JUDGMENT Banerjee, J. On June 1, 1965 appellant was appointed as Research Fellow in the department of Endocrinology in Chittaranjan National Cancer Centre, Calcutta. On August 20, 1966 he was absorbed as Junior Scientific Assistant. On July 1, 1973 he was promoted as Senior Scientific Assistant. From the post of Senior Scientific Assistant there was no channel of promotion. However, for the next post being Junior Scientific Officer along with outside candidates in-house candidates having eligible qualification were allowed to participate at the selection process. In 1982 appellant filed a writ petition, inter alia, challenging the recruitment and promotional rules. In 1986 he filed another writ petition. The learned Single Judge passed an interim order directing the respondents to keep one post of Junior Scientific Officer vacant until further orders. On April 5, 1993 both the writ petitions were heard and disposed of analogously. The learned Single Judge directed the respondent to frame appropriate rules for grant of promotion to the departmental candidates by filling up the post of Junior Scientific Officer by keeping 50% post reserved for the promotees. His Lordship also directed the respondents to consider the case of the appellant for promotion to the post of Junior Scientific Officer considering his qualification and eligibility. Being aggrieved by the said judgment and order the appellant preferred two appeals. On April 17, 1996 both the appeals were disposed of by directing the respondents to consider the representation of the appellant afresh. The respondent did not comply with the direction of the Court of appeal. A contempt proceeding was filed. Ultimately on August 14, 1997 the respondents passed an order permitting the appellant to cross the efficiency bar. The authority also passed an order to the effect that the appellant was ineligible for promotion to the post of Junior Scientific Officer as also the second higher post. The appellant filed a writ petition in 2001 challenging the reasoned order of the authority. The learned Single Judge dismissed his writ petition by observing that the post of Junior Scientific Officer was a selection post. He failed in the interview in 1976. He did not participate in 1986 selection process. Hence, he was not entitled to claim promotion as a matter of right. With regard to fixation of pay the learned Single Judge refused to interfere with the order impugned. He failed in the interview in 1976. He did not participate in 1986 selection process. Hence, he was not entitled to claim promotion as a matter of right. With regard to fixation of pay the learned Single Judge refused to interfere with the order impugned. His Lordship after holding as such, considered the submissions made on behalf of the appellant with regard to the challenge to the promotional rules. His Lordship held that such question was hit by the principles of constructive res judicata. The appellant having participated in the proceeding was not entitled to challenge or question the selection process. Hence, this appeal. 2. Mr. Ashok Chakraborty, learned Senior Counsel appearing for the appellant, contended that the petitioner was last promoted in the year 1973. He retired in 1996. Hence, he was compelled to stagnate in the post of Senior Assistant Officer for twenty-three years before his retirement. Such stagnation was contrary to the principles of service jurisprudence so held by the Apex Court in earlier precedents. Mr. Chakraborty also contended that the learned Judge erred in holding that challenge to the rules was hit by constructive res judicata without considering the fact that the Division Bench specifically directed the respondent No. 2 being the governing body to consider the representation of the appellant with regard to his promotion to the next higher post. Admittedly the governing body did not dispose of the representation. Hence, the order of the Director was void in the eye of law as the Director was not empowered to consider such representation. 3. Opposing the said appeal Mr. Asok De, learned Senior Counsel, contended that the appellant did not come in clean hand as he suppressed the factum of filing of the suit. The appellant filed a Title Suit being T.S. No. 85 of 1978 as against the respondent authorities, inter alia, praying for identical reliefs. The said suit was ultimately dismissed for default on June 4, 1989. Hence, he should not have suppressed such fact while filing the writ petition. Mr. De also contended that according to the prevalent rules the post of Junior Scientific Officer had to be filled up by direct recruitment pursuant to the advertisement published in 1978. The appellant applied for the post. He took part in the selection process as an internal candidate. He became unsuccessful. Mr. De also contended that according to the prevalent rules the post of Junior Scientific Officer had to be filled up by direct recruitment pursuant to the advertisement published in 1978. The appellant applied for the post. He took part in the selection process as an internal candidate. He became unsuccessful. In 1986 when the next selection process was had he did not apply for the post. Hence, the selection committee could not get chance to consider him for the said post. The writ petitions filed in 1982 and 1986 respectively were disposed of by the learned Single Judge directing amendment of rules as well as consideration of his case for promotion. The Division Bench modified the said order by directing the respondent No. 2 therein to consider his representation. The Director of the institute by a reasoned order considered his case and ultimately rejected the same. The Government of India by office order dated May 21, 1996 considered the issue of stagnation and the appellant was given the benefit of the next higher scale with effect from May 21, 1996. He enjoyed the said scale till he retired from the said post. 4. Mr. De also contended that before issuance of the office order dated May 21, 1996 the institute did not have any opportunity to consider his case for promotion save and except through the selection process referred to above. The rules also did not permit contemporaneously to give him a higher scale prior to May 21, 1996. 5. In support of the rival contentions the parties cited the following decisions:- (i) 1983, Volume - II, Supreme Court Cases, Page 33 (State of Gujarat & Anr. v. Raman Lal Keshav Lal Soni & Ors.), (ii) 1987, All India Reporter, Supreme Court, Page 537 (The Comptroller and Auditor General of India, Gian Prakash, New Delhi & Anr. v. K.S. Jagannathan & Anr.), (iii) 1989, Volume - IV, Supreme Court Cases, Page 187 (Supreme Court Employees’ Welfare Association v. Union of India & Anr.), (iv) 1990, All India Reporter, Supreme Court, Page 1251 (Mallikarjuna Rao & Ors. v. K.S. Jagannathan & Anr.), (iii) 1989, Volume - IV, Supreme Court Cases, Page 187 (Supreme Court Employees’ Welfare Association v. Union of India & Anr.), (iv) 1990, All India Reporter, Supreme Court, Page 1251 (Mallikarjuna Rao & Ors. v. State of A.P. & Ors.), (v) 1994, Volume - II, Supreme Court Cases, Page 411 (Shakuntala Sharma (Mrs.) v. High Court of H.P. at Shimla & Anr.), (vi) 1999, Volume - III, Supreme Court Cases, Page 653 (State of J & K v. Shiv Ram Sharma & Ors.), (vii) 2007, Volume - VIII, Supreme Court Cases, Page 449 (Prestige Lights Limited v. SBI), (viii) 2007, Volume - X, Supreme Court Cases, Page 544 (State of Manipur & Anr. v. Ksh. Moirangninthou Singh & Ors.), (ix) 2007, Volume - X, Supreme Court Cases, Page 627 (Sonia v. Oriental Insurance Co. Ltd. & Ors.), (xi) 2007, Volume - X, Supreme Court Cases, Page 635 (Raj Kumar Soni & Anr. v. State of U.P. & Anr.), (x) 2008, Volume - I, Calcutta Law Journal (Supreme Court), Page 87 (U.P. State Electricity Board v. Pooran Chandra Pandey & Ors.). 6. The appellant got promotion to the post of Senior Assistant in 1973. There was no other channel of promotion where he could be considered. He challenged the relevant rules. He became unsuccessful therein. Learned Single Judge directed reservation of 50% vacancy in the post of Junior Scientific Officer for the promotees. The said decision was challenged in appeal. The Division Bench ultimately upheld the decision of the learned Single Judge with a little modification as discussed above. The rules have since been amended. The appellant, however, could not get the benefit of the amended rules as he by that time had retired from service. Hence, his subsequent writ petition in 2002 could only be restricted to the reasoned order. His challenge to the rules in the subsequent writ petition was hit by constructive res judicata. Learned Single Judge held so. We do not have any scope of interference and we accord our approval on that score. 7. The matter can be viewed from another angle. In 1976 the appellant participated in the selection process. He was unsuccessful. In 1986 he did not apply for the post. The authority could not get any opportunity to consider his case. We do not have any scope of interference and we accord our approval on that score. 7. The matter can be viewed from another angle. In 1976 the appellant participated in the selection process. He was unsuccessful. In 1986 he did not apply for the post. The authority could not get any opportunity to consider his case. Hence, in 2002 he could not make any grievance or claim promotion as a matter of right with retrospective effect. 8. Let us now consider the case’ of stagnation. Admittedly, the appellant stagnated in the post of Senior Scientific Assistant for twenty-three years. Such stagnation was deprecated by the Apex Court consistently in earlier precedents. It is true that the respondents in 1996 gave him the next higher scale to avoid stagnation as per the prevalent rules. He was entitled to get the next higher scale upon completion of twelve years service, similarly, the next scale upon completion another twelve years service. He worked in the post for twenty-three years. Hence, he unfortunately missed the second stage. The authority gave him the first benefit in 1996 which he was entitled to. Question thus remains whether such benefit should be directed to be given retrospectively or not. Mr. De strenuously contended before us that the Government order was issued in 1996 that was implemented. The appellant got benefit of the higher scale for few months as he retired within a few months after getting higher scale. Here we join issue with Mr. De. The reason for avoiding stagnation was dearly spelt out by the Apex Court in the case of Council of Scientific and Industrial Research & Anr. v. K.G.S. Bhatt & Anr., reported in 1989, Volume-IV, Supreme Court Cases, Page 635. It is true that in 1985 when the appellant completed twelve years period in the stagnated post there was no Government order to remove the stagnation. In our view this was the short comings of the respondent authority. The respondent authority should have issued such order much prior to 1996. They did not do so. If we do not interfere in the instant case on the issue of stagnation the appellant would remain stagnated for twenty-two years in the post, that would not the spirit of the Apex Court decision. 9. The Apex Court decision in the case of State of Manipur & Anr. They did not do so. If we do not interfere in the instant case on the issue of stagnation the appellant would remain stagnated for twenty-two years in the post, that would not the spirit of the Apex Court decision. 9. The Apex Court decision in the case of State of Manipur & Anr. (supra) and Prestige Lights Ltd. (supra) were cited by Mr. De in support of his contention that since the factum of filing of the suit was suppressed in the writ petition the respondent was not entitled to any relief. 10. The decision in the case of State of Jammu & Kashmir (supra) and Mallikarjuna Rao & Ors. (supra) were cited in support of his contention that the High Court is not competent to usurp the functions assigned to the Executives under the Constitution including its rules making power in any manner. 11. Mr. De cited three Apex Court decisions in the case of Sakuntala Sharma (supra), Mallikarjuna Rao (supra) as well as in the case of Supreme Court Employees Welfare Association (supra) in support of his contention that the Court has no power to direct the authorities to frame rule. 12. The learned Single Judge directed framing of rule by reserving 50% post of Junior Scientific Officer for the promotees to avoid stagnation. The respondent did not file any cross-objection. Hence, such plea was not available to them. 13. On the issue of power of the High Court we are of the view that we are to see that no employee stagnates in a post for a substantial period of his service career. We are prompted to observe as such in view of the Apex Court decision in the case of Council of Scientific and Industrial Research & Anr. v. K.G.S. Bhatt & Anr., reported in 1989, Volume - IV, Supreme Court Cases, Page 635. 14. We wish to view this problem from a different angle. As observed earlier, the respondent was promoted to the post of Senior Scientific Officer in the year 1973. He retired in 1996. For twenty-three years he stagnated in the post of Senior Scientific Assistant when just before few months of his retirement he was given the higher scale as discussed above. 15. The Apex Court in the case of Council of Scientific and Industrial Research & Anr. He retired in 1996. For twenty-three years he stagnated in the post of Senior Scientific Assistant when just before few months of his retirement he was given the higher scale as discussed above. 15. The Apex Court in the case of Council of Scientific and Industrial Research & Anr. (supra) observed as follows:- "It is often said and indeed, adroitly, an organisation public or private does not ‘hire a hand’ but engages or employs a whole man. The person is recruited by an organisation not just for a job, but for a whole career. One must therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive for personnel development as well. Every management must provide realistic opportunities for promising employees to move upward. The organisation that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, low morale, and ineffectual performance, among both non-managerial employees and their supervisors. There cannot be any modern management much less any career planning, manpower development, management development etc. which is not related to a system of promotions." 16. The Apex Court reiterated its view in the case of Dr. Ms. O.Z. Hussain v. Union of India, reported in 1990 (Supplementary), Supreme Court Cases, Page 688. Paragraph 7 of this decision being relevant herein is quoted below:- "This Court, has on more than one occasion, pointed out that provision for promotion increases efficiency of the public service while stagnation reduces efficiency and makes the service ineffective. Promotion is thus a normal incidence of service. There too is no justification why while similarly placed officers in other ministries would have the benefit of promotion, the non-medical 'A' Group scientists in the establishment of Director General of Health Services would be deprived of such advantage. In a welfare State, it is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promotional avenue for this category of officers. In a welfare State, it is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promotional avenue for this category of officers. It is, therefore, necessary that on the model of rules framed by the Ministry of Science and Technology with such alterations as may be necessary, appropriate rules should be framed within four months from now providing promotional avenue for the ‘A’ category scientists in the non-medical wing of the Directorate." 17. Such view was again reiterated by the Apex Court in the case of State of Tripura & Ors. v. K.K. Roy, reported in 2004, Volume - IX, Supreme Court Cases, Page 65. 18. On a sum total of the Apex Court decisions discussed above we are of the view that the respondent was unfairly discriminated without giving any adequate scope to get promotion. The authority appreciated such misery and ultimately gave him the benefit of the higher scale just on the eve of his retirement. In our view this would not meet proper justice to the respondent. On expiry of twelve years period in the stagnated post he was entitled to have the higher scale. Mr. De, however, contended that there was no system of giving higher scale to avoid stagnation prior to 1996. Hence, the authority could not give the benefit to the respondent earlier. In case the appellant is asked to give such benefit retrospectively from 1985 it would not only disturb the gradation list but also create complication in functioning of the institute. The fundamental question as posed by the Apex Court in the decisions discussed above is that a person must not stagnate in a post for long time that would not only disturb his mental set up but also reduce his efficiency. This is not only bad for the incumbent but also for the administration too. If we deny such relief to the respondent on the technical plea of the appellant that they delayed their decision on stagnation it would carry a wrong signal to the employees at large. It would be travesty of justice. 19. This is not only bad for the incumbent but also for the administration too. If we deny such relief to the respondent on the technical plea of the appellant that they delayed their decision on stagnation it would carry a wrong signal to the employees at large. It would be travesty of justice. 19. We, thus, direct the respondent authorities to give benefit of the Government order dated May 21, 1996 to the appellant retrospectively from 1985 when he had completed twelve years of service in the post of Senior Scientific Assistant. The appellant must be paid all his pecuniary benefits which are available to him in view of this decision. 20. The order of the learned Single Judge is modified accordingly. The appeal is disposed of without any order as to costs. 21. There would be stay of operation of this judgment and order for a period of four weeks after long vacation. Urgent xerox certified copy would be given to the parties, if applied for. Giri, J. : I agree.