Ashim Kumar Banerjee, J. - (1.) Ranjit Halder (the appellant), C.S. Dutta (respondent no. 8), Pijush Ranjan Pal (added respondent) and Santi Priya Brahmba (added respondent) were all appointed as Executive Engineer (Mechanical) as direct recruit. Ranjit joined on March 4, 1982; C.S. Dutta joined on April 12, 1973; Pijush Ranjan Pal joined on January 15, 1981 and Santi Priya Brambha joined on April 27, 1982. They were, however placed in the gradation list considering their merit as found out in the selection process. Ranjit was a scheduled caste candidate whereas the other three persons were general candidate. The other three persons were placed above Ranjit. In 1993 gradation list was published where Brambha was placed at serial no. 4 whereas Ranjit was placed at serial no. 5. One Kisholoy Mitra was in serial no. 6. He challenged the gradation list. The controversy was ultimately resolved in an appeal before the Division Bench of this Court being Appeal No. 636 of 1993 where the Court of Appeal determined the respective seniority. Brambha was placed in serial no. 4, Kisholoy was placed in serial no. 5 and Ranjit was placed in serial no. 6. That revised gradation list prepared as per the order of the Court of Appeal was not challenged by Ranjit. As a scheduled caste candidate Ranjit superseded all three general candidates referred to above while he was promoted to the post of Superintending Engineer (Mechanical) in 1996. Ranjit was not satisfied as according to him he should have been given retrospective promotion from 1995. All the said three general candidates were subsequently promoted to the post of Superintending Engineer. In 2004 the department published a revised combined gradation list wherein Brambha was placed in serial no. 2 and Ranjit in serial no. 4. Ranjit again challenged the gradation list before the Tribunal. He was not successful in obtaining the order of stay. He approached this Court. The High Court passed an interim order giving liberty to the Government to give adhoc appointment to the post of Additional Chief Engineer (Mechanical) considering the relevant seniority rules. During the pendency of this proceedings both Dutta and Pal retired. Pal was subsequently added as a party while he was in service, subsequently he retired. Brambha was then added as a party. Pal was added as a party before the Tribunal whereas Brambha was added by this Court in the instant proceeding.
(2.) The Tribunal after considering the rival contentions summerised the grievances of the writ petitioners and dealt with the same in the paragraph quoted below : "In a nutshell the case of the applicant shall fail substantially on the following grounds that (1) the applicant did not challenge the order passed by this Tribunal in OA-30/96 dated 25th March, 1997 and subsequently, order of CCP 30/97 dated 11.2.98. (2) The applicant did not challenge the order of regularisation of date of promotion i.e. 21.6.96 passed on 18.12.2000. (3) The applicant being a party to the proceeding of appeal 636/93 did not challenge either the order dated 7.12.93 or the revised gradation list dated 14.6.94. (4) The applicant tried to confuse the court regarding non-existence of the post of Additional C.E. (Mech) to which private respondent no. 8 C.S. Datta was promoted vide order dated 7.2.2003 on the event of retirement of S.S. Sinha w.e.f. 31.12.2002 as Chief Engineer (Mech) which post was abolished and post of Additional C.E. (Mech) was revived. (5) The application is barred by the principle of constructive res judicata because matters under challenge being settled have been set at rest. (6) The prom tion is to be granted as per the revised gradation list of Executive Engineers because all the three posts, namely E.E.S.E. and Additional CE/CE constitute one service. The name of the applicant (sl. No. 6) is below to that of private respondent no. 8 (sl. No. 2) and additional respondent P.R. Paul (sl. No. 3). (7) the court did not grant the specific prayer of the applicant ante dating his date of promotion to the post of S.E. (Mech) w.e.f. 4.8.85 instead of 21.6.96." Being aggrieved Ranjit approached this Court by filing the above writ petition. This writ petition has been kept pending before us for about five years. Various proceedings that were had including contempt proceedings we need not discuss in detail unless it is considered necessary hereinafter.
(3.) Mr. Lakshmi Kumar Gupta, learned senior counsel appearing in support of the application contended as follows : (i) Ranjit initially claimed benefit of his promotion in the post of Superintending Engineer with retrospective effect from 1995. Such claim was rejected by the Tribunal. Mr. Gupta on instruction did not make any grievance on that score. (ii) Since Dutta and Pal had been superannuated this Court should resolve the controversy with regard to the seniority of Brambha and Ranjit. (iii) Ranjit accepted the gradation list in terms of the order of appeal wherein he was placed after Brambha. Once he superseded Brambha while getting promotion in the post of Superintending Engineer (Mechanical) he regained his seniority over Brambha as admittedly he was promoted as Superintending Engineer in 1996 whereas Brambha was promoted on September 2, 2003. (iv) Brambha was wrongly placed above Ranjit in the gradation list for the post of Superintending Engineer (Mechanical) on the strength of an amended rule being Rule 5(5) which stood repealed by a subsequent notification dated May 21, 2004. (v) Assuming Brambha was entitled to regain his seniority over Ranjit soon after his promotion as Superintending Engineer relying on Rule 5(5) such rule being contrary to the provisions of Article 16(4A) was ultra vires the Constitution. Hence, Ranjit must get seniority over Brambha in the gradation list prepared for the post of Superintending Engineer (Mechanical). (vi) In view of his promotion in the post of Superintending Engineer (Mechanical) well ahead Brambha he was entitled to be considered irrespective of his caste status for the next post of Additional Chief Engineer (Mechanical) which is a single post. In support of his contention Mr. Gupta relied on the two Apex Court decisions being in the case of U.P. Jal Nigam reported in All India Reporter. 1996, Supreme Court, Page 1661 and an unreported decision of the Apex Court in the case of Dev Dutt v. Union of India & Ors., Civil Appeal No. 7631 of 2002 dated May 12. 2008 , Mr. Gupta also distinguished the decision in the case of Ajit Singh & Ors. v. State of Punjab & Ors., reported in All India Reporter, 1999, Supreme Court, Page 3471 : [1999(5) SLR 268 (SC)] by saying that the effect of the said decision was no longer a good law in view of the amendment of Article 16(4A).;