Siddharth, J. - (1.) Heard Sri Amit Krishan, learned Counsel for the petitioner and Sri M.P.Sarraf, learned Counsel for the respondents.
(2.) The above noted writ petitions were finally decided by this Court, by its order dated 10.09.2008 as follows: " There are two connected writ petitions and are being decided together. Heard Sri R.B.Singhal learned counsel for the petitioner and Sri M.P. Sarraf, learned counsel who has appeared for the respondent bank. The submission of learned counsel for the petitioner is that the Junior persons to the petitioner were called for interview and the written examination and several of them have been selected whereas the vacancies available to be filled up were not notified. It is also stated that the appellate order passed by the respondent no.2 has not been supplied to the petitioner and only a communication as contained in the letter dated 21.02.1998 (Annexure-4) and 25.08.1998 (Annexure-8) has been made to the petitioner informing that the appeal preferred against the non promotion of the petitioner has been rejected. Learned counsel for the petitioner has referred to the letter dated 25.08.1998 to state that the operative portion of the appellate order indicates that the appeal has been rejected on the basis of his performance in written test and interview etc. and hence there were no grounds for allowing the appeal of the petitioners. According to learned counsel for the petitioner the stand taken by the respondents in the counter affidavit to deny the promotion to the petitioners was identical and similar to the stand taken by them in SWP No.783 of 1997 Subhash Chand Gupta and two other vs. State Bank of Patiala before the High Court of Jammu & Kashmir. The petitioners allege to be placed at serial No.56 and 86 of the list of candidates who have qualified the written test for promotion to J.M.G.S.-1 ( Group-A) 1996. The petitioners allege that the three petitioners before the High Court of Jammu & Kashmir were placed at serial No.83, 84 and 90 of the said list. According to them the case of the aforesaid three persons was considered by the High Court of Jammu & Kashmir on the very same and identical defence taken by the respondents in this writ petition and by the judgment and order dated 31.05.2001 (Annexure 1 to the rejoinder affidavit) the aforesaid three persons were given the benefit of promotion. Learned counsel hs referred to the findings recorded by the learned Single Judge of the Jammu & Kashmir High Court to indicate that the total number of vacancies were not notified the number of persons called for was much more than five times the number of vacancies and after the written test the number of candidates who were called for interview was more than 1 times the number of vacancies. He states that the aforesaid finding recorded by the learned Single Judge of the Jammu & Kashmir High Court clearly required the petitioners therein to be granted relief of promotion since the procedure adopted by the respondent bank in the examination of 1996 was held not to be in accordance with law. Learned counsel states that the petitioners herein are also entitled to the same benefit since the procedural irregularities and illegalities adopted by the bank by inviting more persons than could have been invited for the written test as also for the interview has been adjudicated by the learned Single Judge. Learned counsel for the petitioners contends that by virtue of the aforesaid judgment dated 31.05.2001 the petitioners therein namely Sri Subhash Chander Gupta, Sri Ajay Singh Pathania and Sri S.P. Sharma have been granted promotion who are admittedly much below the petitioner herein and S.P. Sharma is below the other petitioner herein in the list of candidates who qualified in the written test for promotion. He also states that the aforesaid judgment has attained finality having not been challenged any further. Learned counsel for the respondent bank while placing reliance upon the counter affidavit filed on behalf of respondent bank has contended that the petitioner has availed the remedy of appeal and the appellate authority after considering the entire material has ejected his appeal and therefore it can not be said tha there is any error in the impugned order or the appellate order. He has not been able to show that the defence taken by he Bank before the High Court of Jammu & Kashmir is in any manner different than taken in this writ petition. His argument is that the petitioners having participated in the examination and having not impleaded necessary persons can not maintain this writ petition. The appellate order admittedly has been passed on 21.07.1998 whereas the adjudication with respect to the very examination of the candidates included in the qualified list of 1996 was adjudicated by the High Court of Jammu & Kashmir, as referred to above, on 31.05.2001. The defence taken by the respondent bank in the counter affidavit herein appears to be the very same defence taken before the Jammu & Kashmir High Curt where there is detailed adjudication of the said defence by the Jammu & Kashmir High Court. Learned counsel for the respondents has not been able to show or demonstrate any difference in the facts and circumstances relating to the very same examination of 1996 for promotion. In view of the aforesaid circumstances and upon perusing the judgment dated 31.05.2001 it can not be said that there is any ground on merits taken by the respondent in their counter affidavit defend the impugned order rejecting the promotion of the petitioners virtue of the interview held in the 1996 promotional examination. However, the fact is clear that the appellate authority has in the case of petitioners rejected their appeal much prior to such adjudication by the High Court of Jammu & Kashmir and therefore since the findings of fact recorded by the Judgment 31.05.2001 do not require any further consideration in view of the very same defence on merits taken by the bank herein it would be appropriate that the appellate authority (respondent no.2) should re-consider the appeal of he petitioner by taking into consideration the findings recorded by the Jammu & Kashmir High Court in the judgment and order dated 31.05.2001. The grounds taken by the petitioner in the present writ petition being grounds No.VII and VIII appear to have been effectively decided by the aforesaid Judgment dated 31.05.2001 consequently the petitioners herein are entitled for assailing the orders whereby their promotion has been rejected. Since this court is remitting the matter to the Appellate Authority there is no reason to adjudicate upon the technical pleas raised by the respondent regarding estoppel. In view of the aforesaid circumstances the appellate order dated 27.1.1998 passed by the respondent no.2, Chief General Manager, State Bank of Patiala communicated by the letter dated 25.08.1998 (Annexure No.8 to the writ petition) is quashed on the aforesaid ground and the respondent no.2 is required to re-decide the appeal of the petitioner in light of the judgment dated 31.05.2001 passed by learned Single Judge of the High Court of Jammu & Kashmir which according to the petitioners has attained finality. The petitioners should furnish a certified copy of the judgment dated 31.05.2001 passed in SWP No.783 of 1997 by the High Court of Jammu & Kashmir along with certified copy of this order before respondent no.2 within one month where after the respondent no.2 should address himself accordingly within a period of three months and pass a reasoned and speaking order. It is made clear that the petitioners need not be given any hearing in this matter by the appellate authority since the defence taken by the respondents before this Court has already been adjudicated by the aforesaid judgment on similar and identical defence taken before the High Court of Jammu & Kashmir. Upon passing of the said order the same should be communicated to the petitioners forthwith at their present place of posting. Both these writ petitions are accordingly disposed of. No order is passed as to costs.
(3.) The respondents preferred two Special Appeal Nos. 1534/2008 and 1535/2008, before the Special Appeal Court against the aforesaid order, which were allowed and the Special Appeal Court remanded the matter by the order dated 03.12.2008 to this Court with the following observations: "Learned Counsel for the appellant challenging the order impugned contended that writ petition filed by the petitioner without impleading the persons who have been promoted, was not competent and no relief could have been granted in the writ petition. It is contended that posts were limited and were filled by promotion of different persons and without impleading them in the writ petition, the petitioner was not entitled for any relief. He placed reliance on a judgment of the apex court in the case of Surinder Shukla Vs. Union of India & Ors, 2008 LabIC 2038. Sri R.B. Singhal, learned Counsel appearing for the private respondents submitted that learned Single Judge has only remitted the matter to the authority concerned for reconsideration and no relief was granted to the writ petition hence non impleadment of promoted persons cannot be said to be fatal. We have considered the submissions of learned counsel for the parties and perused the record. It is useful to quote the submissions raised on behalf of the appellant bank which has been noticed by learned Single Judge in the following words: "His argument is that the petitiones having participated in the examination and having no impleaded necessary persons can not maintain this writ petition." A perusal of the array of the parties in the writ petition indicates that none of the candidates who were promoted, have been impleaded. The respondent writ petitioner also prayed in the writ petition for a mandamus directing the respondents to grant promotion to the petitioner to the post of Junior Management Grade Scale-1 with all consequential benefits. This plea of the Bank was that persons who have been promoted having not been impleaded, no relief could have been granted to the writ petitioner and the writ petition was not maintainable. Although this submission has been specifically noticed by learned Single Judge but it has not been dealt with in the impugned judgment. The judgment relied by the learned Counsel for the appellant in the case of Surinder Shukla fully supports the submissions raised by the appellant. Following was laid down by the apex court in paragraph 11: "11. The said Col. A.P.S. Panwar and Col. V.K. Sinha were furthermore not impeaded as parties in the writ petition. In their absence, the writ petition could not have been effectively adjudicated upon." We are of the view that since the aforesaid submissions were raised by the Bank, the said submissions require consideration before granting any relief to the writ petitioner. The submission of the learned counsel for the respondents that only appellate order has been set aside and the matter has been remanded, does not obviate the necessity to consider and decide the objection raised by the appellant bank. In the aforesaid view of the matter, we are of the view that the writ petition filed by the respondent requires consideration afresh by learned Single Judge. We make it clear that we are not expressing any opinion on the merits of the contentions raised in this appeal and the learned Single Judge may consider and decide the writ petition afresh after considering the aforesaid two submissions which have been raised by the Bank and noticed by learned Single Judge. The appeal is allowed. The writ petition is restored to its original number.;