IMPORTANT POINT
It is not open to appellants now to reopen the issue decided by Single Judge that in 1980 promotions within the Engineering Deptt. of Appellant Institute promotions be done cadre wise and not section wise.

Headnote:Post Graduate Institute of Medical Education and Research, Chandigarh, Rules, 1967-Rule 7-Creation of Posts and Appointments thereto-Post-Graduate Institute of Medical Education and Research, Chandigarh, Regulations, 1967-Regulation 34-Seniority-Promotion from Technologist Grade II to Technologist Grade I-Whether in 1980 promotions within the Engineering Deptt. of the Post Graduate Institute of Medical Education and Research, Chandigarh promotions were to be made section wise or cadre-wise-on writ of respondents 1 and 2, Single Judge held that promotions from Technologist Grade II to Grade I were to be made by cadre wise and not section wise-No appeal preferred against it by Appellant but as claim of respondent 1 was rejected, he preferred an appeal to D.B. which was allowed-Appeal by appellants challenging the finding of Single Judge-Whether sustainable? (No)-Appeal dismissed-(C.P.C. 1908-Order 41 Rule 22 Explanation).
       Held : According to the appellants although they did not prefer a counter appeal, which they could have done under the Explanation to Order XLI Rule 22 of the Code of Civil Procedure, they could nevertheless challenge the finding in the respondent No. 1 s appeal to the Division Bench. It may be, as has been held in Ravinder Kumar Sharma v. State of Assam 1999 (7) SCC 435 that the Explanation inserted by the 1976 amendment to Order XLI Rule 22 the Code does not make it obligatory to file a cross-objection against an adverse finding of a lower Court and that the respondent could attack such finding in its submissions to the appellate forum. But in this case, there is nothing to show from the records that the appellants did in fact challenge the finding of the Single Judge before the Division Bench. If they had and the Division Bench had not recorded it, it was incumbent on the appellants to have had the matter clarified before the Division Bench particularly when the Division Bench expressly recorded that the appellants had not challenged the finding. [See Chitra Kumar v. Union of India 2001(3) SCC 208, 220]. Additionally, it was not open to the appellants to have challenged the finding because it would have effectively resulted it upsetting the relief granted to R.K. Sareen by the Single Bench. This they could not do without preferring a substantive appeal. Not only did the appellants not raise the issue before the Division Bench, but they acted on the basis of the finding of the Single Judge by appointing R.K. Sareen as Technologist Grade I as directed. The order as far as R.K. Sareen is concerned has become final. It is not open to the appellants now to re-open the issue on the basis of which R.K. Sareen was granted relief. (Paras 24 and 25)
       For all these reasons, we are of the view that the order of the High Court does not suffer from any infirmity. The appeal is dismissed with costs. (Para 31)

JUDGMENT

Ruma Pal, J.-Leave granted.

The first appellant is an Institute incorporated under a statute entitled the Post Graduate Institute of Medical Education and Research, Chandigarh Act 1966 (referred to as the 1966 Act ). The object for setting up the Institute is reflected in the name. The Institute has, broadly speaking, three Departments, namely, Education, Hospital and Engineering Departments. We are concerned with the Engineering Department. The Engineering Department deals primarily with maintenance works of the Institute and includes diverse activities from maintenance of mechanical equipment such as operation tables to collection and distribution of linen. According to the appellants, there are distinct sections dealing with the different kinds of activities, each section having its separate administrative hierarchy. The question to be decided in this appeal is whether in 1980 promotions within the Engineering Department were to be made section wise or cadre wise.

2. Section 31 of the 1966 Act empowers the Central Government, after consultation with the Institute, to make rules to carry out the purposes of the Act by notification in the Official Gazette. Some of the matters that the rules may provide for have been listed in Section 31. These include under clause (f) of Section (2) to Section 31:

"the number of officers and employees that may be appointed by the Institute and the manner of such appointment";

3. Section 32 empowers the Institute to frame Regulations with the prior approval of the Central Government providing inter-alia for:

"the tenure of office, salaries and allowances and other conditions of service of the Directors and other officers and employees of the Institute including teachers appointed by the Institute".

4. On 29th March, 1967, the Central Government, by notification in the Official Gazette made the Post-Graduate Institute of Medical Education and Research, Chandigarh, Rules, 1967 (referred to hereafter as the Rules). Rule 7, sub-sections (1) and (5) (as it stood after an amendment in 1984) read:

"7. Creation of Posts and Appointments thereto:-

(1) The Institute may create posts, subject to specific provisions in the budget, on such scales of pay as are approved by the Central Government, classify them into grades and specify their designations:

Provided that no post above the Associate Professor level shall be created except with the prior approval of the Central Government.

(5) The method of recruitment, the age limit, the educational qualifications and other matters relating to the appointment to various posts in the Institute shall be determined in the manner provided for by regulations.

5. According to the appellants under Rule 7, posts were duly designated in Schedule V to the Rules together with, inter-alia, the method of recruitment and qualifications for each post. It is not clear when this was done as the document namely Schedule U , relied upon in this connection itself has no date. As it stands today, the third and fourth post in the prescribed hierarchy in the Engineering Department are described as Technologist Grade I/Assistant Engineer and Technologist Grade II. The method of recruitment prescribed to the former is "50 by promotion and 50 by direct recruitment in the respective field". Promotion is to be by selection from "amongst Technologist Grade II having 8 years experience in the respective field". As far as the post of Technologist Grade II posts are concerned the only method of appointment prescribed is by direct recruitment and the eligible criteria is "three years diploma with 5 years experience in respective field of Engineering".

6. On 18th April, 1967, Regulations called the Post-Graduate Institute of Medical Education and Research, Chandigarh Regulations, 1967 were brought into force. Of these regulations, regulation 32(1) and the quoted extract of regulation 34 are relevant:

"32. Qualification for appointment:-(1) Age, experience and other qualifications for

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2003 Supreme(SC) 257

IMPORTANT POINTIt is not open to appellants now to reopen the issue decided by Single Judge that in 1980 promotions within the Engineering Deptt. of Appellant Institute promotions be done cadre wise and not section wise.

Cases Referred (5)

IMPORTANT POINT
It is not open to appellants now to reopen the issue decided by Single Judge that in 1980 promotions within the Engineering Deptt. of Appellant Institute promotions be done cadre wise and not section wise.