IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5367 of 2009 Jagannath Pandey . Versus The State Of Bihar & Ors . ----------- For the Petitioner:- Mr. Ram Hriday Prasad, Adv. For the State:- Mr. Sunil Kr. Mandal, Adv. Mr. Abdus Shakoer, Adv. ----------- 2. 28.07.2011 Heard learned counsel for the petitioner and the State. Notwithstanding that the writ petition filed as far back as 24.4.2009 after serving two copies in the office of the Advocate General, nearly two years later no counter affidavit has been filed. The Court had passed over the matter on the previous date to enable the counsel for the State to take instructions. Learned counsel submits that he has received instructions but it contains nothing beyond the impugned order dated 23.8.2007. The petitioner who has retired on 1.2.2002 as an Assistant Sub Inspector of Police was punished with one black mark by an order dated 5.6.1991 after a departmental proceeding. The petitioner came to this Court in C.W.J.C. No. 2500 of 1999 to be considered for promotion. The respondents filed a counter affidavit. The Court in its order dated 13.11.2003 noticed that only the issue of number of minor punishments, one major 2 punishment and 10 rewards had been considered by the authorities. The counter affidavit did not disclose any other ground of eligibility for promotion. The Court held that with the passage of time the punishments had lost its force and keeping in mind his retirement he was required to be considered for promotion notionally. That has been rejected by the impugned order on the ground that he do not possess the qualification of matriculation which was necessary for promotion to the post of Assistant Sub Inspector. The petitioner desires to be considered for promotion to the next higher post of Sub Inspector. Learned counsel for the petitioner submits that once the respondents filed a counter affidavit in the earlier case and took a specific objection, they cannot be permitted in the garb of the directions of the Court to consider his case to now urge fresh grounds not raised earlier. Counsel for the State relies upon the impugned order to submit that the petitioner was not eligible to be considered for the post of Sub Inspector. The petitioner was appointed as matriculate Constable on 6.7.1968. He was promoted as Assistant Sub Inspector as on 1.1.1979. 3 If the petitioner was not fit to be promoted to the post of Assistant Sub Inspector it is too late in the day for the respondents to raise that objection on 23.8.2007, nearly 28 years later. The fault, if any lay with the respondents themselves in not having been careful in scrutinizing the service records of the petitioner at the relevant point of time. They cannot be permitted to take advantage of their own lapse unless and until those who committed the lapse are simultaneously proceeded with and visited with appropriate punishments. In any event, the matter has become stale. When a litigant approaches the Court he is expected to prepare his case and raise all grounds available to him. If he does not raise a ground which was available, the principle of constructive res judicata prevents him from raising those grounds in a subsequent claim. This is founded on the principle that no person can be vexed on the same cause of action time and again. If this principle shall apply to a person who approaches the Court seeking relief, there is no reason much less any justification why the same reasoning shall not apply to the respondents also. If the respondents had not filed a counter affidavit in the earlier case, the matter may 4 have been different. They filed a counter affidavit, and took a specific stand of one objection only. It pre-supposes that the service records of the petitioner were duly examined and then a singular stand was taken before the Court on an oath in a judicial proceeding. If the relevant materials with regard to ineligibility for the post of Assistant Sub Inspector were not placed, and it was suppressed, there was somebody in the office of the respondents who did so. He has to be identified first and proceeded with. The Court therefore holds that in the view of the findings of the Court as discussed above in the earlier writ application it is not permissible for the respondents to urge further grounds in the garb of orders of the Court directing consideration. The Court is satisfied that the order in C.W.J.C. No. 2500 of 1999 was in fact a mandamus for grant of notional promotion. It is but a self restraint imposed by the Courts in matters of appointment and promotion refraining from issuing a mandamus but directing consideration. The respondents had no option but to grant such notional promotion to the petitioner. The impugned order dated 23.8.2007 is accordingly set aside. The respondents are now 5 required to consider the case of the petitioner for promotion to the post of Sub Inspector from the date that his juniors have been granted the same and revise his pensionary benefits accordingly with effect from 23.8.2007. Let necessary consequential orders by revision of his pension including actual payment of arrears of pension and other retiral dues from that date be recalculated and complied with within a maximum period of three months from the date of receipt/production of a copy of this order. The writ application is allowed. P. Kumar ( Navin Sinha, J.)