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2011 Supreme(Gau) 472
IN THE HIGH COURT OF GAUHATI (SHILLONG BENCH)
Tinlianthang Vaiphei and Biplab Kumar Sharma, JJ.
Union of India (UOI) represented by the Secretary (Expenditure), The Director General of Assam Rifles and The Deputy Director (A), Director General, Assam Rifles - Appellants
Vs.
Md. Akbar Ali Warrant Officer (Clerk) - Respondent
Writ Appeal No. (SH) 55/2009 in W.P. (C) No. 238 (SH) 2006
Decided on : 01.06.2011
For Appellant/Petitioner/Plaintiff: S.C. Shyam, CGC
For Respondents/Defendant: M. Chanda, S. Choudhury, P. Nongbri and N. Mozika, Advs.
Headnote:
Constitution of India – Writ Petitioner including seniority with all other consequential service benefits – Briefly stated the facts leading to the filing of the writ petition are that the Petitioner when he was serving as Havildar/Clerk in Assam Rifles was reduced in rank by an order – Petitioner did not challenge the said order but agitated his grievances relating to the cancellation of the order of promotion by which he was promoted to the rank of Havildar Clerk –Held,By the impugned judgment and order, the position of the Petitioner as it stood prior to 1988 i.e. before demotion could not have been restored back in the facts and circumstances indicated above – Prayer of the Petitioner to set aside the order of demotion passed in 1988 was hit by the principles of res-judicata/constructive res-judicata and thus could not have been reopened by the impugned judgment and order based on a writ petition filed after 16 years of demotion and that too on the basis of a collateral challenge while challenging the consequential order of 2004 pursuant to the judgment passed in Civil Rule – Appeal allowed.
B.K. Sharma, J.
1. This appeal is directed against the judgment and Order dated 21.10.2009 passed by the learned Single Judge in WP(C) No. 238 (SH) 2006 by which the prayers made in the writ petition were all allowed. Consequently, the direction has also been issued to the Appellants to give promotion to the writ Petitioner including seniority with all other consequential service benefits.
2. Briefly stated the facts leading to the filing of the writ petition are that the Petitioner when he was serving as Havildar/Clerk in Assam Rifles was reduced in rank by an order dated 18.08.1988. The Petitioner did not challenge the said order but agitated his grievances relating to the cancellation of the order of promotion dated 17.05.1990 by which he was promoted to the rank of Havildar Clerk w.e.f. 01.01.1990. The order of cancellation came to be issued on 13.06.1990 before the Petitioner could join the promotional post. Thereafter, the Petitioner submitted a representation for restoration of his promotion, but according to the Petitioner the said representation did not yield any result.
3. In the aforesaid circumstances, the Petitioner who is the Respondent in this appeal had filed a writ petition being CR 4762/1998 praying for setting aside and quashing the order of cancellation of promotion. The writ petition was disposed of by the judgment and order dated 03.12.2003, directing the Respondents to consider the case of the Petitioner for promotion in terms of the observations made in the said judgment.
4. It appears that during the course of hearing of the writ petition an argument was made that the impugned order of demotion was bad in law. However, noticing the fact that the said order was not under challenge in the writ petition and that the circumstances in which the order of demotion was passed was different than the instances cited by the Petitioner, the following findings was recorded.
4. Unlike these employees, the Petitioner was demoted from the post of Havilder/Clerk to that of Rifleman/Clerk. In this writ petition, the Petitioner has not made any grievance against the said order of demotion, but his grievance is confined to the order of cancellation of his subsequent order of promotion. Although he was ordered to be promoted by Annexure-A order dated 17.05.1990, but the same was cancelled before he could join the post. His representation was also disposed of by non-speaking order.
5. No affidavit-in-opposition has been filed controvert the fact on record. The Petitioner has also not chosen to annex the copy of the order dated 18.08.1988 by which he was demoted to the rank of Rifleman/Clerk. In the aforesaid circumstances I am not inclined to grant the prayers made in the writ petition and instead I issue a direction to the Respondent No. 1 to consider the case of the Petitioner for promotion as Havildar/Clerk, which in fact, once granted with effect from 01.01.1990 by an order dated 17.05.1990 (Annexure-A).
5. After the aforesaid judgment and order, the Assam Rifles authority passed the order dated 05.03.04 towards consideration of the case of the Petitioner for promotion. For ready reference the said order is also quoted below:
MAHANIDESHALAYA ASSAM RIFLES:
DIRECTORATE GENRAL ASSAM RIFLES
SHILLONG-793001
ORDER
No. Rec (Adm-IV) 360181/2004/02 05 Mar 2004
ORDER BY IC-21254L LIEUTENANT GENERAL H S
KANWAR, PVSM,AVSM,VSM, DIRECTOR GENERAL
ASSAM RIFLES IN THE CASE OF No. 360181
WO(CLK) AKBAR ALI OF No. 1 CONSTRUCTION
COMPANY ASSAM RIFLES.
1. Pursuant to the judgment of the Hon'ble High Court Guwahati order No. 4792 dated 03 Dec 2003 the case of No. 360181 WO (Clerk) Akbar Ali of 1 Construction Company Assam Rifles for grant of promotion has been re-examined. The individual was tried under CCS (CCA) Rules for participating in an agitation on 06 July 1988 and reduced to the ranks on 18 Aug 1988. However, he was promoted to Hav/Clerk by Commandant 9 Assam Rifles on 01 Jan 1990 which was not in order as the promotion of clerks (Centrally C
