 Suppl (2) SCC 734 ; Shiv Shanker v. Board of Directors, Uttar Pradesh State Road Transport Corporation, 1995 Suppl (2) SCC 726; M/s. Kannoriya Chemicals and Industries Ltd. v. U. P. Electricity Board, AIR 1994 All 273 ; Ugam Singh v. State of Rajasthan, 1997 (3) RLW 1517 the Committee of Management, Arya Inter College v. Shree Kumar Tiwari, AIR 1997 SC 3071 and G. T. C. Industries Ltd. v. Union of India, 1998 (3) SCC 376 : ( AIR 1998 SC 1566 ) . 13. The same view has been taken by the Hon'ble Supreme Court in the case of N. Mohanan v. State of Kerala, AIR 1997 SC 1896 : (1997 AIR SCW 1647) and Bileshwar Khan Udyog Khedut Shahakari Mandali Ltd. v. Union of India, 1999 (1) JT (SC) 543 : ( AIR 1999 SC 1198 ) , wherein it has been held that the appointment/continuation in service by interim order, does not create any legal right in favour of the appointee. In State of U.P. v. Rajkaran Singh, (1998) 8 SCC 529 , the Hon'ble Apex Court has categorically held that interim order cannot disturb the position in law and if a person is in service by virtue of the interim order of the Court, he cannot agitate the issue that his continuation in service in such a condition has improved his claim to regularisation. A Division Bench of this Court (to which I was a Member), has taken the same view in Aqueela v. State of Rajasthan, 1998 RLW 497 . 14. Thus, in view of the above, the petition has no merit and it is accordingly dismissed.Petition dismissed. *******