Meghalaya High Court
Smti. B. Nongrum And Anr vs Government Of Meghalaya And Ors on 3 March, 2014
Author: T Nandakumar Singh
Bench: T Nandakumar Singh
THE HIGH COURT OF MEGHALAYA
AT SHILLONG.
WP(C) No.312/2010
1. Smti. B. Nongrum,
D/o E Nongrum,
Deputy Superintendent of Excise,
Jaiaw Laitdom, Shillong-2, Meghalaya.
2. Shri. G. Dkhar,
S/o (L) A.K. Biswas,
Deputy Superintendent of Excise,
Pynthorbah, Shillong-1, Meghalaya. :::: Petitioners
-Vs-
1. Government of Meghalaya, represented by the
Chief Secretary to the Govt. of Meghalaya.
2. Meghalaya Public Service Commission
represented by the Chairman of the Commission,
Shillong-1.
3. Commissioner & Secretary to the Govt. of Meghalaya,
Excise, Registration & Taxation Department, Shillong-1.
4. Secretary, Meghalaya Public Service Commission,
Shillong-1.
5. Commissioner of Excise, Meghalaya, Shillong.
6. Shri. A.M. Rimsu,
Deputy Superintendent of Excise,
O/o The Deputy Commissioner (Excise),
Ri Bhoi District, Nongpoh. :::: Respondents.
BEFORE THE HON'BLE MR JUSTICE T NANDAKUMAR SINGH For the Petitioners : Mr. R Choudhury, Adv, For the Respondents : Mr. ND Chullai Sr. Govt.Adv Mr.H. Kharmih, GA for respdt.1-5.
Mr. HS Thangkhiew, Sr Adv
Mr. N Mozika, Adv for respdt.No.6
Date of hearing : 27.02.2014
Date of Judgment & Order : 03.03.2014
Page 1 of 18
The present writ petition is the second round of litigation for the same relief/prayer viz for quashing the Gradation List/Inter-se seniority List of the Inspectors of Excise dated 03.10.2006 in respect of the petitioners and the private respondent No.6, but in the second writ petition, over and above, the prayer for quashing the inter-se seniority list of the Inspectors of Excise dated 03.10.2006, a further prayer had been made for quashing the Gradation List of the Deputy Superintendents of Excise so far as the petitioners and the private respondent No.6 are concerned and also for a direction to re-fix their seniority.
2. During the pendency of the first round of litigation i.e. WP(C)No.251(SH)/2007 between the present parties, questioning the impugned Gradation List/Inter-se Seniority List of the Inspectors of Excise dated 03.10.2006, the petitioners and the private respondent No.6 were further promoted on the recommendations of the Departmental Promotion Committee (for short 'DPC') associated with the Meghalaya Public Service Commission (for short 'MPSC') to the higher post i.e. Deputy Superintendent of Excise vide order dated of the Governor of Meghalaya dated 17.02.2009. It is an admitted case of both the parties that the post of Deputy Superintendent of Excise is a selection post and to that post, the petitioners and the private respondent No.6 were promoted after subjecting to selection process by the said order dated 17.02.2009. Again when the present writ petition is pending, the petitioners and the private respondent No.6 were further promoted to the post of Superintendent of Excise on the recommendations of the DPC vide order of the Governor of Meghalaya dated 12.10.2012.
Page 2 of 18
3. Heard Mr. R Choudhury, learned counsel appearing for the petitioners and Mr. ND Chullai, learned Sr. GA assisted by Mr. H Kharmih, learned GA appearing for the respondents No.1-5. Also heard Mr. HS Thangkhiew, learned senior counsel assisted by Mr. N Mozika, learned counsel for the respondent No.6.
4. The petitioners, private respondent No.6 and 12 others were selected after subjecting to the selection process by the MPSC for appointment to the post of Inspector of Excise under the Commissioner of Excise and the MPSC under its letter dated 06.09.1990 sent the list of the selected candidates in order of merit for appointment to the post of Inspector of Excise; in the said select list in order of merit, the name of the private respondent No.6 appeared at Srl.No.7 and the names of the petitioners appeared at Srl.No.8 & 11 respectively. It is not disputed that in the list of the selected candidates in order of merit for appointment to the post of Inspector of Excise, the name of the private respondent No.6 is above the petitioners. The petitioners who were the selected candidates were appointed as Inspector of Excise vide order dated 16.11.1990.
5. The Commissioner of Excise under his letter dated 06.11.1991, requested the MPSC to extend the validity of the said select list of the selected candidates for appointment to the post of Inspector of Excise dated 06.09.1990 for a further period of six months w.e.f. 07.09.1991, and the MPSC agreed to extend the validity period of the said select list for the post of Inspector of Excise for a further period of six months w.e.f. 07.09.1991 vide letter of the Secretary, MPSC, Shillong dated 10.12.1991. During the validity period of the said select list of the candidates for recruitment to the post of Inspector of Excise in order of Page 3 of 18 merit, the private respondent No.6 was appointed as Inspector of Excise vide order of the Commissioner of Excise, Meghalaya dated 27.02.2992. It would be beneficial to mention here that in the present writ petition, the petitioners are not assailing nor questioning the order/letter of the MPSC dated 10.12.1991 for extending the validity period of the said select list and also the order of the Commissioner of Excise dated 27.02.1992 for appointing the private respondent No.6 as Inspector of Excise, over and above, the petitioners are not denying that as per the merit list for appointment to the post of Inspector of Excise, the private respondent No.6 was above the petitioners.
6. The Govt. of Meghalaya framed the revised Gradation List of the Inspectors of Excise dated 03.10.2006, in that revised Gradation List, the name of the private respondent No.6 appeared at Srl.No.3 and the names of the petitioners appeared at Srl.No.4 & 6 respectively. The writ petitioners filed the first writ petition i.e. WP(C)No.(SH)251/2007 against the present respondents praying for quashing or setting aside the extension order dated 10.12.1991, and the said appointment order dated 27.02.1992 for appointing the private respondent No.6 as Inspector of Excise and revised Gradation List of the Inspectors of Excise dated 03.10.2006 on the main thrust that as the petitioners had been appointed earlier to the private respondent No.6 in the post of Inspector of Excise, the petitioners should senior to the private respondent No.6 as Inspector of Excise inspite of the fact that as per the merit list of the selected candidates, the name of the private respondent No.6 appeared above the petitioners. For easy reference, the prayer sought for the in the writ petition i.e. WP(C)No.(SH)251/2007 is quoted hereunder:- Page 4 of 18
"In the premises aforesaid the Petitioners pray that Your Lordship may be pleased to
1. Call for the records of the case.
2. Issue notice to the Respondents to show cause as to why a writ of Mandamus and/or a writ of Certiorari and/or any other appropriate writ or direction should not be issued to set aside the impugned order of the M.P.S.C. dated 10.12.1991 (Annexure - IV) and the consequent appointment order dated 27.2.1992 issued by the Commissioner of Excise, Shillong (Annexure V) and the gradation list dated 3.10.2006 issued by the Commissioner of Excise, Shillong and/or to issue further appropriate direction in the matter as Your Lordship may deem fit and proper and on such cause or causes being shown and after hearing the Parties make the order absolute.
And for the act of kindness the Petitioners shall ever pray."
7. While the earlier writ petition i.e. WP(C)No.251(SH)2007 was pending, both the petitioners and the private respondent No.6, on the recommendations of the DPC associated with the MPSC, had been promoted to the post of Deputy Superintendent of Excise, which is a selection process vide order of the Governor of Meghalaya dated 17.02.2009. This subsequent event was brought to the notice of this Court and this Court was of the view that since the petitioners and the private respondent No.6 are no more Inspector of Excise and they were promoted by a selection process to the post of Deputy Superintendent of Excise, the writ petition for quashing the said revised Gradation List of the Inspectors of Excise dated 03.10.2006 had become infructuous. Accordingly, vide order dated 19.04.2010, the writ petition i.e. WP(C)No.251(SH)2007 was dismissed as infructuous. However, it was open to the petitioners to challenge the order dated 17.02.2009 promoting the petitioners and the private respondent No.6 to the post of Deputy Superintendent of Excise wherein, the petitioners were placed below the private respondent i.e. Page 5 of 18 respondent No.6, if so advised. For easy reference, the said order of this Court dated 19.04.2010 is quoted hereunder:-
"WP(C) No. 251 (SH) 2007
1. Smti. B.Nongrum, D/o Smti. E. Nongrum, Inspector of Excise, Jaiaw, Laitdom, Shillong - 793002.
2. Shri. G. Dkhar, S/o (L) A.K. Biswas, Inspector of Excise, Pynthorbah, Shillong - 793001, Meghalaya.
.............. Petitioners.
- Versus -
1. Government of Meghalaya, represented by the Chief Secretary to the Government of Meghalaya.
2. Meghalaya Public Service Commission, represented by the Chairman of the Commission, Shillong - 1.
3. Commissioner and Secretary to the Government of Meghalaya, Excise, Registration & Taxation Department, Shillong - 1.
4. Secretary, Meghalaya Public Service Commission, Shillong - 1.
5. Commissioner of Excise, Meghalaya, Shillong.
6. Shri. A.M. Rimsu, Inspector of Excise, O/o The Deputy Commissioner (Excise), West Khasi Hills, Nongstoin.
............ Respondents.
BEFORE THE HON'BLE MR JUSTICE T VAIPHEI 19.04.2010 Heard Mr. S.K.Deb Purkayastha, the learned counsel for the petitioner. Also heard Mr. N.D.Chullai, the learned senior GA and Mr. N.Mozika, the learned counsel for the private respondent.Page 6 of 18
The writ petition is directed against the Gradation List dated 3.10.06 issued by the Commissioner of Excise, Shillong placing the private respondent above the petitioner in the revised Gradation List dated 11.1.2005.
Drawing my attention to the order dated 17.2.2009 issued by the State Government, Mr. N.Mozika, the learned counsel for the private respondent submits that both the petitioner as well as the private respondent among others have since then been promoted to the post of Deputy Superintendent of Excise and as such the legality of the impugned gradation list cannot be questioned now and that if the petitioner has any grievance against the order promoting him along with the private respondent and of placing him below the private respondent, his remedy lies in filling a fresh writ petition as a new cause of action has apparently arisen.
The learned counsel for the petitioner however, insists that the writ petition still survives for consideration even after the promotion of the petitioner along with the private respondent on the basis of the order dated 17.2.2009. The submission of the learned counsel for the petitioner to this effect is noted only to be summary rejected. The petitioner could have amended his writ petition by incorporating the subsequent development by challenging this order of promotion. In my opinion, in the light of the development referred to earlier, and without amending the writ petition, this writ petition cannot and does not survive for consideration.
Resultantly, this writ petition is dismissed as infructuous. It is however, open to the petitioner to challenge the order dated 17.02.2009 promoting him along with the private respondent to the post of Deputy Superintendent of Excise and of placing him below the private respondent, if so advised.
A copy of the order dated 17.2.2009 marked as 'X' is hereby made a part of the record."
8. Inspite of passing the said order dated 19.04.2010 dismissing the earlier writ petition i.e. WP(C)No.251(SH)2007 as infructuous by allowing the petitioners to challenge the said order dated 17.02.2009, the petitioners filed the present writ petition on the same question of facts for quashing the said revised Gradation List of the Inspectors of Excise dated 03.10.2006 and the Gradation List of the Deputy Superintendent of Excise dated 10.08.2010 and for further direction to re-fix their seniority as per the rules of seniority laid down in Page 7 of 18 paras 10, 10 (i) and 10 (ii) of the Hand Book circulated by the Govt. of Composite Assam and adopted by the Govt. of Meghalaya for fixation of seniority. The prayer sought for in the present writ petition reads as follows:-
"In the premises aforesaid, the humble Petitioners pray that Your Lordship may be pleased to -
1) call for the records of the case
2) issue notice to the Respondents to show cause as to why a Writ of Mandamus and/or a Writ of Certiorari and/or any other appropriate writ or direction should not be issued to set aside the gradation list dated 3.10.2006 in respect of Inspector of Excise and 10.08.2006 in respect of Deputy Superintendent of Excise (Annexure VI and IV) and to refix their seniority as per the rules of seniority laid down in para 10, 10 (i) and 10 (ii) of the Hand Book of Circulars issued by the then Government of Composite Assam and adopted by the Government of Meghalaya of Composite Assam and adopted by the Government of Meghalaya and thereafter to fix their seniority on that basis as Deputy Superintendent of Excise and/or to issue further appropriate direction in the matter as Your Lordship may deem fit and proper. And on such cause or causes being shown and after hearing the parties make the order absolute.
And for this act of kindness your humble Petitioners in duty bound shall remain ever grateful to you."
9. The State respondents as well as the private respondent No.6 filed affidavit-in-opposition stating that the present writ petition seeking the prayer for setting aside of the Gradation List dated 03.10.2006 is not maintainable inasmuch as, the earlier writ petition for the same prayer i.e. WP(C)No.251(SH)2007 had been dismissed by the order of this Court dated 19.04.2010 which is quoted above in extenso and also the writ petitioners even if were allowed by the High Court by the said order dated 19.04.2010 to challenge the promotion order dated 17.02.2009 to the post of Deputy Superintendent of Excise wherein, the names of the petitioners appeared below the private respondent No.6, the promotion order dated 17.02.2009 was not challenged in the present writ petition. Page 8 of 18
10. Mr. R Choudhury, learned counsel appearing for the petitioners made an attempt for interpreting the earlier order of this Court dated 19.04.2010, in such a manner that permitting the petitioners to challenge the said promotion order dated 17.02.2009 to the post of Deputy Superintendent of Excise would mean that inspite of the dismissal of the writ petition i.e. WP(C)No.251(SH)2007 as infructuous, the petitioners were permitted to file a new writ petition challenging the Gradation List of the Inspectors of Excise dated 03.10.2006. But on the query made by this Court regarding the manner of promotion to the post of Deputy Superintendent of Excise, learned counsel is not denying that the promotion to the post of Deputy Superintendent of Excise is by selection. On the promotion of the petitioners and the private respondent No.6 to the post of Deputy Superintendent of Excise, the petitioner and the private respondent No.6 are no longer Inspectors of Excise or in other words, they are no more Inspectors of Excise. It is a fairly settled law that the Judge is not interpreting the judgment and order but the Judge is interpreting the statue and law and the judgment is to be understood by the words mentioned in the judgment and order itself. In other words, the Judges only read the judgments.
11. The Apex Court in Union of India vs. Amrit Lal Manchanda & Anr: (2004) 3 SCC 75 held that the Judges interpret statutes, they do not interpret judgments and words in the judgments are not to be interpreted as a statutes. Para 15 of the SCC in Amrit Lal Manchanda's case (Supra) reads as follows:-
"15. Cases involving challenges to orders of detention before and after execution of the order stand on different footings.Page 9 of 18
Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Hordon: 1951 AC 737: (1951) 2 All ER 1 (HL) (AC at p. 761) Lord Macdermott observed: (All ER p. 14 C- D) "The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge....."
12. The Constitution Bench also followed the ratio decidendi in Union of India vs. Amrit Lal Manchanda & An. case (Supra) in Natural Resources Allocation in RE, SPECIAL REFERENCE No.1 of 2012:
(2012) 10 SCC 1 and further held that every part of the judgment is intricately linked to others constituting a larger whole and thus, must be read keeping the logical thread intact. Paras 72 & 73 of the SCC in Natural Resources Allocation case (Supra) reads as follows:-
"72. Recently, in Union of India v. Amrit Lal Manchanda: (2004) 3 SCC 75 : 2004 SCC (Cri) 662 this Court has observed as follows (SCC p.83, para 15).
"15. ...Observations of courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret Page 10 of 18 words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statues."
73. It is also important to read a judgment as a whole keeping in mind that it is not an abstract academic discourse with universal applicability, but heavily grounded in the facts and circumstances of the case. Every part of a judgment is intricately linked to others constituting a larger whole and thus, must be read keeping the logical thread intact. In this regard, in Inslamic Academy of Education v. State of Karnataka: (2003) 6 SCC 697 this Court made the following observations: (SCC p. 719, para 2) "2. ............ The ration decidendi of a judgment has to be found out only on reading the entire judgment.
In fact, the ratio of the judgment is what is set out in the judgment itself. The answer to the question would necessarily have to be read in the context of what is set out in the judgment and not in isolation. In case of any doubt as regards any observations, reasons, and principles, the other part of the judgment has to be looked into. By reading a line here and there from the judgment, one cannot find out the entire ratio decidendi of the judgment."
13. On bare perusal of the earlier order dated 19.04.2010, it is clear that the earlier writ petition i.e. WP(C)No.251(SH)2007 for challenging the Gradation List of the Inspector of Excise dated 03.10.2006 had been dismissed as infructuous. The petitioners did not file any appeal against the order of this Court dated 19.04.2010 for dismissing the Writ Petition (C) No.251(SH)2007 and accordingly, the order dated 19.04.2010 had attained its finality. On careful perusal of the pleadings of the writ petitioners in the present writ petition, it is clear that same assertions and pleadings already made in WP(C)No.251(SH)2007 for assailing the impugned Gradation List dated 03.10.2006 had been reiterated in the present writ petition. In such circumstances, this Court is of the considered Page 11 of 18 view that even if the particular assertion had not been considered and decided in the earlier writ petition which had been dismissed, the same cannot be agitated upon on the reason that it was not adequately considered. The view of this Court is fortified by the decision of the Apex Court in State of Gujrat & Anr vs. Justice R.A. Mehta (Retired) & Ors:
(2013) 3 SCC 1. Para 61 of the SCC in Justice R.A. Mehta (Retired) case (Supra) reads as follows:-
"61. There can be no dispute with respect to the settled legal proposition that a judgment of this Court is binding, particularly when the same is that of a coordinate Bench or of a larger Bench. It is also correct to state that even it a particular issue has not been agitated earlier or a particular argument was advanced but was not considered the said judgment does not lose its binding effect, provided that the point with reference to which an argument is subsequently advanced has actually been decided. The decision therefore, would not lose its authority "merely because it was badly argued, inadequately considered or fallaciously reasoned".
The case must be considered taking note of the ratio decidendi of the same i.e. the general reasons or the general grounds upon which the decision of the court is based, or on the test or abstract from the specific peculiarities of the particular case which finally gives rise to the decision. (Vide Somawanti v. State of Punjab: AIR 1963 SC 151, Ballabhadas Mathundas Lakhani v. Municipal Committee, Malkapur:(1970) 2 SCC 267 : AIR 1970 SC 1002, Ambika Prasad Mishar v. State of U.P.:(1980) 3 SCC 719 : AIR 1980 SC 1762 SCC p. 723, para 6 and Director of Settlements v. M.R. Apparao: (2002) 4 SCC 638 : AIR 2002 SC 1598 )
14. This Court is compelled to make an observation that since the earlier writ petition i.e. WP(C)No.251(SH)2007 challenging the impugned Gradation List of the Inspector of Excise dated 03.10.2006 had been dismissed by this Court by the said order dated 19.04.2010 nor liberty was granted to the petitioners to file afresh writ petition assailing the impugned Gradation List dated 03.10.2006, the petitioners are barred from Page 12 of 18 filing the present writ petition for the same remedy by the principle under lying Rule 1 Order 23 of the CPC. This will be clear from the decision of the Apex Court in Sarguja Transport Service vs. State Transport Appellate Tribunal M.P. Gwalior & Ors: (1987) 1 SCC 5. Paras 7, 8 & 9 of the SCC in Sarguja Transport Service's case (Supra) read as follows:-
"7. The Code as it now stands thus makes a distinction between 'abandonment' of a suit and 'withdrawal' from a suit with permission to file a fresh suit. It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission, referred to in sub-rule (3) of Rule 1 of Order XXIII of the Code, he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. The principle underly in Rule 1 of Order XXIII of the Code is that when a plaintiff once institutes a suit in a court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject-matter again after abandoning the earlier suit or by withdrawing it without the permission of the court to file fresh suit. Invito beneficium non datur. The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will loose it. In order to prevent a litigant from abusing the process of the court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the court to file a fresh suit after establishing either of the two grounds mentioned in sub-rule (3) of Rule 1 of Order XXIII. The principle underlying the above rule is founded on public policy, but it is not the same as the rule of res judicata contained in Section 11 of the Code which provides that no court shall try any suit or issue in which the matter directly or substantially in issue has been directly or substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a court. In the case of abandonment or withdrawal of a suit without the permission of the court to file a fresh suit, there is no prior adjudication of a suit or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in sub-rule (4) of Rule 1 of Order XXIII of the Code when the first suit is withdrawn without the permission referred to in sub-rule (3) in order to prevent the abuse of the process of the court.Page 13 of 18
8. The question for our consideration is whether is would or would not advance the cause of justice if the principle underlying Rule 1 of Order XXIII of the Code is adopted in respect of writ petitions filed under Articles 226/227 of the Constitution of India also. It is common knowledge that very often after a writ petition is heard for sometime when the petitioner or his counsel finds that the court is not likely to pass an order admitting the petition, request is made by the petitioner or by his counsel to permit the petitioner to withdraw from the writ petition without seeking permission to institute a fresh writ petition. A Court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit the withdrawal of the petition. It is plain that when once a writ petition filed in a High Court is withdrawn by the petitioner himself he is precluded from filing an appeal against the order passed in the writ petition because he cannot be considered as a party aggrieved by the order passed by the High Court. He may as stated in Daryao v. State of U.P.: (1962) 1 SCR 574: AIR 1961 SC 1457 in a case involving the question of enforcement of fundamental rights file a petition before the Supreme Court under Article 32 of the Constitution of India because in such a case there has been no decision on the merits by the High Court. The relevant observation of this Court in Daryao case: (1962) 1 SCR 574: AIR 1961 SC 1457 is to be found at page 593 and it is as follows:
If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Article 32, because in such a case there has been no decision on the merits by the court. We wish to make it clear that the conclusions thus reached by us are confined only to the point of res judicata which has been argued as a preliminary issue in these writ petitions and no other.
9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that article. In this point the decision in Daryao case: (1962) 1 SCR 574: AIR 1961 SC 1457 is of no assistance. But we are of the view that the principle underlying Rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since Page 14 of 18 such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned writ petition when he withdraws it without such permission. In the instant case the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject-
matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We, however, make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental right guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We, however leave this question open."
15. In the course of hearing of the present writ petition, Mr. R Choudhury, learned counsel appearing for the petitioners urged that challenging the Gradation List of the Deputy Superintendents of Excise would mean that the petitioners also challenging the promotion order dated 17.02.2009 for promoting the writ petitioners and private respondent No.6 to the post of Deputy Superintendent of Excise for the reason that the name of the private respondent No.6 cannot be above the names of the petitioners in the promotion order. With due respect to Mr. R Choudhury, learned counsel appearing for the petitioners, this Court is of the view that Mr. R Choudhury was completely lost sight of the pleadings of the petitioners in the present writ petition as well as the relief sought for in the present writ petition and also the principle of collateral challenge. For the sake of repetition, it is reiterated that in present writ petition, there is no prayer for setting aside the promotion order dated 17.02.2009. The Apex Court in a catena of cases held that in the absence of pleadings and proper prayer, relief not actually sought for cannot be granted. The Apex Court in Krishna Priya Ganguly & Ors vs. University of Lucknow & Ors: (1984) 1 SCC 307 held that the Court cannot grant the relief which the petitioner himself never prayed for. The Apex Court reiterated in the Page 15 of 18 State of Bihar & Anr. vs. Radha K Jha & Ors: AIR 2002 SC 2755 that the relief which is not properly prayed for or not specifically sought for cannot be granted.
16. Under the Doctrine of collateral challenge validity of an order which is not directly challenged cannot be challenged indirectly. Validity of an order must be directly challenged and got set aside in an independent proceeding. [Reference may be made to the decisions of the Apex Court in (i) Pankaj Bhargava & Anr. vs. Mohinder Nath & Anr: AIR 1991 SC 1233 & (ii) Dr. Ku. Nilofar Insaf vs. State of Madhya Pradesh & Ors:
AIR 1991 SC 1872].
17. The petitioners and the private respondent No.6 have further promoted to the post of Superintendent of Excise vide order dated 12.10.2012 of the Governor of Meghalaya which reads as follows:-
"GOVERNMENT OF MEGHALAYA EXCISE: REISTRATION: TAXATION & STAMPS DEPARTMENT ORDERS BY THE GOVERNOR NOTIFICATION Dated Shillong, the 12th Oct, 2012.
No. ERTS (E) 39/2002/Pt/126 - On the recommendations of the Departmental Promotion Committee and subject to reversion without notice and assigning any reason thereof the following Deputy Superintendents of Excise and promoted temporarily and until further orders and allowed to officiate as Superintendent of Excise in the scale of pay Rs. 16,300-410-19,170-EB-530-23,940- 720-31,860/- p.m. plus other allowances as admissible under the rules, under Regulation 4(d) of Meghalaya Public Service Commission (LOFs) Regulation, 1972 and posted in the District/Sub-Divisions mentioned below against the existing vacant post with effect from the date of taking over charges and until further orders:-Page 16 of 18
Sl. No. Name Rank Place of Posting
1. Shri. S.G. Momin Superintendent of East Garo Hills
Excise District, Williamnagar
2. Shri. A.M. Rimsu Superintendent of Ri-Bhoi District,
Excise Nongpoh
3. Smti. B.Nongrum Superintendent of Enforcement O/o the
Excise Commissioner of
Excise, Shillong
4. Shri. R.K. Rabha Superintendent of South Garo Hills
Excise District, Baghmara
5. Shri. G.Dkhar Superintendent of West Jaiñtia Hills
Excise District, Jowai.
No. ERTS (E) 39/2002/Pt/126-A - In the interest of Public Service Shri. L. Nampui, Superintendent of Excise, is also transferred and posted in East Jaintia Hills District, Khliehriat with effect from the date of taking over charge and until further orders.
Sd/-
J.LYNGDOH, IAS Commissioner & Secretary to the Govt. of Meghalaya, Excise, Registration, Taxation and Stamps Deptt."
18. In such circumstances, the present writ petition seeking the prayer for quashing the Gradation List of the Inspectors of Excise dated 03.10.2006, even if maintainable, would be a futile writ petition inasmuch as (i) promotion from the post of Inspector of Excise to Deputy Superintendent of Excise is by a selection process and (ii) further promotion from the post of Deputy Superintendent of Excise to Superintendent of Excise is also a selection process. Even if the writ petition is allowed, it would be a futile writ exercise in absence of prayer in the present writ petition for quashing the impugned promotion order dated 17.02.2009 for promoting the petitioners and the private respondent No.6 to the post of Deputy Superintendent of Excise and the said order dated 12.10.2012 for further promoting the petitioners and the private respondent No.6 to the post of Superintendent of Excise. This Court is of the view that the Court is not invoking the jurisdiction under Article 226 of Page 17 of 18 the Constitution of India in a futile writ petition only for academic purposes. Regarding this settled proposition of law, it would be suffice to refer to one of the decisions of the Apex Court (Constitution Bench) in Balmadies Plantations Ltd. & Anr vs. The State of Tamil Nadu: AIR 1972 SC 2240.
19. For the foregoing discussions, this Court is of the view that this writ petition is devoid of merit and is accordingly dismissed.
JUDGE Page 18 of 18