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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)

O R D E R

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  

authorities and such rejection was communicated to

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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  entitled to consequential benefits in accordance  with law.  O.A. is partly allowed.”  

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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,  1999,  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 :-

“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

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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

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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  

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.  

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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. March 31, 2009.   [V.S. Sirpurkar]