JUDGMENT & ORDER : The writ petitions being W.P.(C) No.84 of 2017 [Shri Dipak Kumar Trivedi & Others versus the State of Tripura & Others] & W.P.(C) No.271 of 2017 [Sri Suman Saha versus the State of Tripura & Others] are consolidated for disposal by a common judgment and order inasmuch as the writ petitioners were posted as Havilder (Clerk) by transfer by maintaining their seniority with retrospective effect from 13.11.2009 against 10(ten) UR vacancy of Havilder (Clerk) as per the judgment and order dated 15.12.2010 delivered in WP(C) No. 188 of 2006. 2. By means of this writ petitions, the petitioners have urged this court for setting aside the order under No.2462-77/F.2(40)/DAP/TSR/RSV/10 dated 09.03.2011 [Annexure-11 to the writ petition] and the decision contained in the communication under No.1714/F.26(11)/DAP/TSR/RSV/11 dated 01.03.2016 [Annexure-13 to the writ petition] and the order under No.4781-96/F.2(78)/DAP/TSR/RSV/08 dated 19.10.2009 [Annexure-14 to the writ petition]. These orders and decisions have been challenged in WP(C) No.271 of 2017 by the writ petitioner and in WP(C) No.84 of 2017, the writ petitioners have challenged the order under No.21887/F.8(87)-PHQ/TSR/2010 dated 02.06.2014 issued by the respondent No.2, the Director General of Police, Tripura. Further, it has been urged in WP(C) No.84 of 2017 to declare that the petitioners are entitled to be ‘promoted’ to the post of Havilder (Clerk) with effect from 10.02.2004 and to the post of Naib Subedar (Clerk) with effect from 09.10.2009 maintaining their seniority over the respondents No.5 to 15 in terms of the judgment and order dated 15.12.2010 delivered in WP(C) No.188 of 2006. It has been urged that the date of promotion as reflected in the order dated 09.03.2011 shall be preponed from 13.11.2009 to 10.02.2004. Even though, there would be some insignificant incongruity, but having considered the broader spectrum of the controversy, these two cases are combined inasmuch as, according to this court, both the writ petitions hinge on the controversy relating to interpretation of Rule 37 of Tripura State Rifles (Recruitment) Rules, 1984, hereinafter would be referred to as the Rules 1984, in short. Rule 37 of the rules 1984 provides as under : “37. Rule 37 of the rules 1984 provides as under : “37. Recruitment Rules for the posts of Havildar (Clerk): (1) These posts shall be filled by transfer from amongst general duty Havildar failing which from amongst Naiks, failing which from amongst Lance Naiks and failing which from amongst Riflemen, who- (a) are willing for such transfer; (b) have passed at least matriculation or an equivalent examination; (c) possess minimum speed of 30 words per minute in English typing; (d) have put in at least 2 years service in the Rifles; and (e) have been approved for such transfer by the Deputy Inspector General. (2) In case filling up of the posts by method specified in sub rule (1) is not possible, these posts may be filled by re-employment of ex-services or ex-Central Police Organisation personnel or by direct recruitment. (3) To be eligible for re-employment, an ex-service or ex-Central Police Organisation personnel should- (a) have retired or discharged, nor earlier than 24 months of such re-employment, in corresponding or higher clerical rank, from formation concerned; (b) have possessed exemplary or very good character while in previous service; (c) not have attained the age of 40 years as on 1st day of July of the year in which appointment is made; and (d) have been approved for such re-employment by the Deputy Inspector General, who may relax any of the conditions specified in this sub-rule, in suitable cases, by order in writing. (4) Direct Recruitment shall be made from amongst person who- (a) have passed at least matriculation or an equivalent examination; (b) have minimum speed of 30 words per minute in English typing? (c) are within age group of 18-25 years as on 1st day of July of the year in which advertisement for recruitment is made; (d) possess chest and height measurements as are specified for recruitment as Riflemen in Rule 25; and (e) should have qualified in such physical, written and oral tests as may be prescribed by the Inspector General. (5) The Deputy Inspector-General may relax, by order in writing any or all the qualifications/conditions specified at item (c) and (d) of sub-rule (4) in suitable cases. (5) The Deputy Inspector-General may relax, by order in writing any or all the qualifications/conditions specified at item (c) and (d) of sub-rule (4) in suitable cases. (6) The Board for making the recruitment specified in sub-rule (4) shall consist of the Deputy Inspector-General, Commandant of the Battalion concerned and Deputy Commandant of the Battalion, concerned and when Deputy Commandant is not available the senior most Assistant Commandant of the Battalion, concerned. (7) The Inspector-General may lay down, by order in writing, the procedure for screening of candidates considered for recruitment under sub-rule(4). (8) The persons recruited under sub-rule(4) shall be liable to discharge, without compensation, if they fail to complete within 12 months of their recruitment, such training in drill, weapons, office procedure and accounts as may be laid down by the Inspector-General by order in writing.” 3. There is no dispute that the petitioners sought transfer against the vacant post of Havilder (Clerk) as they were occupying the post of Havilder (Clerk) at the relevant point of time when the memorandum under No.7926-38/F.2(40)/DAP/TSR/03 dated 18.12.2003 was issued as a part of the special drive to transfer to the vacant posts of Havilder (Clerk) in TSR Bn. For purpose of selection, the test consisted of the parts as under : 1. Type test for ten minutes-30 words per minute. Full marks-50, Pass marks-20. 2. Written test and General knowledge. Full marks-40, Pass marks-15. 3. Interview Full marks-10, Pass marks-04. 4. In the said memorandum dated 18.12.2003, it was clearly spelt out as follows : “The written test shall consist of paragraph writing, letter/application, grammar, knowledge of TSR Act and Rules etc. It shall be of 2(two) hours duration. Nominal roll of candidates of different TSR Units is enclosed. The service particulars of the candidates shall be verified by the commandants concerned as per following proforma. (1) SL. No. (2) Regimental No. Rank and Name (3) Category (4) Educational Qualification (5) Date of appointment as Riflemen and date of subsequent promotion (6) Typing speed in English. Their service particulars duly authenticated by the respective Commandant shall be sent to the undersigned by 31.12.2003 positively.” All the petitioners in these writ petitions had applied for such recruitment under Rule 37(1) of the said rules, 1894. But they were not selected. Their service particulars duly authenticated by the respective Commandant shall be sent to the undersigned by 31.12.2003 positively.” All the petitioners in these writ petitions had applied for such recruitment under Rule 37(1) of the said rules, 1894. But they were not selected. Even though, at the relevant point of time, the petitioners were occupying the post under the general duty category and in the respective post, the private respondents were junior to the petitioners. Despite that, the private respondents were recruited/promoted as Havilder (Clerk) in the TSR Bns. with effect from 10.02.2005 superseding the petitioners. The petitioners along with three others had challenged the order No.637-47/F.2(40)/DAP/TSR/RSV/03/ dated 10.02.2005 whereby the private respondents and some others were appointed as the Havilder (Clerk) in the TSR Bns. by filing the writ petition being WP(C) No.188 of 2006 in the Gauhati High Court which at the relevant point of time had territorial jurisdiction over the subject matter. 5. By the PHQ order No.58041-47/F.8(87)-PHQ/TSR/ 2004 dated 02.12.2004 a departmental promotional committee (DPC) was constituted for review of the proceeding of the DPC as was set in motion by the officer Order No.180/IGP(AP & OPS) dated 11.12.2003 for filling up of the vacant post of Havilder (Clerk) in the TSR Bn. From the memorandum dated 18.12.2003, the terms of reference can be gathered from the minutes of the said review DPC, held on 18.03.2005. The terms of reference are as follows : (i) The review DPC shall examine the proceedings of the original DPC taking into the consideration of the eligibility for the candidates as on the date of meeting of the original DPC including the candidates already in the panel on the recommendation of the original DPC. (ii) The review DPC shall not conduct any test etc., but only examine the original DPC proceedings in connection with the eligibility of the candidates and give its proceedings. (iii) The review DPC shall restrict it’s scrutiny to the relevant documents/service record etc. for the period relevant to the first DPC. (iv) The review DPC should not change any grading of the personnel considered by the earlier DPC without any valid reason (to be record in writing). (v) Persons who become eligible on a subsequent date should not come under zone of consideration of the review DPC. for the period relevant to the first DPC. (iv) The review DPC should not change any grading of the personnel considered by the earlier DPC without any valid reason (to be record in writing). (v) Persons who become eligible on a subsequent date should not come under zone of consideration of the review DPC. (vi) Review DPC shall categorically mention the candidates from amongst the personnel found eligible as per TSR (Recruitment) Rule, 1984 and out of the candidates actually appeared the first DPC taking into the consideration the number of vacancies so arose at the time of meeting of the original DPC.” 6. In the DPC minutes, it has been clearly observed that as per Rule 37(1) of the Rules, 1984 the post of Havilder (Clerk) shall be filled by transfer from amongst the General Duty Havilders, failing which from Naiks, failing from Lance Naiks and failing which from Riflemen and it has been mentioned that a candidate should be considered eligible if he fulfils the following criteria : (i) The candidate is willing for such transfer. (ii) He passed at least matriculation or equivalent examination. (iii) He possesses minimum speed of 30 words per minute in English typing. (iv) He has put at least 2 years of service in the Rifles. (v) He has approved for such transfer by the DIG.” 7. 97(Ninety Seven) candidates were recommended to participate in the said process by the Commandants of the Bns. and out of 97 candidates three candidates were found to be not eligible because they did not complete two years service in the rifle. It has been clearly observed in the DPC minutes that some candidates belonging to the other trades were allowed to appear for the post of Havilder (Clerk). Accordingly, 11 candidates were declared not suitable in terms of Rule 37(1) of the Rules, 1984. Out of 94 candidates 86 candidates appeared in the written and type tests and those who were qualified they were asked to appear for the interview. 41 candidates were found qualified and the following 5 candidates since belonged to the other trades, by the review DPC they were declared not eligible for recruitment for the post of Havilder (Clerk). Out of 94 candidates 86 candidates appeared in the written and type tests and those who were qualified they were asked to appear for the interview. 41 candidates were found qualified and the following 5 candidates since belonged to the other trades, by the review DPC they were declared not eligible for recruitment for the post of Havilder (Clerk). However, in the original DPC, those five persons as noted below were recommended for recruitment and they were included in the list of 29 candidates (UR-25, SC-03 & ST-01): No.96030631 NK(Opr) Khokan Debnath (1) No.92020296 NK (M/A) Dulal Debnath (2) No.92020506 NK(Opr) Abdual Sahid (3) No.92020738 NK (Opr) Tejaram Khareshy and (4) No.96031018 NK (Opr) Ashini Debbarma 8. In terms of the Rule 9(1)(a) of Tripura TSR (DC/SC etc.) Rules, 1986 and according to the review DPC, the original DPC should have prepared a panel for recruitment of Havilder (Clerk) on the basis inter-se seniority from amongst the qualified candidates. According to them, the panel of qualified candidates in the UR category for posting as Havilder (Clerk) should have been as under : Sl. No. Regt. No. Rank & Name Unit Category 1. 00060008 6th Bn TSR UR 2. 96030568 4th Bn TSR UR 3. 01070306 7th Bn TSR UR 4. 01070584 10th Bn TSR SC 5. 88010558 8th Bn TSR UR 6. 91020103 2nd Bn TSR SC 7. 92020385 7th Bn TSR SC 8. 91020098 8th Bn TSR UR 9. 91010506 1st Bn TSR UR 10. 96030934 3rd Bn TSR UR 11. 97031092 3rd Bn TSR UR 12. 97031097 3rd Bn TSR UR 13. 97031136 3rd Bn TSR UR 14. 97031191 3rd Bn TSR UR 15. 97031161 1st Bn TSR UR 16. 97031255 3rd Bn TSR UR 17. 97040686 4th Bn TSR UR 18. 97040642 4th Bn TSR UR 19. 97050392 5th Bn TSR UR 20. 97050039 5th Bn TSR UR 21. 98041113 4th Bn TSR UR 22. 98050521 5th Bn TSR UR 23. 98060657 6th Bn TSR UR 24. 98050515 5th Bn TSR UR 25. 98050537 5th Bn TSR UR Serial No.2 is the writ petitioner in WP(C) No. 271 of 2017 whereas Serial No.11, 13, 14, 15 & 23 are the petitioners in WP(C) No. 84 of 2017. 98041113 4th Bn TSR UR 22. 98050521 5th Bn TSR UR 23. 98060657 6th Bn TSR UR 24. 98050515 5th Bn TSR UR 25. 98050537 5th Bn TSR UR Serial No.2 is the writ petitioner in WP(C) No. 271 of 2017 whereas Serial No.11, 13, 14, 15 & 23 are the petitioners in WP(C) No. 84 of 2017. It is apparent from the said table that the writ petitioner in WP(C) No.271 of 2017 namely Suman Saha was holding the post of Habilder GD and the writ petitioners in WP(C) No.84 of 2017 namely Sri Dipak Kumar Trivedi, Sri Santosh Kumar Singh, Sri Kedar Singh, Sri Tarun Kumar Singh and Sri Rajesh Kumar Mahato were holding the post of Riflemen (GD). When those five persons who were excluded by the review DPC were reverted from the post of Havilder (Clerk) in terms of the recommendation made by the review DPC, they had immediately rushed to the Gauhati High Court and obtained the stay order against their reversion. In the writ petitions filed by them being WP(C) No.480 of 2005, WP(C) No.481 of 2005, WP(C) No.483 of 2005 and WP(C) No.484 of 2005, Khokan Debnath filed a separate writ petition and he has also obtained separate stay order. 9. By the judgment and order dated 01.09.2010, the said reversion orders were set aside by the Gauhati High Court on observing as under : “31. Having regard to the specific and unambiguous language employed in Rule 37 of the Recruitment Rules, in my view, there is no scope whatsoever to suppose that the prohibition on the applicability thereof interpreted by the respondents is appropriate and, accordingly, the impugned order of reversion by cancelling the petitioner’s promotion/appointment as Havildar(Clerk) is apparently illegal. Accordingly, the impugned order is set aside and quashed.” When the said judgment and order reached its finality on culmination of the legal proceedings, those five persons were appointed in the same post from 10.02.2004. 10. In the said judgment, the Gauhati High Court while interpreting the Rule 37 (1) of the Rules, 1984 has observed as under : “23. On careful examination of the provision of Rule 37 it appears that contrary to what has been submitted by the learned Government Advocate, apparently Rule 37 is an exception designed to meet the unforeseen event of non availability of appropriate person to man the post of Havildar (Clerk) from normal source. On careful examination of the provision of Rule 37 it appears that contrary to what has been submitted by the learned Government Advocate, apparently Rule 37 is an exception designed to meet the unforeseen event of non availability of appropriate person to man the post of Havildar (Clerk) from normal source. In Rule 37(1) of the Rules, 1984, it is clear that post of Havildar (Clerk) shall be first filled up by posting general duty Havilders by way of transfer. Therefore, indication of other personnel belonging to the subordinate rank, as mentioned in the Rules, for the purpose of recruitment, in fact, is an contingency arrangement, in the event of failure to recruit Havildar (Clerk) from amongst the general duty Havildars.” [Emphasis added] 11. It was also observed that the post of Havilder (Clerk) cannot be restricted to only General Duty Personnel. In this regard, any narrow interpretation to restrict the recruitment of Havilder (Clerk) from amongst the General Duty Naiks could not be held in terms of the object espoused in the rules. After the said judgment, the writ petition filed by the petitioners herein being WP(C) No. 188 of 2006 was disposed by the judgment and order dated 15.12.2010. In the said judgment dated 15.12.2010 averments from the reply were extensively reproduced for laying the background of challenge in the writ petition. The relevant part as extracted in the said judgment is reproduced as those averments have laid the context in which the Gauhati High Court had passed the said direction on the state respondents: “In view of the Hon’ble High Court orders as stated above, the board has decided to keep vacancies of 15 (ST-1, UR-14) posts of Havildar (Clerk) of T.S.R. BNs as per order of the Hon’ble High Court as passed in connection with Case No. W.P.(C) 483 of 2005 and W.P.(C) 188 of 2006. On scrutiny of service records in respect of 12 “UR” category candidates mentioned at Para 8 above, the board finds that, out of these 12 candidates, the candidates whose name appeared at Sl.No.2 NK (GD) Haradhan Mahajan has been promoted to the rank of Havildar (GD) on 25.09.2006 as per Rule 26(1) of T.S.R.(Recruitment) rules, 1984, Sl.No.4 Rfn (GD) Santosh Kr. Singh has been appointed to the post of Naik (Gr-II Wireless Opr) on 14.11.2006 by way of transfer as per Rule 42(1), Sl. Singh has been appointed to the post of Naik (Gr-II Wireless Opr) on 14.11.2006 by way of transfer as per Rule 42(1), Sl. No.8 and 9 namely Rfn (GD) Rajesh Kr. Mahato and Rfn (GD) Anushya Prasad have been appointed to the post of Naik (Wireless Opr) on 1.8.2009 by way of transfer as per Rule 42(1), Sl. No.5 and 6 namely Rfn (GD) Kedar Singh Panwar and Rfn (GD) Tarun Kr. Singh promoted to the rank of L/NK (GD) on 29.03.2007 as per Rule 26(1) and Sl. No.7 Rfn (GD) Abhijit Debnath has been appointed to the post of Havildar (Radio Tech) on 1.8.2009 by way of transfer as per Rule 46(1) of T.S.R. (Recruitment) Rules, 1984. It may be pointed out that, as provision laid down in sub-rule (1) of Rule 37 of the T.S.R.(Recruitment) Rules, 1984, the cases of those candidates who have been appointed to the posts of Naik (Gr.III Wireless Operator) and Havildar (Gr-III Radio Technician) cannot come under zone of consideration for their further appointment to the post of Havildar (Clerk) by way of transfer, as the post of Havildar (Clerk) in T.S.R. BNs shall be filed up by transfer from amongst General duty Havildars, failing which from amongst Naiks, failing which from amongst Lance-Naiks and failing which from amongst Riflemen. In this connection, it is mentioned here that 04 Naik (Gr-III Wireless Operator) and 01 Naik (Medical Asstt.) who were appointed to the post of Havildar (Clerk) in the year 2004 by way of transfer had been reverted to the posts from which posts they were transferred to the post of Havildar (Clerk). The reverted person filed a writ petition in the Hon’ble Gauhati High Court, Agartala Bench vide case No.W.P.(C) No. 483 of 2005 which is under sub-judice. Taking into consideration the facts & circumstances mentioned above, the board has decided, not to consider the cases of 10 “UR” category candidates whose name appeared at Sl.No.1 to 10 at Para 8 aboveunder zone of consideration for appointment to the post of Havildar (Clerk) by way of transfer, as a writ petition vide case No.W.P.(C) 188 along with C.M. Appl. 200 of 2006 filed by them in the Hon’ble Gauhati High Court, Agartala Bench is under sub-judice. 200 of 2006 filed by them in the Hon’ble Gauhati High Court, Agartala Bench is under sub-judice. However after disposal of the court case, their cases for appointment to the post of Havildar (Clerk) by way of transfer may be considered in order of seniority with retrospective effect i.e. from the date appointment as Havildar (Clerk) of their juniors (No.01080875 Rfn (GD) Naresh Kumar and No.97031211 Rfn (GD) Aditya Kr. Yadav) whose cases are recommended by the current board or as per final order of the Hon’ble Gauhati High Court, Agartala Bench. The board has further seen that of 12 “UR” category candidates whose name appeared at Sl. No. 1 to 12 at Para 8 above, 02 UR category candidates whose name appeared at Sl. No. 11 and 12 namely No. 010808 75 Rfn Naresh Kumar (UR) and No. 97031211 Rfn Aditya Kr. Yadav (UR) of 8th Bn, T.S.R. and 3rd Bn, T.S.R. respectively did not file any writ petition against PHQ memo No. 1174553/F.8(135)-PHQ/TSR/Pers-II/05 dated 5.4.2006. Hence the board has decided to include the cases of both the candidates in the current select panel for consideration of their appointment to the post of Havildar (Clerk) by way of transfer.” 12. In view of the stand taken by the state respondents in their reply, the respondents No.29 and 30 namely (29) 01080875 Naresh Kumar, Havildar (Clerk), care of 8th Bn. TSR Commandant & (30) 97031211 Aditya Kr. Yadav, Havildar (Clerk) care of 4th Bn. TSR Commandant whose names were in Serial No. 111 and 112 in the panel dated 12.05.2004 along with writ petitioners, were promoted on the ground that they did not file any writ petition whereas the ten vacancies were kept open for filling up after disposal of the cases from the date when the respondents No.29 and 30 as stated were appointed. It was assured from the state respondents that the seniority of the petitioners in order of merit shall be restored and maintained. Thereafter, the court had observed that the case of the petitioners for promotion was not considered on the ground of pendency of the writ petition. Their case would be considered after disposal in accordance with seniority. It was assured from the state respondents that the seniority of the petitioners in order of merit shall be restored and maintained. Thereafter, the court had observed that the case of the petitioners for promotion was not considered on the ground of pendency of the writ petition. Their case would be considered after disposal in accordance with seniority. In terms of the said undertaking as quoted above, the Gauhati High Court in the said judgment and order had further observed as under : “..........Accordingly, by the said letter, the Deputy Inspector General of Police was asked to prepare a list willing candidates and subsequently a select list for promotion was prepared and the said select list including the names of the respondent Nos. 29 and 30 thereby depriving the writ petitioners. In view of the panel dated 12.05.2004, the contention made in the 17.11.2005 appears to be contradictory. Therefore, it is not correct to say that there was no eligible candidates from the general duty category. That apart, in view of appointment of the respondent Nos.29 and 30, whose names appeared at Sl. Nos. 11 and 12 in the earlier panel dated 17.05.2004, the refusal to appoint the writ petitioners, whose names also appeared in the said panel at Sl. Nos. 1 to 10, on the ground of pendency of the writ petition filed by the petitioners cannot be the sufficient and ground to deprive the petitioners from the benefit of promotion, inasmuch as there was no stay order in respect of the appointment of the petitioners on promotion. Fact remains that at the relevant time, ten vacant posts were available in the said establishment and the panel showing the names of the qualified candidates included the names of the petitioners at Sl. Nos.1 to 10 of the said panel. Therefore, there is sufficient merit in this writ petition. 7. However, in view of the submission that the petitioners cases would be considered for promotion maintaining their seniority with retrospective effect after disposal of this writ petition, I am of the considered opinion that this writ petition should be disposed of directing the State respondents to consider the petitioners case for promotion maintaining their seniority with retrospective effect.” [Emphasis added] 13. The said judgment and order dated 15.12.2010 was challenged by some of the petitioners by filing a writ appeal being WA No. 39 of 2011. The said judgment and order dated 15.12.2010 was challenged by some of the petitioners by filing a writ appeal being WA No. 39 of 2011. However, the said appeal was withdrawn with leave of the court as reflected in the order dated 10.12.2013 with liberty reserved to file a fresh writ petition in respect of their promotion. By the order dated 09.03.2011, the petitioners were posted or recruited in the post of the Havilder (Clerk) by transfer with their seniority in the said post from 13.11.2009. In Para-3 of the said order dated 09.03.2011 [Annexure-11 to the writ petition] the following insertion was made : “3. Their seniority shall be restored with retrospective effect and be placed just above Havildar (Clerk) Naresh Kumar of 1st Bn TSR.” 14. Much after the said order was passed, some of the petitioners had clamoured for their seniority with effect from 10.02.2004 by filing a representation dated 20.02.2016 [Annexure-12 to the writ petition being WP(C) No. 271 of 2017]. The petitioners have also challenged the order under No.4781-96/F.2(78)/DAP/TSR/RSV/08 dated 19.10.2009 whereby a few Havilder (Clerk) whose names are mentioned in order dated 19.10.2009 [Annexure-14 to the writ petition] were appointed in the Grade of Naib Subedar (Clerk) under the TSR Bn. subject to outcome of the WP(C) 140 of 2008. It was however tagged that subject to outcome of the writ petition being WP(C) No.140 of 2008, the order of promotion was issued with the condition that, if required, by the subsequent event the person who got their promotion to the post of Naib Subedar(Clerk), they shall invariably be reverted. The petitioners have challenged the said order dated 19.10.2009 as by virtue of seniority, if they are accommodated in the post of Havilder(Clerk) from 10.02.2004, the petitioners may be considered for promotion to the post of Naib Subedar(Clerk) . In WP(C) No.84 of 2017, the petitioner has challenged the said order dated 19.10.2009 and sought a direction from this court to treat their promotion to the post of Naib Subedar (Clerk) with effect from 19.10.2009. 15. In terms of the judgment and order dated 17.09.2015 delivered in WP(C) 347 of 2012 the order dated 11.12.2016 [Annexure-9] was passed by promoting the Havilder (Clerk) who were reverted and the said order of reversion was quashed by the Gauhati High Court. 15. In terms of the judgment and order dated 17.09.2015 delivered in WP(C) 347 of 2012 the order dated 11.12.2016 [Annexure-9] was passed by promoting the Havilder (Clerk) who were reverted and the said order of reversion was quashed by the Gauhati High Court. It was directed to promote them with retrospective effect from 19.10.2009 when their juniors were promoted to the post of Naib Subedar(Clerk) against four supernumerary posts (UR) of Naib Subedar(Clerk) in TSA Bns. 16. It has been contended by the state-respondents, represented by Mr. D.C. Nath, learned counsel and Mr. J. Majumder, learned counsel that from the combined seniority list of the Havilder (Clerk) it would be apparent that no supersession was caused to the petitioners as they were all appointed as the Havilder (Clerk) with effect from 13.11.2009. The combined seniority list dated 06.07.2011 is available at Annexure-A to the reply filed by the state-respondents in WP(C) 84 of 2017. 17. Mr. D. Bhattacharjee, learned counsel appearing for the respondents No.5, 6, 7, 8, 9, 10 & 12 has submitted that the petitioners cannot now question the impact of the judgment and order dated 15.12.2010 for claiming seniority from 10.12.2004 in the grade of Havilder (Clerk) as the said judgment by afflux of time has reached to its finality. That apart, Mr. Bhattacharjee, learned counsel has submitted that these writ petitions are stale inasmuch as the writ petitions have been filed in the year 2017 challenging the order of promotion so far their retrospective operation is concerned, as the very order was passed on 09.03.2011 giving retrospective benefit from 13.11.2009. This court may not reopen the issue on the face of the judgment and order dated 15.12.2010 delivered in WP(C) 188 of 2006. Both Mr. Bhowmik, learned senior counsel and Mr. Somik Deb, learned counsel appearing for the petitioners have made their closing statement by asserting that in the said judgment dated 15.12.2010, it has been categorically observed that on maintaining the seniority, the petitioner shall be appointed but that was not complied with. As such, a further direction is required. The said judgment dated 15.12.2010 was referred in respect of the appointments of the respondents No.29 and 30 of that writ petition, but no further reference was made in respect of the private respondents who were also party to the said writ petition. As such, a further direction is required. The said judgment dated 15.12.2010 was referred in respect of the appointments of the respondents No.29 and 30 of that writ petition, but no further reference was made in respect of the private respondents who were also party to the said writ petition. In the said judgment dated 15.12.2010, a clear finding has been returned that the respondents No.29 and 30 were at serial No.11 and 12 of the earlier panel dated 17.05.2004, whereas the name of the petitioners of the said writ petition were in the serial No.1 to 10 of the panel. It is thus important to explore that whether the persons who were appointed as the Havilder (Clerk) with effect from 10.02.2004 was part of the said panel or not. 18. From the minutes of the review DPC, this confusion can be removed. In the minutes of the review DPC, it has been clearly stated that those people who were earlier appointed meaning prior to the review DPC, were recommended by the original DPC and they were appointed on 10.02.2004. As stated earlier, subsequently the review DPC was constituted by the order dated 02.12.2004 and they had restructured the panel and the same was recommended by them on exclusion of the five persons who were engaged by the earlier order dated 10.02.2004. But for interference by this court, the exclusion which caused reversion of the five persons as named above was set aside by the Gauhati High Court and they were reinstituted with their original date of appointment i.e. 10.02.2004. As such, the said panel was virtually got negated and the earlier panel was restored except inclusion of the persons who did not fall in the General duty category. No infirmity was pointed out by the DPC. Thus, the gross result would be restoration of the earlier panel. 19. Mr. Somik Deb, learned counsel has emphatically stated that the entire panel was wrongly prepared inasmuch as Rule 37(1) of the Rules, 1984 is unambiguous. However, the Gauhati High Court has innovatively interpreted the rule deeming inclusion of the other categories of the incumbents for posting or promotion to the post of Havilder (Clerk). According to Mr. 19. Mr. Somik Deb, learned counsel has emphatically stated that the entire panel was wrongly prepared inasmuch as Rule 37(1) of the Rules, 1984 is unambiguous. However, the Gauhati High Court has innovatively interpreted the rule deeming inclusion of the other categories of the incumbents for posting or promotion to the post of Havilder (Clerk). According to Mr. Deb, learned counsel proper interpretation ought to have been that the post of Havilder (Clerk) shall firstly filled by transfer from amongst general duty Havilder failing which from amongst Naiks, failing which from amongst Lance Naiks and failing which from amongst Riflemen. According to Mr. Deb, learned counsel that was not followed. This submission has to be tested in the context how the selection was carried out. 20. There is no dispute that after the names were recommended by the concerned battalions, there was a written test, type test and interview. Thereafter, a merit list was prepared and from the judgment and order dated 15.12.2010, it clearly transpires that the state had averred that there was no DPC between 31.01.2004 and 27.07.2008. The panel that was kept for future recruitment or transfer had also exhausted during that time. It was the decision of the board that they will not consider the name of the 10(ten) UR candidates whose names appeared in serial No.1 to 10 in the wait list. The state-respondents did mean that after disposal of the court case their case for appointment to the post of Havilder (Clerk) by way of transfer may be considered in order of seniority with retrospective effect i.e. from the date of appointment as Havilder (Clerk) of their juniors namely Naresh Kumar and Aditya Kumar Yadav. The said averment was treated as undertaking and was accepted by the court. Therefore, under any condition, according to the considered opinion of this court, the petitioners cannot claim their seniority from 10.02.2004 inasmuch the Naresh Kumar and Aditya Kumar Yadav were engaged on 13.11.2009 and accordingly, the petitioners’ seniority was accordingly set up. The petitioner did not challenge the said judgment and order dated 15.12.2010. As such, the said decision is binding upon the petitioners. In Forward Construction Co. and Others versus Prabhat Mandal and Others reported (1986) 1 SCC 100 the apex court has observed as under : “20. The petitioner did not challenge the said judgment and order dated 15.12.2010. As such, the said decision is binding upon the petitioners. In Forward Construction Co. and Others versus Prabhat Mandal and Others reported (1986) 1 SCC 100 the apex court has observed as under : “20. So far as the first reason is concerned, the High Court in our opinion was not right in holding that the earlier judgment would not operate as res judicata as one of the grounds taken in the present petition was conspicuous by its absence in the earlier petition. Explanation IV to Section 11 CPC provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming with the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have actually heard and decided. It could only be deemed to have been heard and decided. The first reason, therefore, has absolutely no force.” 21. The method as followed by the state-respondents were never questioned by the petitioners. They had participated in the selection test and the state-respondents had taken a stand that on the basis of the merit, the said transfer or recruitment was made. Even they had not made any statement that the selection was made on the basis of the merit cum seniority. They have taken a categorical stand in the emerged context that at the time of recruitment, the seniority of the petitioners of the writ petition being WP(C) 188 of 2006 shall be protected so that they do not become juniors to the respondents No.29 and 30. They have taken a categorical stand in the emerged context that at the time of recruitment, the seniority of the petitioners of the writ petition being WP(C) 188 of 2006 shall be protected so that they do not become juniors to the respondents No.29 and 30. The said stand was accepted and approved by the earlier judgment. That apart, the petitioners allowed that position being finally settled. Moreover, they have approached this court after six years of issuance of the order dated 09.03.2011 [Annexure-2 to the writ petition being WP(C) 84 of 2017]. In the circumstances, this court cannot be persuaded to reopen the controversy. Having observed thus, the writ petition stands dismissed. Before parting, the state-respondents are directed to revisit the mode of selection vis-a-vis Rule 37(1) of the Rules, 1984. The Rule 37(1) provides precedence over one category to other category and as such, if for any reason merit is determined the merit shall be determined only for purpose of setting up a bench mark to transfer or recruit in the post of Havilder (Clerk) from the post of Havilder Clerk (General duty) or if the adequate number of Havilder Clerk (General duty) with the required bench mark were not found, then the similar approach may be adopted one after another, in order of precedence as engrafted in the said rule. But the process that was followed was an open selection test and it appears to this court that the merit as determined on the basis of the selection test was taken into consideration by the departmental promotional committee for preparation of the select panel or the wait panel. However, since no challenge was thrown in respect of that aspect, this court in such a belated stage will not unsettle the settled position for improper application of Rule 37(1) of the Rules, 1984 or for the mode of selection. This court has strongly felt that the Executive shall take an exercise in this regard so that such controversy does not reappear in future. There shall be no order as to costs.