http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: GUNENDRA PRASAD SEN GUPTA

       Vs.

RESPONDENT: UNION OF INDIA AND OTHERS

DATE OF JUDGMENT03/05/1983

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) FAZALALI, SYED MURTAZA

CITATION:  1983 SCR  (3)   6        1983 SCC  (3) 303  1983 SCALE  (1)516

ACT:      Service Jurisprdence-Seniority  and Promotion to higher post-Assurance given  to the  employee that his seniority in the post  to which  he was  initially appointed  on his  re- transfer   would    be   considered-Departmental   Promotion Committee  first   rejecting  to   consider  the   case  for empanelling for  promotion for  want of personal records and later when  available refuses to reopen the case-Legality of the refusal Estoppel by conduct, applicability of.

HEADNOTE:      The appellant  was working  as a  Godown-Keeper in  the northern region  of the  Food Corporation  of Delhi.  He was transferred to  the eastern  region at  his own  request  on March 1,  1961. In  August 1962, the Union of India issued a circular to  the effect  that an officer who was transferred from one  region to  another at  his own  request should  be treated as a fresh entrant in the cadre to which he belonged in the  latter region  for the purpose of seniority and thus thereby such  an officer  will forfeit his past services. In the Seniority  List of  1969, the appellant’s name was shown at S.  No 261 but in the seniority list of 1972 his name was shown against  SI. No.  266 and  as a  result  four  of  his juniors   were    promoted.    The    appellant’s    several representations against  the said  promotions having failed, he filed  a writ petition in the Calcutta High Court praying for a  mandamus directing  the respondents either to forbear from giving effect to the promotions or to transfer him back to Northern  region restoring his seniority. As per the High Court’s  orders,   the  Joint   Personnel  Manager   of  the Corporation wrote  to the  Zonal  Manager  (E)  at  Calcutta assuring that  the seniority  position of  appellant in  the Northern region  prior to his transfer to the Eastern region would be  restored to  him. After  his  re-transfer  to  the Northern region,  the  appellant  found  that  some  of  his juniors had  already been  promoted. On  his representation, the Departmental  Promotion Committee  empanelled him in the 1976 panel  and refused  to empanel  him from  1970  on  the ground of non-availability of service records. But when they were  traced   and  produced,   the  Departmental  Promotion Committee refused  to empanel his name in the 1970 List with a cryptic  resolution to  the effect  that "on  the basis of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

records of  his service,  his case  cannot be reopened". His representations against  the said  resolution having failed, the appellant  filed a writ petition in the Delhi High Court which was  dismissed in  limine. Hence the appeal by Special Leave.      Allowing the appeal, the Court ^      HELD: 1:1  The resolution of the Zonal Committee passed in May 1979 stating that the case of the appellant could not be reopened has to be 7 treated as  non-est and  ineffective one  in the eye of law. The Zonal Promotion Committee had not considered the case of the appellant  for the  purpose of including him in the 1970 panel. The re-opening of a case arises only when it has been once considered and a decision is taken thereon. [10 G-H, 11 A-B]      1:2  The  resolution  passed  by  the  Zonal  Promotion Committee means  that it  was not willing to reopen the case of the  appellant on  the basis  of his service records. The resolution does  not show  that the  Committee had  in  fact considered the suitability of the appellant for promotion to a higher  post at  the time when his juniors were empanelled for the  purposes of  promotion. If  it  had  done  so,  the Committee would  have recorded  in its  resolution that  the appellant had  been found  to be  unsuitable  for  promotion during the  relevant time.  When his case came up before the Committee for  the  first  time  in  December  5,  1977,  it deferred the  consideration of  his case  on the ground that the relevant Confidential Reports were not available. Having thus deferred the consideration of the case of the appellant on that  occasion, the Zonal Promotion Committee should have considered his  case when  the relevant Confidential Reports were placed  before it  and passed an appropriate resolution instead of  remarking that  his case  could not be reopened. [10C G]

JUDGMENT:      CIVIL APPELLATE JURSIDICTION : Civil Appeal No. 4061 of 1983      Appeal by  Special leave  from the  Judgment and  Order dated the 11th March, 1981 of the Delhi High Court in C.W.P. No 371 of 1981.      A. Ganguli for the Appellant.      K. C. Keshav Dayal, A. V: Rangam and .G. Gopalakrishnan with him for the Respondents.      The Judgment of the Court was delivered by      VENKATARAMIAH, J.  The appellant  is an employee of the Food Corporation  of India  (hereinafter referred to as ’the Corporation’). For  purposes of  administrative  convenience the entire  territory of  India  in  which  the  Corporation carries on  its operations  is divided into several Regions. The appellant was working as a Godown Keeper in the Northern Region in  the year  1961. At  his request the appellant was transferred to the Eastern Region on March 1, 1961. In July, 1962, a  circular was  issued by  the Government of India to the effect  that an  officer who  was transferred  from  one Region to  another at his own request should be treated as a fresh entrant  in the  cadre to  which he  belonged  in  the latter Region for the purpose 8 of seniority, that is, his seniority should be reckoned only from the  date of  joining duty  in a particular post in the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

new Region and as such he would not be entitled to claim the benefit of  service in  the particular  post in  the  former Region for  the purpose of seniority in the same post in the latter Region to which he was transferred. The circular also stated that  it would  apply to  all cases  of transfers  of officials made  on or  after March 1, 1960. In the seniority list dated  November 1,  1969, the  name  of  the  appellant appeared against  S. No. 261 but in the seniority list dated May 10,  1972, the  appellant’s name was shown against S. N. 266. In  view of the seniority list dated May 10, 1972, four persons who  had  been  considered  to  be  juniors  to  the appellant earlier  were  promoted  in  supersession  of  the claims  of   the  appellant.   The  appellant  made  several representations to  the authorities  concerned  against  his supersession in which he questioned the applicability of the above said  circular issued  in July, 1962 to him. Since the appellant was not given any reply, he filed a petition Civil Rule No.  6044 (W)/72  under Article 226 of the Constitution before the  High Court of Calcutta on July 14, 1972. In that petition, he  prayed for  a writ  in the  nature of mandamus directing the  respondents therein,  namely, the Ministry of Food and  Agriculture, Government  of  India,  the  Regional Director (Food),  Eastern Region,  Government of  India, the Joint  Manager  (Port  Operations)  and  the  Zonal  Manager (Eastern Zone),  Food Corporation  of India  to forbear from giving effect  to the aforementioned circular in his case or in the  alternative to  transfer him  back to  his  original place of  posting in  the Northern  Region with  his  former seniority. By  its order  dated May 13, 1974, the High Court of Calcutta  issued a  writ in the nature of mandamus to the respondents in  that petition  to consider  the case  of the petitioner for  transfer  back  to  his  original  place  of posting in  the Northern  Region within  two months from the date  of   the  communication  of  that  order.  After  some correspondence,  the   Joint  Personnel   Manager   of   the Corporation at  New Delhi  wrote to the zonal Manager (E) of the Corporation  at Calcutta  that the seniority position of appellant in  the Northern  Region prior  to his transfer to the Eastern  Region would  be restored  to  him.  The  Zonal Manager, Calcutta  conveyed the  above  information  to  the appellant by  his letter dated September 1, 1976. Thereafter the appellant  was transferred  to the  Northern  Region  in November, 1976.  After he  joined his  post in  the Northern Region, the  appellant realised that some of his juniors had been promoted  to higher positions during the period when he had been  working in the Eastern Region. He, therefore, made a 9 representation on September 4, 1978 to the Managing Director of the  Corporation that  his cases  for  promotion  to  the higher cadre  should be considered with effect from the date on which  his immediate  junior had been promoted. He made a further representation  to  the  Personnel  manager  of  the Corporation, on August 27, 1979 making a similar request. On January 20, 1980, he wrote to the Manager (Establishment) of the Corporation  about his grievance and on January 30, 1980 to the  Zonal Manager  (North) of  the Corporation. As these representations yielded  no result,  the appellant  filed  a writ petition  under Article  226 of the Constitution before the High  Court of Delhi in C.W.P. No. 371/81. That petition was dismissed  in limine by the High Court of Delhi on March 11, 1981.  This appeal by special leave is preferred against the aforesaid order of the High Court.      The case  of the  appellant is  that since  he had been reposted to  the Northern Region with the seniority which he

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

hold before  he was  transferred to  the Eastern Region, the Corporation should  consider his  case for  promotion to the higher cadre  as on  the date  on which his immediate junior was promoted  and if he is found fit he should be given such promotion and  placed above  his  immediate  junior  in  the seniority list.  He also  claims that  he should be accorded all consequential benefits.      In this  Court, the  Corporation has  filed  a  counter affidavit the  deponent of  which is Shri Madhusudan, Deputy Manager (Admn.),  of the  Corporation. In  the said  counter affidavit, it  is admitted that before the appellant was re- transferred to  the Northern  Region, he  had been  given an assurance that his seniority in the Northern Region prior to his transfer  to the Eastern Region would be restored. It is further stated  that the  case of  the appellant  was placed before the  Zonal Promotion  Committee of the Corporation at its meeting  held on  December 5,  1977 for  considering his case for  promotion to the post of Assistant Manager (Depot) against 1970  panel wherein  his juniors were empanelled. As the Confidential  Reports relating  to the appellant for the years 1966  to 1968 were not available for assessment of his suitability, the Zonal Promotion Committee deferred his case but the  appellant was,  however,  empanelled  against  1976 panel  on   the  basis   of  the   available  reports.   The Confidential Reports  for the  years 1966 to 1968 were later on traced  and the  case of  the appellant  was again placed before the  Zonal Promotion Committee at its meeting held in May, 1979 for considering his claim for inclusion in 10 the 1970  panel. Thereupon  the  Zonal  Promotion  Committee passed a cryptic resolution to the effect that ‘on the basis of records  of his service, his case cannot be reopened’. It is contended  on behalf  of the  Corporation that  since the promotion in  question one  to  be  made  on  the  basis  of selection, the  appellant is  not entitled to any relief. It may be mentioned here that the appellant was not informed by the Corporation that the Zonal Promotion Committee had found him unsuitable  for being  included in  the 1970  panel. The records pertaining to the proceedings of the Zonal Promotion Committee are  not also  placed before  us.  The  resolution passed by  the Zonal Promotion Committee does not convey the meaning which  the Corporation wants to attribute to it viz. that  the   Zonal  Promotion   Committee  had   found  on  a consideration of  the relevant Confidential Reports that the appellant was  unsuitable for  being included  in  the  1970 panel.  The   resolution  passed   by  the  Zonal  Promotion Committee means  that it  was not willing to reopen the case of the  appellant on  the basis  of his service records. The resolution does  not show that the Zonal Promotion Committee had in  fact considered the suitability of the appellant for promotion to a higher post at the time when his juniors were empanelled for purposes of promotion. If it had done so, the Zonal  Promotion   Committee  would  have  recorded  in  its resolution  that   the  appellant   had  been  found  to  be unsuitable  for  promotion  during  the  relevant  time.  It appears  that   the  Zonal   Promotion  Committee   had  not considered the  case of  the appellant  in the  year 1977 in accordance with  law. As  mentioned earlier when the case of the appellant  came up  before the Zonal Promotion Committee for the  first time  on December  5, 1977,  it deferred  the consideration of  the case  of the  appellant on  the ground that the  relevant Confidential  Reports were not available. Having thus  deferred the  consideration of  the case of the appellant on  that occasion,  the Zonal  Promotion Committee should have  considered the  case of  the appellant when the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

relevant Confidential  Reports were  placed  before  it  and passed an  appropriate resolution  instead of remarking that the case  of  the  appellant  could  not  be  reopened.  The reopening of  a case  arises only  when  it  has  been  once considered and a decision is taken thereon. Since we have no material before  us to  show that  there  has  been  such  a consideration earlier, the resolution of the Zonal Promotion Committee passed  in May,  1979 stating  that  case  of  the appellant could  not be  reopened has  to be  treated as  an ineffective one  in  the  eye  of  law.  It  is,  therefore, difficult to  accept the  submission made  on behalf  on the Corporation that  the case  of the  appellant had  been duly considered by the Zonal Promotion Committee for the purpose 11 of including  him in the 1970 panel. In these circumstances, we  have   no  option  but  to  issue  a  direction  of  the Corporation to  consider the case of the appellant for being included in the 1970 panel. We accordingly allow this appeal and issue  a direction  to the  Corporation to  consider the case of  the appellant for promotion as on the date on which his immediate  junior in  the Northern  Region in  the  year 1972, that is, Respondent No. 13 was promoted and if on such consideration the  appellant is found suitable for promotion to promote  him to the higher cadre and place him above such immediate junior  in higher  cadre. If  the appellant  is so promoted,  the   Corporation  shall   also  give   him   all consequential benefits  but he  would not be entitled to any arrears of  salary (the difference between the salary of the higher post  and salary he had actually drawn) upto the date on which  he rejoined his duties in the post in the Northern Region after he was retransferred.      There will be no order as to costs. S.R.                                         Appeal allowed. 12