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2001 DIGILAW 444 (DEL)

SACHINDRA NATH JANA v. UNITED BANK OF INDIA

2001-10-04

MUKUNDAKAM SHARMA

body2001
MUKUNDAKAM SHARMA ( 1 ) THE petitioners herein have filed the present writ petition seeking For the following reliefs:- (I) A direction to the respondents to grant the petitioners promotion in the scale of mmg Scale-I1 from 27 . 3. 95 alony with all consequential benefits. (II) to direct the respondents to consider the petitioners and other similarly situate in the on-going process of promotion to the scale of MMG-III after reckoning their service in the MMG Scale-I1 from 27. 3. 1995 instead of 7. 1. 98. ( 2 ) THE petitioners were earlier working in the respondent bank in the grade of JMG Scale-I some time in the month of December, 1993 the respondent bank initiated the process for promotion of eligible persons to MMG Scale-I1. At that stage there were altogether 326 vacancies. Under the revised promotion policy framed under the United bank of India ( Officers) Service Regulation, 1979, those 326 vacancies were notified by the respondent bank for being filled up by promotion from JMG Scale-I to the post of MMG Scale-II. 195 vacancies were identified in the normal track channel and 131 in the fast track channel. Pursuant to the circular dt. 9. 12. 93 a common written test for filling up the aforesaid vacancies was held on 29. 5. 94, which was followed by interviews. In terms of the ratio of vacancies, out of 326 vacancies, 195 vacancies were available in the normal track channel whereas 131 vacancies were available in the fast track channel. Through the aforesaid process of selection, only 85 vacancies, out of 195 in the normal track channel, could be filled up thereby leaving 110 vacancies unfilled whereas all the vacancies in the fast track channel were filled up by the aforesaid process, when aforesaid 110 vacancies remained unfilled, the petitioners herein claimed that the aforesaid unfilled vacancies should be shifted from the normal track channel to fast track channel strictly in accordance with Clause 2. 3 of the promotion policy and to make promotions against the said vacancies from out of the candidates From the fast track channel. The respondent bank, however, issued circular For filling up those vacancies through the process of fresh examination scheduled to be held on 14. 5. 3 of the promotion policy and to make promotions against the said vacancies from out of the candidates From the fast track channel. The respondent bank, however, issued circular For filling up those vacancies through the process of fresh examination scheduled to be held on 14. 5. 95 again in the category of normal track From JMG, Scale-I to MMG-II but confined only to those who had failed in the combine test held on 29. 5. 95. ( 3 ) BEING aggrieved by the aforesaid action of the respondent bank, the petitioners filed a writ petition in this court, which was registered as CWP No. 1976/95. The said writ petition came up for consideration before a Division Bench of this court and by its Judgment and order dt. 21. 5. 96, the division Bench allowed the writ petition and quashed the impugned circulars, The Division Bench issued a direction to the respondents to act in accordance with Clause 2. 3 (c) by transferring the unfilled vacancies in the normal track channel for promotion from JMG Scale-I to MMG Scale-I1 to the fast track channel and fill up those vacancies from the merit list prepared in the fast track channel. The respondent bank being dissatisfied by the aforesaid Judgment and order of this court, went on appeal before the Supreme Court by filing a Special leave Petition,/ which way registered as C. A. No. 6531/97. By judgment and order dt. 7. 1. 1998, the supreme Court dismissed the said appeal and upheld the judgment and order passed by the Division Bench of this court. Subsequent thereto, an order was passed by the respondent bank on 17. 2. 1998 stating therein that in due deference to the order of the supreme Court, promotion is granted to the petitioners on adhoc basis from JMG Scalei to MMG scale-I1 w. e. f. . 17. 2. 98. Subsequently, another letter was issued on 20. 6. 98 by the respondent bank to the petitioners whereby the decision of the respondent bank was communicated that the seniority of the petitioners in MM6- Scale-I1 would be reckoned w. e. f. 7. 1. 98 and the monetary benefits would be provided - from 17. 2. 98 when actual promotion ,was effected. Subsequently, another letter was issued on 20. 6. 98 by the respondent bank to the petitioners whereby the decision of the respondent bank was communicated that the seniority of the petitioners in MM6- Scale-I1 would be reckoned w. e. f. 7. 1. 98 and the monetary benefits would be provided - from 17. 2. 98 when actual promotion ,was effected. ( 4 ) THE petitioners here-in filed a contempt petition, which was registered as CCP No. 436/98 praying for punishing the respondenty for violating and committing contempt of the older dt. 21. 5. 96 passed by the Division Bench of this court in CW 1976/95 and to direct the respondents to implement the order dt. 21. 5. 96 in letter and spirit and to provide consequential relief to the petitioners by giving promotion and ail consequential benefits w. e. f. 25. 3. 1995. The said contempt petition is pending disposal in this court. The contempt petition was filed by the petitioners under the provisions of Sections 11 and 12 of the Contempt of courts Act read with Article 215 of the constitution of India. The petitioners however did not file any fresh writ petition challenging legality of the subsequent orders prised by the respondent bank on 17. 2. 98 and 20,6. 98. ( 5 ) IN the month of July, 2000, the respondent bank initiated the promotion process for promotion of eligible candidates from MMG Scale-II to MMG Scale-Ill for about 150 vacancies. Apprehending that the petitioners are going to be left out of the said promotion process on the ground that their services in the MMG Scale-II were being counted only from 7. 1. 98, the petitioners filed the present ,writ petition in this court seeking for the aforesaid reliefs. ( 6 ) IN the background. of the aforesaid facts, the respondents have taken up a. preliminary objection regarding maintainability of the writ petition in this court. It was submitted by the counsel appearing for the respondent bank that the writ petition is liable to be dismissed for delay and laches. It was submitted by him that the petitioners have filed the present writ petition on 27. 7. 2001 i. e. after more than three and a half had given promotion to the petitioners and that no explanation is submitted for the aforesaid unreasonable delay in filing the writ petition. It was submitted by him that the petitioners have filed the present writ petition on 27. 7. 2001 i. e. after more than three and a half had given promotion to the petitioners and that no explanation is submitted for the aforesaid unreasonable delay in filing the writ petition. It was also submitted that pursuant to the Judgment passed by this court and the judgment given by the supreme Court, the respondent bank promoted the petitioners to the post of MMG Scale-II w. e. f. the date of the order passed by the Supreme Court i. e. 7. 1. 98 and that the petitioner a accepted the aforesaid promotion granted by the respondent bank in compliance of the aforesaid orders, without raising any objection to the date of promotion. Another contention was that the petitioners have also actually worked for more than three years from the date of promotion without raising any grievance in respect of the date of their promotion and therefore, it is not open for the petitioners to raise a dispute regarding the date of promotion, after a lapse of more than three years and that too without impleading the necessary individuals as parties, who would be adversely affected in case the writ petition is allowed. It was also submitted that the principles of waiver and estoppel would be applicable to the facts -and circumstances of the present case. ( 7 ) COUNSEL appearing for the petitioners, on the other hand, however, submitted that immediately after the respondents had passed the orders of promotion in respect of the petitioner a to the post of MMG Scale-I1 , giving seniority w. e. f. 7. 1. 98 and monetary benefits only w. e. f. 17. 2. 98, the petitioners have filed a contempt petition in this court praying for the reliefs as detailed in the preceding paragraphs and, therefore, there was no delay and laches on the part of the petitioners in approaching this court, as because prior to filing of the present writ petition a contempt petition was filed for almost similar reliefs, which is pending disposal. It was also submitted that the principles of waiver and estoppel would not apply to the facts and circumstance of the present case as the petitioners filed the aforesaid contempt petition in this court immediately after issuance of the orders dt. 17. 2. 98 and 20. 6. 98. It was also submitted that the principles of waiver and estoppel would not apply to the facts and circumstance of the present case as the petitioners filed the aforesaid contempt petition in this court immediately after issuance of the orders dt. 17. 2. 98 and 20. 6. 98. It was submitted that the present writ petition is filed in continuation of the earlier contempt petition, which "is pending disposal in this court and in addition, in this petition the petitioners have also challenged the promotion process initiated by the respondent bank for making promotion to MMG scale III without considering the cases of the petitioners. It was submitted by the counsel appearing for the petitioners that pursuant to the directions of the Division Bench of this court, which were upheld by the Supreme Court, the respondent bank should have promoted the petitioners to MMG Scale-II w. e. f. 27. 3. 1995 with all consequential benefits like seniority, salary etc. and having not done so and instead initiating the process for promotion to the grade of MMG scale-Ill, without consider ing the cases of the petitioners, the respondents acted illegally and that the entire action of the respondent bank is not only violative of the orders passed by this court and affirmed by the Supreme Court but the same is also without jurisdiction and in violation of the promotion policy of the respondent bank. It was also submitted that the petitioners should have been promoted to the MMG Scale-II w. e. f. 27. 3. 95 in accordance with the directions of the Division bench of this court in CWP No. 1976/1995, which were affirmed by the Supreme Court , along with payment of the arrear salary thereof from the aforesaid date and once the same is available to the petitioners, the petitioners become entitled to be even considered for promotion to the post. 3. 95 in accordance with the directions of the Division bench of this court in CWP No. 1976/1995, which were affirmed by the Supreme Court , along with payment of the arrear salary thereof from the aforesaid date and once the same is available to the petitioners, the petitioners become entitled to be even considered for promotion to the post. of MMG scale-Ill as they satisfy the eligibility criteria of five years service in MMG Scale-II ( 8 ) COUNSEL appearing fur the respondent bank, however, refuted the aforesaid submissions and stated that there was no directions by the division Bench of this court to give promotion to the petitioners in MMG Scale-I1 from a retrospective deemed date nor was there any direction to give arrear wages to the petitioners although the petitioners in the said writ petition sought for not only promotion but also the consequential benefits, which when not specifically granted, should be deemed to have been rejected. He submitted that, therefore, the petitioners have been rightly promoted to MMG Scale-II w. e. f. 7. 1. 1998, the date on which the Supreme Court decided the case in favour of the petitioners with a direction to fill up the vacancies in the normal track channel by persons selected in the fast track channel. He contended that neither the petitioners are entitled for promotion from a retrospective deemed date nor they are entitled to payment of any arrear wages as claimed in this writ petition. He also submitted that the petitioners have not completed five years of satisfactory service in MMG scale III with three years rural and/or semi-urban branch service in the officer cadre and, therefore the petitioners are not entitled even to be considered for such promotion from MMG Scale-I1 to mmg Scale-Ill and, therefore, this writ petition is misconceived. ( 9 ) IN order to appreciate the aforesaid contentions made on behalf of the parties and to arrive at a just decision on the issues raised before me, it would be apposite to extract some of the relevant portions of the documents relied upon by the counsel appearing for the parties. The decision given by the Division Bench or this court in CUP No. 1976/95 requires consideration by this court. In the said_decision the Division Bench considered the various clauses appearing in chapter-11 of the promotion policy of the respondent bank, particularly Clauses 2. The decision given by the Division Bench or this court in CUP No. 1976/95 requires consideration by this court. In the said_decision the Division Bench considered the various clauses appearing in chapter-11 of the promotion policy of the respondent bank, particularly Clauses 2. 6 to 2. 14. The Division Bench considered the said clauses in the light of the facts of the case and thereafter observed that it is Clause 2. 3, which is the subject matter of the disputes amongst the parties. After considering the aforesaid Clause 2. 3, it was held that the sum and substances of the said Clause in the light of the entire scheme is that in case number of qualified candidates in a circle for promotion to Scale-II and Scale-III under the normal Track are not found suitable for filling up of the vacancies identified, the unfilled vacancies should be shifted to Fast Track and filled from the merit list prepared under the Fast Track and in case under the Fast Track suitable candidates are not found suitable for fiiling up vacancies on all india basis, the unfilled vacancies then would be shifted to Normal Track and then to be filled from the merit list prepared circlewise under the Normal track. In respect of the case in hand, the division Bench held that the 110 unfilled vacancies in view of Clause 2. 3. (c) were required to be shifted to Fast Track channel and were required to be filled up from the merit list prepared under the fast Track. In view of the aforesaid findings arrived at, the Division Bench held that the action of the respondents in issuing the impugned circulars, giving opportunity to the failed candidates in the normal track and by giving them another chance for premotion by holding a fresh examination, was bad as because the promotion policy of the respondent bank does not authorise the respondents to give second chance to those officers, who remained unsuccessful and were not found suitable for promotion, in the promotion process initiated through circular dt. 9. 12. 93. It was also held by the Division Bench that such officers, who remained unsuccessful and were not. found suitable in the promotion process are debarred in participating in the process of promotion and that they can avail of the chance and participate only in the next process, when held. 9. 12. 93. It was also held by the Division Bench that such officers, who remained unsuccessful and were not. found suitable in the promotion process are debarred in participating in the process of promotion and that they can avail of the chance and participate only in the next process, when held. Having held thus, the Division Bench held as follows: -. "admittedly, the petitioners position in the merit in the common written test is as per annexure P/2. It is not the respondents case that any decision has been taken not to fill up the vacancies. Vacancies identified have to be filled up. Respondents are bound under the promotion policy to transfer the unfilled vacancies under the Normal Track, which could not be filled, for want of availability of successful suitable candidates, to the fast track to be filled up according to merits as per merit list. In view of the above, the writ petition is allowed. The impugned circulars annexures P/4 and P/6, being contrary to the policy, annexure P/1 , are quashed and set aside. Respondents! are directed to act in accordance with Clause 2. 3. (c) as interpreted aforementioned by trans- ferring the unfilled vacancies under the normal track for promotion from JMG scale-I to MMG Scale-II to the Fast Track and fill up those vacancies from the merit list prepared in the Fast Track. Resultantly the rule is made absolute with no order as to costs. " ( 10 ) RELYING on the aforesaid directions, the petitioners seek to interpret the same as directions by the court to the respondents to transfer the unfilled vacancies in the normal track for promotion from JMG Scale-I to MMG Scale-II to the fast track and then fill up those vacancies from the merit list prepared in the fast track and also to give the petitioners consequential seniority and arrear salary. The directions of the division Bench of this court were admittedly upheld by the Supreme Court. The directions of the division Bench of this court were admittedly upheld by the Supreme Court. Counsel appealing for the petitioner, therefore, sought to submit that once the aforesaid unfilled vacancies under the normal track for promotion from JMG Scale-I to MMG scale-II were transferred to the fast track, the same are required to be filled up from amongst the successful candidates in the fast track, and that the said promotion would be effective from the date when the persons in the normal track were promoted as because such promotions are to be made in one lot and from a common date. In support of the said contention, counsel relied upon Clause 2. 11 of the promotion policy of the respondent bank. ( 11 ) IN that view or the matter , certain provisions of" the promotion policy of the respondent bank are required to be extracted. Clause 2. 3 (c) of the promotion policy was considered and the decision was given by the division Bench of this court on an interpretation to the aforesaid provision and, therefore, the same is relevant for the purpose of deciding the issues involved in the present writ petition and, therefore, the said provision is extracted below;- "2. 3 (C) In case, for promotions to Scale-I1 and scale-Ill under the Normal Track, suitable candidates are not found For filling all the vacancies identified for the track, the unfilled vacancies will be shifted to the Fast Track and will be. filled from the respective merit list prepared under the fast track. " ( 12 ) I also deem it appropriate to extract some other relevant provisions of the said promotion policy for better appreciation of the issues involved in the present case. Clauses 2. 6 to 2. 14 are clauses which deal with the procedure for preparation of the merit list. Clauses 2. 8, 2. 9 and 2. 11 being relevant are extracted below;- "2. 8 In case of promotions to MMG Scale-II and iii, a merit list to the extent of vacancies Identified in each of the respective channels will be declared. The merit list will consist of two parts (a) Normal Track (b) Fast Track. The officers empanelled for promotion to scale-II and III under the two channels will be listed in a common seniority list. The merit list will consist of two parts (a) Normal Track (b) Fast Track. The officers empanelled for promotion to scale-II and III under the two channels will be listed in a common seniority list. The seniority of the officers will be reckoned with reference to the date of promotion and when the date of promotion is. same, the seniority of two officers all be determined on the basis of their inter-se seniority in the previous scale. 2. 9. Subject to what is stated below, the competent Authority shall make promotions from the merit list strictly in order of merit to the extent of vacancies in the next higher grade/scale. where, however , the competent authority considers in his judgment that notwithstanding the order of merit of an officer, he is not promotable, he may after recording specific reasons for reach such judgment either exclude the name of the officer from the merit list or hold his promotion in abeyance. If the competent authority is not the Chairman 8- Managing Director, specific approval of the Chairman and managing Director will be taken in all such cases. 2. 11. Officers equal to the number of vacancies identified will be promoted in one lot to the next higher grade/scale as on a common date. For synchronising promotion to Scale-II and III with placements as far as possible efforts will be made to complete these promotion processes by the month of February every year so that the promotions may be released w. e. f. 1st of april. " ( 13 ) THE eligibility criteria for promotion from JMG Scale-I to MMG Scale-II and MMG Scale-II to MMG Scale-III is provided for in Clause 1. 3 of the promotion policy of the respondent bank, which finds place in Chapter-1. Tire said provisions are also extracted below:- "1. 3. Eligibility: (a) Promotion from JMG Scale-I to MMG scale-II - Seven years of satisfactory service ID JMG Scale-I with two years rural branch service as an officers (b) Promotion from MMG Scale-II to Scale-Ill Five years for satisfactory service In mmg Scale-II with three years rural and/or semi-urban branch service In the officer cadre. ( 14 ) HAVING extracted the relevant provisions of the promotion policy of the respondent bank and the portions of the relevant documents, let me now proceed to decide the Issues that arise for my consideration. ( 14 ) HAVING extracted the relevant provisions of the promotion policy of the respondent bank and the portions of the relevant documents, let me now proceed to decide the Issues that arise for my consideration. The Division Bench of this court issued the aforesaid directions In CWP No. 1976/95 on 21. 596 aggrieved, the respondent bank preferred an appeal before the Supreme Court which, however, was dismissed by the Supreme Court on 7. 1. 98. Immediately thereafter, the respondents transferred the unfilled vacancies In the normal track for promotion from JMG Scale-I to MMG scale-II, to the fast track channel and took up the cases for promotion to the said posts from the merit list prepared In the fast track channel and on consideration thereof, passed order of promotion thereby promoting the petitioners w. e. f. 17. 2. 98. while Issuing the aforesaid order of promotion, the same was made effective from 17. 2. 98 Itself. Subsequently however, by a communication dt. 20. 6. 98 the said date was modified and the seniority in MMG Scale-II of the petitioners was directed to be reckoned from 7. 1. 98 when the supreme Court affirmed the decision of the Division bench, but monetary benefit was directed to be provided from 17. 2. 98 , when actual promotion was effected. The aforesaid orders were passed in the month of February and June, 1998 respectively. It is an undisputed fact that immediately thereafter in 1998 itself the petitioners filed contempt petition in this court seeking for drawing up contempt proceedings against the respondents and punishing them for non-compliance of the orders of the Division Bench of this court. In the said writ petition the petitioners also sought for a direction to the respondents to give consequential relief to the petitioners by giving them promotion and consequential benefits w. e. f. 25. 3. 95. The present writ petition is, however, filed after expiry of more than three and a half years but strangely, in this petition also, the petitioners have not sought for quashing of the orders dt. 17. 2. 98 and 20. 6. 98 to the extent of reckoning the seniority or the petitioners in the MMG scale-II w. e. f. 7. 1. 98 and to give them monetary benefits w. e. f. 17. 2. 98. 17. 2. 98 and 20. 6. 98 to the extent of reckoning the seniority or the petitioners in the MMG scale-II w. e. f. 7. 1. 98 and to give them monetary benefits w. e. f. 17. 2. 98. If the petitioners are aggrieved by the aforesaid action, they should have challenged the legality of the said orders to the aforesaid extent, in the writ petition, which is not done. However, in my considered opinion, the writ petition cannot be dismissed on the ground of inordinate delay and laches and also on the ground of waiver and estoppel, as they had Filed a contempt petition immediately after issuance of the said orders. ( 15 ) ANOTHER preliminary objection was raised on behalf of the respondent bank that the persons who would be adversely affected, if the present writ petition is allowed by this court, have not been made parties and therefore, no relief could be granted the petitioners in the present writ petition. This issue shall be considered by me while dealing with the main issue that arises for my consideration in the writ petition. The principal and the main issue to be considered is whether or not the orders passed by the respondent bank promoting the petitioners to the MMG Scale-II w. e. f. 7. 1. 98 could be said to be in order and in conformity with the directions of the Division bench of this court and also whether or not the petitioners should have been promoted by the respondent bank w. e. f. 27. 3. 95. There is no dispute to the fact that the Division Bench of this court held that the unfilled vacancies in the normal track channel should be transferred to the fast track channel in terms of Clause 2. 3 (c) of the promotion policy of the respondent bank and thereafter the said unfilled vacancies were directed to be filled up from amongst the candidates whose names are included in the merit list of the Fast track channel. Relying on the provisions of Clause 2. 11 of the promotion policy of the respondent bank, counsel appearing for the petitioners submitted that all the officers round suitable for promotion were required to be promoted in one lot to the next higher grade/scale as on a common date. Relying on the provisions of Clause 2. 11 of the promotion policy of the respondent bank, counsel appearing for the petitioners submitted that all the officers round suitable for promotion were required to be promoted in one lot to the next higher grade/scale as on a common date. Relying on the said provision the counsel submitted that since the other officers were promoted to the said MMG Scale-II on 27. 3. 95, the date of promotion of the petitioners to MMG scaie-II should also be made effective from the said date as the promotion should be deemed to be in one lot and on a -common date. No specific directions to that effect were however, issued by the Division Bench of this court while issuing the operative portion of its order. Therefore, the implication, significance and import the extent of the orders of the Division Bench are to be Found out by a reading of the entire order, ofthe division Bench of this court. Accordingly, I have carefully perused the order passed by the Division bench of this court and sought to read the same in the context of the clauses of the promotion policy dealing with preparation of the merit list. ( 16 ) CLAUSE 2. 8 thereof clearly lays down that in case of promotion to MMG Scale-II and III a merit, list to the extent of vacancies identified in each of the respective channels will be declared and that the said merit list would consist of two parts (a) Normal Track (b) Fast Track and that the officers empanelled for promotion to Scale-II and III under the two channels will be listed in a common seniority list. It was further provided that the seniority of the officers would be reckoned with reference to the date of promotion and when the date of promotion is same, the seniority of two officers would be determined on the basis of their inter~se seniority in the previous scale. ( 17 ) CLAUSE 2. 9 of the said policy provides that the Competent Authority shall make promotions from the merit list strictly in order of merit to the extent of vacancies in the next higher grade/scale whereas Clause 2. 11 provides that officers equal to the number of vacancies identified would be promoted in one lot to the next higher grade/scale as on a common date. Therefore, clause 2. 11 provides that officers equal to the number of vacancies identified would be promoted in one lot to the next higher grade/scale as on a common date. Therefore, clause 2. 11 would apply only when the merit list was prepared in accordance with Clause 2. 8 and order of promotion was made in accordance with clause. 2. 9. The Division Bench while issuing the directions, as is evident from the judgment and order took notice of ail the aforesaid clauses and in spite of the same, ordered only for transferring the unfilled vacancies From normal track channel to fast track channel and thereafter for filling up the said vacancies from the merit list prepared in the fast track channel, without specifically granting any consequential benefits to those persons, who are going to be promoted by the said order nor any direction was issued by the Division bench- directing for payment of arrear wages to the petitioners from a retrospective date or to pay them wages from the said retrospective date. The division Bench did not issue any direction for preparation of a common seniority list with a further direction to the respondents to promote the petitioners to the next higher grade/scale from the date when other persons were promoted. It was not directed that said promotion would be considered to be promotion in one lot as on a common date. The division Bench although was aware of the entire procedure of preparation of a merit list for the purpose of promotion to MMG Scale II having considered all the relevant provisions of the promotion Policy did not issue any direction for preparation of a common seniority list and to reckon the seniority of the petitioners from a deemed retrospective date of their promotion as envisaged in clause 2. 8 read with clause 2. 11. No order was also issued that the promotions of the petitioners would be made from the common merit list. The Division Bench only directed for transferring the unfilled vacancies of normal track channel to fast track channel and thereafter for filling up the vacancies from the merit list prepared in the fast track channel. If the intention of the Division Bench was to make the said directions effective from a patticular date, the same would have been specifically stated in the order. No such direction is either explicit or even implicit in the order. If the intention of the Division Bench was to make the said directions effective from a patticular date, the same would have been specifically stated in the order. No such direction is either explicit or even implicit in the order. In the writ petition filed by the petitioners, pursuant to which the aforesaid orders were passed by the Division Bench of this court, there was a specific player made by the petitioners to issue a direction to the respondents to grant promotion to the petitioners with all consequential benefits. However, no such direction was issued by the Division Bench 91 anting consequential relief to the petitioners and in absence of the same,"it cannot be said that such consequential benefits were granted to the petitioners by the Division Bench directing for consideration of their cases from a deemed or retrospective date or to grant them arrear wages from such date. when consequent reliefs were sought for and the same were not granted, it would be deemed that such reliefs were rejected by the court, which is also in terms of the decision of the three Judges Bench of the Supreme Court in chief ADMINISTRATOR and ANOTHER VS. DR. ABHAYA charan MISHRA, reported in 1999 SCC (Lands) 660. It is also settled law thai the relief, which could be sought for and were available at the time of filing of a writ petition and were not sought for and granted, cannot be asked for by filing a subsequent writ petition as the same would be haired by the principle of res Judicata. The aforesaid conclusions are based on the principle laid down by the Supreme Court in MADHYA PRADESH PUBLIC SERVICE commission VS. OM PRAKASH GUPTA AND OTHERS reported in (1997) 6 SCC 645 . ( 18 ) IN that view of the matter and in view of the fact that the Division Bench of this court even after noticing the provisions of Clauses 2. 6 to 2. 14 of the promotion policy of the respondent bank, did not pass specific orders for preparation of a common seniority list and for grant of promotion and other benefits from the deemed retrospective date, therefore, it cannot be said that such interpretation is possible only by way of implication in view of Clause 2. 11 of the promotion policy. 14 of the promotion policy of the respondent bank, did not pass specific orders for preparation of a common seniority list and for grant of promotion and other benefits from the deemed retrospective date, therefore, it cannot be said that such interpretation is possible only by way of implication in view of Clause 2. 11 of the promotion policy. In that view of the matter, I hold that the petitioners are not entitled to promotion in mmg Scaleii from a retrospective deemed date i. e. 27. 3. 1995. Consequently, considering the entire facts and circumstances of the case, I am also of the considered opinion that the order passed by the respondent bank promoting the petitioners to MMG scale-II from the date of the orders of the Supreme court, is legal and valid. The same is also uphold on the ground that the legality of the said orders has not been specifically challenged and sought to be quashed in the relief portion of the present writ petition. It is also required to be appreciated that in case it is held that Clause 2. 11 is applicable to the facts and circumstances of present case, then there is no ground not. to hold that Clause 2. 8 is also applicable and, therefore, a common seniority list was required to be prepared in which case some of the persons, who have been placed in the said list would definitely be disturbed in their status and position in the list. The said persons having not been made parties in the present writ petition, they would be adversely and prejudicially affected and, therefore, also in absence of the said necessary parties, no relief could be granted to the petitioners as sought for in this writ petition. ( 19 ) IN support of the aforesaid conclusion I place reliance on the decision of the Supreme Court in T. R. KAPOOR and OTHERS VS. STATE; OF HARYANA and others reported in 1989 (4) SCC 71 . In para 11 of the said judgment it was held by the Supreme Court that the benefits which had accrued to some persons by, reason of their promotions from an earlier date from that of the petitioners, cannot be disturbed or interfered with after a long interval of time by giving the petitioners promotions From deemed dates of eligibility From promotion. It was further hold that a settled state of affairs cannot be unsettled after a long interval of time. ( 20 ) THE Division Bench of this court did not order for payment of arrear salary to the petitioners while disposing of the writ petition (C. W. P. 1976/1995), although such a relief was specifically incorporated in the writ petition. Accordingly, following the ratio of the decision in the caseof Dr. Abhaya Charn Mishra (supra) I hold that the said relief was also deemed to have been rejected and therefore, now barred by the principles of res judicata. Besides, a direction for payment of arrear salary cannot be given as the petitioners did not work in the said post for the entire period and therefore, in terms of decision in STATE OF HARYANA VS. O. P. GUPTA,- (1996) 7 SCC 533 no such direction for payment of arrear salary could be given. ( 21 ) HAVING held thus, it may not be necessary to decide the next issue raised by the petitioners, which relates to their promotion to MMG Scale-Ill. But since arguments were advanced by the parties on the said issue also I proceed to decide the said issue also. The petitioners have been promoted to mmg Scale-I? effective only from 7. 1. 98 and, therefore, they are yet to complete five years of satisfactory service as stated hereinabove. However , even If It Is assumed that the petitioners are entitled to get their promotion from a retrospective deemed date, namely, 27. 3. 95 even then In my considered opinion, the petitioners are not entitled to be considered For getting promotion to the post of MMG Scale-Ill because even then petitioners would not be able to satisfy the norms of eligibility criteria for such promotion. The petitioners would have five years service In MMG scale-II If It Is held that they would be entitled to MMG Scale-II w. e. f. 27. . 3. 1995. But even then the petitioners would not be able to satisfy the eligibility criteria as they have to fulfil the eligibility criteria of five years of satisfactory service In MMG Scale-II and, therefore, at best the petitioners shall have, as of date, only three years of satisfactory service In MMG Scale-II. The petitioners also have to satisfy the second requirement, namely three years rural and/or semi-urban branch service In the officer cadre. The petitioners also have to satisfy the second requirement, namely three years rural and/or semi-urban branch service In the officer cadre. Unless and until petitioners; actually work for five years and earn records of satisfactory service of five years In MMG Scale II, of which three years service shall have to be rendered In rural and/or semi urban branch, the petitioner s would not satisfy the eligibility criteria for promotion to mmg Scale III. ( 22 ) IN this connection reference may be made to a decision of three Judges Bench of the Supreme court in UNION OF INDIA VS. M. BHASKAR reported in 1996 (4) SCC 416 . In paragraph 15 of the said judgment, it was held by the Supreme Court that mere fact that the person was promoted notionally would not mean that he started gaining experience from the deemed date as because to gain experience one has to work. It was further held that notional promotions are given to take care of some injustice, inter alia, because some junior has come to be promoted earlier, but there should be no doubt that the person promoted to higher grade cannot gain experience from the date of notional promotion and, therefore, it has to be from the date of the actual promotion. As the petitioners have been actually working in MMG Scale-II w. e. f. 7. 1. 98, they cannot have satisfactory service in mmg Scale--II for five years as of date, when the respondents are considering persons for promotion to MMG Scale-III, nor the petitioners? have three years of actual rural and/or semi-urban branch service in the MMG Scale-II. Therefore, the petitioners do not fulfil the eligibility criteria for promotion to MMG Scale-III as of date, when the cases of eligible candidates for such promotion to mmg Scale-III are being considered by the respondents. ( 23 ) UNDER the circumstances, I am unable to accept, any of the con Lent ions of the counsel appearing for the petitioners. The writ petition, in my considered opinion, has no merit and is dismissed accordingly, but without any costs.