SYNOPSIS AND LIST OF DATES

Seven scores and seven years ago, in Taylor v. Taylor, Jassel, M.R. adopted
the rule that where a power is given to do a certain thing in a certain way, the
thing must be done in that way or not at all and that other methods of
performance are necessarily forbidden.
(1875 LR 1, Ch D, 426)
And, “There is no dispute with the said proposition, and the same has been
followed by this Court umpteen number of times”
( Indore Development Authority v. Shailendra, (2018) 3 SCC 412.)

Further, “the rule of fairness in government action is an essential feature.

However, such fairness has to be founded on reasons. Usually, the providing
of reasons demonstrates the concept of reasonableness but where the statutory
rules provide the circumstances and criteria, ambit and methods by which the
selection should be governed, they would become the yardstick of fairness.”
Jagdish Prasad v. State of Rajasthan, (2011) 7 SCC 789
All the above decisions squarely apply to the case in hand and
dismissal of the Civil Appeal preferred by the petitioner herein as also
review filed, has unfortunately not been in tune with the above well
settled legal position. Hence, this Curative Application, as the decision
of this Hon’ble Court has totally deprived the petitioner of his
guaranteed Fundamental rights enshrined in Art. 14, 16 as also 21 of
the Constitution of India.

2. CAPSULATED FACTS OF THE CASE

2.1 In the wake of the post of Director General, Central

Power Research Institute (DG/CPRI) Bangalore falling vacant in
April, 2009 an advertisement calling for application for the
post, on direct recruitment/deputation basis was published
and the petitioner herein was successful in the selection.

The Search cum Selection Committee recommended the

petitioner to that post on Direct Recruitment basis. The Bye
Laws provide for the age of superannuation of direct recruits at
sixty years, vide Rule 48 of the Working Rule NO. 1.  The
Ministry of Power forwarded the said recommendation without
any modification. However, the Establishment Officer,
functioning as Secretary, ACC, suggested “an initial tenure of
five yearsand the Appointment Committee of the Cabinet (ACC)
had approved the appointment of the petitioner as DG(CPRI)
Bangalore, on Direct Recruitment basis initially for a period of
five years and that the petitioner would be eligible for
reappointment upto 31-05-2019, i.e. the date of his
superannuation,

On joining of the petitioner to the said post, the petitioner had

successfully completed the period of probation securing 9
points on a ten point scale, and the subsequent years, his
performance had been evaluated in two prescribed methods -
(a) Memorandum of Understanding (MOU) and (b) Annual
Performance Appraisal Report (APAR) with creditable grades of
Excellent/Outstanding.

Since for Direct Recruitment there was no tenure basis and

the service shall extend upto the age of superannuation, the
petitioner made representations to various authorities pointing
out the glaring mistake in prescription of tenure for direct
recruitment which fact had been readily and unhesitatingly
accepted by the ACC Secretariat, and the Administrative
Ministry was advised to offer their comments to take corrective
action if required.

Instead of proceeding in that direction by correcting the

mistake in the appointment order, certain vested interests in
the administrative ministry (Petitioner No.1) under the garb of
revaluation of performance for the purpose of reappointment
distorted the statistics as contained in the MOU and APAR and
vilipended the performance of the petitioner and branded him
as a Poor Performer and managed to get the approval of the
Minister of State for Power to float a fresh advertisement for
filling up the post of Director General CPRI from the date of
expiry of the initial appointment of five years i.e. 21-03-2015.

After on the publication of the advertisement on 18-02-2015

the petitioner immediately sought legal remedy by filing WP
No. 9941 of 2015 before the High Court of Karnataka at
Bengaluru, challenging the issue of said advertisement vide
and prayed for a writ of mandamus directing the respondents
to permit the petitioner to continue in service upto the date of
his superannuation and quash the advertisement. During the
pendency of the petition, the petitioner was relieved on
21/03/2015 and the Petitioner amended the writ petition
challenging his relieving order. The High Court had passed an
interim order that the appointment, if any, made would be
subject to the outcome of the writ petition. In the meantime,
ACC approved the appointment of one Sri.V.S.Nandakumar,
the fifth respondent, as DG, CPRI Bangalore on 09/08/2016
without stipulating any fixity of tenure, unlike in the case of
the petitioner.

2.2 Through RTI, information was obtained with regard to

the relieving of the petitioner and appointment of his successor
The appointment of the said Nandakumar which revealed a
number of illegalities and irregularities which forced the
petitioner to move another WP No. 50774/2016, which was
tagged with the earlier writ petition No. 9941/2015 and were
heard together by a Hon’ble Single Judge who had on
technical ground of delay and laches dismissed the writ
petitions.

2.3 Aggrieved by the dismissal of the writ petitions, the

petitioner filed Writ Appeal No. 1555 and 1556 of 2018, which,
after hot contest came to be allowed by the Division Bench of
the High Court, declaring that –

(i) the prescription of tenure for a direct recruitment post is

illegal, arbitrary and in violation of the Fundamental Rights
enshrined in Art. 14 and 16 of the Constitution of India;

(ii) The petitioner having approached the authorities to rectify

the error of fixation of tenure the ACC Secretariat readily came
forward with a suggestion to the Administrative Ministry to
process the case accordingly, there is no question of delay or
laches involved in this case.

Thus, the writ appeal was allowed but since by that time the
petitioner had hardly a month to reach the age of
superannuation, had held that the petitioner was deemed to
have continued in service till the date of superannuation but
would be entitled to half the salary for the period he was kept
out of employment.

While the Respondents had filed SLP against the judgment in

writ appeal allowing the same partly, the petitioner filed an SLP
against the non-awarding of full salary.

After granting leave, this Hon’ble Court had allowed the Civil
Appeal filed by the respondents and dismissed that filed by the
petitioner.

Review petition filed by the petitioner also did not yield any
fruitful result.

As the entire action of the respondents had been violative of

the prescribed procedure which resulted in the termination of
the services of the petitioner, violating the fundamental rights
under Art. 14, 16 and 21 of the Constitution of India, to protect
which provisions for Curative petition have been made, this
Curative petition has been filed to right the wrong.

LIST OF DATES

Date Events

18/05/2009 Ministry of Power (MoP) , Govt. of India invited

applications for the post of DG, CPRI either on
deputation or on direct recruitment basis.

12/11/2009 MoP, on the basis of the recommendations of the

Search cum Selection Committee, sent a proposal to
the ACC for its approval to appoint the petitioner as DG
, CPRI on direct recruitment basis till the date of his
superannuation, i.e., 31.05.2019, as per the RR.

04/03/2010 Despite impermissibility of fixity of tenure for Direct

Recruitment to the post, the Establishment Officer
suggested for prescription of an initial tenure of five
years and ACC approved to appoint the petitioner as
DG, CPRI, for an initial tenure of 5 years and eligible
 for re-appointment for further term upto
31/05/2019i.e the date of superannuation vide para
29(b) at page 35 of the impugned judgment.

22/03/2010 On appointment, the Petitioner joined as DG, CPRI.

29/09/2011 Petitioner completes one year probation with

Outstanding Performance Appraisal Report received for
the year 2010-11 from the Committee. .

2011-2014 Petitioner served the organization with full zeal and

enthusiasm, which has been reflected in the MOU with
grading ranging from 8.7 to 9.3 out of 10.
Corresponding grading afforded in the APAR as well.

05/02/2015 A false vilipended report was prepared by certain

officers below the rank of the petitioner, projecting the
performance under a poor light when all along his
performance was outstanding.

13-02-2015 Petitioner penned a representation to the DoPT (ACC)

pointing out the glaring mistake in the appointment
order and requested for rectifying the same.

18/02/2015 MoP issued an advertisement for appointment of DG,

CPRI.

22/02/2015 Petitioner received an outstanding report for the year

2013-14 from the Secretary, MoP.

23-02-2015 In response to the representation dated 13-02-2015

vide Annexure P-5, the DoPT(ACC) (Respondent No.2)
admitted the mistake that had crept in the order of
appointment as to the prescription of tenure period and
called for comments of the Ministry of Power
(Respondent No.2) for due rectification if needed.

22/02/2015 Outstanding Annual Performance Appraisal Report

received for the year 2013-14 from MoP (Respondent
No.1).

02/03/2015 Reply of the Director ,MoP to Director, ACC, DoPT

regarding the view of MOP on the request of the
 petitioner to correct mistake.

10/03/2015 Petitioner filed a W.P. No. 9941/2015 challenging the

advertisement dated 18/02/2015 .

21/03/2015 Petitioner was relieved. Amended W.P. 9941/2015 to

declare his relieving order as illegal.

23/04/2015 Interim order passed that appointment to the post of

DG, CPRI is subjected to the decision in this W.P.

10/07/2015 Petitioner amended the Writ Petition challenging his

removal by the order dated 20/03/2015 and the
authority to review his performance, authenticity of the
report and the Competent authority to consider
reappointment.

28/08/2015 Outstanding Annual Performance Appraisal Report

received for the year 2014-15 from MoP (Respondent
No.1).

09/08/2016 ACC approved the appointment of Sri. V.S.

Nandakumar as DG, CPRI on direct recruitment vide
No:20/16/2016-SM(II).

19/09/2016 Another Writ Petition No:50774/2016 was filed

challenging the appointment of Sri. V.S. Nandakumar
as DG, CPRI.

14-03-2018 The Learned Single Judge dismisses the writ petitions

on the ground of delay.

09-06-2018 Writ Appeals Nos. 1555 and 1556/2018 filed by the

petitioner.

26-04-2019 Both the Appeals are allowed. However, in so far as

reinstatement of the petitioner as DG CPRI, the Division
Bench held that the reinstatement is symbolic and that
as regards payment of pay and allowances for the period
the petitioner was kept out of the office, only 50% of the
pay and Dearness allowance had been granted and
instead of dislodging the fifth respondent from the post
of DG CPRI which was tenable by the petitioner till 31-
05-2019 he had been allowed to continue on the ground
 that other wise another advertisement had to be
published immediately.

30-08-2019 In S.L.P. © Nos. 17910/2019 and 17911/2019 filed by

the Official Respondents to the W.A. which, on grant of
leave have been converted into CA No. 2491 and 2492 of
2021

0 -09-2019 SLPs 24256 and 24257 of 2019 filed, which on grant of

leave had been converted into CA No. 2493 and 2494 of
2021

07-10-2021 CA No. 2491 and 2492 of 2021 allowed, while CA Nos.

2493 and 2494 of 2021 dismissed.

24-02-2022 Petitioner filed review petitions in respect of the

judgment dated 07-10-2021 in the aforesaid Cas.

28-07-2022 Review petitions dismissed by this Hon’ble Court

-01-2023 Curative Application filed.

 IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION

CURATIVE PETITION (C) NO. OF 2023

IN
REVIEW PETITION (CIVIL) NO. 10416 OF 2022
IN
CIVIL APPEAL NOS 2491-2492 OF 2021

IN THE MATTER OF:

N. MURUGESAN Petitioner
VERSUS
UNION OF INDIA AND OTHERS Respondents

PAPER BOOK
(FOR INDEX PLEASE SEE INSIDE)

PARTY IN PERSON
 IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION

CURATIVE PETITION (C) NO. OF 2023

IN
REVIEW PETITION (CIVIL) NO. 10416 OF 2022
IN
CIVIL APPEAL NOS 2491-2492 OF 2021

IN THE MATTER OF:

N. MURUGESAN Petitioner
VERSUS
UNION OF INDIA AND OTHERS
Respondents

BETWEEN POSITION OF PARTIES

IN HON’BLE IN THIS
HIGH COURT HON’BLE
COURT
CIVIL APPEAL NO. 2493/2021
N. MURUGESAN PETITIONER PETITIONER
AGED 63 YEARS
S/o Sh. NAVANEETHA
KRISHNAN
B-122, PAVANI SAROVAR
APARTMENT PHASE I
NALLURHALLI, WHITEFIELD
BANGALORE 560066

VERSUS
1. THE UNION OF INDIA Contesting
REPRESENTED BY ITS Respondent
SECRETARY TO No. 1
GOVERNMENT,
MINISTRRY OF POWER
SHRAM SHAKTI BHAVAN
RAFIMARG,
NEW DELHI 110-001
2. THE SECRETARY Contesting
(PERSONNEL), Respondent
 DEPT. OF PERSONNEL & No.2
TRAINING
GOVERNMENT OF INDIA
NORTH BLOCK
NEW DELHI 110-001
3. THE CABINET
SECRETARY TO THE
GOVERNMENT OF INDIA,
CABINET SECRETARIAT
RASHTRAPATHI
BHAWAN
4. NEW DELHI 110004
5. PRESIDENT, Proforma
CPRI GOVERNING Respondent
COUNCIL No.3
MINISTRRY OF POWER
SHRAM SHAKTI BHAVAN
RAFIMARG,
NEW DELHI 110-001

C.A. NO. 2494/2021

N. MURUGESAN PETITIONER PETITIONER
AGED 63 YEARS
S/o Sh. NAVANEETHA
KRISHNAN
B-122, PAVANI SAROVAR
APARTMENT PHASE I
NALLURHALLI, WHITEFIELD
BANGALORE 560066

VERSUS

1. THE UNION OF INDIA Contesting

REPRESENTED BY ITS Respondent
SECRETARY TO No. 1
GOVERNMENT,
MINISTRRY OF POWER
SHRAM SHAKTI BHAVAN
RAFIMARG,
NEW DELHI 110-001
2. THE SECRETARY
(PERSONNEL),
DEPT. OF PERSONNEL &
TRAINING
GOVERNMENT OF INDIA
 NORTH BLOCK
NEW DELHI 110-001
3. THE CABINET
SECRETARY TO THE
GOVERNMENT OF INDIA,
CABINET SECRETARIAT
RASHTRAPATHI
BHAWAN
NEW DELHI 110004
4. PRESIDENT,
CPRI GOVERNING
COUNCIL
MINISTRRY OF POWER
SHRAM SHAKTI BHAVAN
RAFIMARG,
NEW DELHI 110-001

5. SRI V.S. NANDAKUMAR,

AGED ABOUT 60 YEARS
S/O SRI V.S.
SUBBARAMAN
R/AT NO. 11 POLICE
STATION ROAD
BASAVANGUDI
BANGALORE 560 004

CURATIVE PETITION UNDER ARTICLE 139 READ WITH

ARTICLE 142 OF THE CONSTITUTION OF INDIA AND AS LAID
DOWN IN THE JUDGMENT OF THIS HON’BLE COURT IN RUPA
ASHOK HURRA VERSUS ASHOK HURRA & ANOTHER.
TO
THE HON’BLE CHIEF JUSTICE OF INDIA
AND HIS COMPANION JUSTICES OF THE
HON’BLE SUPREME COURT OF INDIA
THE HUMBLE PETITION OF THE PETITIONER
ABOVE NAMED
MOST RESPECTFULLY SHOWETH:T
1. This Curative Petition is filed against the Final Order dated 28-
07-2022 passed by this Hon’ble Court in Review Petition (C)
10416/2022 in Civil Appeal No. 2491-2492 of 2021 whereby the
Review Petition stood dismissed in Circulation.
2. FACTS AND CIRCUMSTANCES OF THE CASE:

2.1. The Ministry of Power (Respondent No 1 herein) issued a

notification dated 18-05-2009 for appointment by Direct
 Recruitment /deputation to the post of Director General, Central
Power Research Institute (DG for short) . The notification also
specified that the appointment to the said post will be regulated
by the provisions contained in the Memorandum of Association,
rules and regulations of CPRI and other relevant rules and
instructions applicable to the CPRI.1

2.2 The petitioner herein applied in response to the said

Notification, as a Direct Recruit Candidate. After due
consideration, the Search cum selection committee had
recommended in the order of merits, two candidates, first being
the petitioner herein, for appointment (by Direct Recruitment) to
the said post.

2.3 While forwarding the above recommendation of the Search

Cum Selection Committee to the Appointment Committee of the
Cabinet (ACC for short), the Ministry of Power (Resp. No. 1) also
submitted a comprehensive D.O. reflecting therein that the
appointment would be on direct recruitment and would last till
the candidate attained age of superannuation, i.e. 31 st May, 2019 2
which is as per Working Rule No. 1 of the CPRI.3

2.4 When the Establishment Officer put up Cabinet Note to the

ACC, appointment of the petitioner was proposed as a ‘tenure
appointment’ initially for a period of five years or until further
orders,4 vide para 21 of the Cabinet note, extract given in page
41 of the High Court judgment which proposal has been in clear
deviation/contradiction from (a) the above recommendation of
search cum selection committee, (b) that of Ministry of Power,
(c) stipulation in the notification, and also (d) against the
Working Rule No. 15

2.5 The ACC, having been so misled by the Establishment

Officer, while approving the appointment, restricted the
appointment of the petitioner for a tenure of 5 years or until
further orders but given a latitude to the Ministry of Power that
1
In case of Direct Recruitment, there shall be probation period of one year and on declaration of probation,
the service shall continue upto the age of superannuation, i.e. upto 60 years.
And, in case of appointment by deputation, initial period of deputation is three years, subject to extension.

2
DO No. 3/17/2007-T & R dated 12th November, 2009 vide pages 186-187 of CA No. 2491-2491 of 2021 of
the Union of India. in particular para 12 thereof, which reads -“12. I Shall be grateful if you would kindly
convey the approval of ACC to the appointment of Shri N. Murugesan, Chief Manager, TCE Consulting Engg.
Ltd., Bangalore as Director General Central Power Research Institute (CPRI) in the pay band of Rs 67,000 –
annual increment @ 3%) – 79,000 on direct recruitment basis from the date he assumes charge upto 31 st
May, 2019, the date of his retirement on superannuation or until further orders, which ever event occurs
earlier.” Also serial No. 7 , at page 190 of the CA ibid reflects the service upto 31 st May, 2019. Page 197
serial No. 19(i) and (ii) confirms that the post is not one of deputation or Tenure basis.

3
Working Rule is annexed at Page Nos. 142 – 171 of CA No. 2491-2492 of 2021.

4
Vide page 41 to 42 of the CA No, 2491-2492 of 2021
5
As observed by the Division Bench of the High Court of Karnataka vide page 47-48 and also 53 of the CA
No. 2491-2492 of 2021.
 the petitioner would be eligible for reappointment for a further
term upto May 31, 2019 i.e. the date of petitioner’s
superannuation.6

2.6 On receipt of the offer of appointment, the petitioner joined

as DG, CPRI on 21-03-2010, cleared the probation of one year,
when, his performance as per prescribed MOU parameter had
been graded as 9 on a 10 point scale 7 which is “Excellent”. Such
a review of performance had been conducted every year and for
all these years, i.e. 2012-2015, the performance of the petitioner
had been “Excellent”8

2.7 The petitioner being a direct recruit is entitled to continue

in service upto 31-05-2019 and to ensure that his appointment
order spells out accordingly, approached the Respondent No. 1
on 30-11-2014 requesting them to modify the term of
appointment as per notification and the Recruitment Rules, (i.e.
from one of tenure to Direct Recruitment) and to allow him to
continue in service till 31-05-2019. As there was no information
as to the action taken, he had penned representations to R-2 and
R-3 for rectification of the discrepancy in the appointment
order.9 Though Respondent No 1 had not informed the
petitioner as to the action taken, petitioner’s representation of 30-
11-2014 was considered and it was recommended, “to take up the
matter with DoPT for rectifying the erroneous interpretation”10 .
However, ultimately, the respondent No.1 chose not to refer the
matter to Respondent No. 2, which is in fact in violation of the
stipulations as contained in Art. 77 of the Allocation of Business
Rules. Respondent No. 1, under the garb of revaluation of
performance for the purpose of reappointment – an aspect not
contemplated in in any procedure available in any of the rules
applicable to the appointment of DG, CPRI – distorted the
statistics as contained in the MOU and APAR and vilipend the
performance of the petitioner and branded him as a ‘Poor
performer’11. Startlingly, the committee consisted of one Special
Secretary (of the same rank and status as of the petitioner) and
one Joint Secretary (one rank below that of the petitioner) and a
Direcroe (three ranks below that of the petitioner). This was,
however, not communicated to the petitioner. Respondent No. 1
managed to get the approval of the Minister of State for Power to
float a fresh advertisement for filling up of the post of DG and a
notification was floated on 19-02-2015 with identical terms and
condition as in the previous notification of 18-05-2009 (in
response to which the petitioner had preferred his application).

6
Page 200 of the CA No. 2491-2492 of 2021
7
Page 127 to 136 of CA 2493-94
8
Vide page 153-154 of the CA No. 2493-2494 of 2021
9
Annexure R-2 to the counter in CA No. 2491-=92 of 2021 vide Page Nos. 401 to 407
10
Annexure R-1 to the counter in CA No. 2491-92
11
Vide Page No. 169-170 of CA 2493-2494 of 2021
 2.8 However, DoPT, the Respondent No.2, referring to the
representation dated 13-12-2014 of the petitioner has, in its
communication dated 23-02-2015 to the first Respondent clearly
stated that the tenure of appointment sought by the petitioner “is
in line with the proposal which the Ministry of Power had submitted
vide DO Letter dated 12-11-2009 ” (referred to in para 2.3 above)
and that the “Recruitment Rules for the post of Director General,
CPRI prevailing at the time of appointment of Shri Murugesan did not
have any provision for appointment on tenure basis. ” And, in view of
the same, Respondent No. 1 was requested to send their
comments on the issue for enabling them (DoPT) “in taking
corrective action, if required.”12. There seems to be no
communication from Respondent No. 1 to Respondent No. 2 in
this regard.

2.9 The petitioner was surprised to notice the notification of

18-02-2015 for appointment to the post of DG, CPRI, and
referring to his case, he had requested all the respondents to
have the notification withdrawn and take remedial measure to
correct the inconsistency in his appointment order and delete
the condition of tenure and allow him to continue in service as
DG, till 31-05-2019.13
2.10 It would be curious to note that while on the one hand, the
Secretary, Ministry of Power in his note dated 05-02-2015,
endorsed the assessment as “Poor Performer”, even before his
signature dried up, the very same Secretary in the APAR for the
year 2013-14, recorded on 22-02-2015, graded the petitioner ( on
the very same parameters) with 8 on a 10 point scale
( “Outstanding” ) vide Page No. 173 to 185 @ 181. This later
assessment goes in tandem with the performance of the
petitioner both for the previous years (2009-10 to 2012-13 and
also for the subsequent year 2014-15, wherein the Secretary
himself had recorded in his report on 12-07-2015 as 8 on a 10
point scale.14

2.11 So is the case even with reference to the Minister of State,

who, on the one hand on the basis of the aforesaid ‘poor
performer’ report approved the notification for fresh selection
on 05-02-2015, whereas the same Minister had awarded the
petitioner 8 points on a 10 point scale (Outstanding) in the APAR
for the year 2014-1515.

2.12 Thus, administrative remedy having been exhausted,

petitioner moved the High Court of Karnataka against the illegal
action on the part of the respondents by filing WP No. 9941 of
12
Annexure R-3 to the counter in CA No. 2491-2492 at page No. 408 of the said CA.
13
Page 187-198 @ 198.
14
Vide APAR report for 2014-15 at Page Nos. 241 to 253 @ pages 250
15
Vide APAR for 2014-15 at pages 241 to 253 at page 251.
 2015 challenging the notification. As during the pendency of the
said writ petition, the petitioner stood relieved, he filed an
amendment to the WP16, challenging the relieving order. The
said writ petition was contested by the respondents by filing
counter17 to which rejoinder had been filed by the petitioner.18

2.13 During the pendency of the writ petition, the post of DG,
CPRI was filled up by appointing Shri VS Nandakumar and
thus the petitioner filed another writ petition No. 50774/201619
challenging the appointment of the said Shri V.S. Nandakumar.
This petition was also contested by the respondents on their
behalf and on behalf of the said Nandakumar and rejoinder to
the counter. had been filed by the petitioner .

2.14 The petitioner filed written synopsis/argument, 20

highlighting that the challenge is against the premature
termination of the services of the petitioner –

(a) By an incompetent authority

(b)In utter violation of Recruitment Rules
(c) On the basis of a performance report rendered by an
incompetent Committee creating false evidence and
fabricated documents.
Non reference to the DoPT of the case by the respondent No. 1
for effecting due rectification to the appointment despite their
advice and going tangentially in review by the incompetent
authority of the performance was highlighted as the ‘cancerous
root’ of the entire malafide action of the respondents.

2.15 Written synopsis/arguments in WP. 50774/2016 was filed

by the petitioner21
2.16 The learned single judge dismissed the writ petitions on
the ground of delay.22 Against the judgment of the Ld. Single
Judge the petitioner had filed writ appeal No. 1555/2018 and
1556/201823 had been filed.

2.17 The Division Bench of the High Court of Karnataka

allowed the writ apple making the following observations –

(A) The tenor of appointment order issued vis-a-vids the term of

appointment:

16
Copy of amended writ petition is at page 211-240 of the CA 2493-2494 of 2021
17
Copy of statement of objections at Page 254-265 of the CA No. 2493-2494.
18
Copy of rejoinder at Page 266-299
19
Copy of WP No. 50774/2016
20
Copy of written synopsis/arguments in WP No. 9941/2015 at page 336-376
21
Copy of written synopsis/arguments in WP No. 50774/2016 at page 377-402
22
Copy of the judgment dated 14-03-2018 in WP 9941/201`5 and WP 50774 of 2016
23
Copy of Writ Appeal No. 1556/2018 is at page 437-507 of CA 2493-2494 of 2021
 (i) Neither Working Rule 12 nor advertisement calling for
applications for applications stated that the appointment was a
tenure appointment.24
(ii) Recruitment to the post of DG does not have any provision for
appointment on tenure basis as held by the Director of ACC
addressed to the Joint Secretary, Ministry of Power vide letter dated
25-02-201525
(iii)Giving a colour of tenure appointment to the post of DG, CPRI
on the basis of para 21 of the comments (extracted at page 41 of the
judgment of the Division Bench) and appointment the appellant in
such a manner is illegal as it is contrary to Working
Rule 1.26
(iv)( citing the decision of this Hon’ble Court in the case of Dr. A.K.
Doshi vs Union of India (2001) 4 SCC 43)The recommendation
along with the materials considered by the Selection Committee
should be placed before the Appointment Committee without any
further addition or alteration.27Noting made by the Secretary of the
ACC in the file is an attempt to interfere with the process of
selection, which was neither permissible under the Rules, nor
desirable otherwise.28
(v) The Division Bench had referred to the following decisions of
this Hon’ble Court which lend support to the case of the petitioner
in this regard:-
Sl Citation Legal issue considered
No.
1. A.K. Doshi vs UOI (2001) 4 SCC 43 Recommendations of the Selection
Committee should be placed before
ACC without any addition or
alteration. Such additions would be
an attempt to interfere with the
process of selection.
2 State of HP vs Suresh Kumar Verma Having made rules, the State is
& Others (1996) 7 SCC 562 bound to follow the same and have
the selection of the candidates made
as per the Recruitment Rules and
appointments made accordingly.29
3. J & K Service Commission vs Dr. Executive power could be exercised
Narinder Mohan & Ors (1994) 2 only to fill up the gaps and
SCC 630 instructions cannot supplant law.30
4. Bedanga Talukdar vs Saifudaullah Selection process should be
Khan (2011)12 SCC 85 conducted strictly in accordance with
stipulation selection procedure
without any relaxation in the terms
and conditions of the advertisement
save such power is conferred in the
rules.31
5. Hemani Malhotra vs High Court of Change of rule of the game after the

24
Para 31 judgment of the Division Bench, at Page 46 of CA No. 2493-2494 of 2021
25
Para 33 of the Judgment in Writ Appeal at page 50 of the CA No. 2493-2494
26
Para 36 of the Judgment at page 53 of the CA No. 2493-2494
27
Para 37 of the Division Bench Judgment at page 57 of the CA No. 2493-2494
28
Para 38(a) of the Division Bench Judgment at page 57-58 of the CA No. 2493-2494,.
29
Para 38(b) at page 59 of the CA No. 2493-2494,.
30
Para 38(c) at page 59 of the CA No. 2493-2494
31
Para 38(d) at page 59-60 of the CA No. 2493-2494
 Delhji (2008) 7 SCC 11 game has been started is
impermissible. 32

6 Tamil Nadu Computer Science B.Ed
Graduate Teachers Welfare Society v
Higher Secondary School Computer
Teachers Association & Others (200(
14 SCC 517
7 AP Publilc Services Commission
Hyderabad vs B. Sarat Chandra &
Ors (1990) 2 SCC 669
Guideline for recruitment laid down
in the policy was sacrosanct and was
required to be followed for all
practical purposes. Changing the
criteria on the verge and towards the
end of the game is arbitrary and
unjustified.33
The word selection encompasses
many stages commencing from
inviting applications by an
advertisement or in any other mode
and should not be construed only as
the factum of preparation of the select
list.34

(vi) To specify the difference between an appointment by Direct

Recruitment (which provides for service upto superannuation) and
appointment on deputation or with a specific tenure, the Division
Bench contrasted the case of the petitioner with the following cases,
which were essentially on tenure basis and in contradistinction with
the character of the appointment to the post of DG CPRI on Direct
Recruitment basis.
No. Citation Ratio
1. Dr. L.P. Agrawal vs Once an appointment is made on
Union of India (1992) Tenure basis, appointment to the
32 SCC 526 said office appointment to the
office begins when he joins and
comes to an end on the completion
of his tenure unless curtailed on
justifiable grounds.35
2 P. Venugopal vs Having been duly appointed for a
Union of India (2008) period of five years relieving him
5 SCC 1 prior to completion of tenure is
illegal.36
3. J.S. Yadav Vs State of Appointment on tenure basis
UP & Anr (2011) 6 comes to an end by efflux of time37
SCC 570
(vii) Thus, on the basis of the abovementioned precedents, the
Division Bench came to the conclusion that the appointment of the
petitioner herein on a tenure basis is illegal, arbitrary and din
violation of Art. 14 and 16 of the Constitution of India.38
(viii) As regards delay and laches, on the basis of which the Ld.
Single Judge had non suited the petitioner, the Division Bench

32
Para 38(e) at page 61 of the CA No. 2493-2494
33
Para 38(f) at page 62of the CA No. 2493-2494
34
Para 38(g) at page 63-64 of the CA No. 2493-2494
35
Para 40(a) at page 65-66 of the CA No. 2493-2494
36
Para 40(b) at page 67 of the CA No. 2493-2494
37
Para 40(c) at page 67 of the CA No. 2493-2494
38
Para 41 at page 68 of CA 2493-2494 of 2021
 disagreed with the decision of the Ld Single Judge and to
substantiate the same, the following decisions of this Hon’ble Court
have been cited by the Division Bench of the High Court:-

No. Citation Ratio/legal point

1. Shankar Coop Housing There is no inviolable rule of law that one
Society Ltd vs M. should be non suited on account of delay;
Prabhakar & Ors (2011 rights accrued to others should not on account
AIR SCW 3033) of condonation of delay be disturbed; and
every case has to be decided on its own facts. 39
2 Municipal Council Real test for sound exercise of discretion is
Ahmednagar vs Shah whether by reason of delay, there is such
Hyder Beig & Others negligence on the part of the petitioner so saw
(20020 2 scc 48 to infer that he has given up his claim. 40
3. Chennai Metropolitan As a constitutional Court, it has a duty to
Water Supply & protect the rights of the citizens but
Sewerage Board vs T.T. simultaneously, it is to keep itself alive to the
Murali Babu, (2014) 4 primary principle that when an aggrieved
SCC 109 person, without adequate reason approaches
the court at his own leisure or pleasure, the
court would be under legal obligation to
scrutinize whether the Lis at a belated stage
should be entertained or not. 41
4. State of Jammu and Court has to remain alive top the nature of the
Kashmir vs R.K. Zalpuri claim and unexplained delay on the part of the
and others (2015) 15 SCC part of the writ petitioner.
602

(viii) After adverting to the above decisions, the Division Bench

held-

(i) that the petitioner was neither dormant nor silent as to his
tenure of appointment, he having made a number of
representations (fourteen) seeking rectification in his
appointment order.
(ii) There was interdepartmental communications also in that
regard as it was felt that the matter required a consideration
or a re-look by the ACC.
(iii) But no concrete steps were taken for rectifying the
appointment order and before any decision could be taken and
communicated to the petitioner, he had filed the writ
petitions.
(iv) When the first writ petition was filed, the petitioner was in
service. This is not a case after termination, neither is the
matter speculative in nature.
(v) There was no delay in filing the second writ petition and in
order to consider the second writ petition, the issues arising
in the first writ petition had to be also considered. But, both
the writ petitions were not considered on merits and instead,
learned single judge dismissed the firs writ petition on the

39
Para 45(a) at page 70 of the CA No. 2493-2494 of 2021
40
Para 45(b) at page 72 of the CA No. 2493-2494 of 2021
41
Para 45(c) at page 73 of the CA No. 2493-2494 of 2021
 ground of delay and laches and the second writ petition was
rejected as not surviving for consideration.
(vi) The Single Judge has taken a view that petitioner has
compounded the issue by not making application pursuant to
the second advertisement which was issued calling for
applications to fill up his post. The Division Bench held that
had the petitioner done so, it would be a case of approbation
and reprobation as he had challenged the very termination.
B. As regards relief, the Division Bench had held that the relief sought is
moulded and 50% of the salary plus proportionate Dearness allowance wef
21 March 2015 till 31st May 2019 is payable to the petitioner and pensionary
benefits.
2.18 The respondents aggrieved by the judgment of the Division Bench
filed SLP © Nos. and of 2021, in which notice had
been issued. And, the petitioner, aggrieved by truncation of his salary
to half filed SLP Nos. 21256-21257 of 2021. Leave was granted in these
SLPs - CA No. 2491 and 2492/2021 in respect of the respondents’
special leave petitions and CA 2493 and 2494 in respect of the
petitioner’s special leave petition. This Hon’ble Court granted leave
and had heard all the Special Leave Petitions together and allowed the
Civil Appeal No. 2491 and 2492/2021 and dismissed the CA Nos. 2493
and 2494/2021 vide judgment dated 07-10-202142

The petitioner has filed two review petitions highlighting the

following grounds:-
(a) Certain mandatory provisions : Appointments approved by the
ACC have certain procedure mandatorily to be followed at the
time of termination of the appointment. Be it at the end of any
contractual period, or any abortive termination, approval of ACC
is a sine-qua non.43 This procedure was not followed in the case
of the petitioner.
(b)Law laid down by this Hon’ble Court in the judgment of A.K.
Doshi: The decision in the case of A.K. Doshi vs Union of India 44
categorically states that there shall be no interference between
two authorities (Search cum Selection Committee and the ACC)
including the Establishment Officer, whereas, the Establishment
Officer suggested for tenure for the post of DG, which is not
provided for in the Recruitment Rules, as the appointment was
by Direct Recruitment.
(c) Recommendation by Search cum selection Committee
followed by the Ministry of Power: While making the proposal
to ACC, in unambiguous and unequivocal term, it was specified
42
Page No. 1 – 32 of the Review petitions No. 10416/2022 in respect of CA 2491-2492/2021 and 10422 of
2022 in respect of CA No. 2493 of 2021 and 2494 of 2021.
43
Annexure P-1 (DO letter No. 27(18)/EO/86-ACC dated 17-12-1986) to CA No. 2493 and 2494 of 2021 in
particular para 3 thereof.
44
(2001) 4 SCC 43, relied upon by the petitioner vide page 364 (Vol II) of CA No. 2493 and 2494 of 2021 as
also followed by the Division Bench of the High Court vide paragraph 38(a) @ page 57 of CA ibid.
 that the post of DG CPRI service shall be upto the age of
superannuation.45 The Selection Committee recommended the
appointment as one of Direct Recruitment and the Ministry of
Power accordingly submitted its note to the ACC in prescribed
format specifying the extent of service upto the date of
superannuation i.e. 31-05-2019 made thus there was no
interference, whereas, it is at the stage of Establishment Officer
that interference took place when the Establishment Officer
suggested for tenure appointment. This is against the law laid
down by the Apex Court in A.K. Doshi (Supra) as held by the
Division Bench. If at all there be any deviation from the
recommendations of the Selection Committee and the ACC, as
held in Union of India vs N.P. Damania (1995) Supp 1 SCC 1
reasons thereof have to be furnished. This was not done in the
case of the applicant when the recommendation of the Selection
Committee as a direct recruit with the service extended upto 31 st
May 2019 was truncated to 5 year tenure with further eligibility
for reappointment till the age of superannuation.
(d) Characteristics of Direct Recruitment: CPRI Working Rule
stipulates that there shall be a probation for direct recruitment,
which is conspicuously missing in deputation. Again, in case of
Direct Recruitment the services co-terminate with the date of
superannuation. In the case of the petitioner herein, the two
having been specified in the Rules, appointment on tenure basis
is ruled out and the fact that the post of DG is not a tenure post
has been expressly specified in the format submitted to the
ACC.46
(e) Action taken by the petitioner to right the wrong:
Representations were sent to various authorities including the
DoPT which in fact responded by referring the matter to the
Ministry of Power to have the error corrected and in this regard,
DoPT letter dated 23-02-201547 is relevant.
(f) Incompetent Committee evaluating the performance for
purpose of re-appointment: It is enigmatic that when the post is
tenable by Direct Recruitment, when rules do not permit the
mode other than Direct recruitment and deputation, and the
case does not fall under deputation, not only prescription of
tenure with a latitude for re-appointment is wrong, but also that
with a view to extending the services, prescribing a procedure
not provided for is equally wrong. Worse than the same,
constitution of a team with one officer of the same grade and two
officers rank below the grade of the DG is totally inappropriate,
whereas, the judgment reflects in para 39 of the judgment dated
07-10-2022 “No question of being a junior or senior arises as
materials have been placed for assessment by different
45
Annexure P-5 at page No 190 (serial No 7 wherein it has been stated, “from the date he assumes charge
to 31st May, 2019, the date of his retirement on superannuation, or until further orders, whichever is
earlier.”
46
Annexure P-5, Page 190, serial No. 7,
47
Annexure R-3 at page No. 408 (para 3) of counter to CA 2491 and 2492 of 2022.
 department.”. It would have been different had the assessment
of the past been in tune with the excellent grade awarded both in
the MOU as also in APAR but that has not been so. And, the
DoPT suggestion had been thoroughly ignored by respondent
No. 2, viz., the Ministry of Power. Surprisingly, the Secretary
who had endorsed the assessment by the incompetent committee
had given a thumping report over the performance in the APAR
for the year 2013-14 with 8 out of 10.
(g) Limitation aspect: The following are the aspects to be kept in
mind while dealing with the so called Delay:
(i) No statutory provision for limitation;
(ii) Represented during the currency of service;
(iii) DoPT responded positively and was ready to take
remedial measure
(iv) Rights of none affected by making representation even
after the fourth year of service.
(v) (1974) 1 SCC 317 Ramachandra Shankar Deodhar and
others vs State of Maharashtra and others states under
para 10 – “Moreover, it may be noticed that the claim for
enforcement of the fundamental right of equal opportunity under
Article 16 is itself a fundamental right guaranteed under Art.
32and this court which has been assigned the role of a sentinel on
the quay dive for protection of the fundamental rights cannot
easily allow itself to be persuaded to refuse relief solely on the
jejune ground of laches, delay or the like.”
(h) Applicability of recruitment rules preferred to Contract Act -
There is no time limit provided under any statute. Secondly, the
petitioner pointed out the discrepancy in the offer of
appointment during the course his service itself. The DoPT has
accepted to rectify the error committed. Question of acquisition,
waiver or delay does not arise in this case as held by the Division
Bench.
(i) Scope and extent of powers of the ACC; ACC approval is
absolutely essential at the stage of
(1) Initial appointment
(2) Premature termination of an ACC appointee
(3) Even for relieving on the expiry of initial tenure
(4) On the recommendation of the competent committee
(SCSC) for reappointment or for rejection of
reappointment.48

Summation: It is submitted that there has been full violation of the prescribed
rules and orders right from the initial stage as could be summarized as
under:-
(a) Whereas the Rules contemplate direct recruitment, notification
also reflected the same along with deputation and the petitioner

48
Page No. 364 of the CA 2493 and 2494 of 2021.
 also applied for appointment under Direct Recruitment, fixation
of five year tenure is in violation of the said Rule.
(b) When the Director ACC ( DoPT) suggested for rectification of the
error in the terms of appointment making the order of
appointment as one of Direct Recruitment with the services
extendable upto age of superannuation, total disregard to the
same by the Respondent No. 1 amounts to exceeding the
jurisdiction available to the said Respondent.
(c) When specific provision exists as to constitution of a committee
for assessment (Search cum Selection Committee) disregarding
the same and constituting a committee unknown to rules is again
illegal.
(d) When for assessment purpose, the team shall consist of
authorities holding a post higher than the officer being assessed
upon, constitution of the committee with one officer of the same
rank and two officers two or three grades below the DG is again
illegal.
(e) When performance data for four years were available, instead of
conducting the assessment on the basis of the same, arriving at a
different conclusion is again illegal and unjustified.
(f) When the approval of the ACC is required to relieve the
petitioner, failure to obtain the approval is illegal.
(g) When no delay has occurred in the petitioner’s making
representation pointing out the discrepancy in the order of
appointment, which is evident from the fact that the DoPT was
ready and willing to rectify the mistake in the original
appointment order, holding that there has been inordinate delay
in making the representation is again illegal and unjustified.
(h) The result of the above illegalities and irregularities is violation of
fundamental right to equality under Art. 14 of the Constitution of
India, right to equality in matters of employment under Art. 16 of the
Constitution of India and Right to Life enshrined in Art. 21 of the
Constitution of India. Such deprivation of fundamental rights when
pointed out before the Ld. Single Judge of the High Court, non suiting
the petition on the ground of delay in seeking redressal cannot but be
termed as perverse and the Division Bench of the High Court on appeal
by the petitioner, accordingly set aside the judgment of the Ld. Single
Judge. However, the said judgment of the Division Bench has been
upset by this Hon’ble Court, with due respect, without properly
appreciating the rules on the subject and when the errors apparent on
the face of records were pointed out by way of review, the same was not
successful. Hence, this Curative petition for consideration by this
Hon’ble Court.

PRAYER
 Under the above circumstances, it is most respectfully
prayed that this Hon’ble Court may be graciously pleased to:
a) Allow the Curative Petition filed by the Petitioner against the
impugned final order dated 28-07-2022 passed by this Hon’ble
Court in Review Petition (C) No. 10416 of 2022 in Civil Appeal
Nos. 2493-94 of 2021 and
b) Pass any other suitable order or orders as this Hon’ble Court
may deem fit to meet the ends of justice.
AND FOR THIS ACT OF KINDNESS THE REVIEW PETITIONER
SHALL EVER PRAY AS IN DUTY BOUND.
FILED BY:

PARTY IN PERSON
FILED ON:
 IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION

CURATIVE PETITION (C) NO. OF 2023

IN
REVIEW PETITION (CIVIL) NO. 10416 OF 2022
IN
CIVIL APPEAL NOS 2491-2492 OF 2021

IN THE MATTER OF:

N. MURUGESAN Petitioner
VERSUS
UNION OF INDIA AND OTHERS Respondents

CERTIFICATE
“Certified that the Curative Petition is confined only to the pleading
before the court below whose order is challenged and the documents
relied upon in those proceedings. No additional facts, documents or
grounds have been taken or relied upon the Curative Petition. It is
further certified that the copies of the documents/annexures attached
to the curative petition are necessary to answer the question of law
raised in the petition or to make out grounds urged in the curative
petition for consideration of this Hon’ble Court. The certificate is
given on the basis of the instructions given by the petitioner/person
authorized by the petitioner whose affidavit is filed in support of the
Curative Petition.
Filed by
PARTY IN PERSON
Dated:

INDEX

S. NO. PARTICULARS PAGES

1. Synopsis and List of Dates.

2. Against Final Order dated 28-07-2022 passed

 by this Hon’ble Court in Review Petition (C)
No. 3296-3297 of 2018 in Special Leave
Petition (C) No. 9919-9920 of 2016.
3. Against Final Order dated …….. passed by
the Hon’ble Supreme Court of India ………
4. Curative Petition with Affidavit.
5. Certificate of Senior Advocate.
6. Certificate
 IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION

CURATIVE PETITION (C) NO. OF 2023

IN
REVIEW PETITION (CIVIL) NO. 10416 OF 2022
IN
CIVIL APPEAL NOS 2491-2492 OF 2021

IN THE MATTER OF:

N. MURUGESAN Petitioner
VERSUS
UNION OF INDIA AND OTHERS Respondents

CERTIFICATE