Sukhdev Chand vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 798 Del

JUDGMENT

S.B. Sinha, C.J.

1. The petitioner herein is aggrieved by order dated 12.09.1997 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as 'the Tribunal') dismissing his original application wherein he sought for a direction upon the respondents to promote him as Commissioner of Income Tax purported to be pursuant to the recommendations of the Departmental Promotion Committee (in short, 'DPC') held in October, 1986, September, 1987 and April, 1988 on the basis of seniority-cum-merit list as also the order dated 04.05.1998 passed by the Tribunal in R.A. No. 248 of 1997 whereby and whereunder it refused to review its earlier order.

2. The original application filed by the petitioner was heard by the Tribunal together with three other original applications and by judgment dated 20.01.1994, the Tribunal noticed that only question, which fell for its consideration, was whether promotion to the cadre of Commissioner of Income Tax was governed by the principle of 'selection on merit' or 'seniority subject to rejection of the unfit and unsuitable candidates.' The answer to the said question was rendered by the Tribunal in favor of the Department and against the employees holding that the selection to the said post was to be on merit and not on the basis of seniority alone.

3. The petitioner herein moved the Apex Court being aggrieved thereby and having regard to fact that a question arose, although no point was raised therein, that the petitioner fulfillled the criteria of being considered for promotion by the DPC having been awarded the remarks 'good' but the same had not been followed and in view of the fact this identical question was pending consideration before the Tribunal in other original applications, by a judgment and order dated 12.02.1996, the said contention of the petitioner found favor with the Apex Court and t he appeals were allowed stating.:-

"Leave granted.

Heard learned counsel for the parties.

This appeal is directed against the order dated January 20, 1994 passed in OA No. 4 of 1992 of the Central Administrative Tribunal, Principal Bench, New Delhi. We have considered the principle to be followed for promotion to the post of Commissioner of Income Tax. It appears to use that such post of Commissioner is to be filled up only on the basis of selection on merit. Seniority-Cum-merit is not the criterion for such promotion.

It has, however, been contended by the learned counsel for the appellant that the appellant has earned remarks 'good' in his confidential character rolls and such remark had been accepted by the Departmental promotion committees as sufficient to give promotion on selection by merit and posts of Commissioner, Income Tax have been filled up on a large number of cases by accepting such gradation as sufficient. Unfortunately in the case of the appellant a different standard had been applied. The learned counsel has also submitted before us that before the Central Administrative Tribunal, Principal Bench, Delhi four other matter are pending where similar questions namely grading as 'good' whether entitles on incumbent for the promotion to the post Commissioner of Income Tax on selection on merit are to be considered.

The learned counsel for the appellant has submitted that in all such case, a uniform policy should be followed in the matter of promotion by way of selection on merit. Accordingly, the case of the appellant should also be considered along with such pending matters so that different standard are not applied thereby doing injustices in some cases.

Mrs. Gowri Shankar, learned senior counsel appearing for the respondents has very fairly submitted that the principle of selection on merit is to be strictly followed and the departmental promotion committee should also follow a uniform policy in all cases of promotion to the post of Commissioner on merit assessment by applying uniform gradation. He has also submitted that if the case of the appellant is considered along with other pending matters before the Central Administrative Tribunal, by applying uniform gradation of the incumbents, he cannot possibly raise any objection.

Considering the facts of the case and the submissions made by the learned counsel for the parties, we dispose of this appeal by setting aside the impugned judgment and sending the mater back before the Principal Bench of the Central Administrative Tribunal, New Delhi, so that the case of the appellant is considered by it along with other pending matters. We make it clear that the promotion to the post of Commissioner o Income tax is to be given only on the basis of merit assessment and not on other consideration, even if a different criterion had been followed in past. The Central Administrative Tribunal; in considering OA-4/92 since remitted back to the Tribunal and other pending matters, should ensure that in all cases of promotion to the post of Commissioner of Income Tax, a similar standard is made applicable.

The appeal is disposed of accordingly.

The Civil Appeal No. 4173 of 1996 (arising out of SLP (C) No. 7706/95) where similar question is involved, is also disposed of in similar terms)."

4. Pursuant to or in furtherance of the said direction, the said question was considered by the Tribunal again together with other pending cases and upon perusal of records of the DPC held in the year 1987 and 1988 the, and learned Tribunal allowed all the applications with a direction to the respondents to consider inclusion of the cases of the applicants in the panel for promotion as Commissioner of Income Tax w.e.f. September, 1987/April, 1988 by making applicable similar standards as applied in the case of other employees, namely, Shri Panna Lal, Smt. Baljit Mathiyani and Smt. Rama Rani Hota.

5. In his Original Application before the learned Tribunal, the petitioner inter alia questioned the alleged discrimination made by the DPCs in its meetings held in the years 1985 to April, 1988. The petitioner thereafter filed a review application, which was dismissed by the learned Tribunal vide order dated 04.05.1998.

6. According to the petitioner, even in the year 1986, one Shri V.K. Gupta, who has been graded as 'good' in October, 1986 was not promoted and he also filed a similar application before the Tribunal which was dismissed but whereas the petitioner questioned the judgment of the Tribunal dated 20.01.1994, Shri V.K. Gupta managed his promotion from a retrospective date, which fact was brought to the notice of the learned Tribunal by filing M.A. on 16.08.1997.

7. The learned Tribunal inter alia held that as the Apex Court categorically stated that their cases were to be heard along with other pending matters,the question of considering the' case of the petitioner as regard his plea of non- consideration of his case by the DPC previous year did not arise. The learned Tribunal further observed that the case of Shri V.K. Gupta did not form part of any yardstick and it stood on a different footing. The learned Tribunal noticed that in O.A. No. 4 of 1992, the petitioner himself referred to the case of Shri Panna Lal so far as DPC of ?September, 1987 was concerned and the cases of Smt. Baljit Mathiyani and Smt. Rama Rani Hota so far as DPC of April, 1988 was concerned and as such he was not entitled to raise any other question.

8. Mr. Khurana, the learned counsel appearing on behalf of the petitioner, would urge that although the connected applications were considered only as regard discrimination made by the DPC in its meetings in 1987-88, the claim made by the petitioner was wider in nature.

9. The learned counsel would contend that the learned Tribunal committed an error insofar as it failed to take into consideration that the judgment of the Apex Court could not have been read as a statute and in support of the said contention reliance has been placed upon a decision of the Apex Court in Union of India and Ors. v. Dhanwanti Devi and Ors. .

10. According to the learned counsel, the learned Tribunal failed to notice that even a similar matter relating to Shri V.K. Gupta was filed before the Tribunal.

11. Mr. R.K. Sharma, the learned counsel appearing on behalf of the respondents, on the other hand, would contend that the learned Tribunal cannot be said to have committed an error of law insofar as it confined its consideration to the cases in support of the DPCs held in the years 1987 and 1988, as only the said question was pending consideration before the Tribunal at the relevant time.

12. The conspectus of events, as noticed hereinbefore, clearly go to show that the petitioner at the time of argument of the matter compared his case only with Shri Panna Lal & Ors., who was concerned with the decision of the DPC held in the year 1987 and 1988.

13. Shri V.K. Gupta, who is said to be similarly situated like the petitioner, suffered a judgment at the hands of the Tribunal, as he did not prefer any appeal thereagainst. How he was promoted later on by the Department is not known to us. Merely by making an allegation to the effect that he later on managed his promotion by itself is, in our view, not a sufficient ground to hold that the petitioner stood similarly situated to that of Shri V.K. Gupta. It may be so, it may not be so.

14. The only question, which is relevant for the purpose of disposal of this case, is that the petitioner never brought to the notice of the Tribunal the subsequent events and he never imp leaded Shri V.K. Gupta as a respondent in his original application by filing an application of amendment of his original application.

15. The main thrust of the petitioner, as noticed hereinbefore, in his original application was that even for the purpose of promotion to the post of Commissioner of Income Tax, seniority-cum-merit was the governing criteria. Such a plea was negatived by the Tribunal. Only before the Supreme Court, he raised a contention that a question of discrimination (which point he had not raised) is pending consideration before the Tribunal. The Apex Court despite the fact that such a contention had not been raised before the Tribunal allowed him an opportunity to raise the said contention.

16. Assuming that the contention of Mr. Khurana to the effect that a judgment should not be read as a statute is to be applied in this case, it was incumbent on the petitioner t bring all facts on records of the case and implead Shri V.K. Gupta in relation to whom he alleged discrimination. He did not choose to do so. He, as the records show, did not raise such a question even before the Tribunal, in his' original application. As it appears from the impugned order dated 12.09.1997 that such a contention had not been raised, and therefore, in his application for review, he could not have been permitted to raise a new ground. In this view of the matter, we are of the opinion that the impugned judgment does not suffer from any legal infirmity.

17. In Dhanwanti Devi and Ors.'s case (supra), whereupon Mr. Khurana has placed strong reliance, the Apex Court held:-

"9. Before adverting to and considering whether solarium and interest would be payable under the Act, at the outset, we will dispose of the objection raised by Shri Vaidyanathan that Hari Krishan Khosla case is not a binding precedent nor does not it operate as ratio decidendi to be followed as a precedent and is per se per incuriam. I is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyses a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, very decision contains three basis postulates--(i) findings of material fact s, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct,or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of t he expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision along is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what is was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi."

18. In the instant case, the precedential value of a binding judgment of the Apex Court was not required to be considered.

19. The simple question that arose before the Tribunal in its review application was as to whether the petitioner having not raised any plea was entitled to urge the same by filing a review application. The answer to the said question must be rendered in negative.

20. For the reasons aforementioned, we do not find any merit in this writ petition, which is accordingly dismissed. However, in the facts and circumstances of the case, there shall be no orders as to cost.