Bombay High Court
The Income Tax Sc / St / Obc ... vs The Union Of India And Ors on 4 May, 2022
Bench: Virendrasingh Gyansingh Bisht
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Urmila Ingale IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Digitally signed
by URMILA
URMILA
PRAMOD
PRAMOD
INGALE
Date:
WRIT PETITION NO. 8311 OF 2019
INGALE 2022.05.06
11:25:14
+0530
The Income Tax SC/ST/OBC
Employees Welfare Association
through its office bearer
Mr. Rupesh B. Ukey and ors. .. Petitioners
Vs.
Union of India and ors. .. Respondents
Dr. Suresh T. Mane, for Petitioners.
Mr. Rui Rodrigues a/w Mr. Shailesh S. Pathak, for
Respondent No. 1.
Mr. Rahul Walia, for Respondents No. 4 and 5.
CORAM: DIPANKAR DATTA, CJ &
V. G. BISHT, J.
DATE: MAY 4, 2022
P.C.:
1. Original Application No. 209 of 2019 on the file of the
Central Administrative Tribunal, Mumbai Bench, Mumbai
(hereafter "the Tribunal", for short) has been dismissed by a
judgment and order dated July 10, 2019. The said order is
under challenge in this writ petition dated July 23, 2019 at the
instance of the original applicants.
2. The original applicants/petitioners are (i) The Income
Tax SC/ST/OBC Employees' Welfare Association, through its
office bearer Mr. Rupesh B. Ukey, (ii) Mrs. Archana Rahul
Chikhalkar and (iii) Ms. Archana Kalpak Koli. The petitioners 2
and 3 along with others belonging to the reserved category
while serving as Income Tax Inspectors had been granted
promotion as Income Tax Officers. Such promotions together
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with a seniority list dated January 22, 2014 were subjected to
challenge by one Mr. Sanjeev Kumar and 4 (four) others
before the Tribunal in Original Application No. 623 of 2016. In
such original application, Ms. Archana Kalpak Koli and Mrs.
Archana Rahul Chikhalkar were arrayed as respondents 6 and
7, respectively, whereas Mr. Rupesh B. Ukey was arrayed as
respondent no. 4. For the reasons assigned in its judgment
and order dated October 31, 2017, the Tribunal allowed
Original Application No. 623 of 2016. The impugned orders
dated June 4, 2014 [Annexure 'A-1'], October 17, 2014
[Annexure 'A-2'] and April 25, 2016 [Annexure 'A-4'] as well
as the seniority list dated January 22, 2014 [Annexure 'A-3']
were quashed. All other relatable consequential
factors/actions stood set aside. The official respondents
(Union of India and its officers) were directed to strictly follow
the ratio of law laid down by the Supreme Court in its decision
reported in (2017) 4 SCC 620 [B.K. Pavitra & others Vs.
Union of India and Ors.] while promoting officers to the
next higher posts and determining the inter se seniority of the
promoted officers by strictly following the catch-up rule.
3. It is not in dispute that Ms. Archana Kalpak Koli and Mrs.
Archana Rahul Chikhalkar did not challenge the judgment and
order dated October 31, 2017. However, it was challenged by
Mr. Rupesh Ukey by instituting Writ Petition No.848 of 2018
before this Court. A co-ordinate Bench by its judgment and
order dated March 5, 2018 dismissed Writ Petition 848 of
2018 for the reasons assigned therein. We find from the
judgment and order dated March 5, 2018 that an application
seeking intervention being Civil Application No. 539 of 2018
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had been filed in Writ Petition No. 848 of 2018 by Income Tax
SC/ST/OBC Employees Welfare Association, being the
petitioner no.1. The Court observed that since the writ
petition itself had been dismissed at the threshold, question of
permitting any intervention would not arise.
4. Pertinently, the official respondents had not challenged
the judgment and order dated October 31, 2017 as on the
date Writ Petition No. 848 of 2018 came to be dismissed;
however, almost 2 (two) years after Original Application No.
623 of 2017 had succeeded before the Tribunal, the Union of
India belatedly challenged the judgment and order dated
October 31, 2017 before this Court by instituting a writ
petition on April 26, 2019 being Writ Petition No. 7520 of
2019. The same too stands dismissed by reason of a
judgment and order of recent origin of another co-ordinate
Bench dated April 13, 2022 [of which one of us (the Chief
Justice) was a member].
5. We are informed that the judgment and order dated
March 5, 2018 in Writ Petition No. 848 of 2018 affirming the
judgment and order dated October 31, 2017 of the Tribunal in
Original Application No. 623 of 2017 has not been carried
further in appeal before the Supreme Court and has, thus,
attained finality.
6. In compliance with the order dated October 31, 2017,
the official respondents in Original Application No. 623 of
2017 proceeded to re-draw the seniority list and circulated the
same vide a circular dated February 22, 2019. Pursuant
thereto, seniority of inter alia the petitioners 2 and 3 was re-
fixed. They, along with other similarly situated employees who
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were earlier granted promotion as reserved category
candidates, were reverted by an order dated March 23, 2019.
The circular dated February 22, 2019 re-drawing the seniority
list, initially, was the subject matter of challenge at the
instance of the present petitioners before the Tribunal in
Original Application No. 167 of 2019. The said application was
taken up for consideration on March 11, 2019. Learned
advocate for the petitioners did not pray for orders that were
claimed by the petitioners vide prayer clauses (a) to (g);
instead, he submitted before the Tribunal that the petitioners
would be satisfied if their representations dated February 25,
2019 [Annexure A-16 collectively] were directed to be
considered by the official respondents within a certain time
frame that the Tribunal may fix and in accordance with law.
Hearing such submission and considering that a direction for
consideration would not prejudice the right of any other
employee, the Tribunal proceeded to dispose of Original
Application No. 167 of 2019 directing consideration of the said
representations and disposal thereof by passing a reasoned
order within a period of twelve (12) weeks from the date of
receipt of a certified copy of the order. It was further recorded
in such order that the merits of the case had not been
examined.
7. In compliance with the order dated March 11, 2019, the
official respondents considered the representations of the
petitioners and disposed of the same on April 4, 2019. We are
informed that no relief was granted to the petitioners. The
order of disposal of the representations is, however, not on
record.
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8. Quite strangely, the petitioners approached the Tribunal
once again on March 22, 2019 without waiting for disposal of
their representations. They challenged the circular dated
February 22, 2019 by instituting Original Application No. 209
of 2019 (out of which this writ petition arises). Several
prayers were made which have been quoted in the judgment
and order dated July 10, 2019 and, hence, are not repeated.
The order of reversion dated March 23, 2019 and the order of
disposal of representation dated April 4, 2019 were issued
soon after institution of the original application, yet, the
petitioners did not make any attempt to amend the original
application and to lay any challenge to such orders. No
wonder, Original Application No. 209 of 2019 came to be
dismissed by the Tribunal by the judgment and order dated
July 10, 2019 with costs.
9. It is in this factual background that we are tasked to
adjudicate the present challenge laid by the petitioners.
10. In course of hearing today, we called upon Dr. Mane,
learned advocate appearing on behalf of the petitioners to
demonstrate how the circular dated February 22, 2019 re-
drawing the seniority list as well as the order of reversion
dated March 23, 2019 suffers from legal infirmity bearing in
mind that the same were end-results of compliance of the
Tribunal's judgment and order dated October 31, 2017. The
only submission advanced before us by Dr. Mane is that the
judgment and order dated October 31, 2017 disposing of
Original Application No. 623 of 2016 is erroneous and,
therefore, any action taken in pursuance of such judgment
and order is also erroneous.
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11. We are afraid, the question as to whether the judgment
and order dated October 31, 2017 suffers from any error of
law or facts could not have been agitated either before the
Tribunal while it was in seisin of Original Application No. 209
of 2019 nor before us in course of these proceedings. The
judgment and order dated October 31, 2017 has merged in
the judgment and order dated March 5, 2018 passed in Writ
Petition No. 848 of 2018 and the latter judgment and order
not having been challenged by any party before the Supreme
Court, it has attained finality leaving us with little scope to go
beyond such judgment and order and to ascertain whether
any error, at all, was committed by the Tribunal in the course
of disposal of Original Application No.623 of 2016 by its
judgment and order dated October 31, 2017. Even such
course is also not open to us since in Writ Petition No. 848 of
2018, the said judgment and order has been affirmed.
12. It is evident from a reading of the order dated March 11,
2019 that in course of hearing of Original Application No. 167
of 2019, it was contended on behalf of the petitioners that the
seniority list dated January 22, 2016 (sic, 2014) had been
prepared following the law pertaining to reservation as the law
is clear on the subject that reservation in promotion is
permissible. Much the same argument was advanced before
the Tribunal in course of hearing of Original Application No.
209 of 2019. The Tribunal having noted the previous orders
passed in proceedings between the parties arrived at the
conclusion that the issue sought to be raised by the
petitioners was barred by the principles of res judicata. We
share the view expressed by the Tribunal. Once a point is
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raised before the Court and the Court proceeds to pronounce
its decision on such point on merits, it is no longer open to
any party to agitate the same point in a subsequent round of
proceedings between the same parties. An endeavour on the
part of the petitioners, particularly the petitioners 2 and 3, to
raise a point which has already been decided without,
however, subjecting judgment and order dated October 31,
2017 passed in Original Application No. 623 of 2016 to any
challenge before a higher forum proves fatal so far as their
interest is concerned and we have no hesitation to hold that
the law would not permit them to raise the same point twice
over. We have noted that this writ petition has arrayed
Income Tax SC/ST/OBC Employees Welfare Association as the
first petitioner; however, the association is represented by its
office bearer, Mr. Rupesh B. Ukey, who himself was the
petitioner in Writ Petition No. 848 of 2018. Having not
succeeded in obtaining any relief in Writ Petition No. 848 of
2018, it appears to be an attempt on the part of the said
Rupesh B. Ukey to have a second bite at the cherry.
13. Even otherwise, we are of the opinion that institution of
Original Application No. 209 of 2019 is an abuse of the
process of law. Having invited the Tribunal to dispose of
Original Application No. 167 of 2019 with a direction upon the
official respondents to consider the representations made
against the circular re-drawing the seniority list and the
Tribunal having granted 12 (twelve) weeks' time therefor,
Original Application No. 209 of 2019 could not have been
instituted without any substantial change in circumstances.
Nothing adverse to the interest of the petitioners transpired
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between March 11, 2019 (when Original Application No. 167
of 2019 was disposed of) and March 22, 2019 (when Original
Application No. 209 of 2019 was instituted). Without there
being an infraction of any legal right in between, Original
Application No. 209 of 2019 was not maintainable in law. The
Tribunal, therefore, was justified in dismissing Original
Application No. 209 of 2019 with costs.
14. For the reasons aforesaid, we hold this writ petition to
be devoid of any merit. The impugned judgment and order of
the Tribunal is upheld. Accordingly, the writ petition stands
dismissed.
15. The cost directed to be paid by the Tribunal is,
however, made easy accepting the submission of Dr. Mane
that the petitioners ought not to be penalized for the
misbehavior and irresponsible conduct of their learned
advocate.
(V. G. BISHT, J.) (CHIEF JUSTICE)
