Full Judgment
2. ThepetitionersO.A.No.260of2010wasdismissedby the Central Administrative Tribunal, Patna Bench, Patna, Circuit BenchatRanchivideorderdated12thJanuary,2011ontheground thatthepetitionerearlierpreferredO.A.No.101of2009,whichwas dismissedbythesameBenchvideorderdated9thMarch,2010and therefore, petitioners second O.A. is barred by Principle of resjudicataaswellasonthegroundofdelay.
3. Learned counsel for the appellant submitted that the petitioner in O.A. No. 101 of 2009 prayed that his case may be considered for promotion to the Indian Police Service and the petitionerdidnotchallengethepromotionsofotherpersonswho weregivenpromotioninIndianPoliceService.Itisalsosubmitted that those selected candidates were not party in O.A. No.101 of 2009 and that the Principle of res judicata as provided under Section11oftheCodeofCivilProcedure,itappliesincasewhere earlierdecisionisbetweenthesameparties.
4. Learnedcounselforthepetitioneralsosubmittedthatit istruethattheTribunalhasmadecertainobservationsinPara24of theorderbutsubsequently,thepetitionercametoknowthatthe respondents suppressed the important material facts from the Tribunal and misrepresented that the petitioners case was considered and the petitioner was not found to be suitable candidate for promotion. The petitioner when got relevant document, then the petitioner found that in fact his case was recommended for promotion. Learned counsel for the petitioner, therefore,submittedthattheimpugnedorderdated12th January, 2011deservestobesetaside.
5. Sofarasquestionofresjudicataisconcerned,weareof theconsideredopinionthatinthepetitionersearlierO.A.No.101 of2009,theTribunalobservethattheapplicanthasfiledtheO.A. against the selection list dated 18th December, 2007 and the petitioners candidature and his eligibility was also considered in variousparasoftheimpugnedorderpassedinpetitionersearlier O.A.No.101of2009includinghiscandidatureforvacanciesofthe year2007inPara21.
6. Withoutgoingdeepinthepleaof resjudicata,weare oftheconsideredopinionthatevenifnecessarypartieswerenotin theearlierO.A.No.101of2009eventhenpetitioner'ssecondO.A. wasnotmaintainabletillorderinO.A.No.101of2009stands.The petitioner did not challenge the order passed in O.A. No.101 of 2009andchallengedthesameorderinacoordinatejurisdiction Bench byindirect way. Thepleathattheorder dated 9th March, 2010isnotbindingisnotavailabletopetitionerandthispleacan be taken only by the persons who were necessary parties in the proceedingi.e.O.A.No.101of2009andwerenotimpleadedin O.A.No.101of2009.
7. Thepetitionersclaimwasconsideredandintheearlier roundoflitigationasapparentfromthecopyoftheorderdated9 th March, 2010, which we have already perused, the Tribunal also quotedthepartoftheportionoftheobservationmadeinO.A.No. 101 of 2009. Unless, these finding are set aside, for any of the reasons,thepetitionerwasnotentitletomaintainsecondO.A.No. 260of2010whichhasbeendismissedthoughonthegroundof Principleofresjudicataandasbarredbylimitation.
8. Theonlyremedybeforethepetitionerwastochallenge the order dated 9th March, 2010 passed in O.A. No.101 of 2009 before appropriate forum which could have been by filing writ petitionaswellasbymovingappropriateapplicationforreviewof theorderpassedinO.A.No.101of2009aftersubmittingrelevant material documents before the Tribunal showing that by suppressing relevant material documents fraud have been committedandpracticedbytherespondentwhichhasvitiatedthe earlier order. The petitioner could have taken the benefit of law thatthefraudvitiateseverything.
9. Therefore,weareoftheconsideredopinionthatthe petitionershouldhavefirstchallengedtheorderdated9th March, 2010andpetitionerssecondO.A.isnotmaintainable.
10. In view of the above reasons, this writ petition is disposed of with the liberty to the petitioner to move the appropriate review application before the Tribunal with relevant materialdocumentssothathecandemonstratethatfraudhasbeen committedinTribunal'sproceedingbysuppressingofthematerials andrelevantdocumentsbytherespondents.
11. In case the petitioner files the review petition and is barred by time by now then, he may move application for condonationofdelayandtheTribunalmayconsidertheprayerfor condonationofdelaysympathetically. (PrakashTatia,C.J.) (JayaRoy,J.) SI/Anit