http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

PETITIONER: DR. A.K. MITRA. DG, C.S.I.R. & ANR.

       Vs.

RESPONDENT: D. APPA RAO & ANR.

DATE OF JUDGMENT:       27/02/1998

BENCH: K. VENKATASWAMI, A.P. MISRA

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T K. VENKATASWAMI, J.      The appellants  are aggrieved by the order dated 9.8.89 of the Central Administrative Tribunal. Patna Bench. in O.A. No. 172/88.      The first  respondent moved  the said  O.A  No.  172/88 before the  Central Administrative  Tribunal  for  declaring that his  seniority  must  be  counted  w.e.f.  11.4.72  for further promotion  to the  post of Section Officer (General) and the  consequential benefits  also must  be given to him. The  Tribunal,   while  giving  the  relief  of  declaration declaring that  the first  respondent herein was entitled to claim  seniority  w.e.f.  11.4.72,  declined  to  grant  the consequential benefits.      The appellants  are aggrieved  by the declaration given by the  Tribunal in  favour of  the first respondent. Hence, the present appeal by special leave.      The  Council  of  Scientific  and  Industrial  Research (hereinafter called   the  ‘CSIR’) is  a Society  registered under the  Societies Registration  Act. 1960 for doing inter alia research  in the  field of  science and technology. The first respondent  joined National  Metallurgical Laboratory, the second  appellant, (for short ‘NML’), a Unit of CSIR, as unskilled Laboratory  Bearer on  an ad hoc basis on 29.12.59 and was  subsequently appointed  as Khalasi on regular basis w.e.f. 9.1.61.  He was  promoted  as  Lower  Division  ClerK w.e.f. 10.7.62  and thereafter  appointed as  Upper Division Clerk against  a post  created and  operated  for  Magnesium Project of  NML w.e.f.  6.12.66. This  Magnesium Project was made a  separate  Unit  w.e.f.  1.5.69  and  was  no  longer remained a  part of  NML. The  first respondent continued to work as  U.D.C in  the said  Project. On  19.8.71, the first respondent was  reverted back  to the  parent unit,  namely, NML-the appellant  No. 2  herein. While  so,  two  posts  of officer Assistants  were sanctioned for Magnesium Project on ex-cadre basis  for which  an  advertisement  was  published inviting applications  for recruiting  Assistants for  those two ex-cadre posts. The first respondent was also one of the candidates, who  responded to  the advertisement for the ex- cadre post.  A panel was ordered in the basis of the written

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

examination in  the order  of merit  and respondent No.1 was shown in  the fourth place. Since there were only two posts, the first  respondent was  not given  the  appointment.  The third respondent  herein was  offered the  post  as  he  was within the  first two candidates in the order of merit. Even on that  occasion, the  first respondent made representation about his  non-selection and he was given a reply on 21.4.72 saying  that   since  the   appointments  were    by  direct recruitment,  the  question  of  giving  any  preference  to departmental candidates  did not  arise. After  some months, the ex-cadre posts in Magnesium Project were regularised.      Till 12.11.81,  the promotion for the post of Assistant (General) was  made both  from the  open market  and also by promotion to  the service candidates. 50% quota was reserved for departmental  U.D.Cs. on All India basis. After 12.11.81 the  promotion   as  office   Assistant   from   U.D.C   was decentralised and  it was  done  on  local  basis.  In  that process,  the  first  respondent  was  appointed  as  Office Assistant (General) in the cadre of NML w.e.f. 6.4.83.      The next promotional post was the Section Officer. When the  vacancies   arose  for   Section  Officers   post,  the appellants conducted  departmental interview  in  which  the third respondent was called for consideration to the post of Section  Officer   (General).  The   first  respondent  sent representations to  the  appellants  against  the  promotion given to  the third respondent ignoring his claims. In other words, the  first respondent once again attempted to re-open the issue  that his  claim for  promotion  to  the  post  of Officer Assistant  should have been considered favourably in the year  1972 and  the decision  of the  appellants turning down  his   representation  on  earlier  occasion,  was  not correct.  The   appellants  replied  to  the  representation stating that  the question  now raised  cannot be  re-opened and. therefore, the same cannot be considered at that stage. Feeling aggrieved  by the  decision of  the appellants,  the first respondent  moved  the  Tribunal  for  the  relief  as mentioned above.      The Tribunal,  on a wrong appreciation of the facts and circumstances, declared that the first respondent (applicant before the  Tribunal) was  eligible  to  be  considered  for appointment to  the post of Section Officer. Since the third respondent herein  (sixth respondent  before the  Tribunal), according to  the Tribunal, cannot be treated as in a better position, the first respondent has to be considered. On that view, the Tribunal held as follows :-      "We hold  that for  the purpose  of      consideration  for  appointment  as      Section  Officer   (General),   the      applicant shall be deemed as having      been validly  appointed to the post      of Assistant  (General) with effect      from 11.4.72, the date on which the      sixth respondent was so appointed."      The   appellants, aggrieved  by the  above view  of the Tribunal and  the consequential  directions, has  filed this appeal.      We do  not find  any difficulty  in  holding  that  the Tribunal went  wrong in appreciating the facts placed before it while  coming to  the above conclusion. First of all, the Tribunal failed  to  appreciate  the  fact  that  the  first respondent’s representation  about his  non-selection to the post of  Assistant (General)  in April, 1972 was rejected by the appellants  and the same question was again re-opened by the first  respondent when  the subject of further promotion was considered  and again  the representation  of the  first

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

respondent was  turned down  by the appellants. The Tribunal by the  impugned order  has allowed  the first respondent to re-open the  issue that  was settled  in the year 1972 in an indirect manner  holding that  the first  respondent must be deemed  to   have  been  appointed  to  the  post  Assistant (General) w.e.f.  11.4.72. For coming to that conclusion, no provision of  law or any other material was shown to support the same  by the Tribunal. The Tribunal was not justified in entertaining the claim of the first respondent to re-open an issue relating  top the  year 1972 in the year 1988. It must be noted  that after  the appointment of third respondent as Officer Assistant  (General) in  the year  1972,  the  first respondent was  regularly promoted  to the  post of  Officer Assistant only  on 5.4.83 and that being the position and he having accepted  the promotion without challenge, it was not open to  him to  contend that he must be deemed to have been promoted as  Assistant (General)  w.e.f.  11.4.72  when  the third respondent  was appointed  b y  direct recruitment  to that post. Further more, the first respondent in response to the  advertisement   for  the   ex-cadre  post   for  direct recruitment, applied  and appeared  for the  examination and took a  chance and  thereafter made  representation that  he should be  promoted to  the post  of Assistant  (General) as departmental candidate which was rejected immediately by the appellants.      For all  these reasons, we are clearly of the view that the  Tribunal   went  wrong  in  declaring  that  the  first respondent must  be deemed to have been validly appointed to the post of Assistant (General) w.e.f. 11.4.72. The order of the Tribunal  is, set  aside and  the appeal  is accordingly allowed with no order as to costs.