Page No.# 1/ vs The Union Of India And 6 Ors
2025 Latest Caselaw 2414 Gua

Gauhati High Court

Page No.# 1/ vs The Union Of India And 6 Ors on 28 January, 2025

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GAHC010021362015




                                                            2025:GAU-AS:902

                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : WP(C)/5582/2015

         UTPAL SEN DAS and ANR
         S/O LT. UPENDRA KUMAR DAS, HEAD CONSTABLE CLERK, NOW SUB
         INSPECTOR, MINISTERIAL, O/O THE COMMANDANT, 37TH BN SSB,
         MANGALDAI, P.O. MANGALDAI, DIST- DARRANG, ASSAM

         2: L SURJA KUMAR SINGH S/O LT. L. KULLA HEAD CONSTABLE CLERK
          NOW SUB INSPECTOR MINISTERIAL O/O THE DY. INSPECTOR GENERAL
         SHQ SSB MUZAFFARPUR DIST- MUZAFFARPUR BIHAR

         VERSUS

         THE UNION OF INDIA and 6 ORS
         REP. BY THE SECY., MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA, NEW
         DELHI-01

         2:THE DIRECTOR GENERAL SSB-DIRECTORATE
          BLOCK-VEAST R.K. PURAM NEW DELHI-66

         3:INSPECTOR GENERAL FRONTIER HQR. SSB GUWAHATI
          R.K. PURAM ASSAM DIST- KAMRUP METRO GHY-22

         4:DY. INSPECTOR GENERAL HQR SSB MUZAFFARPUR P.O. MAZAFFARPUR
          MODERN AGRO AGENCIES CHAKKER MAIDEN DIST- MUZAFFARPUR
          BIHAR PIN-842001

         5:COMMANDANT 20TH BN. SSB SITAMARI P.O. SITAMARI DIST- SITAMARI
          BIHAR

         6:THE COMMANDANT 37TH BN. SSB MANGALDOI DIST- DARRANG
         ASSAM PIN-782139

         7:INSPECTOR GENERAL FRONTIER HQR. SSB PATNA RUKUNPURA HOUSE
          RAKUNPURA NEW BAILEY ROAD PATNA BIHAR-1
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Advocate for the Petitioner   : MR.D SUR, MR. L N DIHINGIA,MR. P J SAIKIA,MR.J U AHMED

Advocate for the Respondent : C.G.C., MR. B CHAKRAVARTY,MR. D C BORAH(R-1 to

7),ASSTT.S.G.I.

BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

Date of hearing : 28.01.2025 Date of Judgment : 28.01.2025

JUDGMENT & ORDER(ORAL)

Heard Mr. L. N. Dihingia, learned counsel, appearing on behalf of the petitioners. Also heard Mr. B. Chakravarty, learned CGC, appearing on behalf of all the respondents.

2. The petitioners, herein, by way of instituting the present proceeding, have presented a challenge to the policy decision arrived at by the respondent authorities for considering the cases of the incumbents in the cadre of Naik for promotion to the cadre of Head Constable by reckoning their seniority in the Group Centre level and not in the Divisional level as was being considered prior to 1995. The petitioners have further prayed for assignment of their respective seniority in the cadre of Head Constable by reckoning the date of promotion of their juniors to the said cadre of Head Constable.

3. Mr. Dihingia, learned counsel for the petitioners, has submitted that the petitioners were eligible for being considered from promotion to the cadre of Head Constable in the year 1995. As per the policy thereto before, in vogue, the promotion of the incumbents in the cadre of Naik, were being Page No.# 3/10

so considered for promotion to the cadre of Head Constable by reckoning their seniority in the Divisional level. However, w.e.f. 04.09.1995, the mode of promotion to the cadre of Head Constable was changed and the said promotion was now required to be so effected against the vacancies available at the respective Group Centres.

4. Mr. Dihingia, learned counsel, has also submitted that in terms of the policy in vogue, prior to 04.09.1995, the vacancies available in the cadre of Head Constable at the Group Centre wherein they were so working, were so filled-up by inducting persons on promotion from other Group Centres and the vacancies, stood extinguished. Accordingly, when the petitioners had become eligible for being promoted to the cadre of Head Constable; there was no vacancy available for effecting for such consideration in their cases.

5. Mr. Dihingia, learned counsel, has further submitted that subsequently, in the year 2000, the petitioners were promoted to the cadre of Head Constable and such promotion was given effect from 08.06.1999 i.e. the date when the Departmental Promotion Committee(DPC) for the said purpose had met and made recommendations in their favour.

6. Mr. Dihingia, learned counsel, has submitted that the petitioners being aggrieved; had approached this Court by way of instituting a writ petition being WP(c)57/2001, praying for grant of retrospective effect of their promotion so effected vide the order, dated 28.06.2000, and for making it effective with effect from the year 1995 and/or the date when their juniors were so promoted at other Group Centres within the same Division i.e. Page No.# 4/10

Shillong.

7. In the aforesaid writ petition, the petitioners had also prayed for a direction for incorporation of their names in the gradation list as published in the year 2000, for the cadre of Head Constable. However, it is submitted by Mr. Dihingia, learned counsel, that this Court did not consider the grievance of the petitioners so raised in the said writ petition, praying for grant of retrospective effect to their promotion to the cadre of Head Constable. However, this Court had directed the respondent authorities to incorporate the names of the petitioners therein, at the appropriate position, in the gradation list of the incumbents in the cadre of Head Constable by reckoning their date of promotion to the said cadre.

8. Mr. Dihingia, learned counsel, has further submitted that with regard to the grievance raised by the petitioners about the change in the manner of promotion to the cadre of Head Constable after 1995; this Court had provided that the Director General of the Force may examine the representations as submitted by the petitioners in the matter and take necessary steps as may be deemed fit and proper.

9. Mr. Dihingia, learned counsel, has submitted that the respondent authorities inspite of the said directions passed by this Court for having a re-look at the manner in which the promotions to the cadre of Head Constable is being so effected, had not passed any order, thereafter, and accordingly, the petitioners continued to suffer on account of supersession being effected in their cases by their juniors.

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10. Mr. Dihingia, learned counsel, has also referred to the decision of the Hon'ble Supreme Court in the case of Union of India & ors. v. [order, dated 29.05.2013 in Civil Appeal No. 2109/2009] and has contended that the said decision would also be applicable to the cases of the petitioners, herein.

11. Per contra, Mr. Chakravarty, learned CGC, has submitted that the petitioners having raised a similar grievance before this Court in the proceeding of WP(c)57/2001 and the same having been disposed of by this Court vide order, dated 19.08.2001, and the grievance as raised by the petitioners for grant of retrospective effect to their such promotion to the cadre of Head Constable having not been entertained by this Court; the same grievance being again raised by the petitioners, herein, in the present proceeding, is hit by the principles of res judicata and he has, accordingly, submitted that this writ petition would be required to be dismissed in limine.

12. Mr. Chakravarty, learned CGC, has also submitted that the petitioners while praying for grant of retrospective effect to their promotion to the cadre of Head Constable, have also prayed for refixation of their seniority in the said cadre, by reckoning their such promotion to had been so effected in the year 1995. However, the learned CGC, has submitted that the persons who would now be effected on account of such retrospective grant of seniority to the petitioners, have not been made the party respondents in the present proceeding and accordingly, on the said count also, it is submitted by Mr. Chakravarty, learned CGC, that this writ petition would not be maintainable.

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13. I have heard the learned counsels appearing for the parties and also perused the materials available on record.

14. The petitioners by way of instituting the present proceeding, have prayed for a direction upon the respondent authorities to consider their cases for promotion to the cadre of Head Constable from the date on which they were otherwise due for such promotion in terms of the earlier policy in vogue and for inclusion of their names in the seniority list, dated 04.04.2001 of incumbents in the cadre of Head Constable at the appropriate place, by reckoning such retrospective promotion, claimed by them.

15. The petitioners, raising similar grievances, had approached this Court by way of instituting a writ petition being WP(C)57/2001. The said writ petition was given a final consideration and vide judgment & order, dated 19.08.2001, this Court had rejected the claim of the petitioners for grant of retrospective effect to their promotion which was so granted to them in the year 1999 to the cadre of Head Constable.

16. With regard to the challenge made to the change in the manner in which promotions were to be so effected from the rank of Naik to the cadre of Head Constable; this Court had concluded in the aforesaid writ petition, that the same would not call for any interference. The conclusions as reached by this Court in the matter, being relevant, is extracted hereinbelow:

"Now, coming to the third grievance of the petitioners, the law is well settled that the Govt. has the jurisdiction and authority to take a policy decision as regards the promotion and make change, as regards the criteria fixed for promotion. In a given case, even the.

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incorporation of the educational qualification criteria for the purpose of promotion was held to be valid by the Apex Court the (illegible) prospect by a particular amendment cannot be at a ground to threw away the amendment rules. In the case of State of Maharashtra Vs. Chandramam (1981) 4 SCC 130, the Apex Court held that, reduction in chances for promotion does not tantamount to the change in service condition. In a later case of State of Rajasthan Vs. Ram Ramdayal, 1997 (10) SCC 419, even the change of eligibility, criteria during the pendency of the Panel List was also held to be valid. Hence, considering the fact that the Govt. has taken a policy decision to change the promotion criteria Division-wise to Unite-wise no fault can be found in the same and no interference is called for."

17. The learned counsels for the petitioners have submitted that this Court vide judgment & order, dated 19.08.2001, had required the Director General of the Force, to examine the representation so made by the Staff posted at Aizawl and take necessary measures as they deem fit and proper which is contended to have not been complied with by the respondent authorities.

18. From a perusal of the judgment & order, dated 19.08.2001, passed in WP(C)57/2001, it is evident that this Court had only observed that the Director General of the Force may examine the representation submitted by the Staff posted at Aizawl and take necessary measures as they deem fit and proper. The said direction was so passed in the year 2001 and it is seen that the petitioners, herein, in the event, the same was so violated by the respondent authorities, had not instituted any proceeding for compliance of the said observation.

19. However, what is material to be noted for the purpose of the present proceeding that this Court had rejected the prayer of the petitioners for grant of retrospective effect of their promotion so effected to the cadre of Head Constable. Further, this Court on consideration, had also negated their challenge to the change with regard to the manner and method of Page No.# 8/10

promotion to the cadre of Head Constable from the rank of Naik. The judgment & order, dated 19.08.2001, as passed by this Court in WP(C)57/2001, in the absence of any challenge being made thereto, has attained its finality.

20. This Court having adjudicated upon the issue so arising in the present proceeding, in the proceeding of WP(C)57/2001, and the judgment & order, passed therein, on 19.08.2001, having attained its finality insofar as the grievance of the petitioners is so concerned; the petitioners, herein, are precluded and stopped from raising the same issue in the garb of an observation made by this Court in the judgment & order, dated 19.08.2001, granting liberty to the respondents to consider a representation submitted in the matter.

21. As already held hereinabove, the requirement for examining the representation as submitted by the Staff posted at Aizawl, is a mere observation made by this Court and the same is not in the form of any direction. Further, even if it is construed that the same is in the form of a direction upon the respondent authorities, any violation thereof, would have called for institution of appropriate application alleging violation of the directions passed by this Court which has apparently not been instituted by the petitioners, herein.

22. Accordingly, this Court is of the considered view that the non- compliance of the observation so made in the judgment & order, dated 19.08.2001, would not give rise to a fresh cause of action to the petitioners for institution of the present proceeding as the issue raised herein, is Page No.# 9/10

nothing but the reiteration of the issue raised in the earlier proceeding. It is a settled position of law that the issue which has become final in judicial proceedings, cannot be opened, as is sought to be done in the instant case.

23. The decision of the Hon'ble Supreme Court in the case of Union of India & ors. v. Adhikimayum Tejkumar Sharma [Civil Appeal No. 2109 of 2009; order dated 29.05.204] relied upon by the petitioners, would not advance the case of the petitioners, inasmuch as, the issue raised by the petitioners for their retrospective promotion, was already adjudicated and settled by this Court vide judgment & order, dated 19.08.2001, in WP(C)57/2001, and the same has already attained its finality. However, even if it is held that the decision in the case of Adhikimayum Tejkumar Sharma(supra), is applicable to the case of the petitioners, herein, the same would not be called upon to be considered, in as much as, it is a settled position of law that a subsequent decision which entails a change in the law, would not have the effect of opening matters which has already been settled by a competent Court of law and which has attained its finality.

24. For all the aforesaid reasons, this Court is of the considered view that this writ petition is not maintainable. Filing of such writ petition once again agitating the same issue which was already considered and concluded by a competent Court of law, is nothing but an abuse of process of law. Considering that the present proceeding is pending since 2015, this Court restrains itself from imposing any cost on the petitioners for institution of such petitions which on the face of it, is frivolous.

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25. In view of the above conclusions; this Court is of the considered view this writ petition is devoid of any merit and accordingly, the same stands dismissed. However, there shall be no order as to costs.

JUDGE

Comparing Assistant