Union of India (UOI) and Another vs Shri A.P. Singh and Others

Admit.

Issue notice to respondent Nos. 1 and 3 to 32. The respondents are allowed four weeks'' time to file counter affidavit. The petitioners will have one week thereafter to file rejoinder affidavit.

List on 21.9.2010.

The Central Administrative Tribunal has allowed the Original Application No. 503 of 1996 on 4.3.2009, relying upon Dev Dutt v. Union of India and Ors. (2008) 2 SCC (L&S) 771. The Tribunal has also relied upon Vijay Kumar v. State of Maharashtra 1988 SCC (L&S) 42 and State of Gujarat v. Suryakant Chunilal Shah (1999) SCC (L&S) 313 and has held that since a ''good'' entry can be a ground to refuse promotion as the applicant could not clear the benchmark, it has to be treated as adverse for limited purpose to be communicated for a possible upgradation. The Tribunal thereafter held that since the bench mark has been changed by O.M. dated 10.4.1989, the ''good'' entry be communicated to applicant to allow him to make a representation, if the applicant so desired within two months and if the entry is upgraded, the applicant should be considered for promotion by the Departmental Promotion Committee to be convened within three months with all consequential benefits.

It is submitted by Shri Satish Chaturvedi that the judgment in Dev Dutt''s case was found to be laying down position of law, which is contrary to Satya Narain Shukla Vs. Union of India (UOI) and Others, and K.M. Mishra v. Central Bank of India and Ors. 2008 (9) SCC 120. The Supreme Court has noticed the apparent conflict between the decision and thus in Union of India v. A.K. Goel Special Leave to Appeal (Civil) No. 15770/2009 the Supreme Court has by its order dated 29.3.2010 referred the matter to the Larger Bench. The order is quoted as below:

Leave granted.

In view of the apparent conflict between the decisions of this Court in Dev Dutt Vs. Union of India (UOI) and Others, on the one hand and Satya Narain Shukla Vs. Union of India (UOI) and Others, and K.M. Mishra v. Central Bank of India and Ors. 2008 (9) SCC 120 these appeals are referred to a Larger Bench. Let the matter be placed before the Hon''ble the Chief Justice of India for this purpose.

(O.P. Sharma) (M.S. Negi)

Court Master Court Master

It is submitted that the decision in K.M. Mishra was rendered on September 16, 2008, later than the decision in Dev Dutt''s case and thus as later decision, even if the view was taken without noticing Dev Dutt''s case, it should be ordinarily followed by the Tribunal.

We prima facie find substance in the contention that if there is a conflict between two decisions, the settled practice is to follow the later decision, until the conflict is resolved.

In K.M. Mishra the Supreme Court held that unless the rules so provide, it is not necessary to communicate the entry which is not of adverse nature.

Relying upon the later decision, and until the conflict is resolved, we direct that the operation of the impugned order of the Central Administrative Tribunal dated 4.3.2009 in O.A. No. 503/1996 A.P. Singh v. Union of India shall remain stayed.