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Saturday, January 18, 2014

Appointment as Director (Finance ) in B.S.N.L - for second advertisement on 13/14th Nov.2008 - the respondent applied but his application was rejected as a case by CBI is pending - Third advertisement was given on March 2010- the respondent not applied for the post - but basing on old refusal he filed writ - writ was dismissed to approach tribunal - Tribunal dismissed his claim - he filed writ against - high court allowed and gave direction to considered him in third advertisement as CBI gave a clean chit to him - Apex court set aside the orders of High court as the respondent not applied for it- with out application for third advertisement , he can not be considered for the post of Director - Apex court clarified that the case of the respondent, even if has crossed the maximum age limit, shall be considered along with other candidates, if in pursuance of the next advertisement the respondent applies for the post in question.= Union of India & Ors. .....Appellants. Versus Tilak Raj Gandhi …..Respondent.= 2014 ( January - Vol - 1) Judis.nic.in/ S.C./ file name =41149

   Appointment as Director (Finance ) in B.S.N.L - for second advertisement on 13/14th Nov.2008 - the respondent applied but his application was rejected as a case by CBI is pending - Third advertisement was given on March 2010- the respondent not applied for the post - but basing on old refusal he filed writ - writ was dismissed to approach tribunal - Tribunal dismissed his claim - he filed writ against - high court allowed and gave direction to considered him in third advertisement as CBI gave a clean chit to him - Apex court set aside the orders of High court as the respondent not applied for it- with out application for third advertisement , he can not be considered for the post of Director - Apex court  clarified that the case of the respondent, even if  has crossed the maximum age limit,  shall   be  considered  along  with  other candidates,  if  in  pursuance  of  the  next   advertisement   the respondent applies for the post in question.=
There was a vacancy in the cadre of Director
        (Finance) in the  Bharat  Sanchar  Nigam  Limited  (BSNL)  and  for
        filling the vacancy, an advertisement had  been  published  by  the
        Public Enterprises Selection Board on 3rd January, 2008.   
Somehow,
        nothing  happened  in  pursuance  of  the  said  advertisement  and
        therefore,  
another  advertisement  was  published   on   13th/14th November, 2008.  
 In pursuance of the second advertisement,  several
        applications  had  been  received   and   ultimately   the   Public
        Enterprises Selection  Board  found  two  candidates  suitable  for
        appointment to the post in question.  
The first name  was  of  Mrs.
        Anita Soni and the second name of the respondent herein.

5. After necessary scrutiny and upon  getting  report  from  the  Central
        Vigilance Commission (CVC), it was found that Mrs. Anita  Soni  was
        not eligible for appointment to the post  whereas  the  respondent,
        who was working as General Manager (Finance)  with  the  MTNL,  was
        facing an inquiry initiated by the CBI and therefore,  no  one  was
        appointed from the said list.
Thus, once again the post in question  had  been  advertised  on  19th
        March, 2010 and at that time the respondent herein  did  not  apply
        for the post.

   6. As the respondent had not been appointed to the post in  question,  he
        had made a representation  to  the  Appointment  Committee  of  the
        Cabinet  (ACC)  so  that  his  case  might  be  reconsidered.   The
        representation made by the respondent was considered  and  rejected
        by the ACC.


   
  The respondent, thereafter, filed an O.A. No.261 of  2011  before  the
        CAT praying that he should be appointed to the post of the Director
        (Finance) in the BSNL.  
The said O.A.  was  also  dismissed  by  an
        order dated 12th October, 2011 as the CAT found that the process of
        taking decision with regard to appointment to the post in  question
        was flawless.  
Being aggrieved by the said judgment, the respondent
        had filed W.P. (C ) No. 7816 of 2011 before the High Court.


   10.      Subsequently, the inquiry initiated against  the  respondent  by
        the CBI had been  closed  in  pursuance  of  an  order  dated  22nd
        December, 2012 passed  by  the  Special  Judge,  CBI.    
After  the
        inquiry initiated by the CBI was closed, the impugned judgment  was
        delivered on 21st January, 2013 by the High  Court  in  the  above-
        mentioned writ petition filed by the respondent. 
As at the relevant
        time no inquiry was pending against the respondent, by the impugned
        order, the appellants have been directed to appoint the  respondent
        as Director (Finance) in the BSNL immediately after  superannuation
        of an officer who was working as  Director (Finance) in the BSNL at
        the relevant time.  
The post in question  was  not  vacant  at  the
        relevant time and it was to become vacant on 30th  November,  2013,
        as the person holding the said post was to be superannuated on 30th
        November, 2013.=  
It is true that the respondent was given  a  clean  chit  by  an
        order of the CBI court on 22nd December, 2012 but by that time  the
        entire process initiated in pursuance of  the  advertisement  dated
        13th/14th November, 2008 for appointment to the  post  in  question
        had come to an end.  Nothing with regard to appointment to the post
        in  question  was  kept  pending  at  the  time   when   the   next
        advertisement for appointment to the  post  in  question  had  been
        published.  It is unfortunate that the  respondent  did  not  apply
        again for the post in question.  Had he applied  for  the  post  in
        question and had he been given a clean chit by the CBI court at the
        time when his case could have been considered, he might  have  been
        appointed to the post in question if he had been found  to  be  the
        best amongst  all candidates  who  had  applied  for  the  post  in
        question. Unfortunately, this had not happened and  therefore,  the
        respondent cannot have any right to be appointed  to  the  post  in
        question at this juncture.
   Unfortunately, the High Court did not  give  importance  to  the
        fact  that  an  appointment  in   pursuance   of   the   subsequent
        advertisement had already been made by  the  appellant  authorities
        and therefore, the respondent had no legally subsisting right to be
        appointed to the post in question as he had  not  applied  for  the
        post in question again.  In the circumstances we do not agree  with
        the view expressed by the High Court that even after completion  of
        the term of the person who was appointed to the post  in  question,
        the respondent would have a subsisting legal right to be  appointed
        without  considering  other  suitable  candidates  who   might   be
        available at the relevant time.  For the  aforestated  reasons,  in
        our opinion, interim relief granted in  favour  of  the  respondent
        would not be of any help to the respondent because at  this  stage,
        the respondent cannot  be  given  appointment  without  considering
        other eligible candidates who might have applied for  the  post  in
        question.  If other eligible candidates are not given  a chance  to
        compete with the respondent for getting appointment to the post  in
        question,  injustice  would  be  caused  to  the   other   eligible
        candidates and it would also not be proper to fill  up  any  public
        office without giving an opportunity to other candidates who  might
        be eligible and desirous for appointment to the post in question.






   26.      We had considered the judgments cited  by  the  learned  counsel
        appearing for the respondent but in our opinion the said  judgments
        do not render  any  assistance  to  the  respondent  as  facts  and
        circumstances of the present case are quite different.


   27.      For the above reasons, we quash  and   set  aside  the  impugned
        judgment delivered by the High Court.  The appeal is  allowed  with
        no order as to costs.
2014 ( January - Vol - 1) Judis.nic.in/ S.C./ file name  =41149 

       NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO.  309  OF 2014
                  (Arising out of SLP (C) No. 1122 of 2014
                (Arising out of SLP (C) CC No.14679 of 2013)



Union of India & Ors.                        .....Appellants.



                                Versus



Tilak Raj Gandhi                          …..Respondent.



                               J U D G M E N T




1 ANIL R. DAVE, J.




     1. Delay Condoned.


     2. Leave granted.


     3. Being aggrieved by the Judgment delivered  by  the  High  Court  of
        Delhi in Writ Petition (C) No.7816  of  2011  dated  21st  January,
        2013, whereby  the  order  passed  by  the  Central  Administrative
        Tribunal (CAT), Principal Bench, in O.A.No.2164 of 2011 dated  12th
        October, 2011 has been quashed and set aside, has  been  challenged
        before this Court.


     4. The facts giving rise to the present litigation in a nut-shell  are
        as under:


        There was a vacancy in the cadre of Director
        (Finance) in the  Bharat  Sanchar  Nigam  Limited  (BSNL)  and  for
        filling the vacancy, an advertisement had  been  published  by  the
        Public Enterprises Selection Board on 3rd January, 2008.   
Somehow,
        nothing  happened  in  pursuance  of  the  said  advertisement  and
        therefore,
another  advertisement  was  published   on   13th/14th November, 2008.  
In pursuance of the second advertisement,  several
        applications  had  been  received   and   ultimately   the   Public
        Enterprises Selection  Board  found  two  candidates  suitable  for
        appointment to the post in question.  
The first name  was  of  Mrs.
        Anita Soni and the second name of the respondent herein.


   5. After necessary scrutiny and upon  getting  report  from  the  Central
        Vigilance Commission (CVC), it was found that Mrs. Anita  Soni  was
        not eligible for appointment to the post  whereas  the  respondent,
        who was working as General Manager (Finance)  with  the  MTNL,  was
        facing an inquiry initiated by the CBI and therefore,  no  one  was
        appointed from the said list.


   6. As the respondent had not been appointed to the post in  question,  he
        had made a representation  to  the  Appointment  Committee  of  the
        Cabinet  (ACC)  so  that  his  case  might  be  reconsidered.   The
        representation made by the respondent was considered  and  rejected
        by the ACC.


   7. Thus, once again the post in question  had  been  advertised  on  19th
        March, 2010 and at that time the respondent herein  did  not  apply
        for the post.


   8. As the respondent was not given appointment to the post in   pursuance
        of the advertisement dated 13th/14th November, 2008, he had filed a
        writ  petition  before  the  Delhi  High  Court.   Ultimately,  the
        petition filed by the respondent had  been  dismissed  and  he  was
        asked to approach the  Central  Administrative  Tribunal  (CAT)  by
        filing an O.A.


   9. The respondent, thereafter, filed an O.A. No.261 of  2011  before  the
        CAT praying that he should be appointed to the post of the Director
        (Finance) in the BSNL.  
The said O.A.  was  also  dismissed  by  an
        order dated 12th October, 2011 as the CAT found that the process of
        taking decision with regard to appointment to the post in  question
        was flawless.  
Being aggrieved by the said judgment, the respondent
        had filed W.P. (C ) No. 7816 of 2011 before the High Court.


   10.      Subsequently, the inquiry initiated against  the  respondent  by
        the CBI had been  closed  in  pursuance  of  an  order  dated  22nd
        December, 2012 passed  by  the  Special  Judge,  CBI.    
After  the
        inquiry initiated by the CBI was closed, the impugned judgment  was
        delivered on 21st January, 2013 by the High  Court  in  the  above-
        mentioned writ petition filed by the respondent. 
As at the relevant
        time no inquiry was pending against the respondent, by the impugned
        order, the appellants have been directed to appoint the  respondent
        as Director (Finance) in the BSNL immediately after  superannuation
        of an officer who was working as  Director (Finance) in the BSNL at
        the relevant time.  
The post in question  was  not  vacant  at  the
        relevant time and it was to become vacant on 30th  November,  2013,
        as the person holding the said post was to be superannuated on 30th
        November, 2013.


   11.      Being aggrieved by the aforestated direction given by  the  High
        Court, this appeal has been filed by the  appellants  praying  that
        the impugned order passed  by  the  High  Court  of  Delhi,  giving
        direction to the appellants to appoint the respondent  as  Director
        (Finance) in the BSNL be quashed and set aside.


   12.      The learned counsel appearing for the BSNL had mainly  submitted
        that the respondent had submitted his application  for  appointment
        to the post in question in pursuance of an advertisement  published
        on 13th/14th November, 2008.  He had further  submitted  that  none
        was appointed in pursuance of the said advertisement as  Smt.  Soni
        was found to be ineligible and the respondent was facing an inquiry
        initiated by the CBI.  The representation made by the respondent to
        the ACC  had also been  rejected  and  therefore,  the  matter  had
        rested   there.    Thereafter,   another   advertisement   inviting
        applications for appointment to  the  post  in  question  had  been
        published on 19th  March,  2010  and  in  pursuance  thereof   Shri
        K.C.G.K. Pillai had already been appointed as   Director  (Finance)
        in the BSNL.  Thus, the entire issue with regard to the appointment
        to the post of Director (Finance) in the BSNL had come to  an  end.
        Therefore, the respondent had no right to be appointed to the  post
        in question.  He  had  further  submitted  that  the  term  of  the
        abovenamed incumbent was also to expire on 30th November, 2013  and
        in any case,  the  respondent  would  not  have  any  right  to  be
        appointed as he had never been appointed to the post in question.


   13.      The learned counsel had submitted that the High Court  had  made
        an error by not considering the fact that a  fresh  appointment  to
        the post in question had  already  been  made  and  therefore,  the
        respondent had no right to be appointed to the  post  in  question.
        He had also submitted that an interim relief which had been granted
        in favour of the respondent in the aforestated writ petition  would
        not be of any help to the respondent that upon  completion  of  the
        term of Shri Pillai, a fresh effort will have to be made for giving
        appointment from suitable and eligible persons so as  to  see  that
        all eligible candidates  get  an  opportunity  to  compete  for  an
        appointment to the post in question. He had,  therefore,  submitted
        that the impugned order be quashed and set aside.


   14.      On the  other  hand,  the  learned  counsel  appearing  for  the
        respondent had submitted that the  respondent  was  wrongly  denied
        appointment to the post in question and  therefore,  subsequent  to
        the  completion  of  the  term  of  the  existing  incumbent,   the
        respondent should be appointed to the post in question.


   15.      The learned counsel appearing for the respondent  had  submitted
        that the respondent was the only eligible candidate to be appointed
        to the post in question as Mrs. Soni was found to be ineligible and
        therefore, the respondent ought to have been appointed to the post.
        It was unfortunate that the respondent had been wrongly involved in
        a criminal case  which  was  being  looked  into  by  the  CBI  but
        ultimately, the respondent was given a clean chit by the  court  of
        CBI by an order  dated  22nd  December,  2012  and  therefore,  the
        respondent should not have been prevented from being  appointed  to
        the post in question.


   16.      The  learned  counsel  had  relied  upon  certain  judgments  to
        substantiate his case to the effect that if an  eligible  candidate
        is not appointed due  to  any  misunderstanding  of  correct  legal
        position, such a candidate must be given appointment.  The  learned
        counsel had relied upon the judgments  delivered  in  the  case  of
        Virender S. Hooda and others v. State of Haryana and another   1999
        (3) SCC 696,  Miss Neelima Shangla, Ph.D. candidate   v.  State  of
        Haryana and others  1986 (4) SCC 268,  A.P. Aggarwal  v.  Govt.  of
        NCT of Delhi and another  2000 (1) SCC 600 and Asha Kaul (Mrs.) and
        another  v. State of  Jammu  and  Kashmir   1993  (2)  SCC  573  to
        substantiate his case.


   17.      He had finally submitted that the grievance  of  the  respondent
        can be redressed by giving him appointment at present as the person
        holding the post in question was to retire on 30th November, 2013.


   18.      For the aforestated reasons, the learned counsel  had  submitted
        that the view expressed by the High Court of Delhi in the  impugned
        judgment is correct and the appeal filed by the Union of India  and
        others should be dismissed.


   19.      We had heard the  learned  counsel  and  had  also  perused  the
        impugned judgment as well as  the  judgments  referred  to  by  the
        learned counsel appearing for the respondent.


   20.      It is unfortunate that the respondent was facing an  inquiry  at
        the time when he was  selected  in  pursuance  of  the  process  of
        selection  which  had  been   initiated   in   pursuance   of   the
        advertisement published on 13th/14th November, 2008.


   21.      At the time when the respondent had applied for  an  appointment
        to the post in question, though he was found eligible, he could not
        be appointed as he was facing a CBI inquiry.  In the circumstances,
        the respondent was rightly not appointed to the post  in  question.
        The respondent cannot make any grievance on the ground that he  was
        wrongly denied appointment to the post in question because in  fact
        he was facing a CBI inquiry at the relevant time.


   22.      The representation made by the respondent was also rejected  and
        the Original Application filed before the CAT had also been rightly
        rejected as the respondent was not found suitable at the time  when
        his case was being  considered  for  appointment  to  the  post  in
        question.


   23.      It is true that the respondent was given  a  clean  chit  by  an
        order of the CBI court on 22nd December, 2012 but by that time  the
        entire process initiated in pursuance of  the  advertisement  dated
        13th/14th November, 2008 for appointment to the  post  in  question
        had come to an end.  Nothing with regard to appointment to the post
        in  question  was  kept  pending  at  the  time   when   the   next
        advertisement for appointment to the  post  in  question  had  been
        published.  It is unfortunate that the  respondent  did  not  apply
        again for the post in question.  Had he applied  for  the  post  in
        question and had he been given a clean chit by the CBI court at the
        time when his case could have been considered, he might  have  been
        appointed to the post in question if he had been found  to  be  the
        best amongst  all candidates  who  had  applied  for  the  post  in
        question. Unfortunately, this had not happened and  therefore,  the
        respondent cannot have any right to be appointed  to  the  post  in
        question at this juncture.


   24.      From the facts stated at the bar,  we  find  that  the  post  in
        question must have become vacant  after  30th  November,  2013  and
        another  advertisement  might  have  been  published  and  if   the
        respondent applies for the post in question, we are sure  his  case
        would be considered by the appellant  authority.   Looking  at  the
        plight of the respondent,  as a special case  we  direct  that   if
        there is any particular age limit  for the post  in  question,  the
        case  of  the  respondent  be  also  considered  along  with  other
        candidates even if he has crossed the upper age limit.


   25.      Unfortunately, the High Court did not  give  importance  to  the
        fact  that  an  appointment  in   pursuance   of   the   subsequent
        advertisement had already been made by  the  appellant  authorities
        and therefore, the respondent had no legally subsisting right to be
        appointed to the post in question as he had  not  applied  for  the
        post in question again.  In the circumstances we do not agree  with
        the view expressed by the High Court that even after completion  of
        the term of the person who was appointed to the post  in  question,
        the respondent would have a subsisting legal right to be  appointed
        without  considering  other  suitable  candidates  who   might   be
        available at the relevant time.  For the  aforestated  reasons,  in
        our opinion, interim relief granted in  favour  of  the  respondent
        would not be of any help to the respondent because at  this  stage,
        the respondent cannot  be  given  appointment  without  considering
        other eligible candidates who might have applied for  the  post  in
        question.  If other eligible candidates are not given  a chance  to
        compete with the respondent for getting appointment to the post  in
        question,  injustice  would  be  caused  to  the   other   eligible
        candidates and it would also not be proper to fill  up  any  public
        office without giving an opportunity to other candidates who  might
        be eligible and desirous for appointment to the post in question.






   26.      We had considered the judgments cited  by  the  learned  counsel
        appearing for the respondent but in our opinion the said  judgments
        do not render  any  assistance  to  the  respondent  as  facts  and
        circumstances of the present case are quite different.


   27.      For the above reasons, we quash  and   set  aside  the  impugned
        judgment delivered by the High Court.  The appeal is  allowed  with
        no order as to costs.


   28.      We clarify that the case of the respondent, even if  has crossed
         the maximum age limit,  shall   be  considered  along  with  other
        candidates,  if  in  pursuance  of  the  next   advertisement   the
        respondent applies for the post in question.





                                       ……………………….J.
                                             (ANIL R. DAVE)






                                       ……………………….J.
                                             (DIPAK MISRA)




   New Delhi
   January 15,  2014






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