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2019 Supreme(Raj) 1589
IN THE HIGH COURT OF RAJASTHAN
Mohammad Rafiq and Goverdhan Bardhar, JJ.
Union Of India - Appellant
Versus
Saurav Ganguly - Respondent
Writ Miscellaneous Application No. 117 of 2019, 118 of 2019; Civil Writ Petition No. 3876 of 2014, 8990 of 2017
Decided On : 27-09-2019
Pushpendra Singh Tanwar, Advocate, P.C. Sharma, Advocate
The Tribunal has the discretion to decide whether to await the outcome of a pending SLP before deciding a matter.
Headnote:
REVIEW PETITION - PROMOTION - RBE NO.126/2010 - SUMMARY
Fact of the Case:
The applicants filed review petitions seeking to recall the judgment of the court dated 4.2.2019, which disposed of their writ petition and the writ petition of the Union of India challenging the judgment of the Central Administrative Tribunal, Jaipur Bench, Jaipur. The applicants argued that the court had decided the writ petitions on the assumption that the Special Leave to Petition arising out of the judgment of the Punjab and Haryana High Court dated 15.7.2011 in Lachhmi Narain Gupta & Ors. vs. Jarnail Singh & Ors. had been dismissed, but the SLP was still pending.
Finding of the Court:
The court noted that the applicants had raised new issues before it that were not agitated before the Tribunal. The court also noted that the Constitution Bench of the Supreme Court had rendered a judgment in Jarnail Singh answering the reference on the question of the correctness of the Constitution Bench judgment in M. Nagaraj vs. UOI, which was one of the premises for remanding the matter by the court.
Issues: Whether the court should review and recall its judgment dated 4.2.2019 in light of the pending SLP in Jarnail Singh & Ors. vs. Lachhmi Narain Gupta & Ors.
Ratio Decidendi: The court held that the Tribunal, while deciding the matter afresh, would consider all the arguments and new arguments, including the effect of the Constitution Bench judgment in Jarnail Singh and the pending SLP. The Tribunal may, in its discretion, decide to await the outcome of the SLP.
Final Decision: The court disposed of the review petitions and directed the Tribunal to decide the matter afresh, considering all the arguments and new arguments, including the effect of the Constitution Bench judgment in Jarnail Singh and the pending SLP.
JUDGMENT
1. These two misc. applications have been filed by Shri Saurav Ganguly and Shri Anivash Kumar seeking review and recall of the judgement of this Court dated 4.2.2019.
2. This Court by the aforesaid judgement disposed of the writ petition filed by them and also the writ petition of the Union of India challenging the judgement dated 13.12.2013 passed by the Central Administrative Tribunal, Jaipur Bench, Jaipur by which the Original Application filed by the applicants Shri Saurav Ganguly and Shri Anivash Kumar was disposed of in the following terms:
"32. From the above discussion, it is obvious that the process undertaken by the Respondents for preparation of select list/panel for the promotional post of Junior Engineer Grade II cannot be said to be illegal or contrary to the provisions of various RBEs referred above, since the candidates at sr.no. 1 and 2 in the select list/panel were considered on merits and having secured highest marks they were adjusted not in the roster points for reserved candidates but as general category candidates. Of course this will be subject to final outcome of pending SLP as stated earlier.
33. In the result, the application stands disposed of with the above directions. Parties to bear their respective cost of this proceeding.
3. Shri Puspendra Singh Tanwar, learned counsel for the applicants has submitted that this Court had decided the writ petitions on assumption of the fact that Special Leave to Petition arising out of the judgement of Punjab and Haryana High Court dated 15.07.2011 in Lachhmi Narain Gupta & Ors. vs. Jarnail Singh & Ors., Writ Petition No.13128/2009 has been dismissed. Learned counsel however submits that the Special Leave Petition (Civil) No.30621/2011 in Jarnail Singh & Ors. vs. Lachhmi Narain Gupta & Ors., is still pending. The Punjab and Haryana High Court in their judgement dated 15.7.2011, which is subject matter of challenge in the aforesaid SLP examined the veracity and legality of DOPT Office Memorandum dated 10.8.2010, which was on the subject of promotion of SC/ST candidates on unreserved seats on their own merit. The railway administration has adopted the OM of DOPT by issuing RBE No.126/2010. The Punjab and Haryana High Court has set aside the OM dated 10.8.2010 and the SLP is still pending. The judgement therefore should be reviewed and the matter be heard.
4. Shri P.C. Sharma, learned counsel appearing for the UOI submits that this Court in the writ petition by order dated 19.11.2018 asked from him to clarify what is the exact position of the Rules applied to a situation where the candidates belonging to the SC/ST reserved category get selected against unreserved posts and the posts reserved for those categories remained unfilled and further whether such posts are liable to revert to general category or to be carried forward and what has been actually done in the present case.
5. It is contended that this Court remanded the matter to the Tribunal because in answer to a query by the Court, in the affidavit filed by the respondents, many new factual aspects were raised. Counter affidavit was also filed by the original applicants i.e. review petitioners herein who relied on the interim order dated 17.5.2018 passed in the aforesaid SLP of Jarnail Singh, supra.
6. Learned counsel has cited the Constitution bench judgement of the Supreme Court dated 26.9.2018 in Jarnail Singh, supra, by which the Constitution Bench has answered the reference to the question and to that extent though the main SLP might be still pending, but after answering the reference, it went back to the concerned Bench for disposal. It is argued that though the judgement aforesaid dated 26.9.2019 has to be understood to be final judgement, but that was not the sole basis for remand of the matter. Even remand of the matter does not affect the merit of the case. It is therefore submitted that there is no case for review. The parties can agitate all the issues before the Tribunal, especially on the va
