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16. They had submitted that in the case of State of UP vs. Brij Bhushan Sharma & Others, decided by the Allahabad High Court on 04.01.2011, reservation in promotions had been quashed, and, consequently, all the seniority lists based on such reservation have been declared unjustified, and the same view was taken by the Honble Apex Court also in the case of UP Power Corporation Limited vs. Rajesh Kumar & Ors. C.A.No.2608/2011 and related cases, dated 27.04.2012 : 2012 (4) SCALE 687.

17. The applicants have further taken the ground that when at the time of conducting the original DPC in 2008, the zone of consideration was only upto the seniority No.320, and the Private Respondent R-7 was at seniority no.431, and as per the DoP&T OM dated 10.04.1999, while conducting the review DPC, zone of consideration cannot be changed than what it was at the time of the original DPC, which aspect was not brought to the notice of this Tribunal when the orders were passed on 28.09.2010 in OA 2605/2009 in N.C. Meena (supra), and since the Tribunal had, even thereafter, only directed for consideration of the case of the applicant therein/Private Respondent R-7 before us, the official respondents were required to take into account the said directions in the correct spirit, instead of initiating the process for holding review DPC, by totally ignoring the law of the land. The applicants have also submitted that they were totally in the dark about the order of this Tribunal dated 28.09.2010 in OA No.2605/2009 having been passed, and had come to know about the said decision only in April 2010, when, through letter dated 11.04.2012 (Annexure A-2), the process for conducting of the review DPC was initiated.

40. It was further submitted that the Private Respondent R-7 was not even in the zone of consideration for DPC of July/August 2008, because the zone of consideration had at that time extended only up to the seniority level No.320. Once again reiterating their stand taken in the rejoinder that the decision of the Honble High Court in the case Gopal Meena (supra) was per incuriam, the applicants had relied upon the Honble Apex Courts ratio in the case of Sundarjas Kanyalal Bhathija and Others vs. The Collector, Thane, Maharashtra and Others (1989) 3 SCC 396, wherein the Honble Apex Court had ruled that it is the duty of the judges of the superior Courts and Tribunals to make the law more practicable and effective as a guide to behaviour, and that in the case of Bharat Petroleum Corporation Ltd. Vs. Mumbai Shramik Sangla & Others (2001) 4 SCC 448, it had been held that the judgment of the Constitution Bench binds a Bench of two learned Judges, and judicial discipline obliges them to follow it, regardless of their doubts, if any, about its correctness. The applicants had also cited the following cases in support of their above contentions:

42. Once again, the facts of the case had been reiterated to submit that firstly the judgment in the case of Gopal Meena (supra) of the Honble High Court cannot be applied in view of the ratio in M.Nagaraj (supra), and, secondly, that the ratio of that case of Gopal Meena (supra) cannot in any case be applied retrospectively, either from 1997, or prior to 1997, without any OM/specific direction being issued in this regard. In sum and substance, the applicants had, through their rejoinder, submitted that since the Honble High Courts judgment in the case of Gopal Meena (supra) has been challenged before the Honble Supreme Court, and has thus not yet attained finality, its dictum or ratio cannot be applied, and it certainly cannot be applied retrospectively since 1997, for giving benefit of separate zone of consideration to a person who was promoted on look after charge basis in the year 2007, against the vacancies of reserved category. It was submitted that Private Respondent R-7 cannot be allowed to jump over his compatriots in the guise of implementing a separate zone of consideration from 1997, since any order cannot be given retrospective applicability without any specific direction of the court regarding its retrospective applicability, giving the date of applicability/OM in this regard.

58. The Coordinate Bench had framed the fourth issue regarding the averments of the applicants not being within the consideration zone, but it is seen that the case of applicant No.1 was very much considered, and also that he was promoted through orders dated 15.12.2008 at Annexure A-6, and, therefore, this issue also does not fall for any further consideration.

59. The applicants had relied upon the Office Order dated 06.04.2011 (Annexure A-VIII) by which the review DPC was held for the DPCs held earlier on 09.12.1997, on 14.05.1998, on 25.01.2002 & on 23.03.2006. It is seen that these review DPCs were held in compliance of the orders of this Tribunal in TAs No.890/2009, 986/2009, 706/2009, 697/2009, 707/2009, 708/2009, 124/2010, 125/2010 etc. It is not clear from this Office Order, and its proceedings, as to whether these three TAs No.243/2009, 327/2009 & 395/2009, the common orders passed in which have since been set aside by the Honble High Court, were also included along with the TAs No. 890/2009, 986/2009, 706/2009, 697/2009, 707/2009, 708/2009, 124/2010, 125/2010 etc., though it does not appear to be so. In such circumstances, prima-facie it appears that the Office Order dated 06.04.2011 (Annexure A-8) derives its sustenance from such orders of this Tribunal which have remained unchallenged, and have therefore become final, and thus the Office Order would remain valid and cannot be challenged obliquely in the present proceedings, in this manner, by way of its being filed as an Annexure, without a separate challenge having been laid against it, for adjudication.