N.A. Khan Vs. Union of
India & ANR. [2009] INSC 664 (31 March 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.2132 of 2009 (Arising out
of SLP (C) No. 15011 of 2006) N.A. Khan ...Appellant VERSUS Union of India
& Ors. ..Respondent(s)
ORDER
1.
Leave
granted.
2.
By
this appeal, which has been filed by way of a Special Leave Petition, the
appellant has challenged rejection of his writ petition and Review Petition
filed before the High Court of Delhi at New Delhi, by which the High Court had
dismissed his writ petition on the ground that the principles of Resjudicata
stood against him.
3.
The
brief facts of the present appeal are that the appellant initially was an
Income Tax Officer and a representation was made by him for promotion to Group
`A' post, which was rejected by the concerned 2 authorities and such rejection
was communicated to him by a letter dated 26th of February, 1992. The grounds
for rejection shown by the appellant were that although remarks of the Reporting
Officer for the Assessment years 1986-87 to 1989-90 were `Outstanding' and for
the year 1990-91 was `Good', but these remarks were toned down by the Reviewing
Officer by giving remarks as `Good' for the year 1986- 87, `Very Good' for the
year 1987-88 and 1988-89, `Good' for the year 1989-90 and `Average' for the
assessment year 1990-91. This was challenged by the appellant before the
Central Administrative Tribunal (in short, `CAT') by way of an original
application, which was disposed of by the Tribunal in the following manner :-
"The Original Application is partly allowed and is disposed of with a
direction to convene a Review DPC to consider the applicant's case, taking into
account the observations made above. This shall be done by the respondents
within a period of three months from the date of receipt of a copy of this
order. If applicant is selected for promotion to the post of Assistant
Commissioner of Income Tax, he shall be 3 entitled to consequential benefits
in accordance with law. O.A. is partly allowed."
4.
Subsequent
to the aforesaid order passed by the Tribunal, the appellant was informed that
the Review Departmental Promotion Committee (in short, `DPC') was convened. By
a communication dated 25th of June, 1989, the appellant was informed that his
prayer for promotion had been rejected by the Review DPC by interalia making
the following findings :- "......the review DPC has, however, not
recommended inclusion of your name in the panel for the year 1990-91 or 1991-92
for want of sufficient number of vacancies. The recommendations of the Review
DPC has been accepted by the competent authority."
5.
This
was challenged by the appellant by way of a Contempt Petition before the CAT,
which was rejected and the order passed in the Contempt Petition was thereafter
challenged before the High Court and the High Court, while dismissing the writ
petition, made the following observations :- 4 "It would not be open for
this Court to interfere at this stage as there is categorical finding by the
Tribunal that the observations have been complied with and the petitioner was
properly assessed by the DPC. The present petition is, therefore, dismissed,
leaving it open to the petitioner to seek any further clarification or
modification of the order made by the Tribunal on 27th January, 2000 which is
impugned in this writ petition."
6.
Pursuant
to the aforesaid order passed by the High Court, the appellant again moved an
application before the CAT for clarification and modification of the order of
the Tribunal. This application was disposed of by the Tribunal in the following
manner:- "However, the DPC was still of the view that the applicant could
not find place in the list of candidates who were promoted as the DPC had found
and assessed the applicant as `good' and since officer with better grading were
included in the select list, so the Committee did not include the name of the
applicant for the relevant years for want of sufficient number of vacancies. So
in these circumstances, we find that when the DPC was fully apprised of all the
relevant facts as are being mentioned in the MA also, so we find that there is
no need to modify our previous order."
Feeling aggrieved, a
writ petition was filed by the appellant before the Delhi High Court, which was
also dismissed and a Review application in respect of the same was also
rejected by the High Court. These are the two orders which are now under
challenge before us.
7.
Having
heard Mr. Manish Pitale, learned counsel for the appellant and Mr. P.V. Shetty,
learned Senior Counsel for the respondents and after considering the materials
on record including the impugned orders passed by the High Court, we dispose of
this appeal in the following manner :- The only question on which the High
Court dismissed the appeal was the question of Resjudicata. Considering the
materials on record and applying the principles of Resjudicata in the facts and
circumstances of the present case, we are of the view that the principles
relating to Resjudicata cannot arise at all. It is an admitted position that
the Review DPC had passed an order without going into the question whether
sufficient vacant seats were available at the relevant point of time i.e. in
the year 1991- 92 when the appellant was found suitable for being 6 considered
for promotion. We are informed and in fact, we find from the aforesaid order
itself that five members/candidates have already been promoted superseding the
claim of the appellant. If vacant seats were made available in the year 1991-92
and the appellant was suitable for promotion, then the question of declining
his claim for promotion ought not to have arisen.
8.
We
are therefore of the view that the impugned orders cannot be sustained. Let the
matter be sent back to the concerned Review DPC to ascertain whether the
appellant herein was suitable for promotion in the year 1991-92 and if it is
found so, the appellant should be promoted notionally. Since the appellant has
already retired in the meantime, the appellant should be paid the amount
payable to him on the basis of said notional promotion.
9.
For
the reasons aforesaid, the impugned orders are set aside. The appeal is allowed
to the extent indicated above.
There will be no
order as to costs. Interim order, if any, stands vacated.
..............................J.
[Tarun Chatterjee]
New
Delhi;
...............................J.
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