ivil Appeal No 2840 of 1982
From the Judgment and Order dated 512
1979 of the Allahabad High Court in Second Appeal No 82 of 1972
RK Garg and HKPuri for the Appellant
Satish Chandra Pramod Swarup and AK Srivastava for the Respondents
The Judgment of the Court was delivered by RM SAHAI J
In this appeal by grant of special leave directed against judgment of the Allahabad High Court in second appeal arising out of a suit for arrears of rent and ejectment the question is if the High Court committed any error of law in allowing the second appeal on the ground that the two courts below had erroneously held that finding recorded in an appeal filed by one of the defendants who was sued as tenant in an earlier suit could not operate as res judicata between plaintiff and respondents who were defendants nos
2 and 3 in that suit
Unfortunately for appellant equity may or may not be in his favour as his father too acted shrewdly while purchasing house of daughter in law s father but law is certainly not in his favour
How dispute arose between parties who are closely related is quite interesting
Shiv Charan Das and Har Charan Das respondents nos
1 99 and 3 in this appeal are first cousins
Ravindra Kumar respondent No 2 is son of Shiv Charan
His sister was married to son of Ganga Prasad who purchased the only house of Shiv Charan and Ravindra Kumar with condition of repur chase by sellers after five years
He permitted them to remain in possession but got a rent note executed by Har Charan
Purpose of this became apparent later as immediately after expiry of five years when the house was not repur chased Ganga Prasad referred hereinafter as plaintiff filed suit for ejectment and arrears of rent against Har Charan Shiv Charan and Ravindra hereinafter referred as defendants nos
1 2 and 3 claiming that defendant No 1 was in arrears of rent and defendant No 2 and 3 were his sub tenants
The suit was contested by defendants nos
2 and 3 only
The Trial Court decreed the suit for arrears of rent against defendant No 1
It was held that defendant No 2 and 3 were not sub tenants
Therefore suit for ejectment was dismissed
The plaintiff submitted to this finding
Ag grieved by the decree for arrears of rent defendant No 1 filed appeal which was dismissed
But the appellate court while observing that any evidence led by defendant nos
2 and 3 could not be read against defendant No 1 observed that it appeared that they being closely related to defend ant No 1 were in possession on his behalf
This furnished occasion for plaintiff to file second suit against three defendants with this change that defendants nos
2 and 3 were claimed to be licensees of defendant No 1
The Trial Court relying on earlier judgment decreed suit for arrears of rent against defendant No 1 and for ejectment against defendants nos2 and 3 as they were licensees
Both defend ant No 1 separately and defendants nos
2 and 3 jointly filed two appeals but without any success
Both the sets approached the High Court also by way of separate appeals
The appeal of defendant No 1 came up for hearing earlier but it was dismissed
The appeal of defendant nos
2 and 3 came up for hearing before another Hon ble Judge who allowed it and held that the finding recorded in appeal arising out of earlier suit that they were licensees did not operate as res judicata and the suit for ejectment was dismissed
It is the correctness of this finding that has been assailed in this Court
Although long arguments were advanced but in our opinion the only question that arises for consideration is if the finding recorded in the appeal filed by defendant No 1 in which it was held that defendants nos
2 and 3 were in possession on his behalf was binding on them in the subse quent suit filed by the plaintiff
In that suit issue No 2 was if 100 defendant No 2 and defendant No 3 were sub tenants
And issue No 5 was if they were liable to be ejected
The Trial Court while discussing these two issues held that there was no question of sub tenancy of these persons as despite sale there was never a break in their possession
It was further held that they were not sub tenants nor they claimed to be in possession through defendant No 1
Therefore they were not liable to ejectment
Against this finding plaintiff did not file any appeal
The finding therefore between the plaintiff and defendants nos
2 and 3 became final and binding
The appeal was filed by defendant No 1 as he was aggrieved by the decree of arrears of rent
In that appeal it was observed that the evidence led by defendant nos
2 and 3 could not be read against him
But the Court while dismissing his appeal and upholding the decree of Trial Court observed that since they were close relations it appears that even though rent note was executed by defendant No 1 the possession of defendants nos
2 and 3 was on his behalf
This finding could not be taken advantage of by the plaintiff for more than one reason
This observation was unnecessary as the appeal was dismissed
One could under stand if the appeal would have been allowed and the liabili ty for payment of rent would have been fastened on defendant No 2 and 3 as they were in possession
But since appeal was dismissed the order of Trial Court that liability to pay rent was of defendant No 1 stood affirmed
Therefore it was an observation which was not only off the mark but unneces sary
It could not accordingly operate as res judicata between defendant No 1 and defendants nos
2 and 3 as much less between plaintiff and defendant nos
2 and 3
One of the tests to ascertain if a finding operates as res judicata is if the party aggrieved could challenge it
Since the dismissal of appeal or the appellate decree was not against defendants nos
2 and 3 they could not challenge it by way of appeal
Even assuming that defendant No 1 could chal lenge the finding that liability of rent was of defendants nos
2 and 3 as they were in possession he did not file any written statement in the Trial Court raising any dispute between himself and defendants nos
2 and 3
There was thus no occasion for the appellate court to make the observation when there was neither pleading nor evidence
Therefore from either point of view the finding could not operate against defendants Nos 2 and 3 as res judicata
Reliance by the appellant on Keshardeo Chamria vs Radha Kissen Chamria   is of no assistance as it only lays down the binding effect of a decision in a subsequent suit
For the reasons stated above this appeal fails and is dismissed
There shall be no order as to costs
TNA Appeal dis missed


Summary:
The appellant was appointed as a Tracer in the Municipal Corporation in 1955
with the appointment of a Town Planning Officer in 1957
the appellant came to be appointed as a Tracer in the Town Planning Establishment
Later the post of Junior Draftsman fell vacant in the Town Planning Estab lishment
Respondent No 6 was posted to fill the vacancy
However his appointment was cancelled shortly thereafter and the appellant was appointed as Junior Draftsman with effect from 412
The next higher post of Surveyor cum Draftsman fell vacant in 1962
Meanwhile the appellant was suspended
The Industrial Court granted approval for his removal from service but suggested that he may be reappointed
Accord ingly
the appellant was appointed afresh as junior Drafts man in the Estates Department of the Municipal Corporation where he was previously working
Aggrieved the appellant filed a writ Petition before the High Court
Setting aside the order
the High Court remanded the matter to the Industrial Court for fresh dis posal
The Special Leave Petition preferred by the employer viz the Municipal Corporation against the High Court s order was dismissed
The Industrial Court reheard the matter and declined approval for the removal of the appellant from service
The appellant was reappointed as Junior Draftsman in the Town Planning Establishment which was abolished subsequently and he was reverted to the service of the Municipal Corporation as a Tracer and not as a Junior Draftsman
The appellant filed an appeal against the said order
but it was rejected on the ground that direct recruits were already working as Junior Draftsmen and that there was no vacancy against which the appellant could be appointed
581 The appellant moved the High Court by way of a Writ petition
contending that since he had been appointed as junior Draftsman in the Town Planning Establishment he could not be repatriated to a lower post viz Tracer in the Municipal Corporation
It was also contended that the Deputy Municipal Commissioner was a person lower in rank than the appointing authority viz the Municipal Commis sioner and hence the order passed by him was without juris diction
The High Court proceeded on the footing that the appel lant was on deputation from Municipal Corporation to the Town Planning Establishment and dismissed the writ Petition
The appellant has preferred this appeal against the High Court s order dismissing his Writ Petition
Dismissing the appeal this Court
HELD 1
I The appellant s promotion as junior Draftsman and proposed promotion as Surveyor cum Draftsman in the Town Planning Establishment cannot confer any rights on him in his parent department
When he left the Municipal Corpora tion and joined the Town Planning Establishment he was a Tracer and he can go back to the Estate Department or any other Department of the Municipal Corporation only to his original post ie as Tracer subject to the modification that if in the meantime he had qualified for promotion to a higher post
that benefit cannot be denied to him
12 The order dated 168
1965 was passed in pursuance of the recommendation of the Industrial Court while approv ing the appellant s removal that he may be reconsidered for appointment
In view of this order of the Industrial Court the appellant had to be given a posting and since he had been discharged from service when he was a Junior Draftsman
orders were passed appointing him as junior Draftsman
This again was made as an order of fresh appointment and the appellant s representation that he should be given seniority was rightly not accepted
There is also the further fact that the appellant was relieved from this post with effect from October 1 1967
There has been apparently no chal lenge to this order
Moreover theses orders lost their basis once the petitioner was restored to his post in the Town Planning Establishment
In these circumstances the order dated 16865 or the determination of his seniority in 1966 are of no relevance to the present case
21 What the appellant is really attempting is to challenge the 582 appointments of Respondents 6 to 11 which had been made in 1963 64 by a Writ Petition filed in 1978 more than a decade after the above selections and appointments had been made
It is true that at that time the appellant was under a cloud because he had been suspended and subsequently removed from service
But all the same if he had desired to challenge those appointments he should have taken immediate steps
Anyhow these obstacles had disappeared when the tribunal on remand by High Court had and disapproved the appellant s removal from service by the order dated 1351964
Atleast in 1971 when the order was passed re storing him to the position of Junior Draftsman in the Town Planning Establishment he could and should have taken steps to Obtain his pro forma promotion in the parent depart ment
The fact remains that he took no effective steps to challenge the appointment of respondents 6 to 11 from 1963 64 right upto 1521978 when he filed the Writ Petition or atleast upto 1101976 when he made a representation against the order of reversion
22 section 542 of the Municipal Act dispenses with the Staff Selection Committee when it is proposed to fill the appointment from among persons already in municipal service
But the nature of the recruitment that took place is not known
That apart the constitution of a Staff Selection Committee to decide upon the selections cannot be said to be illegal even though not mandatory in the situation
The High Court has found that respondents 6 to 11 had been directly selected as Junior Draftsmen after proper scrutiny by the Staff Selection Committee
Admittedly there was a circular among the Municipal employees in regard to these appoint ments and selections
The appellant should have made an application for selection at that time or if he thought it more appropriate should have challenged the constitution of Staff Selection Committee and the direct recruitment and put forward his claim for promotion as Junior Draftsman by virtue of his seniority
That he tailed to do at the crucial time
It may be that this was because he had certain diffi culties facing him by way of suspension and subsequent expulsion from service
But even in 1971 after his original order of suspension and removal had been set aside he took no immediate steps to claim his rights in the parent depart ment
Hewas apparently satisfied with his restoration as Junior Draftsman in the Town Planning Establishment
Having regard to the circumstances of the appointment of respond ents 6 to 11 the appellant was not entitled to any promo tion in preference to them and he cannot claim appointment as Junior Draftsman when there was no such post in 1976 to which he could he appointed