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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

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  

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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  

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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  

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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  

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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  

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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  

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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.

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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.

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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.

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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  

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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  

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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.

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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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