Arvindra Chandel vs State of H.P.

Sureshwar Thakur, J.—The writ petitioners had previously instituted Civil Writ Petition No. 7662 of 2011, therein they had claimed promotion to the post of Librarian (college cadre). They were rendering services under the respondents as Assistant Librarian and on theirs accomplishing/fulfilling the relevant eligibility criteria they asserted staked/claim for promotion to the post of Librarian (college cadre) under the respondents-State. This Court while deciding the aforesaid writ petition had in paragraph No. 18 rendered orders to the respondents for considering the case of the petitioners for promotion according to the Rules notified vide notification dated 24th December, 1973 read in conjunction with letter dated 20th February, 1990 against the posts of librarian/College Cadre Librarians, Junior Librarians (Central State Library, Solan), lying vacant on or before the date of bifurcation of the cadre vide notification dated 16th August, 2011 within a period of eight weeks. The directions against the respondents were merely for theirs considering the case of the petitioners for promotion under the rules aforesaid against the vacancies lying vacant on or before the date of bifurcation of the cadre vide notification dated 16th August, 2011.

An incisive discernment of the orders rendered by this Court in the writ petition aforesaid conveys that the direction to the respondents-State to consider the case of the petitioners herein for promotion to the post of Librarian was with the rider of the case of the petitioners being considered for promotion only in the event of posts in the cadre of Librarian under the respondents lying vacant on or before the date of bifurcation of the cadre under notification dated 16th August, 2011. Obviously only on the eruption of the aforesaid scenario could the petitioners stake or assert a claim of theirs being untenably ousted for being considered for promotion to the post of librarian from the direct quota. Conversely, in case no post lay vacant on or before the date of bifurcation of the cadre vide notification dated 16th August, 2011 in that event the assertion or staking of a claim by the petitioners for theirs being considered for promotion to the post of Librarian (college cadre) from the direct quota would stand both ir-revereable and discountenanceable. Since the rendition of operative directions against the respondents in the Civil Writ Petition aforesaid remained unimplemented by the respondents-State, it hence constrained the petitioners to file a COPC before this Court bearing No. 119 of 2012. This Court while considering the material as placed before it comprised in Annexure R-1 constituting the proceedings of DPC and Annexure R-2 was constrained to dismiss the contempt petition instituted by the petitioners herein for implementing the directions rendered by this Court in CWP No. 7662 of 2011. However, liberty was left to the petitioners to work out their surviving grievances in appropriate proceedings.

Now the pivotal facet for adjudication is whether the writ petitioners can in the face of the reply furnished by the respondents conveying therein that they have in consonance with the verdict rendered by this Court in C.W.P. No. 7662 of 2011 considered the case of the petitioners for promotion to the post of Librarian from the direct quota yet a keen discernment of the record unearthing the factum of theirs not fulfilling the requisite criteria at the apposite stage renders them unfit and unsuitable for being considered for promotion within the ambit of the verdict of the High Court rendered in CWP No. 7662 of 2011, hence contended that they have now any agitable surviving cause. More especially, they are debarred to claim relief as at the apposite and germane stage inasmuch, as, on or before 16th August, 2011 the competing rights of the more suitable aspirants rather eligiblised them for promotion. However, the petitioners now have come to institute the instant writ petition before this Court arraying herein the promotees who remained unarrayed in the previous writ petition. Moreover, the factum of rendition of orders by this Court in COPC No. 119 of 2012 whose perusal discloses that this Court was constrained to decline the relief for implementation of the orders rendered by this Court in CWP No. 7662 of 2011, however, leaving a liberty to the petitioners therein as are the petitioners herein to voice their subsisting grievance, if any, in appropriate proceedings cannot constitute and invest any right in the petitioners herein to hence reopen or re-agitate the controversy previously concluded. Uncontrovertedly, the promotees to the post of Librarian (college cadre) who now stand arrayed as respondents in the array of the respondents in the instant writ petition stood promoted to the post of Librarian (college cadre) from the direct quota even before the institution of the previous Civil Writ Petition before this Court. Hence, in the face of the respondents having afforded the benefit of promotion to competing aspirants with the petitioners herein for promotion to the post of Librarian (college cadre)at a stage prior to the institution of the Civil Writ Petition No. 7662 of 2011 before this Court, it was incumbent as well as mandatorily enjoined by the principle contemplated under Order 2 Rule 2 CPC casting a duty upon the petitioners to include the entire relief therein inclusive of the relief of the purported untenable affording of promotion to promotees who rather now stand arrayed as respondents in the writ petition. The omission on the part of the petitioners to at the stage of institution of the previous CWP before this Court include the entire gamut of relief encapsulating the fact of purported untenable affording of promotion by the respondents-State in favour of promotees, then constitutes an infraction of the principle of Order 2 Rule 2 CPC. On such infraction having arisen a concomitant deduction is that the petitioners herein are now estopped as well as debarred by the principle of constructive resjudicata constituted by Order 2 Rule 2 CPC to in the garb of the instant writ petition claim against promotees any relief which they omitted to and were rather enjoined to claim in the previously instituted writ petition. It appears that in the garb of the instant writ petition the petitioners now though debarred by the principle of constructive res judicata contemplated in Order 2 Rule 2 CPC are ingeniously concerting to reinvent a claim against the promotees by reinstituting a writ petition and therein reconstituting a fresh claim against them, whereas it could have been constituted or canvassed before this Court earlier. Such reinvention/reconstitution now of a claim by the petitioners against the promotees to the post of Librarian (college cadre) is wholly impermissible being militative of the principle of constructive res judicata.

Even otherwise, the pre-eminent factum of the respondents-State having adhered to or complied with the directions rendered by this Court contained in CWP No. 7662 of 2011 is apparent from a reading of the reply furnished by the respondents. A perusal thereof unveils the fact that in consonance with the extant rules and in commensuration with the number of posts allotted to the direct recruits and to the promotees a DPC was convened. A copy of the minutes of the DPC stands enclosed as Annexure R-1. Promotion orders are enclosed as Annexure R-2. A circumspect and incisive perusal thereof reveals that the petitioners though considered for promotion in consonance with the verdict rendered by this Court yet the relief could not be afforded to them in view of the apparent factum of a limited number of posts available to the direct category in which category the petitioners fall and the benefit of promotion on the recommendation of the DPC was afforded in favour of only those aspirants who were senior to the petitioners. The said factum cannot be reopened at this stage for reasons afforded hereinabove. Even otherwise, it appears that this Court while deciding the COPC had also considered the material as now placed before this Court yet this Court kept open an avenue to the petitioners herein to choose appropriate remedies to agitate the grievances ventilated therein. However, the factum of this Court while deciding COPC having left an avenue to the petitioners to ventilate their subsisting grievances in appropriate proceedings does not give leeway to the petitioners to in the garb of the instant writ petition which for reasons aforesaid stands torpedoed by the principle of res judicata to voice a subsequently reinvented grievance. Even otherwise the information obtained in the RTI at page 84 stands adequately replied. It gives no succor and strength to the claim of the petitioners aforesaid. Accordingly, I find no merit in the writ petition, which is dismissed, so also the pending application(s), if any. No costs.