A K GOEL Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner had joined CPWD as Assistant Executive Engineer on 1.12.1972. He was promoted as Executive Engineer (Electrical) on 28.8.1976. Next promotion is to the post of Superintendent Engineer. The petitioner was considered for promotion to the post of Superintendent Engineer by the DPC held in 1983-84, but he was not recommended for promotion. We may note that as per the DPC, benchmark for promotion to the post of Superintendent Engineer is 'Very Good', which according to the respondents the petitioner did not satisfy as in some of his ACRs, he was given the grading 'Good'. The petitioner preferred representation stating that he was not communicated the ACR whereby he was giving the grading of 'Good'. His submission was that since rating 'Good' given to him in his ACR is below the benchmark, it should have been treated as adverse for the purpose of promotion and, therefore, it should have been communicated to him to enable him to make representation against that. It was also argued that in the absence of communication of the said entry and giving him opportunity to make representation thereagainst, DPC was not to take into account the said grading while considering his case for promotion. As representations of the petitioner were turned down, the petitioner filed OA No. 587/1997 before the Allahabad Bench of the Central Administrative Tribunal. This OA was allowed by the Tribunal on 24.5.2004 accepting the contention of the petitioner and taking note of certain judgments of the High Courts and the Supreme Court, including the Apex Court decision in U. P. Jal Nigam and Ors. v. Prabhat Chandra Jain, (1996) 2 SCC 363. In the result, following directions were given by the said Bench :-

(2.) The respondents No. 3 and 4 herein, on the ground that they were not impleaded as parties in the said OA and were adversely affected, filed Review Application No. 61/2004 before the Allahabad Bench of the Tribunal. This review application was dismissed by the Tribunal vide orders dated 1.9.2004 While rejecting the review application, it was observed that a review by a third party is itself a very weak case and one should file an independent application/writ. Thereafter, respondents No. 3 and 4 herein filed OA No. 2618/2004 before the Principal Bench of the Tribunal. Their contention in this OA was that it was not necessary to communicate the grading 'Good', which may though be below the benchmark 'Very Good', but was not adverse. These respondents relied upon the judgment of the Full Bench of the Tribunal in the case of Dr. A. K. Dawar v. Union of India (OA No. 555/2001 decided on 16.4.2004). The petitioner herein was impleaded as the respondent No.3 in the said case. Respondents No. 1 and 2 in the said OA, namely, the Union of India and the Secretary, UPSC supported the stand taken by the applicants (respondents No.3 and 4 herein) and the petitioner herein contested the said petition. It was also the argument of the petitioner herein that in view of the judgment passed by the Allahabad Bench of the Tribunal in OA filed by him, which had attained finality, it was incumbent upon the official respondents to give effect to that judgment and draw up the fresh seniority list and give him the benefit of the said judgment. It was also argued that another coordinate Bench of the Tribunal could not take contrary view.

(3.) The Tribunal has decided the OA filed by the respondents No. 3 and 4 herein vide judgment dated 26.5.2005. The Tribunal was conscious of the fact that the judgment of the Allahabad Bench of the Tribunal had to be overcome in case relief is to be given to the respondents No.3 and 4. In para 19 of the judgment, the Tribunal recorded this fact and mentioned that in a situation like this, three courses were open to the Tribunal, namely: (i) to follow the law laid down by the Allahabad Bench in its order dated 24.5.2004 being a precedent on the issue which had arisen in the said OA and is covered by the judgment rendered by the Allahabad Bench; (ii) if the Principal Bench was inclined to take a dissenting view from the view taken by the Allahabad Bench, then it was supposed to refer the question for decision by a larger Bench (Full Bench) of the Tribunal and; (iii) third alternative was to hold that the order of the Allahabad Bench was per incuriam as it was based without taking into consideration the ratio of law laid down by the Full Bench in Dr. A.K. Dawar (supra). The Tribunal chose the last alternative and having regard to its Full Bench judgment in Dr. A.K. Dawar (supra) held that the judgment of the Allahabad Bench, which had not taken into consideration the said judgment, is per incuriam. As a consequence, the Principal Bench allowed the OA filed by the respondents No.3 and 4 herein following the Full Bench judgment in Dr. A.K. Dawar (supra). Challenging that judgment, the present writ petition is filed.