Important Points
1. Promotion would take effect from the date of order and not from the date when promotional post fell vacant.
2. Where promotion was not given to juniors prior to retirement of senior but after retirement of senior junior was promoted not from date of promotional post became vacant but from date of order of promotion, retired senior could not claim notional promotion from date when promotional post fell vacant.

Headnote:(i) Service Law - Promotion-Rajasthan Higher Judicial Service-Appellant entitled to promotion of District Judge-Post also vacant and available-Not filled up consequent to resolution of full Court-Resolution not to fill promotional quota until direct recruitment from Bar made-Appellant retired-Writ petition seeking notional promotion from date post fell vacant-Cannot be granted-Promotion would be effective from date of order and not from date when promotional posts and created-None of appellant’s juniors promoted prior to his superannuation-Those promoted of appellant’s superannuation given promotion from date of order-Appellant not entitled to relief prayed for. (Paras 5, 6 & 7)
       (ii) Service Law-State Judicial Service-Promotion - Promotional post were to be filled by direct recruitment as well-Full Court of High Court deciding not to fill up promotional quota until direct recruitment from Bar-Until direct recruitment made ad hoc promotions can be given without right to claim seniority over direct recruits who may join later. (Para 7)
       (iii) Res-judicata-Writ petition withdrawn with liberty to file fresh petition-Representation by petitioner to department on basis of observation on basis of Court in writ-Rejection - Fresh writ - Whether barred by principles of res judicata-No-Liberty was granted in earlier writ petition-Further new cause of action arose-(Section 11, Code of Civil Procedure, 1908). (Para 4)

Judgment

D.P. Wadhwa, J.-Leave granted.

2. The appellant, who was a member of the Rajasthan Judicial Service (for short ‘RJS’), is aggrieved by the judgment dated September 17, 1997 of the Division Bench of the Rajasthan High Court dismissing his writ petition (CWP No. 3455/97) wherein he had prayed in effect that his case for promotion to the Rajasthan Higher Judicial Service (for short ‘RHJS’) be considered from the date when the posts in the RHJS fell vacant.

3. By the time the appellant filed the writ petition he had already superannuated on May 31, 1996. Prior to his retirement, posts in the RHJS were available in the promotional quota for promotion of the appellant. He had earlier filed writ petition (CWP No. 1544/96) in the High Court seeking his promotion. This earlier writ petition came up for admission before the High Court on May 27, 1996 and the following order was passed :-

“27.5.96:

Hon’ble Mr. M.G. Mukherji Actg. CJ.

Hon’ble Mr. Bhagwati Prasad J.

Issue notice, returnable four weeks after the summer holidays. Notice be given ‘dasti’ to the learned advocate.

We direct that even though the writ petitioner retires on 31.5.96, his case is to be considered alongwith the other officers for the purpose of promotion to the Rajasthan Higher Judicial Service, and in case such a promotion is accorded to him notionally his case would be sympathetically considered with appropriate directions, as may be deemed fit and proper.”

That writ petition was withdrawn by the appellant on January 8, 1997. Liberty was, however, granted to him to file a fresh writ petition if any occasion arose. The order dismissing the writ petition as withdrawn is as under:-

“8.1.97:

Hon’ble Mr. M.G. Mukherji CJ.

Hon’ble Mr. Bhagwati Prasad, J.

The petitioner expresses desire to withdraw the writ petition application with liberty to file representation in the Administrative forum.

He is granted liberty to file fresh writ application if occasion arises.

The writ application dismissed as withdrawn.”

Subsequent writ petition (CWP No. 3455/ 97) was dismissed in limine with the following order which is now impugned :-

“17.9.97:

Hon’ble Mr. M.G. Mukherji, C.J.

Hon’ble Mr. Bhagwati Prasad, J.

Mr. H.N. Calla for the petitioner.

We are of the opinion that the present writ application is barred by the principles of res judicata. The representation as submitted by the writ petitioner was considered by the Full Court and the Full Court in its wisdom rejected the same. It is further contended that the Full Court did not pass a speaking order on his representation. We are constrained to hold that the matter was discussed in the Full Court and the ultimate decision was communicated to the writ petitioner. We do not think that there is any force in this writ application. Till such time the petitioner retired none of his juniors was considered for promotion or was given promotion to the Rajasthan Higher Judicial Service. It may be a very sad state of affairs that he was not considered for promotion till he retired but that does not make out any case for interference.

The writ application stands dismissed.”

This order is being challenged by the appellant in this appeal.

4. The appellant joined RJS on January 2, 1979. He was confirmed in the post of Munsif-cum-Judicial Magistrate by order dated December 31, 1980. He was promoted as Civil Judge (Senior Division)-cum-Additional Chief Judicial Magistrate on February 13, 1992 and by order dated August 17, 1993 appellant was granted selection scale w.e.f. August, 1992. He retired on May 31, 1996. After withdrawal of his writ petition (CWP No. 1544/96) the appellant represented on January 29, 1997 that his case for promotion to RHJS be considered and he be given notional promotion in view of the observations made on May 27, 1996 in writ petition. This representation did not find favour with the High Court and was rejected by resolution of the Full Court dated July 3, 1997, which was communicated to the

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1998 Supreme(SC) 926

Cases Referred (1)