A.K. Mitra. Dg, C.S.I.R. & Anr Vs. D. Appa Rao & Anr  INSC 135 (27 February 1998)
A.P. Misra K. Venkataswami, J.
appellants are aggrieved by the order dated 9.8.89 of the Central
Administrative Tribunal. Patna Bench. in O.A.No. 172/88.
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.
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.
appellants are aggrieved by the declaration given by the Tribunal in favour of
the first respondent. Hence, the present appeal by special leave.
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 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.
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.
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.
aggrieved by the decision of the appellants, the first respondent moved the
Tribunal for the relief as mentioned above.
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.
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 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.
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