TMI Blog2010 (1) TMI 1242X X X X Extracts X X X X X X X X Extracts X X X X ..... i Arvind Kumar Trivedi, TRO-3, Kanpur., Shri Ram Kumar Bhargava, TRO-6, Kanpur., Raghvendra Singh, ITO (HQ), Kanpur., Shri Surya Kant Misra, ITO (HQ), Kanpur., Shri Shiv Raj Singh Chahal, ITO, Ghaziabad., Shri Harish Kumar, ITO, Kanpur, Shri Ajay Anand, ITO, Muzaffarnagar, Shri Sangeet Bansal, ITO, Ghaziabad., Shri Arjun Singh, ITO, Dehradun., Shri Brij Bhusan Singh, ITO, Aligarh. Hon ble Mr. Justice S.C. Sharma, Member (J) and Hon ble Mr. D.C. Lakha, Member (A) For the Appellant : Advocates: Mr. U.N. Sharma, Mr. Shailendra. For the Respondent : By Advocates: Sri A.K. Pandey, Sri Anil Kant Tripathi, Sri Amit Sthalekar, Sri S.K. Pandey, Sri Saumitra Singh. ORDER By Hon ble 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 prayer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Hon ble High Court of Gujarat, affirmed by the Hon ble 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 Hon ble High Court of Gujarat and the Hon ble 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 applicant s 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 Hon ble High Court of Gujarat and the Hon ble 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 st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able 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 Hon ble 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 Hon ble Supreme Court. It has further been alleged that as the entire matter involved in the O.A. is subjudice before the Hon ble 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. Separa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 applicant s 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 Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Hon ble 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 Hon ble 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 Hon ble 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Hon ble 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 Hon ble Supreme Court of Gujarat and confirmed by the Hon ble 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 possibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Hon ble High Court of Gujarat and of Hon ble 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 Hon ble High Court of Gujarat and Hon ble Apex Court at that time but the grounds were available. Even as the matter is subjudice before the Hon ble 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 010. 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 Hon ble Apex Court, applications for recall are not maintainable. He produced a Judgment of the Hon ble 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 Hon ble 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 Hon ble 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 restraini ..... X X X X Extracts X X X X X X X X Extracts X X X X
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