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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

 

 
———————–
13

 

 

 

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