1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.7009/02 Prahlad Bairwa vs. RSRTC & Ors. Date of order : 5/1/2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri V.L. Mathur for the petitioner. Shri A.K. Pareek for the respondents. ****** Heard learned counsel for the parties. This writ petition has been filed by the petitioner to direct the respondents to promote him from 4.3.1981 when his immediate junior Mali Ram was promoted on the post of Senior Foreman. The petitioner originally filed a writ petition bearing S.B. Civil Writ Petition No.1684/91 aggrieved by his non promotion. His promotion at that time was withheld because of two departmental enquiries pending against him; one initiated in the year 1987 and another in 1988. In that writ petition, the respondents before this Court took a stand that the case of the petitioner was considered in the DPC, but recommendations qua him was kept in sealed cover because of pending departmental enquiry. Petitioner agitated in that 2 petition that his juniors have been promoted and his case has been ignored and respondents should grant him promotion with effect from the date his juniors were promoted. This Court allowed the writ petition in part with direction to the respondents to conclude the departmental enquiry against him and pass the final order within one month and further directed that in the event any penalty has been awarded to the petitioner, the case of the petitioner should be considered afresh in the light of the penalty order. If, however, the petitioner is exonerated in the departmental enquiry, he should be granted promotion with effect from the date his immediate junior was so promoted and in that event, the petitioner would be entitled to retrospective promotion with all the consequential benefits. In case the respondent are not able to conclude the departmental enquiry within one month, it shall be assumed that the departmental enquiry against the petitioner stood concluded and on that basis the respondents would proceed to grant him respective 3 promotion with all consequential benefits. The respondents passed the final order in the departmental enquiry on 6.9.1994 by concluding the departmental enquiry against the petitioner in terms of the aforesaid judgment and treat the same as having ended and a presumption was raised that the petitioner was exonerated. The recommendations of DPC qua the petitioner which was hitherto lying in sealed cover were opened and by the aforesaid order dated 6.9.1994, the petitioner was promoted on the post of Senior Foreman. He was further granted notional benefits for the period from 20.3.1990 to 9.9.1994. Aggrieved thereby, the petitioner has again approached this Court with direction to the respondents to give effect to the earlier judgement passed by this Court and make true compliance. Shri V.L. Mathur, learned counsel for the petitioner has argued that the petitioner in para 7 of the writ petition and ground (1) of the writ petition has categorically asserted that his immediate junior Mali Ram was promoted on the post of 4 Senior Foreman with effect from 4.3.1981 and in spite of specific direction, the respondents have not granted him promotion with effect from that date and have not even carried out the direction of the Court in the aforesaid judgment according to which the respondents were required to pay to the petitioner consequential benefits by giving him respective promotion from the date his immediate junior was so promoted. Shri A.K. Pareek, learned counsel for the respondent opposed the writ petition and submitted that the writ petition was filed in the year 1991 and therefore if at all the promotion was granted to Mali Ram in 1981, that could not be subject matter of challenge in a belatedly filed writ petition in 1991 and now at any rate, in the present writ petition, which was filed in 2002. The writ petition is therefore liable to be dismissed for the reasons of delay and latches. It was argued that the petitioner was aggrieved by non promotion pursuant to inclusion of the same process in the year 1990 and therefore that could be done by the respondents to give effect to the 5 recommendations kept in the sealed cover in the event of his exoneration. He was therefore rightly paid the notional benefits. The writ petition be therefore dismissed. I have given my anxious consideration to the arguments and perused the record. Even though the petitioner in para 7 of the writ petition has categorically pleaded that Mali Ram was promoted Senior Foreman with effect from 4.3.1981, the respondents in reply to the writ petition not deny such a plea, which being a question of fact and having been asserted by the petitioner and not denied by the respondents, has to be accepted. Mali Ram was junior to the petitioner and that he was appointed on 4.3.1981. The respondents however in reply have contended that this Court by its earlier judgment did not direct the promotion of the petitioner with effect from 4.3.1981 and therefore he could not be granted promotion from that date retrospectively with all consequential benefits. The argument in effect seeks to question correctness of the aforesaid 6 judgement of this Court passed on 17.3.1994. In response to the pointed query, the learned counsel for the respondent stated that the respondent did not challenge the aforesaid judgment. It is thus clear that the judgement has attained finality. Now in the writ petition filed by the petitioner for a direction to the respondent to give true effect to the aforesaid judgement, this Court possibly cannot reopen that judgement which has otherwise become final. As an indulgence to the respondents, this Court by order dated 8.5.2008 required the respondents to file additional affidavit pointing out placement of petitioner vis-a- vis Mali Ram on the question of seniority, no affidavit till date has been filed by the respondents. In my view, the direction of this Court in earlier judgement is quite categorical that not only the petitioner in the event of his exoneration or deemed exoneration, shall have to be promoted retrospectively but such promotion has to be made effective from the date of his immediate junior was so promoted and it shall be accompanied by all the 7 consequential benefits. The respondents could not on their own tinker with the spirit of the judgement. More particularly, when they have accepted the judgement as correct having not challenged the same before the division bench or even before the Supreme Court. The fact of Mali Ram having been promoted and being junior to the petitioner, having not been denied, the petitioner certainly has made out a case for issuance of a mandamus to the respondent to grant him benefits in terms of the earlier judgement of this Court. In the result, the writ petition is allowed. The respondents are directed to give benefit of promotion to the petitioner from the date Mali Ram was so promoted with all consequential benefits. The petitioner shall be entitled to interest @ 6% in so far as the arrears that may be found payable to him as part of consequential benefits. Compliance of the judgement be made within a period of three months from the date of its copy is produced before the respondents. RS (MOHAMMAD RAFIQ), J.