JUDGMENT
Tapen Sen, J.
1. In this Writ Application the two petitioners are aggrieved with the order dated 7.4.1998 (Annexure-11) passed by the respondent No. 2 cancelling the promotion of the petitioners without affording any opportunity of hearing and directing that they be reverted to the post of Assistant Plumber “Mistri” from the post of Work Sarkar. They also pray for issuance of a writ of mandamus commanding upon the respondents to forbear from giving effect to or acting in pursuance of the said order.
2. According to the petitioners they were initially appointed as khalasis in the year 1981 and their parent department was the Public Health Engineering Department. The petitioner No. 1 was posted as chowkidar in the Tamar Section while the petitioner No. 2 was posted in the Ratu Section at Bariatu. In the year 1982 the petitioner No. 2 was transferred to the Medical Section RMCH as khalasi.
3. In the year 1983, the petitioner No. 1 was transferred to the Medical Section of the PHED at the RMCH Ranchi.
4. In the year 1987, the entire Government buildings along with staff which were being maintained by the PHED were transferred under the control of PWD (Buildings). The petitioners have stated that although all Government buildings were maintained by PHED, yet, funds were allotted by the said PWD.
5. In the year 1988, the petitioners were promoted on the post of Assistant Plumber Mistri. On 14.8.1989 by annexure-2, the Regional Chief Engineer of the PHED Ranchi issued an office order No. 44 whereby and whereunder the petitioners were promoted on the vacant posts or Work Sarkar for a period of three months. This was followed by issuance of another office order dated 16.11.1989 issued by the same authority being office order No. 65 extending the period of promotion for a further period of three months.
6. Upon expiry of the said period of three months, yet another office order was issued by the same authority on 6.2.1990 being office order No. 23 (Annexure-4) whereby and whereunder the promotion was further extended for a period of six months.
7. Finally on 23.2.1990, the same authority once again issued office order No. 47 (Annexure-5) extending the promotion of the petitioner till further orders. It appears that the department issued a Memo No. 1027 dated 24.10.1991 and on the basis thereof an office order No. 151 dated 28.11.1991 (Annexure-12 appended to the Supplementary Affidavit filed on 8.2.1999) was issued by the Executive Engineer, Medical Section, Ranch confirming the services of work charged employees including the petitioners. The names of the petitioners are included at serial Nos. 26 and 27 showing as Work Sarkar.
8. Mr. V. Shivnath, learned counsel for the petitioner submits that some persons were aggrieved because they were not considered for promotion. Pleading discrimination against these two petitioners and claiming that they were senior to them, one Surendra Prasad filed a Writ Petition before the then Ranchi Bench of Patna High Court which was registered as CWJC No. 1632 of 1990(R) in which the petitioners were impleaded as respondents Nos. 6 and 7. In the said Writ Application, the promotion of the petitioners given on 16.11.1989 was challenged. In view of the filing of the Writ Application, the respondent No. 2 by an order dated 19.9.1990 cancelled the order of promotion granted to the petitioner by Annexure-6 without assigning any reasons. The petitioners have stated that no notice was given to them nor were they afforded any opportunity of hearing. Accordingly, the petitioners filed CWJC No. 2028 of 1990(R) and by order dated 11.1.1991 Surendra Prasad Singh (i.e. the petitioner of CWJC No. 1632 of 1990(R) was ordered to be impleaded as a Respondent. It was further ordered that the pendency of the Writ Application will not stand in the way of the concerned respondents from considering the case of the respondents as also of Surendra Prasad Singh on merits. Subsequently, however, on 2.4.1991 on the basis of the statements made in the Counter Affidavit that the whole case for promotion was being reviewed, the Writ Petition was permitted to be withdrawn. The order sheets of this Writ Application, i.e. CWJC No. 2028 of 1990(R) is Annexure-8.
9. Thereafter, one Ramashish Choudhary and one Ram Niranjan Mishra filed CWJC No. 3021 of 1996(R) wherein they claimed that they had been deprived of their promotion. The grievances of those two petitioners were that although they were eligible for promotion on higher posts yet, they were not being considered whereas Dineshwar Pandey (Petitioner No. 1 herein) and one Uday Shankar Pandey who were junior to them had been promoted. On 13.1.1997, the Writ Petition was disposed off holding that since Dineshwar Pandey and Uday Shankar Pandey who were similarly situated and were juniors and who had been promoted on higher posts without any examinations, therefore, the respondents were duty bound to give similar benefit to the petitioners of that Case, namely Ramashish Choudhary and Ram Niranjan Mishra. Consequently, the respondents were directed to give promotional benefits to them also vide Annexur-9.
10. Thereafter the State of Bihar filed an LPA against the said order being PLA No. 102 of 1997(R) which was allowed by order dated 23.9.1997 (Annexure-10) and the order dated 13.1.1997 passed in CWJC No. 3021 of 1996(R) was set aside. However, while setting aside the said order, the Letters Patent Appellate Court observed as follows :–
“It appears that above named two persons Dineshwar Pandey and Uday Shankar Pandey have been given promotion by the Department without appearing and qualifying at any examination.
If the department has proceeded illegally in the matter of giving promotion to above said two persons, it is not expected of this Court to become a party of that order. Wrongs can not be perpetuated by this Court.
As promotion to Dineshwar Pandey and Uday Shankar Pandey has been given in violation of Government Circular, we direct the department to consider their cases in the light of the said circular.
Since no examination was conducted before giving promotion to above said two persons, therefore, the respondents of the present case can not take any advantage of a wrong order.
This being the position the order impugned is set aside and the appeal is allowed. However, it is directed that if the respondents of the present appeal fulfill the requirement of the above said circular, their cases shall be considered by the department in accordance with law.”
11. Mr. V. Shivnath submits that thereafter the petitioners were shocked to receive an order dated 7.4.1998 (order impugned in this Writ Application) by which the promotion of the petitioners was cancelled without assigning any reasons. They have further stated that no opportunity of hearing was given and by reason of the said order as contained at Annexure-11, the petitioners were ordered to be reverted to the post of Assistant Plumber Mistri from the post of Work Sarkar. Mr. V. Shivnath submits that the aforementioned order was passed pursuant to the order passed in LPA No. 102 of 1997(R). Mr. V. Shivnath, learned counsel for the petitioners has drawn attention of this Court to paragraph 7 of the rejoinder to the counter affidavit wherein the petitioners have stated that LPA No. 102 of 1997(R) was filed by the State of Bihar in which these petitioners were not even parties and therefore whatever order that was passed therein holding that the petitioner No. 1 had been given promotion without appearing and qualifying should not have been recorded without hearing them.
12. In this case a counter affidavit has been filed on behalf of the respondent Nos. 3 and 4 wherein at paragraph 5 it has been stated that the respondents have really complied with the directions given in LPA No. 102 of 1997(R). They have also stated that the petitioner had also filed a writ application earlier, i.e., CWJC No. 2028 of 1990(R), wherein they had raised similar grievances but that writ petition was withdrawn by them without seeking liberty to file a fresh writ application and therefore this writ petition is barred under the principles of res judicata. They have further submitted that the impugned order is pursuant to the order passed in LPA No. 102 of 1997(R) and if the petitioners had any grievance they should have filed an SLP before the Hon’ble Supreme Court of India. However, while referring to the last paragraph of the judgment of the Letters Patent Appellate Court, these respondents have stated that an observation had been made by the Division Bench that if the respondents fulfilled the requirements of the circular, then their case would be considered in accordance with law. They have further stated that the petitioners did not fulfil the criteria and as such their promotions were cancelled.
13. What the respondents have said is correct. Even if the petitioners had not been made parties in the aforementioned LPA yet, they had knowledge about the same the moment the impugned order was issued or served upon them because reference of the said LPA is mentioned in the impugned order itself. The proper remedy for the petitioners therefore was to have filed an application for review of the order dated 23.9.1997 passed in LPA No. 102 of 1997(R). They chose not to do so and instead filed this writ application. Sitting singly, this Court cannot pass any order that may have the effect of upsetting a judgment/order of a Division Bench. In that view of the matter, no relief can be granted to the petitioners in this writ application. The petitioners however, if so advised may file a Review Application in accordance with procedure.
The writ petition is accordingly dismissed. No order as to costs.