Central Administrative Tribunal - Allahabad
Rajeev Mohan vs Union Of India Through Its Secretary on 1 January, 2010
Reserved CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD Misc. Application No.3289 of 2010 Alongwith Misc. Application No. 3285 of 2010 Misc. Application No. 3272 of 2010 In Original Application No. 1084 of 2010 Allahabad, this the ______day of _____________2010 Honble Mr. Justice S.C. Sharma, Member (J) Honble Mr. D.C. Lakha, Member (A) Rajeev Mohan, S/o Late Madan Mohan Lal Srivastava, presently working as Income Tax Officer, Ward 5 (3), Kanpur, r/o 7/112, Swaroop Nagar, Kanpur.
Applicant By Advocates: Mr. U.N. Sharma, Mr. Shailendra.
Vs.
1. Union of India through its Secretary, Ministry of Finance, North Block, Central Secretariat, New Delhi.
2. Central Board of Direct Taxes, through its Chairman, North Block, Central Secretariat, New Delhi.
3. Chief Commissioner of Income Tax (C.C.A. Kanpur, Uttar Pradesh).
4. Shri Arvind Kumar Trivedi, TRO-3, Kanpur.
5. Shri Ram Kumar Bhargava, TRO-6, Kanpur.
6. Raghvendra Singh, ITO (HQ), Kanpur.
7. Shri Surya Kant Misra, ITO (HQ), Kanpur.
8. Shri Shiv Raj Singh Chahal, ITO, Ghaziabad.
9. Shri Harish Kumar, ITO, Kanpur.
10. Shri Ajay Anand, ITO, Muzaffarnagar.
11. Shri Sangeet Bansal, ITO, Ghaziabad.
12. Shri Arjun Singh, ITO, Dehradun.
13. Shri Brij Bhusan Singh, ITO, Aligarh.
Respondents By Advocates: Sri A.K. Pandey, Sri Anil Kant Tripathi, Sri Amit Sthalekar, Sri S.K. Pandey, Sri Saumitra Singh.
By Honble Mr. Justice S.C. Sharma, Member (J) As a consequence of the Judgment/Order passed in O.A. No. 1084 of 2010 on 04th August 2010, the respondents as well as 3rd persons-not party in the O.A., moved above Misc. Applications for recall/modification of the Order. As all the above-mentioned applications have been moved against the one and the same Order hence, all the Misc. Applications are disposed of by a common order.
2. The applicant Rajeev Mohan filed O.A. with the following prayers: -
(a) Order or direction for quashing the seniority list alleged to be published on __/11/2002 (Annexure No. A-3 to Compilation No. I);
(b) order or direction restraining the respondents not to make any further promotion until the revised seniority list is published keeping in view the Judgment and Order delivered by Honble Apex Court in S.L.P. No. 9181-9185-2005 dated 20.3.2006 (Annexure-4B to Compilation-II);
(c) any other order or direction, as this Honble Tribunal may deem fit and proper on the fact and circumstances of the case.
(d) to award cost of the application to the applicant.
3. It has been alleged in the O.A. that the applicant was selected in the examination conducted by the Staff Selection Commission in the year 1988 for the post of Income Tax Inspector, and the applicant topped in the said examination. The applicant joined the present place of posting as inter charge transferee in the year 1992 and was placed rightly at serial No. 140 of the gradation/seniority list issued by the Regional Office as on 01.09.1999. In that seniority list, one Sri Arvind Kumar Trivedi-respondent No. 4, who was a direct recruit Inspector, was placed at serial No. 142 i.e. below the applicant. O.A. No. 1421 of 2001 was filed by Ram Kumar Bhargava before this Tribunal and in that O.A., Order was passed on 03.12.2001. In pursuance of the Judgment of O.A. No. 1421 of 2001, the entire seniority list was changed and in the changed seniority list, inter-se seniority of the promoted Inspectors and Inspectors came from inter charge transfer was fixed from the date of joining. But the inter-se seniority of direct recruit Inspectors was fixed from the date of sending requisition to the recruiting authority. The revised seniority list was prepared but it was never published. While changing the seniority list, the statutory provision of first circulating the draft seniority list and inviting objection, was not followed, as the aforesaid list was never published and hence the applicant was not aware that persons junior to him, as per list published on 01.09.1999, were shown as senior to the applicant in the revised seniority list. In the same set of circumstances, the Honble High Court of Gujarat delivered a Judgment on 17.08.2004 U.O.I. vs. N.R. Parmar, subsequently upheld by the Honble Apex Court in its Judgment and Order dated 20.03.2006 in S.L.P. No. 9181-9185 of 2005. In a matter before the Principal Bench of the Central Administrative Tribunal at New Delhi, the Tribunal passed an Order on 15.02.2007 to implement the Judgment and Order of the Honble High Court of Gujarat, affirmed by the Honble Apex Court, in the case of the petitioner. In pursuance of the Order, Contempt Petition was filed and as a consequence of the Contempt Petition, seniority of Shri S.S. Rathore was only restored. In the present matter, as per the applicant, the seniority is to be fixed according to the Judgment of the Honble High Court of Gujarat and the Honble Apex Court. As the respondents are not implementing the Judgment hence, the O.A.
4. During the arguments in the O.A., prayer was made by the applicants counsel Mr. U.N. Sharma, Senior Advocate that the O.A. can be disposed of at the admission stage with direction to the respondents for determining the seniority of the applicant and others according to the direction of the Honble High Court of Gujarat and the Honble Supreme Court of India. Till finalization of the seniority list, the respondents may be restrained from making any further promotion. The O.A. was decided at the admission stage on 04.08.2010 to the following effect: -
However, without making any comments on the merits of the case, we only wants that the Judgment of the Honble High Court of Gujarat and confirmed by Honble Apex Court must be complied with. O.A. deserves to be dispose of at this stage. The O.A. is disposed of finally, Respondents are directed to decide the matter of seniority in the light of the direction and observation of the Honble Gujarat High Court and confirmed by the Honble Apex Court prior to making any promotion. We make it clear that prior to finalization of the seniority list as observed above no promotion shall be made by the Respondents. As only prayer was made that the Orders of Honble High Court of Gujarat and Honble Apex Court may be complied with hence, it was considered in the fitness of circumstances that the O.A. may be disposed of at the admission stage. Because no order was passed or no order was required to be passed on merits of the case, we made it clear that we are not commenting on the merits of the case.
5. Being aggrieved from the Order of the Tribunal dated 04.08.2010, the above Misc. Applications have been moved for recall/modification of the order. The respondents No. 1 to 3 in separate application alleged that no opportunity was provided to the respondents of hearing prior to passing the impugned order (dated 04.08.2010) hence it was against the principle of natural justice. It is stated that O.A. has been filed before the Tribunal after a lapse of eight years, and no explanation of delay has been given in the O.A. It is relevant to mention that the applicant was in full knowledge of the seniority list dated 01.01.2002, as is evident from annexure-A-6, on the point of delay, the O.A. was liable to be dismissed and the O.A. was misleading and misconceived. The applicant joined as Inspector as Inter Change Transferee in the year 1992 from Karnataka Region to Kanpur Region and was placed rightly at serial No. 140 of the gradation list, annexure-2 is the letter of transfer. It is stated that the present situation is pending before the Honble Apex Court regarding inter-se seniority of direct recruits and promotee Inspectors. The main dispute is interpretation of O.M. dated 07.02.1986 issued by the Department of Personnel & Training. It has been provided in the O.M. that if adequate numbers of direct recruits were not available in a particular year, the vacant slots would not be kept. The rotation of quota would take place only to the extent of the available direct recruits and promotees. The O.A. No. 2307 of 1999 was filed in the Principal Bench of Central Administrative Tribunal, New Delhi on the basis of advice of Department of Personnel and Training. The High Court of Gujarat in its Order dated 17.08.2004 considered the matter. Against the decision of the High Court of Gujarat, an S.L.P. was filed before the Honble Supreme Court, which is still pending. No stay was granted. The C.C.T.Ts were directed to maintain the seniority as fixed by them before 08.09.2004. In SLP No. 9181-9185 of 2005 the matter was also involved regarding the same matter in controversy, and these cases were linked with the Case of Shri N.R. Parmar. The cases are still pending before the Honble Supreme Court. It has further been alleged that as the entire matter involved in the O.A. is subjudice before the Honble High Court, hence the Order could not have been passed restraining the respondents from making any promotion. In all circumstances, the order-dated 04.08.2010 is required to be reviewed and recalled.
6. Separate modification application was moved on behalf of other private respondents. It will not be proper to repeat the same allegations made in the application by the other respondents. Supplementary Affidavit has also been filed on behalf of the respondents No. 1 to 3. Detailed reply has also been submitted by the applicant of the application as well as of Supplementary Affidavit.
7. We have heard Mr. A.K. Pandey, Advocate assisted by Mr. Anil Kant Tripathi for Respondents No. 1 to 3, Mr. Amit Sthalekar, Advocate assisted by Mr. S.K. Pandey, Advocate for the Respondents No. 4, 6, 7, 9, 11 and 12, Mr. Saumitra Singh, Advocate for Mr. Chandra Kishore Singh and four others-who are not party to the O.A. but being affected by the said Order of the Tribunal and Mr. U.N. Sharma, Senior Advocate assisted by Mr. Shailendra, Advocate for the applicant (in the O.A.) on the Recall/Modification Applications. We have also perused the entire material available on record.
8. It has been argued by learned counsel for the respondents No. 1 to 3 Mr. Anil Kant Tripathi that the applicant has no locus standi to file the O.A. He was not going to be affected by the promotions to be made in future. It is stated that the applicant has raised the question of seniority over certain other similarly situated employees which have got to do nothing with the proceedings of D.P.C. or the seniority list of 1999 and 2002. As a matter of fact, the applicant himself is not aggrieved by the proceedings of Departmental Promotion Committee as he himself is not even in the zone of consideration for the purpose of promotion to the post of Assistant Commissioner of Income Tax. The prayer of the applicant in the present O.A. is confined to the direction of the Tribunal to the official respondents for not making any promotion in ACIT grade prior to revision of the seniority list in Income Tax Inspector grade. It is pertinent to specify here that on the basis of seniority list of the Income Tax Inspector, as on 01.09.1999, the applicant has challenged the seniority list dated 01.01.2002, and further promotion has been challenged by the applicant on this ground. But the applicant has accepted the seniority list of Income Tax Inspectors dated 01.01.1999 for Uttar Pradesh (West), Kanpur in which the applicant was placed at serial No. 140. List of Income Tax Officers was circulated by the Board in order of their seniority, in respect of whom the vigilance clearance report was called for the purpose of promotion from the Income Tax Officer to the post of Assistant Commissioner of Income Tax. As per this list, last person of this region, who is in the consideration zone for promotion to the post of Assistant Commissioner of Income Tax, is Mr. Rajeev Kumar Singh, who is placed at serial No. 73 of the seniority list of 01.01.1999 whereas the applicant is placed at serial No. 140. As such, the applicant was not going to be affected by both the seniority lists of 1999 and 2002. The applicant himself accepted the seniority list of Income Tax Inspectors as on 01.09.1999 for U.P. (West) Region, Kanpur in which he was placed above Mr. Arvind Trivedi. Mr. Arvind Trivedi is placed at serial No. 1543. If the applicant was to be placed as per his claim above to Mr. Arvind Trivedi, he will be somewhere between serial No. 1500 to 1543 in the All India Seniority List. The Officers who will be in the consideration zone of 247 officers then, the applicants claim is not going to be affected hence the O.A. was instituted on wrong and misleading facts. It is stated that the seniority of Income Tax Officers has been fixed from the year 1992 the date when applicant accepted and was placed at the bottom seniority. In this connection, learned counsel for the applicant Mr. U.N. Sharma conceded that at present applicant is not within the consideration zone. In case persons are to be considered for promotion as Assistant Income Tax Commissioner, the applicant is not at all going to be affected. Under the circumstances, it is an undisputed fact that the applicant has wrongly prayed for relief No. 2 regarding restraining the respondents to make any further promotion until the revised seniority list is published. When there was no remotest possibility of the promotion of the applicant at present, then there was no justification in praying for relief No. 2. In our opinion, as this relief was wrongly claimed and prayed, then the applicant not to have prayed for it. It would have been most justified on the part of the applicant not to press the matter of further promotion because he was not aggrieved person at that time. In the impugned order, further promotions were stayed prior to finalization of the seniority list with the assumption that the seniority of the applicant is going to be effected and the applicant is within the consideration zone for promotion otherwise there was no justification for us to grant this relief without hearing other parties. In all circumstances, in view of admission of learned counsel for the applicant, there appears no option for us except to admit the submissions of learned counsel for the respondents and non-respondents. As the private respondents and non-respondents are going to be affected by the impugned order of restraining and undisputedly the applicant is not going to be affected, then this part undisputedly is required to be set aside and recalled.
9. The matter of seniority has also been agitated in this O.A. and a direction was given by us in the O.A. for preparing and finalization of the seniority list in accordance with the Judgment of the Honble High Court of Gujarat and later on confirmed by the Honble Apex Court. In this connection, learned counsel for the respondents argued that matter of preparation of fresh seniority list is still subjudice before the Honble High Court of Allahabad. It has further been argued that matter of seniority is subjudice before the Honble Apex Court in S.L.P. No. 22000 to 22002 of 2009 A.K. Sehgal and others vs. Anita Vinayak and others. These SLPs were filed against the Judgment and Order dated 19.08.2009 passed in CMWP No. 25550 of 2006, CMWP No. 29117 of 2007 and CMWP No. 38755 of 2007 of the High Court of Judicature at Allahabad. In the matter of Anil Kumar Sehgal and others vs. Anita Vinayak and others, the Honble Apex Court ordered for maintaining status quo in respect of inter-se seniority of the petitioner and the respondents as it exists today shall be maintained. Learned counsel for the applicant argued that as the matter of seniority is subjudice before the Honble Apex Court in the above matter hence the respondents are incapacitated from proceeding for finalization of seniority list. Learned counsel for the applicant also produced the copy of the order dated 19.08.2009 passed in WP. No. 29117 of 2007 Anil Kumar Sehgal vs. Smt. Anita Vinayak and others. Learned counsel for the applicant also admitted this factual position, but he stated that the order has been passed by the Honble Apex Court for maintaining status quo regarding the seniority of Anil Kumar Sehgal and others and Smt. Anita Vinayak and others. It is stated that the seniority of the applicant is not going to be affected; that the seniority list can be prepared without affecting the order of the Honble Apex Court. Incase the seniority list is prepared up to the applicant, then the order of Honble Apex Court is not going to be effected. But undisputedly, the matter of seniority is subjudice before the Honble Apex Court and we are not supposed to interpret the Judgment of Honble Apex Court. In all circumstances, the respondents No. 1 to 3 will be justified not to implement the order of the Tribunal on the ground that the matter of seniority is subjudice before the Honble Supreme Court and hence they cannot proceed further. This order was passed by the Honble Apex Court on 19.08.2009. The matter is of the same department. Under these circumstances, the applicant is not justified to show his ignorance from this fact.
10. For the reasons mentioned above, we are of the opinion that the matter is subjudice before the Honble Apex Court and hence in any circumstances the respondents have a justified reason for not implementing the order of this Tribunal. The order which is in clash with the Judgment of the superior Court, is not required to be passed. Hence, the applicant was not justified in filing the O.A. for determination of the seniority list because the matter was subjudice and the applicant cannot plead ignorance from this fact.
11. It has also been argued by learned counsel for the respondents that the O.A. is barred by limitation as well as by the principle of resjudicata and principle of estoppels and acquiescence. Learned counsel for the respondents further argued that the O.A. is also barred by constructive resjudicata. Learned counsel argued that the applicant had earlier filed O.A. No. 1658 of 2004 for the same dispute and same subject matter. It is stated that the matter in controversy in the present case, is the same and the O.A. No. 1658 of 2004 was dismissed by the Tribunal by a detailed Judgment and Order on 10.02.2006, annexure A-2 is the copy of the Judgment dated 10.02.2006. It is stated that the applicant being aggrieved from the Judgment dated 10.02.2006 challenging the same before the Honble High Court of Allahabad by orders of W.P. No. 23672 of 2006 Rajeev Mohan vs. CAT and others. The matter in controversy directly and strictly is regarding determination of seniority of the applicant on the post of Income Tax Officer keeping in view the length of service rendered by him at his initial posting as Income Tax Inspector in Karnataka cadre and to place him in the seniority list accordingly. The matter is still subjudice before the Honble High Court of Allahabad. Hence, subsequent O.A. was not maintainable and the same is liable to be dismissed with these reasons. We have perused the Judgment dated 10.02.2006 passed in O.A. No. 1658 of 2004 Rajeev Mohan vs. Union of India and others. This O.A. was also filed by the applicant for determination of seniority. But Mr. U.N. Sharma, Advocate for the applicant argued that the earlier O.A. was filed for determination of seniority on different point and different issue whereas the present O.A. has been filed only regarding determination of seniority according to the principle laid down by the Honble Supreme Court of Gujarat and confirmed by the Honble Apex Court. The point involved in the earlier O.A. has not been touched in this O.A. and hence the present O.A. is perfectly maintainable and is not barred by principle of resjudicata. From perusal of the Judgment, it is evident that the matter of seniority was involved in that O.A. It may be possible that the seniority was challenged by the applicant for placing him at the bottom seniority after his transfer from Karnataka to Kanpur, whereas in the present case, the matter of seniority has been claimed in accordance with the Judgment of Honble High Court of Gujarat and Honble Apex Court. From perusal of the relief clause of the O.A., it is evident that the seniority list of dated 01.01.2002 (annexure A-3) has been challenged, whereas the applicant instituted the earlier O.A. in the year 2004. It means at the time of filing the O.A., seniority list was in existence. Mr. U.N. Sharma has argued that this seniority list was never published. In para-4.5 of the O.A. the applicant alleged that the revised seniority list was prepared but it was never published. In para-4.6 it is alleged that it is pertinent to mention that while challenging the seniority list, the statutory provision of first calculating the draft seniority list and inviting objection, was not followed, as the aforesaid list was never published and hence the applicant was not aware that persons junior to him, as per list published on 01.09.1999, were shown as senior to the applicant in the revised seniority list. In this connection, Mr. Amit Sthalekar, Advocate for the respondents argued that prior to filing of O.A. No. 1658 of 2004, O.A. No. 341 of 2004 was also instituted and earlier to that a representation was also made by the applicant and perusal of the representation shows that the seniority list of 2002 was in the knowledge of the applicant. When the earlier O.A. was filed by the applicant, then there was no reason and justification for not challenging the seniority list on that ground also, and still seniority of the applicant is subjudice before the Honble High Court of Allahabad. Learned counsel Mr. U.N. Sharma, Senior Advocate in this connection argued that it has specifically been alleged in the O.A. that at the time of earlier O.A. the seniority list was not in the knowledge of the applicant and that is why at that time the seniority was not challenged on that ground and it was never circulated and published. But from all circumstances and all the documents on record, it can very well be inferred that the applicant was in the knowledge of seniority list. Under these circumstances, when the O.A. was instituted challenging the seniority list, then the applicant ought to have the seniority list on the ground available to the applicant. At this stage, Mr. U.N. Sharma, Senior Advocate further argued that the Judgments were pronounced by the Honble High Court of Gujarat and of Honble Supreme Court later on. Hence, there could not have been any occasion for the applicant for making a prayer for determination of seniority in the light and direction of these Judgments but, those grounds were available to the applicant at that time also. It may be fact that the Judgments were not delivered by the Honble High Court of Gujarat and Honble Apex Court at that time but the grounds were available. Even as the matter is subjudice before the Honble High Court of Allahabad hence, now there can be no bar in agitating the same matter. But in all circumstances, we are convinced that existence of seniority list was in the personal knowledge of the applicant earlier also, hence we are fully agree with the argument of learned counsel for the respondents that the subsequent O.A. is barred by principle of constructive resjudicata, and even barred by limitation. However, we do not agree with the argument of learned counsel for the applicant that the matter of seniority is a continuous process and principle of resjudicata is not applicable in the present case. This argument of learned counsel for the applicant could have been accepted in case O.A. might having been filed by him but, as the O.A. was filed earlier, then there was no question of challenging the seniority list on which same has been challenged now.
14. Learned counsel for the applicant argued that in the present O.A., nothing new has been alleged and the applicant has only alleged that the respondents may be directed to comply the Judgment of the Honble High Court of Gujarat and Honble Apex Court, and this Tribunal has also passed the order only to the effect that the seniority list be prepared according to the directions of the Honble High Court of Gujarat and Honble Apex Court. Learned counsel for the respondents in this connection argued that instead of filing an O.A. before this Tribunal in obtaining a direction in order to comply the Judgment of the Honble High Court of Gujarat and Honble Apex Court, ought to have filed an application before the Honble Apex Court itself. Learned counsel for the respondents further argued that this Tribunal is not the proper forum for giving a direction to the respondents for making compliance according to the directions of the Honble High Court of Gujarat and Honble Apex Court. We agree with the arguments of learned counsel for the respondents that instead of agitating the matter before this Tribunal, the applicant could have agitated the matter before the Honble Apex Court by filing the Contempt. The Judgment delivered by the Honble Apex Court is the law of the land, and principle laid down by the Honble Apex Court is to be followed in all similar matters and if the respondents are not complying with the direction of the Honble Apex Court, then the matter ought to have been agitated before the Honble Apex Court. There was no justification for obtaining a direction of this Tribunal regarding making compliance of the Judgment of the Honble High Court of Gujarat and Honble Apex Court. Learned counsel for the respondents argued that the applicant has not come with the clean hand. It is established principle of law that anyone come to the Court, must come with the clean hand. The applicant has not filed the material facts and by putting the mischievous and misleading facts, obtained the impugned order dated 04.08.2010. We are convinced with the arguments of learned counsel for the respondents, certain correct facts were not placed before the Tribunal.
15. For the reasons mentioned above, we are of the confirmed opinion that the applications for modification/recall of the order dated 04.08.2010, deserve to be allowed. Learned counsel for the applicant also argued that in view of the Judgment of Honble Apex Court, applications for recall are not maintainable. He produced a Judgment of the Honble Apex Court rendered in Appeal (Civil) 2181 -2182 of 2001. So far as this plea is concerned, it is correct that after pronouncing the final Judgment, the Court becomes functus officio. The Honble Apex Court held that thereafter an I.A. lies ordinarily only for correcting clericial or accidental mistakes. It is stated that the applications are liable to be dismissed in view of the Judgment of the Honble Apex Court. But we have observed that the applicant has not placed before us the correct facts, and moreover regarding promotion learned counsel for the applicant himself admitted that he was not within the consideration zone and hence there was no justification for passing this order of restraining regarding further promotion. As per contention of learned counsel for the respondents, impugned order deserves to be recalled so far as it regards to further promotion. According to learned counsel for the applicant also this part of the order is to be recalled and set aside. We have also directed for finalization of the seniority list in view of the Judgment of Honble High Court of Gujarat and Honble Apex Court. But having into account the events and circumstances of the case, even this part of the Judgment also deserves to be set aside. The matter of seniority of the applicant is subjudice before the Honble High Court of Allahabad. Moreover, in the related matter, the Honble Apex Court ordered for maintaining the status quo with regard to seniority, and moreover this Tribunal is not the proper forum in order to ensure compliance of the order of the Honble High Court of Gujarat and Honble Apex Court. Considering all the circumstances and facts, as stated above, we are of the opinion that the impugned order dated 04.08.2010 deserves to be set aside, and in the light of the observations made in the body of the Order, it will not be suffice to set aside the impugned order but rather the O.A. is liable to be dismissed and as the applicant tried to place the misleading facts hence, O.A. is to be dismissed on heavy cost.
16. Above Modification/Recall Applications are allowed. The impugned order dated 04.08.2010 is set aside and recalled. And the O.A. No. 1084 of 2010 is also dismissed accordingly, and a heavy cost of Rs.10,000/- is imposed on the applicant.
(D.C. Lakha) (Justice S.C. Sharma)
Member-A Member-J
/M.M/
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