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Meghalaya High Court · body

2014 DIGILAW 50 (MEG)

M. N. Bhardwaj v. Union of India

2014-04-01

T.NANDAKUMAR SINGH

body2014
Order (ORAL) Heard Mr. R Jha, learned counsel for the petitioner and Mr. SC Shyam, learned senior counsel assisted by Mr. B Deb, learned counsel appearing for the respondents. 2. It is an unfortunate case, but the Court cannot grant the prayers sought for in the present writ petition i.e. (i) a direction to the respondents to reinstate the petitioner with all consequential benefits including back wages and (ii) further direction to the respondents to consider the case of the petitioner for promotion to the post of Deputy Commandant from the date his batch mates were promoted in the year 1998 for the reasons in the following paras. 3. For giving the reasons for not entertaining this writ petition, it may be required to mention the brief facts leading to the filing the present writ petition. Accordingly, only the facts in thumbnail are recapitulated. 4. The petitioner was initially appointed as a recruit General Duty in Assam Rifles and later on, he was commissioned as Assistant Commandant, Assam Rifles in the year 1991. The petitioner was denied further promotion to the higher post of Deputy Commandant along with his batch mates in the year 1998. By an order issued by Lt. Gen. GK Duggal, Director General, Assam Rifles dated 01.07.2002, the petitioner was made to retire compulsory after attaining the age of 50 years as on 05.01.2002. Being aggrieved by the said order dated 01.07.2002 for compulsory retirement and also denial of the respondents to consider his case for promotion to the post of Deputy Commandant along with his batch mates in the year 1988, filed the writ petition i.e. WP(C)No.126(SH)2007 and the prayers sought for in the said writ petition i.e. WP(C)No.126(SH)2007 read as follows:- “(i) a writ in the nature of certiorari and mandamus shall not be issued for calling the records pertaining to medical category and compulsory retirement of the petitioner and for setting aside and quashing the impugned order dated 1st July, 2002 and 18th November, 2003. (ii) a writ in the nature of Mandamus shall not issued after quashing the impugned order of dismissal, directing the respondents to reinstate the petitioner in service with all consequential benefits including back wages. (ii) a writ in the nature of Mandamus shall not issued after quashing the impugned order of dismissal, directing the respondents to reinstate the petitioner in service with all consequential benefits including back wages. (iii) to direct the respondents to declare the petitioner in SHAPE-I category and be considered for promotion as Deputy Commandant from the date of his batch mates had been promoted in the year 1998 with grant of all consequential benefits.” 5. Learned Single Judge vide judgment and order dated 29.07.2010, dismissed the writ petition i.e. WP(C)No.126(SH)2007. The petitioner being aggrieved by the said judgment and order of the learned Single Judge dated 29.07.2010 for dismissing the writ petition i.e. WP(C)No.126(SH)2007 preferred an intra court appeal i.e. Writ Appeal No.43(SH)2010 before the Division Bench. The said writ appeal was also finally disposed of by passing the final judgment and order dated 04.11.2011 wherein, the writ appeal was partly allowed. Copy of the judgment and order of the Division Bench dated 04.11.2011 passed in Writ Appeal No.43(SH)2010 is available at Annexure-G to the present writ petition. 6. The Division Bench while allowing the appeal i.e. Writ Appeal No.43(SH)2010 by passing the final judgment and order dated 04.11.2011, did not quash or interfere with the order dated 01.07.2002 for compulsory retirement of the writ petitioner. The corollary of the final judgment and order of the Division Bench dated 04.11.2011 is that the compulsory retirement order dated 01.07.2002 is not interfered with. The result for non-interference of the compulsory retirement order of the petitioner dated 01.07.2002 is that the petitioner is no more in service. In the normal service parlance, an employee who had already been retired from service cannot be considered for promotion unless and until that employee is taken back in service. In the instant case, the petitioner who had already retired from service cannot be considered for further promotion i.e. in the higher post of Deputy Commandant. The petitioner did not file the appeal against the judgment and order of the Division Bench dated 04.11.2011 passed in Writ Appeal No.43(SH)2020 as on today. In the result, the petitioner had already been retired from service. Over and above, the judgment and order of the Division Bench dated 04.11.2011 had attained finality. 7. The petitioner did not file the appeal against the judgment and order of the Division Bench dated 04.11.2011 passed in Writ Appeal No.43(SH)2020 as on today. In the result, the petitioner had already been retired from service. Over and above, the judgment and order of the Division Bench dated 04.11.2011 had attained finality. 7. In the above factual backdrop, in the present writ petition filed by the petitioner, who had already been retired from service, reliefs sought for mentioned above cannot be granted. 8. In the result, this writ petition in the peculiar facts and circumstances of the case is not entertained and accordingly dismissed.