2010 (1) TMI 1242 - Tri - Income Tax

Summary

Issues Involved:
1. Quashing of the seniority list.
2. Restraining further promotions until the revised seniority list is published.
3. Compliance with the judgments of the Hon'ble High Court of Gujarat and the Hon'ble Supreme Court.
4. Allegations of procedural lapses in the preparation and publication of the seniority list.
5. Applicant's locus standi and the principle of natural justice.
6. Sub judice matters before the Hon'ble High Court and the Hon'ble Supreme Court.
7. Barred by limitation, res judicata, and constructive res judicata.
8. Proper forum for compliance of higher court judgments.

Detailed Analysis:

1. Quashing of the Seniority List:
The applicant challenged the seniority list published in November 2002, alleging it was not prepared in accordance with the statutory provisions. The seniority list was revised following a judgment in O.A. No. 1421 of 2001, but the draft was not circulated for objections, violating procedural norms. The applicant claimed that juniors were shown as seniors in the revised list, which was never published, leading to his lack of awareness.

2. Restraining Further Promotions:
The applicant sought to restrain the respondents from making any promotions until the seniority list was revised in compliance with the Supreme Court's judgment in S.L.P. No. 9181-9185 of 2005. The Tribunal initially granted this relief at the admission stage, directing the respondents to finalize the seniority list before making any promotions.

3. Compliance with Judgments:
The Tribunal directed the respondents to comply with the judgments of the Gujarat High Court and the Supreme Court regarding the seniority list. The applicant argued that the seniority should be fixed according to these judgments, which the respondents allegedly failed to implement.

4. Procedural Lapses:
The applicant alleged that the revised seniority list was prepared without following the statutory provision of circulating the draft for objections. This procedural lapse led to the applicant being unaware of the changes that placed juniors above him.

5. Applicant's Locus Standi and Natural Justice:
The respondents argued that the applicant had no locus standi as he was not in the zone of consideration for promotion to Assistant Commissioner of Income Tax. They contended that the applicant's challenge to the seniority list and subsequent promotions was misleading and misconceived, as he was not directly affected. The Tribunal agreed, noting that the applicant's claim for restraining promotions was unjustified since he was not within the promotion consideration zone.

6. Sub Judice Matters:
The respondents highlighted that the matter of seniority was sub judice before the Hon'ble High Court of Allahabad and the Supreme Court. The Tribunal acknowledged this, stating that the respondents were justified in not implementing the Tribunal's order due to the ongoing litigation.

7. Barred by Limitation and Res Judicata:
The respondents argued that the O.A. was barred by limitation, res judicata, and constructive res judicata. The applicant had previously filed O.A. No. 1658 of 2004 on the same issue, which was dismissed. The Tribunal agreed, noting that the applicant was aware of the seniority list during the earlier O.A. and should have challenged it then. The Tribunal found the subsequent O.A. to be barred by constructive res judicata and limitation.

8. Proper Forum for Compliance:
The Tribunal agreed with the respondents that the proper forum for seeking compliance with the judgments of the Gujarat High Court and the Supreme Court was the Supreme Court itself, not the Tribunal. The Tribunal emphasized that the applicant should have filed a contempt petition before the Supreme Court instead of approaching the Tribunal.

Conclusion:
The Tribunal allowed the applications for recall/modification of the order dated 04.08.2010. The impugned order was set aside, and O.A. No. 1084 of 2010 was dismissed with a heavy cost of Rs. 10,000 imposed on the applicant for misleading facts. The Tribunal concluded that the applicant's challenge was unjustified, as the matter of seniority was sub judice, and the applicant was not within the promotion consideration zone.