HIGH COURT OF MADHYA PRADESH, JABALPUR W.P. No.14450/03 Garaj Narayan Bharti .. .. Petitioner Vs./- State of M.P. and others .. .. Respondents ------------ For the Petitioner : None present For the Respondents: Shri Swapnil Ganguly, Panel Lawyer =============== Present: HON’BLE MR. JUSTICE ALOK ARADHE ---------------------------------------------------------------- ORDER (11.11.2011) In this writ petition, the petitioner seeks a direction to the respondents to accord him the seniority on the post of Platoon Commander from 1991 onwards and to modify the order of promotion dated 24.12.1996 to the post of Platoon Commander accordingly. 2. Facts giving rise to filing of the writ petition briefly stated are that the petitioner was initially appointed as Constable on 5.1.1966. Thereafter, he was promoted as Head Constable on 1.5.1984. Subsequently, the petitioner cleared the departmental examination for promotion to the post of Platoon Commander. The petitioner's name was included in the fit list on 9.5.1991. However, the petitioner was not promoted to the post of Platoon Commander. In the circumstances aforesaid, the approached the M.P. State Administrative Tribunal (hereinafter referred to as 'Tribunal') by filing an Original Application namely O.A. No.798/94, which was disposed of by the Tribunal vide order dated 16.10.1996 with a direction that petitioner shall be promoted to the post of Platoon Commander as soon as the post of Platoon Commander falls vacant or if any post of Platoon Commander is lying vacant in the concerned department. 3. It is the case of the petitioner that even though the vacancies are available on the post of Platoon Commander, yet the petitioner was not promoted to the aforesaid post and subsequently, vide order dated 7.12.1996, the petitioner was promoted on the post of Platoon Commander. It is averred in the petition that seniority deserves to be accorded to the petitioner from 1991 onwards. In the aforesaid factual backdrop, the petitioner had approached the Tribunal. On abolition of the 2 Tribunal, the Original Application preferred by the petitioner has been transferred to this Court. 4. Shri Swapnil Ganguly, learned Panel Lawyer for the respondents has submitted that the post of Platoon Commander fell vacant in the month of December, 1996 and, therefore, in accordance with the directions issued by the Tribunal, the petitioner was promoted to the post of Platoon Commander vide order dated 24.12.1996. It is further submitted that the petitioner is not entitled to seniority from retrospective date. It is also submitted that petitioner ought to have agitated the issue of grant of seniority with retrospective date in the first round of litigation. The issue regarding grant of seniority w.e.f. 1991 cannot be examined in the second round of litigation. 5. I have considered the submissions made by learned Panel Lawyer for the respondents and have perused the record. From perusal of the order passed by the Tribunal, it is apparent that the Tribunal had issued a direction to promote the petitioner on the post of Platoon Commander as soon as the post of Platoon Commander falls vacant or in case of any post of Platoon Commander is 3 lying vacant. In para 1 of the return, the respondents have categorically stated that the post of Platoon Commander fell vacant in the month of December, 1996 and thereafter in accordance with the directions issued by the Tribunal, the petitioner was promoted on the post of Platoon Commander w.e.f. 24.12.1996. The petitioner has not filed any rejoinder to rebut the averment made in the return. It is well settled in law that if an averment of fact is not rebutted, it is taken to be accepted. See: Naseem Bano (Smt.) Vs. State of U.P. and others, 1993 Supp.(4) SCC 46. Besides that, the petitioner accepted the promotion from the post of Platoon Commander in the year 1996. The issue of grant of promotion on the post of Platoon Commander with retrospective effect i.e. from 1991 is barred by principles of constructive resjudicata and, therefore, the same cannot be examined in this round of litigation. For yet another reason, no relief can be granted to the petitioner, as the petitioner has failed to implead any of his juniors who were allegedly promoted in claim of the petitioner. 4 6. For the aforementioned reasons, I do not find any merit in the writ petition. The same fails and is hereby dismissed. (Alok Aradhe) a Judge 5