High Court
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WP(C) 1496/2011 BEFORE HON’BLE MR JUSTICE I A ANSARI THE HON’BLE MR. JUSTICE S.C. DAS JUDGMENT & ORDER (S.C. Das, J) By filing this writ petition under Article 226 of the Constituti Heard learned senior counsel, Mr. D.K. Mishra for the petitioner s, and learned Addl. A.G., Assam, Mr. D. Saikia for the State respondents and le arned senior counsel, Mr. D. Das for the private respondents. 2. on of India, the petitioners sought for the following relief(s): (cid:28) &.It is therefore most respectfully prayed that Your Lordships may graciously b e pleased to admit this Petition, call for the records of the case and issue a R ule calling upon the Respondents to show cause as to why the Rule 11(1) and Rule 19(5-A) of the Assam Directorate Establishment (Ministerial) Service (Amendment ) Rules, 1987 and notification issued under memo No.HLA.133/98/317-A dated 01-03 -2011 issued by the Under Secretary to the Govt. of Assam, Health and F.W.(A) De partment should not be set aside and quashed and be pleased to struck off the Ru le 11(1) and Rule 19(5-A) of the Assam Directorate Establishment (Ministerial) S ervice(Amendment) Rules, 1987 by declaring the same as ultra virus of the Consti tution of India and as to why a writ in the nature of Mandamus should not be iss ued directing the Respondent authorities to maintain the petitioners original po sition in the gradation list placing them above the private respondents in the c adre of Upper Division Assistants and cause or causes been shown and upon hearin g the parties be pleased to make the Rule absolute and/or pass such further or o ther order or orders or direction as Your Lordships may deem fit and proper. (cid:29) 3. Rule 11(1) and Rule 19(5-A) of the Assam Directorate Establishme nt (Ministerial) Service (Amendment) Rules, 1987(for short, Amendment Rules, 198 7) and the Notification No.HLA.133/ 98 / 317-A, dated 01.03.2011, have been chal lenged and the petitioners prayed for setting aside and quashing the same, which read thus: (cid:28)11.-Encadrement of Typists (Ordinary Grade). (1) Typists of ordinary grade who were appointed on or before December 31, 1 980 and were borne in the service on January 1, 1981 shall be deemed to have bee n encadred as Lower Division Assistants on January 1, 1981. (2) Typists of ordinary grade who have been appointed on or after January 1, 1981 but before the publication of the Assam Directorate Establishment (Ministe rial) Service (Amendment) Rules, 1987 shall be deemed to have been encadred as L ower Division Assistants on the dates of their appointments as Typists ordinary grade in the service. (cid:29) xxxx (cid:28)19(5-A) (i) The inter-se-seniority between the typists encadred as Lower Divisi on Assistants under sub-rule (1) of rule 11 and other Lower Division Assistants appointed on or before December 31, 1980, shall as on January 1, 1981 be fixed b y placing the former group immediately after the latter group and the relative p osition of those in the former group, among themselves, shall be in the order in which their position had been as typists (ordinary grade). (cid:29) (ii) The inter-se-seniority of the typists’ encadred as Lower Division Assistant s under Sub-rule (2) of rule 11 and other Lower Division Assistants shall be det ermined by treating their appointments as if made under sub-rule (1) of rule 10. (b) sub-rule(7) shall be deleted. (cid:29) xxxx (cid:28)GOVERNMENT OF ASSAM HEALTH & FAMILY WELFARE(A) DEPARTMENT DISPUR, GUWAHATI-6 ORDERS BY THE GOVERNOR OF ASSAM NOTIFICATION Dated, Dispur the 1st March, 2011 No.HLA.133/98/317 : Subject to reversion without notice and without assigning an y reason thereof and on the recommendation of the Selection Committee the follow ing UDAs(Sr. Asstt) office of the Director of Health services, Assam, and Direct or of Family Welfare, Assam are hereby promoted to the post of Superintendent in the Scale of pay PB-3 Rs.8000/--36,000/- Grade Pay Rs.4600/- PM and other allow ances as admissible under the rules with effect from the date of joining in the places of posting as indicated against their names:-
Legal Reasoning
Name of the UDAs 1) Sri Ranjit Kr. Deb Place of posting Office of the Director of Health Services, Assam 2) Sri Babul Deka Office of the Director of Health Services, Assam. The promotion is subject to clearance of Vigilance Report. Sd/- A. H. Khandakar, Under Secretary to the Govt. of Assam Health & F.W.(A) Deptt. Dated, Dispur the 1st March, 2011 Memo. No.HLA.133/98/317-A (cid:29) 4. The Assam Directorate Establishment (Ministerial) Service Rules, 1973(for short, Service Rules’1973) prescribe provisions relating to appointmen t and other service conditions of the ministerial staff of the offices of the He ads of Department/ Directorates of the Government of Assam. Rule 3(2) prescribes different cadres, in the service, comprisin g of the following categories of posts- (a) Registrar, (b) Superintendent, (c) Upper Division Assistants (UDA), (d) Lower Division Assistants (LDA), (e) Typists-(i) Selection Grade (SG), (ii) Ordinary Grade (OG). Rule 3(3) prescribes that each of the categories of posts mentio ned in sub-rule (2) of Rule 3 shall form an independent cadre. Members of a lowe r cadre shall have no claim for appointment to any of the higher cadres except i n accordance with the provisions made in the Rules. 5. The petitioners, inter alia, contend that petitioner No.1 was ap pointed as LDA on 26.08.1981 and petitioner No.2 was appointed as LDA on 27.01.1 982. They have been serving with all sincerity and devotion and their service ca reer was without blemish. They further contend that at the relevant point of tim e, while the post of LDA carried pay scale of Rs.300-575/-, the post of Typist c arryied pay scale of Rs.275-475. 5.1 Rule 10 of the Service Rules 1973, prescribed two distinct modes of appointment to the post of LDA (i) by direct recruitment and (ii) by selecti on strictly on the basis of merit from amongst the Typists of the service, who a re matriculate or passed equivalent examination and have rendered not less than four years of service in the post of Typist. Rule 11(i) of the Service Rules, 1973, prescribe appointment to 5.2 the post of Typists (Selection Grade) by selection on the basis of seniority-cum -merit from amongst the Typists of ordinary grade of the service and Rule 11(ii) prescribes appointment to the post of Typists (ordinary grade), either by direc t recruitment or by selection from amongst the Grade-IV employees of the service , who have specified qualification, such as, knowledge of typing, etc. It is, therefore, contended that the post of LDA is a post highe r in rank and status than that of the post of Typist. The Government of Assam, by Notification, dated, 08.11.1979, con 5.3 stituted the Assam Pay Commission, 1979, and the Commission, so constituted, sub mitted its report to the Government, the report was accepted by the Government o f Assam and, accordingly, the Assam Services(Revision of Pay) Rules, 1983(for sh ort, ROP Rules, 1983) was published on 27.06.1983. It was stipulated, in the ROP Rules, 1983, that the revised scales and the dearness allowances over, the revi sed scales, will be effective from 01.01.1981 and all other benefits at the revi sed rate, including those which were newly introduced, will be effective from 01 .09.1982. The ROP Rules, 1983 abolished the cadre of Typist in the Offices of th e Heads of Department and it was further stipulated that the cadre of Typist sho uld be amalgamated with the cadre of LDA in the Offices of the Heads of Departme nt and there will be no separate cadre of Typists in the Offices of Heads of Dep artment. In view of the provisions embodied in the ROP Rules, 1983, the S 5.4 ervice Rules, 1973, was amended. The Assam Directorate Establishment (Ministeria l) Service (Amendment) Rules, 1987 (hereinafter mentioned as Amendment Rules, 19 87), thus, came to be published, by Notification No.ABP.277/82/116, dated 06.05. 1987. Under Clauses 4 and 8 of the Amendment Rules, 1987, Rule 11 and Rule 19 of the Service Rules, 1973, were amended, as reproduced hereinbefore, which stand challenged in this writ petition. 5.5 The petitioners contended that after coming into force of the Am endment Rules, 1987, the employees, appointed in the grade of Typist, prevailed upon the authorities to fix their seniority by treating them to be appointed in the cadre of LDA from 01.01.1981, though, according to the petitioners, this cou ld have been made effective from 01.09.1982. All the persons, working as Typist, ought to have been placed in the bottom of the seniority list of LDAs as was pr evailing at that time, since the persons, working in the cadre of Typist, were n ot entitled to claim their seniority over the persons working as LDA including t hat of the petitioners. The petitioners also contend that it was the clear manda te of the ROP Rules, 1983, that except the revised scale and dearness allowance, other benefits will be effective from 01.09.1982; but in violation thereof, the Service Rules, 1973, was amended prescribing thereunder the amalgamation w.e.f. 01.01.1981 and, as a result, the interest of the petitioners, who were in servi ce in the post of LDA before the Amendment Rules, 1987, came into force, were m ade junior to the Typists working in the establishment, though the post of LDA w as a promotional post by the Typists immediately preceding the amendment. 5.6
Decision
The petitioners submitted objection on 02.08.1993 (Annexure-C to the writ petition) highlighting the relevant facts stating that the amendment w ould give undue benefits to the Typists, which is in violation of the recommenda tions of the Pay Commission and also requested the authorities concerned not to put the Typists above the petitioners in the amalgamated list of the LDAs and Ty pists. The petitioners also stated that the Director of Health Services, Govt. o f Assam, by a letter, dated 05.08.1993(Annexure-D to the writ petition) requeste d the Secretary, Government of Assam, Health & Family Welfare(A) Department, to clarify the issue involved and the Government in the Health & Family Welfare Dep artment, by a letter, dated 08.11.1993(Annexure-E to the writ petition) again so ught for the views of the Director on the same issue in respect of the appeal pr eferred by the petitioners and the Director of Health Services informed the Secr etary, Health & Family Welfare Department, that the claim of the petitioners was justified and genuine. 5.7 The petitioners also contended that when a lower cadre is amalga mated with a higher cadre, the seniority of the lower cadre is to be determined from the date from which they were encadred in the higher cadre; but in the case of the petitioners, though they had been working as LDA, a higher cadre, the pr ivate respondents, who were Typists, have been made, by virtue of the Amendment Rules, senior to the petitioners and, as a result, the promotional scope of the petitioners had been adversely affected. The petitioners have annexed a list of LDAs and Typists before amalgamation (Annexure-F to the writ petition) and also an unpublished gradation list of common cadre of the three Directorates as Annex ure-G to the writ petition. On 28.10.2010, the petitioners made a representation before the 5.8 Commissioner & Secretary, Government of Assam, Health & Family Welfare Departmen t, with a prayer for determination of their seniority and giving them benefit af ter modifying the Amendment Rules, 1987, but the representation was not responde d to by the State respondents and the same remained pending for disposal. A copy of that representation has been annexed as Annexure-H to the writ petition. 5.9 The Government of Assam, in the Health & Family Welfare (A) Depa rtment, initiated a process to correct the gradation list of UDAs(Common Cadre) and, in fact, a Memo., dated 18.1.2011, was issued by the Government, in this r egard, asking the Director of Health Services to take necessary action for corre ction of gradation list of UDAs as per rules and procedures(Annexure-J to the wr it petition). 5.10 The petitioners also contended that respondent Nos.5 and 6, whil e holding the post of Typist, were encadred as LDA and they were promoted to the post of UDA prior to the petitioners and, therefore, the petitioners challenged the order of the authority by filing a writ petition, being WP(C) No.6105 of 20 03, but after filing of the writ petition, when the authorities concerned promot ed the petitioners to the post of UDA on 21.09.2004, without disturbing the seni ority position of the petitioners vis-à-vis the private respondents, the said wr it petition was closed by an order of this Court, dated, 01.02.2011, with an obs ervation that the writ petition may be reopened if the grievances of the petitio ners were not redressed. 5.11 The petitioners contended that after issuance of letter, dated 1 8.01.2011(Annexure-J to the writ petition), the petitioners were expecting a sen iority list putting them above the private respondents, but no common seniority list was published till date; whereas, by issuing impugned letter, dated 01.03.2 011(Annexure-K to the writ petition), respondent Nos.5 and 6 were promoted to th e post of Superintendent without considering the case of the petitioners and, he nce, the impugned Notification is liable to be set aside and quashed. According to the petitioners, Rule 11(1) and Rule 19(5-A) of the Amendment Rules, 1987, are illegal, arbitrary and ultra vires to the Constituti on and, by virtue of the said Amendment Rules, the seniority position of the pet itioners, in the service, has been arbitrarily taken away and, hence, the said R ules are violative of the constitutional mandate and, therefore, liable to be qu ashed. Respondent No.2 submitted affidavit-in-opposition contending tha 6. t the respondents have no comment in respect of the averments made in paragraphs 1 to 5, 9 to 15, 17 to 24 and 26 to 32 of the writ petition and, in respect of the averments made in paragraphs 6, 7, 8, 16 and 25 of the writ petition, the re spondent No.2 stated that in respect of the cadre of Typists, the Service Rules, 1973, was amended by Notification, vide No.ABP/277/82/116, dated 06.05.1987, in ter alia, deleting the provision of direct recruitment of Typists. In the Amendm ent Rules, 1987, it was prescribed that there shall be no further appointment to the post of Selection Grade Typists and this category of post shall be filled u p by LDAs after existing incumbents retire or finally cease to hold the post and that the Typists of Ordinary Grade, who were appointed on or before 31.12.1980 and were borne in the service on 01.01.1981, shall be deemed to have been encadr ed as LDAs on 01.01.1981. Further, the Ordinary Grade of Typists, on or after 01 .01.1981, but before publication of the Amendment Rules, 1987, shall be deemed t o have been encadred as LDAs on the dates of their appointment as Typist Ordinar y Grade, meaning thereby that the Typist, ordinary grade, were not only made at par with the LDA already existing in the service, but also made the encadrement of the Typist as LDAs with retrospective effect. 7. Respondent No.12, Principal Secretary, Finance(Pay and Research Unit) Department, Government of Assam, also submitted affidavit-in-opposition st ating that the case is related to the fixation of seniority of Government employ ees and the Finance (PRU) Department is not concerned with fixation of seniority . However, while accepting the recommendations of the Assam Pay Commission, 1979 , Assam Government has allowed revised scales and the dearness allowance over th e revised scales w.e.f. 01.01.1981 and all other benefits at the revised rate in cluding those which were newly introduced w.e.f. 01.09.1982. The Assam Pay Commi ssion, 1979 has recommended amalgamation of the cadre of LDAs and Typists in the Heads of the Department Offices with the revised pay scale of Rs.500-875/-. Other respondents have chosen to file no affidavit-in-opposition 8. . 9. A bare reading of the writ petition and the affidavits-in-opposi tion makes it clear that the respondents did not dispute the pleadings made in t he writ petition. It is abundantly clear that on the date of coming into force o f the ROP Rules, 1983, all persons, working as LDA, irrespective of their dates of appointment, were serving in a superior post compared to the post of Typists. However, because of encaderment of Typists, appointed on or before 31.12.1980, in the common cadre of LDAs w.e.f. 01.01.1981, the persons, who had already been working as LDAs on being appointed on or after 01.01.1981, but before the ROP R ules came into force and became, in view of the Amendment Rules, 1987, junior to the Typists. It is abundantly clear from the pleadings itself that the Amendm ent Rules, 1987, did not take care of the seniority position of the LDAs appoint ed on or after 01.01.1981 vis-à-vis the Typists, appointed on or before 31.12.19 80, though, admittedly, the persons appointed as LDA on or after 01.01.1981, bei ng in superior cadre, were supposed to be listed above all the Typists irrespect ive of their dates of appointment. Bringing into force of the ROP Rules, 1983, does not automatical ly change the Service Rules, which were made in exercise of power under Article 309 of the Constitution of India. Appointments were made in different cadres of the service as per the provisions of the Service Rules and, hence, the appointme nts, made in the cadre of LDA, ought to be treated as superior cadre than that o f the cadre of Typists. It is evident that the petitioners, though they had been holding the post of LDA before Service Rules were amended, their position in th e common cadre was treated below the Typists, because of the impugned Amendment Rules, 1987. It is the settled position of law that a wrong cannot be allowed to be perpetuated. Whenever a wrong is detected and it is found that injustice has been caused, because of such wrong, it should not be allowed to continue and it should be corrected. Because of the incidence of amalgamation of cadre, the Typists got the jump to the cadre of LDA. Had there been no such amalgamation, t he private respondents would have remained in the inferior cadre of Typists and the petitioners in the superior cadre of LDA. On the date of merging/integration , all employees, working as LDAs, ought to be placed over and above the employee s, who had been working as Typists irrespective of their dates of appointment. 10. Admittedly, the petitioners made representation/ objection after amendment of the relevant Service Rules. The Director, Health & Family Welfare Department, Assam, too by a letter, addressed to the Secretary, Govt. of Assam, Health & Family Welfare Department, described the claim of the petitioners as ju stified and genuine. It was, in these circumstances, necessary for the State res pondents to prepare, upon amalgamation, a list of common cadre of LDAs, placing all the persons, working as LDA, above the persons working as Typists; but no li st of common cadre, showing the position of the persons at the time of amalgamat ion has yet been published by the State respondents even after repeated represen tations made by the petitioners. The fact of such a representation having been f iled by the writ petitioners, on 28.10.2010, has not been disputed by, or respon ded to, by the State respondents. A bare reading of the impugned Notification, dated, 01.03.2011(A 11. nnexure-K), makes it abundantly clear that respondent Nos.5 and 6 have been prom oted to the post of Superintendent without assigning any reason. The petitioners , therefore, could successfully make out a case that though the Service Rules we re amended in the year 1987, the State respondents could not and/or did not prep are till date, a list of the common cadre of LDAs after amalgamation and the cla im of the petitioners, regarding their seniority position has been kept unattend ed. The petitioners filed the writ petition, bearing WP(C) No.6105 of 2003, when their juniors were promoted to the posts, of UDA. However, immediately thereaft er, the petitioners, too, were promoted. Hence, the writ petition was closed and /or disposed of without adjudication; but the grievances of the petitioners were not addressed to and redressed. In these circumstances, the petitioners filed t he present petition challenging the vires of Rule 11(1) and Rule 19(5-A) of the Amendment Rules, 1987, and prayed for quashing the same including the Notificati on, dated, 01.03.2011(Annexure-K). 12. 12.1 Integration of services and seniority Learned senior counsel of the petitioners has submitted that the question of fixation of seniority as a result of integration between the lower cadre and higher cadre is no more a res-integra but has been settled by the Apex Court in the case of Kewal Krishan Bagga v. The Chairman, Railway Board & Ors. reported in (1976) 4 SCC 733, K.C. Gupta & Ors. v. Lt. Governor of Delhi & Ors. reported in 1994 Supp(3) SCC 408, Union of India & Ors. v. Anil Kumar & Ors. rep orted in (1999) 5 SCC 743 and Maharastra State Judges Association v. Registrar G eneral, High Court of Bombay reported in (2009) 1 SCC 569. Learned counsel of the respondents has submitted that integratio 12.2 n and/or amalgamation of services is legally permissible in the public interest and the petitioners have no locus to challenge, in any manner, the integration, as is done in this case. 12.3 In the case of Kewal Krishan Bagga(supra), 30 godown keepers, wo rking in the clerical cadre, in the Amritsar workshop, under Government of Punja b, were taken over as clerks by the Government of India and a question arose, in course of time as regards the fixation of their inter se seniority. Government of India decided that the inter se seniority of godown keepers and clerks, who a fter the transfer of employment, was assimilated in a common cadre of clerks sho uld be fixed on the basis of their length of service. The decision to treat the clerks as senior to godown keepers was held by the Apex Court not to be arbitrar y or irrational. 12.4 In the case of K.C. Gupta (supra), post-graduate teachers and tr ained graduate teachers of different grades were merged into one cadre and it wa s held that the period of service in the lower grade would not be counted for th e purpose of seniority in the new cadre. In the cases of Anil Kumar (supra) and Maharastra State Judges A ssociation(supra), the same principle has been laid down by the Apex court. 12.5 Learned Additional Advocate General, Mr. Saikia, has contended t hat in service jurisprudence, integration is a complicated administrative proble m, where some bruise to a few cannot be ruled out and, hence, no policy of integ ration of service can satisfy all and some section of the employees are/were bou nd to feel aggrieved as it is simply not possible to satisfy the expectation of every employee. The integration of two cadres, which places some in an advantage ous position in comparison to some others, is not violative of the guarantee con tained under Article 14 and 16 of the Constitution. In support of his contention , learned Additional Advocate General has relied on following case laws- (i) Reserve Bank of India v. N.C. Paliwal & Ors. reported in (1976) 4 SCC 838. (ii) V.T. Khanzode & Ors. v. Reserve Bank of India & Anr. reported in (1982) 2 S CC 7. (iii) Tamil Nadu Education Department Ministerial and General Subordinate Servic es Association & Ors. v. State of Tamil Nadu & Ors. reported in (1980) 3 SCC 97. 12.6 In the case of N.C. Paliwal (supra), the Reserve Bank of India, for carrying out its diverse functions, divided its administrative machinery in different(five) groups of departments. Some of the departments were in general s ide and some were specialized side, each group of departments was treated as a s eparate unit for the purpose of determining the seniority and promotion of the e mployees within that group and that was done on centrewise basis. As a result, t here was a separate seniority of the employees in each group of departments at e ach centre of the Reserve Bank and the employees could seek confirmation and pro motion only in the vacancies arising within their own group of departments at th eir own centre. There was dissatisfaction amongst employees of the general depar tment, for, the promotional opportunities in the specialised departments were mu ch more and this issue was taken up in the National Tribunal, which recommended that it is desirable that wherever it is possible employees, serving in differen t departments be grouped, without detriment to the interests of the Bank and wit hout affecting efficiency in a particular category at one centre for the purpose of being considered for promotion on the basis of a common seniority list and s uch an approach would result in opening up equal avenues of promotion for a larg e number of employees and there would be lesser sense of frustration and greater peace of mind among the employees. The Reserve Bank, while making integration o f services of different group of employees adopted different measures, which was challenged before the Court. The Supreme Court, while deciding the issue, in pa ragraph 15 of the judgment, observed: (cid:28)15. Now, the first question which arises for consideration is whether the Reser ve Bank violated the constitutional principle of equality in bringing about inte gration of non-clerical with clerical services. We fail to see how integration o f different cadres into one cadre can be said to involve any violation of the eq uality clause. It is now well settled, as a result of the decision of this Court in Kishori Mohanlal Bakshi v. Union of India : <javascript:fnOpenGlobalPopUp(’ /citation/crosscitations.asp’,’MANU/SC/0389/1961’,’1’);>AIR 1962 SC 1139 : 44 IT R 532 that Article 16 <javascript:fnOpenGlobalPopUp(’/ba/disp.asp’,’16912’,’1’); > a fortiori also Article 14 <javascript:fnOpenGlobalPopUp(’/ba/disp.asp’,’16910 ’,’1’);> do not forbid the creation of different cadres for government service. And if that be so, equally these two Articles cannot stand in the way of the Sta te integrating different cadres into one cadre. It is entirely a matter for the State to decide whether to have several different cadres or one integrated cadre in its services. That is a matter of policy which does not attract the applicab ility of the equality clause. The integration of non-clerical with clerical serv ices sought to be effectuated by the combined seniority scheme cannot in the cir cumstances be assailed as violative of the constitutional principle of equality. (cid:29) [ In paragraph 16 of the judgment the Court further observed (cid:28) & & &. Obviously, if the non-clerical service rendered by the employees from non-cleric al cadres were wholly ignored, it would have been most unjust to them. Equally, it would have been unjust to employees in the clerical cadre, if the entire non- clerical service of those coming from non-clerical cadres were taken into accoun t, for non-clerical service cannot be equated with clerical service and the two cannot be treated on the same footing. The Reserve Bank, therefore, decided that one third of the non-clerical service rendered by employees coming from non-cle rical cadres should be taken into account for the purpose of determining seniori ty. This rule attempted to strike a just balance between the conflicting claims of non-clerical and clerical staff and it cannot be condemned as arbitrary or di scriminatory. Vide Anand Parkash Saksena v. Union of India : (1968) 2 SCR 611. (cid:29) 12.7 In the case of V.T. Khanzode(supra), the Supreme Court, while re lying on the principles laid down in N.C. Paliwal (supra), observed in paragraph 40 of the judgment thus, (cid:28)40. It is clear from this narration of historical events that the various Depar tments of the Reserve Bank were grouped and regrouped from time to time. Such ad justments in the administrative affairs of the Bank are a necessary sequel to th e growing demands of new situations which are bound to arise in any developing e conomy. The group system has never been a closed or static chapter and it is wro ng to think that the officers of the various groups were kept, as it were, in qu arantine. The group system has been a continuous process of trial and error and the impugned scheme of inter-group mobility has emerged as the best solution out of the experience of the past. Combined seniority has been recommended by two s pecial committees, whose reports reflect the expertise and objectivity which was brought to bear on their sensitive task. It is clear that inter-group mobility and common seniority are a safe and sound solution to the conflicting demands of officers belonging to Group I on one hand and those of Groups II and III on the other. Private interest of employees of public undertakings cannot override pub lic interest and an effort has to be made to harmonize the two considerations. N o scheme governing service matters can be foolproof and some section or the othe r of employees is bound to feel aggrieved on the score of its expectations being falsified or remaining to be fulfilled. Arbitrariness, irrationality, perversit y and mala fides will of course render any scheme unconstitutional but the fact that the scheme does not satisfy the expectations of every employee is not evide nce of these. Vested interests are prone to hold on to their acquisitions and we understand the feelings of Group I Officers who have to surrender a part of the benefits which had accrued to them in a watertight system of grouping. Combined seniority is indispensable for the smooth functioning of the Bank and no organi sation can function smoothly if one section of its officers has an unfair advant age over others in matters of promotional opportunities. The reports of the Cadr e Review Committee and the Thareja Committee show that combined seniority has em erged as the most acceptable solution as a matter of administrative, historical and functional necessity. We see no justification for undoing what these committ ees have achieved after an objective and integral examination of the whole issue . We may mention that the conclusion to which these committees came were conside red by the Bank when Shri M. Narasimhan, later India’s Executive Director in the World Bank, was the Governor and it was after Dr. I.G. Patel, Formerly Secretar y, Economic Affairs, Government of India and Deputy Administrator, United Nation s Development Programme, took over as Governor in December 1977 that the final d ecision was taken by the Central Board to introduce inter-group mobility and com bined seniority. (cid:29) 12.8 In the case of Tamil Nadu Education Department Ministerial and G eneral Subordinate Services Association(supra), the Supreme Court has observed t hat in service jurisprudence, integration is a complicated administrative proble m, where, in doing broad justice to many, some bruises to a few cannot be ruled out. Some play in the joints, even some wobbling, must be left to government wit hout fussy forensic monitoring, because the administration has been entrusted by the Constitution to the executive and not to the courts. 12.9 Amalgamation and/or integration of cadres/services is, no doubt, a complicated administrative process and it is not required to be interfered wi th by the court of law in ordinary course. While doing integration of services, for administrative exigencies, interest of some of the employees may be affected ; but it has to be kept in mind that such steps have been taken in the greater p ublic interest and it was inevitable. In the case at hand, the Typist cadre was decided to be amalgama ted with the LDA cadre. Admittedly, LDA cadre was a superior and promotional cad re of Typist cadre irrespective of date of joining of the employees on the date of amalgamation. All those, working in the LDA cadre, ought to have been placed above the Typists; but it has not been done and no seniority list of the common cadre has yet been prepared. The petitioners, who had been, admittedly, working in LDA cadre, at the time of amalgamation, has been placed below some of the Typ ists and the private respondents have been given an unusual jump, because of the Amendment Rules. This could have been easily avoided. There was no reason at al l of excluding the petitioners at the time of amendment of the relevant Rules. T herefore, the ratio of the decisions, referred to by learned Additional Advocate General, cannot be applied to the case at hand. 13. 13.1 etition on the ground of delay and laches. 13.2 Challenge on the ground of delay and laches Learned counsel for the respondents seriously opposed the writ p It has been argued that the Amendment Rules had been notified on 06.05.1987; whereas the writ petition has been filed in March, 2011, i.e., afte r about twenty four years, without any reason, to justify the long and inordinat e delay in challenging the Amendment Rules and that no endeavour has been made b y the writ petitioners to explain the long delay. The writ petition, therefore, suffers from the mischief of delay and laches and, hence, is liable to be dismis sed in limine on that ground alone. Several case laws have been referred to by the learned counsel i n support of their contention. Learned counsel of the petitioners, on the contrary, submitted t 13.3 hat there was no pleading from the end of the respondents denying the chronologi cal facts pleaded by the petitioners in the writ petition. Though the Amendment Rules were published in the year 1987 and the cadres of LDA and Typist were amal gamated, no seniority list of the common cadre was prepared and published till d ate, no objection was invited from the members of the common cadre in respect of their seniority position. This apart, in paragraph 24 of the writ petition, the petitioners categorically stated that no seniority list was circulated amongst the staff nor was it published and this statement has not been denied by the off icial respondents. Under such circumstances, it is necessary to ascertain and find out as to when the Rules were acted upon and when the writ petitioners were actu ally aggrieved by the impugned provisions of Amendment Rules. Since no seniority list of the combined cadres has been circulated till date for giving effect to the impugned Amendment Rules, the petitioners cannot be blamed for delay and lac hes. 13.4 Learned counsel of the petitioners further has contended that in paragraph 17 of the writ petition, the petitioners stated that the gradation li st, maintained in the Directorate of Health Services, Assam, has been made witho ut any intimation or notice to the petitioners by putting the names of the Typis ts above the petitioners and that has been done behind the back of the petitione rs, which has adversely affected the promotional scope and avenues of the petiti oners to the higher cadre. The averments, so made in paragraph 17, have not been disputed by the official respondents. 13.5 Referring to Annexure-F and Annexure-G to the writ petition, lea rned counsel of the petitioners has submitted that Annexure-F is a list of LDAs and Typists before amalgamation. In Annexure-F, names at serial No.1 to 39 were of the persons working as LDAs and at serial No.40 to the rest were of the perso ns working as Typists. The names of petitioners were shown at serial No.36 and 3 7 of the list and that of the respondent Nos.5 and 6 at serial Nos.42 and 43. Bu t in Annexure-G, which was prepared on 20.01.2011, the petitioners were shown in serial Nos.23 and 24; whereas respondent Nos.5 and 6 were shown in serial Nos.1 2 and 14. The said list was never published asking for any objection and no seni ority list of the common cadre was prepared till today; whereas the State respon dents, by the impugned Notification, dated, 01.03.2011, promoted respondent Nos. 5 and 6 to the post of Superintendent, depriving the petitioners and, therefore, the cause of action arose for filing of this writ petition challenging the prov isions prescribed in Rule 11(1) and Rule 19(5-A) of the Amendment Rules. 13.6 It is also contended that the constitutional validity of a statu te or Rule cannot be challenged in abstract. The person, who lays the challenge, must be aggrieved by the enforcement of the provisions of the offending statute or rules; otherwise, Court may refuse to decide the constitutional validity of the statute if the case is capable of being disposed of on other grounds. It is submitted that because of this principle, the Supreme Court has laid down that u nless a persons is aggrieved by any provision of the statute, he cannot challeng e the vires of the statute. Referring to the case of Chiranjit Lal Chowdhuri v. Union of India & Ors. reported in AIR 1951 SC 41 and referring to an observatio n made by His Lordship, Justice Syed Fazl Ali of the Supreme Court, in paragraph 7 of the judgment, learned Senior counsel, Mr. DK Mishra, has contended that no one except those whose rights are directly affected by a law, can raise the que stion of the constitutionality of that law. 13.7 It is submitted that the petitioners from the very inception rec orded their objection and the Director of Health Services found the claim of the petitioners as justified and genuine, but even thereafter, the seniority list o f the common cadre was not prepared and published by the State respondents. The documents, annexed to the writ petition, make it clear that the representations, made by the petitioners, were not responded to by the State respondents, and, so, the petitioners cannot be blamed for delay and laches and cannot be deprived of their legitimate right. 13.8 In the case of Rabindranath Bose & Ors. v. Union of India & Ors. , reported in 1970(1) SCC 84, the Apex Court considered the ground for refusing relief in case of inordinate delay in filing the petition. In paragraphs 32, 33, 34 and 35 of the judgment, the Court observed thus, (cid:28)32. The learned Counsel for the petitioners strongly urges that the decision of this Court in M/s. Tilokchand Motichand’s & Ors. v. H.B. Munshi & Ors. : 1969(1 ) SCC 110 needs review. But after carefully considering the matter, we are of th e view that no relief should be given to petitioners who, without any reasonable explanation, approach this Court under Article 32 <javascript:fnOpenGlobalPopUp (’/ba/disp.asp’,’16939’,’1’);> of the Constitution after inordinate delay. The h ighest Court in this land has been given original jurisdiction to entertain peti tions under Article 32 <javascript:fnOpenGlobalPopUp(’/ba/disp.asp’,’16939’,’1’) ;> of the Constitution. It could not have been the intention that this Court wou ld go into stale demands after a lapse of years. It is said that Article 32 <jav ascript:fnOpenGlobalPopUp(’/ba/disp.asp’,’16939’,’1’);> is itself a guaranteed r ight. So it is, but it does not follow from this that it was the intention of th e Constitution makers that this Court should discard all principles and grant re lief in petitions filed after inordinate delay. 33. We are not anxious to throw out petitions on this ground, but we must admini ster justice in accordance with law and principles of equity, justice and good c onscience. It would be unjust to deprive the respondents of the rights which hav e accrued to them. Each person ought to be entitled to sit back and consider tha t his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years. It was on this ground that this Court in S .G. Jaisinghani v. Union of India & Ors. : (1967) 2 SCR 703 observed that the or der in that case would not affect Class II officers who have been appointed perm anently as Assistant Commissioners. In that case, the Court was only considering the challenge to appointments and promotions made after 1950. In this case, we are asked to consider the validity of appointments and promotions made during th e periods of 1945 to 1950. If there was adequate reason in that case to leave ou t Class II officers, who had been appointed permanently Assistant Commissioners, there is much more reason in this case that the officers who are now permanent Assistant Commissioners of Income tax and who were appointed and promoted to the ir original posts during 1945 to 1950, should be left alone. 34. Learned counsel for the petitioners, however, says that there has been no un due delay. He says that the representations were being received by the Governmen t all the time. But there is a limit to the time which can be considered reasona ble for making representations. If the Government has turned down one representa tion, the making of another representation on similar lines would not enable the petitioners to explain the delay. learned Counsel for the petitioners says that the petitioners were under the impression that the Departmental Promotion Commi ttee had held a meeting in 1948 and not on April 29, 1949, and the real true fac ts came to be known in 1961, when the Government mentioned these facts in their letter dated December 28, 1961. 35. We are unable to accept this explanation. This fact has been mentioned in th e minutes of the meeting of the Committee which met in Feb. 1952 and we are unab le to believe that the petitioners did not come to know all these facts till 196 1. But even assuming that the petitioners came to know all these facts only in D ec. 1961, even then there has been inordinate delay in presenting the present pe tition. The fact that Jaisinghani’s case was pending before the High Court and l ater in this Court is also no excuse for the delay in resenting the present peti tion. In the result, the petition fails and is dismissed. There will be no order as to costs. (cid:29) 13.9 In the case of Ramchandra Shankar Deodhar v. The State of Mahara shtra & Ors., reported in (1974) 1 SCC 317, the Apex Court, in paragraph 10 of t he judgment, observed thus, (cid:28)10. The first preliminary objection raised on behalf of the respondents was tha t the petitioners were guilty of gross laches and delay in filing the petition. The divisional cadres of Mamlatdars/Tehsildars were created as far back as Novem ber 1, 1956 by the Government Resolution of that date, and the procedure for mak ing promotion to the posts of Deputy Collector on the basis of divisional select -list, which was a necessary consequence of the creation of the divisional cadre of Mamlatdars/Tehsildars, had been in operation for a long number of years, at any rate from April 7,, 1961, and the Rules of July 30, 1959 were also given e ffect to since the date of their enactment and yet the petitioner did not file t he petition until July 14, 1969. There was a delay of more than ten or twelve ye ars in filing the petition since the accrual of the cause of complaint, and this delay, contended the respondents, was sufficient to disentitle the petitioners to any relief in a petition under Art. 32 of the Constitution. We do not think t his contention should prevail with us. In the first place, it must be remembered that the rule which says that the Court may not inquire into belated and stale claims is not a rule of law, but a rule of practice based on sound and proper ex ercise of discretion, and there is no inviolable rule that whenever there is del ay, the Court must necessarily refuse to entertain the petition. Each case must depend on its own facts. The question, as pointed out by Hidayatullah, C.J., in Tilockchand Motichand v. H.B. Munshi : (1969) 2 SCR 824 \is one of discretion fo r this Court to follow from case to case. There is no lower limit and there is n o upper limit & & & & & &. It will all depend on what the breach of the Fundamental Ri ght and the remedy claimed are and how the delay arose.\ Here the petitioners we re informed by the Commissioner, Aurangabad Division by his letter dated Octobe r 18, 1960 and also by the then Secretary of the Revenue Department in January 1 961 that the rules of recruitment to the posts of Deputy Collector in the reorga nised State of Bombay had not yet been unified, and that the petitioners continu ed to be governed by the rules of Ex-Hyderabad State and the Rules of July 30, 1959 had no application to them. The petitioners were, therefore, justified in p roceeding on the assumption that there were no unified rules of recruitment to t he posts of Deputy Collector and the promotions that were being made by the Stat e Government were only provisional, to be regularised when unified rules of recr uitment were made. It was only when the petition in Kapoor’s case was decided by the Bombay High Court that the petitioners came to know that it was the case of the State Government in that petition-and that case was accepted by the Bombay High Court-that the Rules of 30th July, 1959 were the unified rules of recruitme nt to the posts of Deputy Collector applicable throughout the reorganised State of Bombay. The petitioners thereafter did not lose any time in filing the presen t petition. Moreover, what is challenged in the petition is the validity of the procedure for making promotions to the posts of Deputy Collector-whether it is v iolative of the equal opportunity clause-and since this procedure is not a thing of the past but is still being followed by the State Government, it is but desi rable that its Constitutionality should be adjudged when the question has come b efore the court at the instance of parties properly aggrieved by it. It may also be noted that the principle on which the Court proceeds in refusing relief to t he petitioner on ground of laches or delay is that the rights which have accrued to others by reasons of the delay in filing the petition should not be allowed to be disturbed unless there is reasonable explanation for the delay. This princ iple was stated in the following terms by Hidayatullah, C.J., in Tilok chand v. H.B. Munshi(supra). (cid:28)The party claiming Fundamental Rights must move the Court before other rights c ome into existence. The action of courts cannot harm innocent parties if their r ights emerge by reason of delay on the part of the person moving the Court. (cid:29) Sikri, J., (as he then was), also re-stated the same principle in equally felici tous language when he said in R.N. Bose v. Union of India : (1970) 2 SCR 697: \I t would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appoin tment and promotion effected a long time ago would not be set aside after the la pse of a number of years.\ Here as admitted by the State Government in Paragraph 55 of the affidavit in reply, all promotions that have been made by the State G overnment are provisional and the position has not been crystallised to the prej udice of the petitioners No rights have, therefore, accrued in favour of others by reason of the delay in filing the petition. The promotions being provisional, they have not conferred any rights on those promoted and they are by their very nature liable to be set at naught, if the correct legal position, as finally de termined, so requires. We were also told by the learned Counsel for the petition ers, and that was not controverted by the learned Counsel appearing on behalf of the State Government, that even if the petition were allowed and the reliefs cl aimed by the petitioners granted to them, that would not result in the reversion of any Deputy Collector or officiating Deputy Collector to the post of Mamlatda r/Tehsildar; the only effect would be merely to disturb their inter se seniority as officiating Deputy Collectors or as Deputy Collectors. Moreover, it may be n oticed that the claim for enforcement of the fundamental right of equal opportun ity under Article 16 <javascript:fnOpenGlobalPopUp(’/ba/disp.asp’,’16912’,’1’);> is itself a fundamental right guaranteed under Article 32 <javascript:fnOpenGlo balPopUp(’/ba/disp.asp’,’16939’,’1’);> and this Court which has been assigned th e role of a sentinel on the qui vive for protection of the fundamental rights ca nnot easily allow itself to be persuaded to refuse relief solely on the jejune g round of laches, delay or the like. (cid:29) 13.10 In the cases of The Municipal Corporation of Greater Bombay & Or s. v. Indian Oil Corporation Ltd., reported in 1991 Supp(2) SCC 183, and the Sta te Bank of Indore v. Govindrao, reported in (1997) 2 SCC 617, the Apex Court con sidered the delay and laches. In both the reported cases, there was no challenge on the issue of constitutionality of any enactment, but seniority and regulariz ation as well as dismissal after considerable period of time were challenged. In the case of Municipal Corporation of Greater Bombay (supra), challenge was made after eight years and in the case of State Bank of Indore(sup ra), challenge was made after ten years of dismissal in a disciplinary proceedin gs and, in both the cases the Apex Court held that the writ petitions fell withi n the mischief of delay and laches. The ratio of the above decisions cannot be applied to the instan t case since the factual aspects are clearly distinguishable. 13.11 In the case of Shiv Dass v. Union of India & Ors. reported in (2 007) 9 SCC 274, the appellant was out of service in the year 1983 and the petiti on was filed for disability pension in 2005. The Apex Court, though held that in appropriate case, the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the petitioner to approac h the Court, but remitted the case to the High Court to hear the writ petition o n merit. In paragraphs 7, 8 and 9 of the judgment, the Court observed thus- (cid:28)7. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Co . v. Prosper Armstrong Hurd : (1874) 5 PC 221, PC at p.239 was approved by thi s Court in Moon Mills Ltd. v. M.R. Meher : AIR 1967 SC 1450 and Maharashtra St ate Road Transport Corporation v. Balwant Regular Motor Service, Amravati and Or s <javascript:fnOpenGlobalPopUp(’/citation/crosscitations.asp’,’MANU/SC/0386/196 8’,’1’);> : AIR 1969 sc 329, Sir Barnes had stated: (cid:28)Now the doctrine of laches in Courts of equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equiva lent to a waiver of it, or where by his conduct and neglect he has though perhap s not waiving that remedy, yet put the other party in a situation in which it wo uld not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in eve ry case, if an argument against relief, which otherwise would be just, if founde d upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substant ially equitable. Two circumstances always important in such cases are, the lengt h of the delay and the nature of the acts done during the interval which might a ffect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy. (cid:29) 8. It was stated in State of M.P. v. Nandlal Jaiswal and Ors. <javascript:fnOpen GlobalPopUp(’/citation/crosscitations.asp’,’MANU/SC/0034/1986’,’1’);> : (1987) 4 SCC 566 : AIR 1987 SC 251, that the High Court in exercise of its discretion do es not ordinarily assist the tardy and the indolent or the acquiescent and the l ethargic. If there is inordinate delay on the part of the petitioner and such de lay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confus ion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of in flicting not only hardship and inconvenience but also injustice on third parties . It was pointed out that when writ jurisdiction is invoked, unexplained delay c oupled with the creation of third party rights in the meantime is an important f actor which also weighs with the High Court in deciding whether or not to exerci se such jurisdiction. 9. It has been pointed out by this Court in a number of cases that representatio ns would not be adequate explanation to take care of delay. This was first state d in K.V. Raja Lakshmiah Setty v. State of Mysore : AIR 1967 SC 993. There is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar lines will not explain the delay. In State of Orissa v . Sri Pyarimohan Samantaray <javascript:fnOpenGlobalPopUp(’/citation/crosscitati ons.asp’,’MANU/SC/0548/1976’,’1’);> : AIR 1976 SC 2617 making of repeated repres entations was not regarded as satisfactory explanation of the delay. In that cas e the petition had been dismissed for delay alone. (See also State of Orissa v. Arun Kumar <javascript:fnOpenGlobalPopUp(’/citation/crosscitations.asp’,’MANU/SC /0458/1976’,’1’);> : AIR 1976 SC 1639). (cid:29) 13.12 In the case of Shankara Co-Op Housing Society Ltd. V. M. Prabhak ar & Ors., reported in (2011) 5 SCC 607, a challenge was made to the declaration of the ownership in respect of an evacuee property under the Administration of Evacuee Property Act, 1950, after a delay of about fifteen years and, in the mea ntime, interest of third party was created. The Apex Court has held that inordin ate and unexplained delay, in approaching the Court, in a writ, is, indeed, an a dequate ground for refusing to exercise discretion. 13.13 In the present case, Annexure-C to Annexure-J to the writ petiti on make it abundantly clear that the petitioners approached the State respondent s ventilating their grievances, but the State respondents did not respond to the representations and also failed to bring any seniority list of the combined cad re and nothing was filed before the Court that such a seniority list of the comb ined cadre was published inviting objections from the employees concerned. Under such circumstances, while the petitioners challenged the c onstitutionality of the rules by filing the present writ petition after issuance of Annexure-K by the State respondents, the writ petition cannot be referred to be entertained on the ground of delay and laches. 13.14 In the case of Motor General Traders & Anr. V. State of Andhra P radesh & Ors. reported in (1984) 1 SCC 222, the Supreme Court, in paragraph 24 o f the judgment, observed thus- (cid:28)24. It is argued that since the impugned provision has been in existence for ov er twenty three years and its validity has once been upheld by the High Court, t his Court should not pronounce upon its validity at this late stage. There are t wo answers to this pro position. First, the very fact that nearly twenty three y ears are over from the date of the enactment of the impugned provision and the d iscrimination is allowed to be continued unjustifiably for such a long time is a ground of attack in these cases. As already observed, the landlords of the buil dings constructed subsequent to August 26, 1957 are given undue preference over the landlords of buildings constructed prior to that date in that the former are free from the shackles of the Act while the latter are subjected to the restric tions imposed by it. What should have been just an incentive has become a perman ent bonanza in favour of those who constructed buildings subsequent to August 26 , 1957. There being no justification for the continuance of the benefit to a cla ss of persons without any rational basis whatsoever, the evil effects flowing fr om the impugned exemption have caused more harm to the society than one could an ticipate. What was justifiable during a short period has turned out to be a case of hostile discrimination by lapse of nearly a quarter of century. The second a nswer to the above contention is that mere lapse of time does not lend constitut ionality to a provision which is otherwise bad. \Time does not run in favour of legislation. If it is ultra vires, it cannot again legal strength from long fail ure on the part of lawyers to perceives and set up its invalidity. Albeit, laten ess in an attack upon the constitutionality of a statute is but a reason for exe rcising special caution in examining the arguments by which the attack is suppor ted.\ (See W.A. Wynes: ’Legislative Executive and Judicial Powers in Australia’ Fifth Edition p. 33). We are constrained to pronounce upon the validity of the i mpugned provision at this late stage because the garb of constitutionality which it may have possessed earlier has become worn out and its unconstitutionality i s now brought to a successful challenge. (cid:29) 13.15 Having considered the facts pleaded by the petitioners, in respe ct of their representations, made time to time, which has not been denied by the State respondents in their counter affidavit and taking into consideration of t he legal position in respect of belated and stale claims, as discussed above, we are of the considered opinion that the petitioners, since after the amendment r ules was given effect to, submitted representations, but no effective action was taken on those representations. No seniority list of common cadre was prepared and published; whereas, pursuant to the amendments made after amalgamation, priv ate respondent Nos.5 and 6 were promoted and this compelled the petitioners to f ile a writ petition; but, immediately thereafter, they were also promoted. Even thereafter, no seniority list was prepared taking into consideration the represe ntations made by the petitioners and the latest representation, made by the peti tioners (Annexure-H), has not even been responded to. Submission of representati on by itself cannot be a ground to explain delay and laches if such representati on is answered by the responsible authorities. In this case, since the represent ations were not responded to and since the grievance, which is apparent, was not addressed, filing of writ petition after 23/24 years when the rights of the pet itioners were found adversely affected, the petition cannot be rejected on the g round of delay and laches. 14. 14.1 petition on the ground of constructive res judicata. GROUND OF CONSTRUCTIVE RES JUDICATA The respondents have challenged the maintainability of the writ With regard to the above, the Additional Advocate General has su bmitted that a similar writ petition, being WP(C) No.6105 of 2003, was filed by the petitioners raising the same grievance as raised in the instant writ petitio n and that the said writ petition was closed by order, dated 01.02.2011. By the said order, this Court, points out the learned Additional Advocate General, gran ted liberty to the petitioners to have the said writ petition revived if they ar e interested in pursuing the lis and, hence, while the said order is still in fo rce, the petitioners cannot raise the same grievance, which was substantially an issue in the earlier writ case, in the instant writ petition. It is further poi nted out by the learned Additional Advocate General that the issue, in question, could not be decided in the earlier writ proceedings, because of the writ petit ioners and, therefore, the present writ petition is a sheer abuse of process of the Court and, thus, the same is liable to be dismissed on the ground of constru ctive res judicata. Learned counsel for the petitioners, on the other hand, has subm itted that the earlier writ petition was not decided by this Court and the same was closed with liberty to revive the subject matter and since the petitioners w ere promoted during the pendency of the said writ petition, constitutional valid ity of the Amendment Rules, 1987, was not raised in the earlier writ petition. T his apart, points out Mr. Mishra, learned senior counsel, that no combined senio rity list of the cadre after amalgamation was, admittedly, prepared and circulat ed inviting objection from the members of the integrated cadre and, hence, the p resent writ petition, challenging the vires of the Rules as well as challenging promotion of respondent Nos.5 and 6 by impugned Notification, dated, 01.03.2011, do not come within the purview of constructive res judicata. 14.2 In paragraph 21 of the writ petition, the petitioners has stated that respondent Nos.5 and 6 were promoted to the post of UDA prior to the petit ioners and, therefore, they challenged the order by filing writ petition being W P(C) No.6105 of 2003 and, thereafter, the respondents authorities concerned prom oted the petitioners to the post of UDA. The said writ petition came before this Court on 01.02.2011 and this Court dispose of the writ petition with liberty to reopen the writ petition if any grievance subsists. These statements of the pet itioners have not been disputed by the respondents in their affidavit-in-opposit ion. 14.3 What is, therefore, evident from the above pleadings is that, th e writ petition was just closed without adjudication and, therefore, the questio n of constructive res judicata does not arise at all. 14.4 Learned Addl. A.G., Assam, Mr. Saikia has referred to the case o f M. Nagabhushana v. State of Karnataka & Ors. reported in (2011) 3 SCC 408 and S. Nagaraja v. B.R. Vasudeva Murthy reported in (2010) 3 SCC 353. In the case of M. Nagabhushana (supra), while deciding that appe al, the Apex Court on the principle of constructive res judicata has held, (cid:28)res judicata is based on two age-old principles, namely, interest reipublicae ut sit finis litium which means that it is in the interest of the State that there sho uld be an end to litigation and the other principle is nemo debet bis vexari, si constat curiae quod sit pro una et eademn causa meaning thereby that no one oug ht to be vexed twice in a litigation if it appears to the Court that it is for o ne and the same cause (cid:29). Therefore, a judgment after a proper trial by a Court of competent jurisdiction should be regarded as final and conclusive, which is bas ed on public policy. In the present case, issues raised, by the petitioners, were nev er decided by this Court in the previous writ case. There is no pleading of the respondents that the same issue, especially, the issue of constitutionality of t he amended provisions were raised in the earlier case. Under such circumstances, the ratio of the decision in M. Nagabhushana (supra), cannot be applied in this case. In the case of Nand Kishore v. State of Punjab reported in (1995 14.5 The case of S. Nagaraja(supra) is in a different context and cle arly distinguishable from the facts of the present case. We find no justificatio n to refer the case here, because it is not relevant at all. 14.6 ) 6 SCC 614, the Apex Court, in paragraph 19 of its decision, held thus, (cid:28)19. It would then have to be seen the twin play of the notion of deemed constit utionality and bar of constructive res judicata. Raising the constitutionality o f a provision of law, as it appears to us, stands on a different footing than ra ising a matter on a bare question of law, or mixed question of law and fact, or on fact. There is a presumption always in favour of constitutionality of the law . The onus is heavy on the person challenging it. It is by the discharge of onus that the presumption of constitutionality can be crossed over. When a person en ters a court for relief and does not challenge the constitutionality of the law governing the matters directly and substantially in issue, it only means and imp lies that he goes by the presumption of constitutionality. He cannot on this sta nce be deemed to have raised the question of constitutionality and the question of constitutionality to have been decided against him and such matter to have be en directly and substantially in issue. The constitutionality of the Rule relati ng to compulsory retirement cannot be deemed to have been questioned and decided against the appellant on the principles of \might and ought\ or it being \direc tly and substantially in issue\. It cannot be taken as a rule that one of the pl eas, either by the plaintiff or the defendant, in every suit or proceeding, must of necessity relate to the constitutionality of the law on which the cau