WP(C) 6595/2002 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (Oral) Heard Mr. A. Dutta, learned counsel fort the petitioners and Mr. S. Dutta, learned counsel appearing for all the respondents. [2] The petitioners, 3(three) in numbers, by the present petition ha ve prayed for a direction to the respondent Bank to grant the same relief, as ha s been granted to the appellants by a Division Bench of this Court vide order da ted 30th June, 2000 passed in WA No.187/1993; WA No.210/1993 and WA No.211/1993, meaning thereby, to promote them to the post of Arrear/Senior Managers, which b enefit was given to the appellants in the aforesaid appeals, pursuant to the aff idavit filed by the respondent bank in the said appeals. [3] The petitioner No.1 alongwith 7(seven) other officers enjoying O fficer Scale-I filed a writ petition registered and numbered as Civil Rule No.17 61/1988 challenging the promotion of the private respondents therein to Officer Scale-II with effect from 1st December, 1987 and challenging the promotion polic y and also their non selection for promotion. The said writ petition was dismis sed by a single Bench of this Court vide judgment and order dated 26th August, 1 993. Against the said judgment and order, 3(three) writ petitioners, out of 8(e ight), namely (i) Mahananda Choudhury; (ii) Chakrapani Kalita and (iii) Chandra Kanta Kalita preferred 3(three) separate writ appeals being WA No.187/1993; WA N o.210/1993 and WA No.211/1993, respectively. The said writ appeals were dispose d of vide judgment and order dated 13th June, 2000 in terms of the averments mad e by the respondent Bank in the affidavit dated 22nd April, 1999 filed therein, more particularly, paragraph 4 thereof. Paragraph 4 of the said affidavit, for sake of convenience is quoted below:- 4. That the other Officers including the Appellants and the Writ Petitioner were promoted to the Higher Scale as that of Sr./Area Manager as on 1.11.95. But their duties and functions are different than that of Sr./Area Managers. Th e Respondent Bank, if the Court so directs, for such a consideration for treatin g the Appellants and the Writ Petitioners as being promoted with effect from 1.1 2.87 without, however, allowing any financial benefit, shall comply with the dir ections of the Hon’ble Court. The Respondent Bank further states that in case t heir date of promotion is shown as 1.12.87 the original seniority of those 4(fou r) Officers for future promotion shall also stand restored. The Respondent Bank further begs to state that while directing the promotion to be effective from 1 .12.87 the Hon’ble Court be pleased to make it clear that the appellants and the writ petitioner shall continue to hold the respective posts with their present designation and the same will not disturb the designation of the officers earlie r promoted as Sr./Area Managers as per N.A.B.R.D. Circular No.I.D.D.R.R.B. No.C6 2/316 (Gen)-84/85 dated 31.12.84. Further the Respondent Bank also craves for similar treatment in grantin g due seniority to 3(three) other Officers of the Bank placed above the Junior m ost Appellant (Chakrapani Kalita- WA No.210/93) namely Paresh Chandra Sarma, Apu rba Krishna Das and Pankaj Kachari who were all promoted on 1.11.95, if the Hon’ ble Court so directs. [4] Another writ petition being Civil Rule No.3589/93 was filed by a nother Scale-I Officer challenging the promotion of the private respondents ther ein to Officer Scale-II made with effect from 1st December, 1987, which writ pet ition was also disposed of by a Single Bench of this Court vide judgment and ord er dated 10th August, 2000, in terms of the aforesaid affidavit filed by the res pondent Bank and keeping in view the aforesaid judgment and order dated 13th Jun e, 2000 passed by the Division Bench in the aforesaid writ appeals. [5] Though the petitioner No.1 in the present petition was the petit ioner No.3 in Civil Rule No.1761/1988, he did not challenge the decision of the single Bench dated 26th August, 1993 passed in the said writ petition. The petit ioner Nos.2 and 3, who are claiming the promotion from Scale-I to Scale-II with effect from 1st December, 1987 did not challenge either their non selection or p romotion of other persons from Scale-I to Scale-II with effect from 1st December , 1987 and for the first time, they approached the Bank authority after disposal of the aforesaid writ appeals by a Division Bench of this Court. [6] The petitioners in the present petition, as noticed above, claim that since they are similarly placed with that of the appellants in the aforesa id writ appeals and the writ petitioner in the aforesaid Civil Rule No.3589/1993 , they cannot be denied the promotion from Scale-I to Scale-II with effect from 1st December, 1987, more so when the respondent bank in the affidavit dated 22nd April, 1999 filed in the aforesaid writ appeals had taken the stand that simila r treatment in granting the due seniority to the petitioners in the present peti tion, who were all promoted on 1st January, 1995 to Scale-II, would be granted, they being senior to the junior most appellant, namely Chakrapani Kalita (appell ant in Writ Appeal No.210/1993). [7] Mr. A. Dutta, learned counsel for the petitioners referring to t he averments made by the respondent Bank in the aforesaid affidavit dated 22nd A pril, 1999 filed in the aforesaid writ appeals has submitted that since the resp ondent Bank in the said affidavit had undertaken to give the similar benefit to the present petitioners, as has been given to the junior persons, with effect fr om 1st December, 1987, they cannot be denied the benefit of promotion from Scale -I to Scale-II, as has been done in the instant case. It has also been submitte d that the stand taken by the respondent bank in the affidavit filed that they w ere not found to be eligible for promotion is nothing but an after thought just to deprive the petitioners from getting the benefit from 1st December, 1987. Mr . Dutta further submits that though the petitioner No.1 has been promoted from S cale-I to Scale-II with effect from 1st November, 1995, he has even not been giv en the further promotion, while the petitioner Nos.2 and 3, who were promoted in itially from Scale-I to Scale-II with effect from 1st November, 1995, have again been promoted from Scale-II to Scale-III in the year 2004. Mr. Dutta, therefor e, submits that at least a direction may be issued to the respondent Bank to con sider the case of the petitioner No.1 for promotion from Scale-II to Scale-III a gainst the existing vacancy, if any, as he is due to retire in the month of Augu st, 2012. [8] Mr. S. Dutta, learned counsel appearing for the respondents Bank , on the other hand, has submitted that inadvertent mistake was committed by the respondent Bank in the aforesaid affidavit dated 22nd April, 1999 filed in the aforesaid appeals while stating that the similar benefit would be given to the s imilar petitioners, as it appears from the record that the petitioners were thou gh considered for promotion with effect from 1st December, 1987 alongwith other officers junior to them, they were found to be unfit for promotion and as such, they were not given the promotion. It has also been submitted that the Division Bench of this Court by the aforesaid order dated 13th June, 2000 passed in the aforesaid writ appeals though took into consideration the statements made in the affidavit filed on 22nd April, 1999, more particularly paragraph 4 thereof, nev er issued any direction to the respondent Bank to promote the present petitioner s with effect from 1st December, 1087. The further submission of the learned co unsel is that though the petitioner No.1 herein was one of the petitioners in Ci vil Rule No.1761/1988 (being petitioner No.3 in the said writ petition), he neve r challenged the judgment passed by a single Bench of this Court and the petitio ner Nos.2 and 3 never claimed the promotion with effect from 1st December, 1987 prior to disposal of the aforesaid writ appeal and also never challenged the pro motion of other persons with effect from 1st December, 1987. [9] The facts narrated above are not in dispute. The petitioners we re considered for promotion from Scale-I to Scale-II alongwith some other office rs, who were junior to them, in the year 1987. On the basis of the recommendati on of the Departmental Promotion Committee while certain officers junior to the petitioners were promoted from Scale-I to Scale-II with effect from 1st December , 1987, the petitioners were not promoted having not found suitable for promotio n. The petitioner No.1 though challenged the promotion of those persons, who we re junior to them, with effect from 1st December, 1987, in Civil Rule No.1761/19 88, he did not file any appeal challenging the judgment passed in the said writ petition dismissing the same. 3(three) out of 8(eight) petitioners in the said writ petition filed the aforesaid 3(three) writ appeals, which were disposed of by the common order dated 13th June, 2000, on the basis of the affidavit filed b y the respondent Bank in the appeals. No doubt in the said affidavit it was als o stated that similar benefit would be given to the present petitioners, who wer e senior to Chakrapani Kalita, the appellant in WA No.210/1993. The record, howe ver, reveals that the present petitioners were found to be not suitable for prom otion in the Departmental Promotion Committee held in the year 1987 on the basis of which some officers, who were junior promoted with effect from 1st December, 1987. The petitioner No.1 was in fact inflicted the punishment of stoppage of 5(five) increments with cumulative effect in the year 1984. [10] As noticed above, though the petitioner No.1 had challenged his non selection for promotion by filing the aforesaid Civil Rule No.1761/1988, he preferred not to challenge the decision of the learned single Judge dismissing h is writ petition vide the aforesaid judgment and order dated 26th August, 1993. The petitioner Nos.2 and 3 never, at any point of time, challenged the proceedi ng of the Departmental Promotion Committee held in the year 1987, on the basis o f which some other officers were promoted to Scale-II with effect from 1st Decem ber, 1987. They, for the first time, after the disposal of the aforesaid writ a ppeals on 13th June, 2000, i.e. after almost 13 years, claimed promotion with ef fect from 1st December, 1987. Such belated claim for promotion, that too withou t challenging the DPC and the promotion of other officers, cannot at all be ente rtained. Relating to the claim of the petitioner No.1, it appears from the reco rd that his case was also considered by the DPC held in the year 1987. He havin g been inflicted the punishment of stoppage of 5(five) increments, he was not ri ghtly found to be suitable for promotion from Scale-I to Scale-II. The affidavi t filed by the respondent Bank on 22nd April, 1999 in the aforesaid writ appeals cannot give rise to a cause of action to the present petitioners to claim the b enefit with effect from 1st December, 1987. The Division Bench of this Court wh ile disposing of the aforesaid writ appeals also never issued any direction to t he respondent Bank to give the same benefit to the present petitioners. [11] That being the position, I do not find any merit in the present petition. However, since the petitioner No.1, who is due to retire in the month of August, 2012, has not been promoted from Scale-II to Scale-III, his case for promotion from Scale-II shall be considered by the respondent Bank subject to a vailable of vacancy and suitability of the petitioner No.1 and if he comes withi n the zone of consideration. Such consideration, subject to availability of pos t shall be made within a period of 3 (three) months from today. [12] The writ petition is accordingly disposed of. No costs.