M.M. Kumar, J.The instant petition filed under Article 226 of the Constitution is directed against order dated 20.4.2004 (P-28), passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity, the Tribunal), holding that the original applicant-petitioner was not entitled to ante-date promotion on the post of Architect with effect from 15.3.1995 as against his actual date of promotion, namely, 12.8.2002 (A-19).

2. The facts as noticed by the Tribunal are that the petitioner joined as Architectural Assistant and then promoted to the post of Assistant Architect w.e.f. 15.3.1988. For promotion to the post of Architect, regular service of seven years as Assistant Architect is required by the rules known as the Architectural Staff (Class I) Recruitment Rules, 1967 (for brevity, the 1967 Rules). In the said rules there is a provision for direct recruitment as well as appointment by promotion.

3. A regular post of Architect was lying vacant since 1.3.1995 and the Chandigarh Administration made request to the Union Public Service Commission (for brevity, the Commission) to convene the meeting of the Departmental Promotion Committee (DPC) for considering the case of the petitioner for promotion as he was the senior most Assistant Architect. However, the Commission directed the Chandigarh Administration that they should first notify the recruitment rules of the College of Architecture before DPC for the post of Architect could be convened, which according to the petitioner was separated from the Department of Architect.

4. The petitioner was given ad hoc promotion as Architect vide order dated 12.11.1996, which was terminated vide order dated 6.9.1996 when he was reverted to the post of Assistant Architect (A-10). He was given current duty charge of the post of Architect w.e.f. 13.2.1999, which was again withdrawn vide order dated 19.7.2001.

5. As per the advise of the Commission, a notification dated 20.3.2002 was issued by the Department of Urban Planning, Chandigarh Administration, notifying the Rules, known as the Chandigarh Administration, Department of Urban Planning (Architect Wing) (Group A Posts) Recruitment Rules, 2002 (for brevity, the 2002 Rules) replacing the 1967 Rules. Thereafter a DPC was convened by the Commission and the petitioner was promoted to the post of Architect, vide order dated 12.8.2002. Accordingly, the petitioner claimed before the Tribunal that since the post of Architect existed from 1.3.1995 and condition of seven years as Assistant Architect was common in the 1967 and 2002 Rules, he should be given retrospective promotion w.e.f. 15.3.1995 and the period for which he was promoted on ad hoc basis should be taken into consideration for grant of benefit under the ACP Scheme. The Tribunal after hearing rejected the claim made by the petitioner, as is evident from the perusal of paras 6 and 7 of the order.

6. We have heard learned counsel for the parties at length and perused the paper book with their able assistance. It has come on record that the petitioner had earlier filed O.A. No. 677-CH of 1994, in which he has claimed that he be given the pay scale of the post of Architect and also sought a declaration that he is deemed to be promoted as Architect (Class-I) with effect from 15.3.1995. The Tribunal in its order dated 8.5.2001 (P-8) noted two submissions made by the petitioner. Firstly, the petitioner sought time bound direction to the respondent authorities to finalise the draft rules governing the post of Architect and notify the same at an early date and secondly he claimed the pay of the post of Architect as he was discharging the duties and functions of the higher post. The Tribunal vide order dated 8.5.2001 disposed of the Original Application and issued direction that the rules should be finalised governing the post of Architect in the Department of Urban Planning (Architect Wing) within a period of six months from the date of receipt of copy of that order and the petitioner was held entitled to the salary attached to the post of Architect from 13.2.1999 till such time he continue to discharge the duties and functions attached to the post of Architect. Once the aforesaid directions have attained finality then another application was not competent before the Tribunal, which in fact was filed on 27.12.2002, being O.A. No. 1334/CH/2002, the aforesaid application has been dismissed vide order dated 20.4.2004 (P-28), which has been challenged in the instant petition.

7. It is well settled that once an issue has been raised before the Tribunal in an earlier application then second application on the same cause of action would not be permissible. The principle of res judicata and constructive res judicata would be applicable to the cases which are filed before the Tribunal. For the aforesaid proposition reliance may be placed on the view taken by Honble the Supreme Court in the case of C.I.T. v. T.P. Kumaran, (1996) 10 SCC 561 [LQ/SC/1996/1295] . In para 4 of the judgment following pertinent observations have been made :-

"4. The Tribunal has committed a gross error of law in directing the payment. The claim is barred by constructive res judicata under Section 11, Explanation IV, Civil Procedure Code which envisages that any matter which might and ought to have been made ground of defence or attach in a former suit, shall be deemed to have been a matter directly and substantially in issue in a subsequent suit. Hence when the claim was made on earlier occasion, he should have or might have sought and secured decree for interest. He did not seek so and, therefore, it operates as res judicata. Even otherwise, when he filed a suit and specifically did not claim the same, Order 2 Rule 2 Civil Procedure Code prohibits the petitioner to seek the remedy separately. In either event, the OA is not sustainable."

Accordingly, on that ground alone, the writ petition is liable to be dismissed and the order passed by the Tribunal deserves to be upheld.

8. It is further relevant to point out that on account of any administrative exigency if the promotional post has not been filled up then no employee in the feeder cadre could seek a mandamus for consideration of his case for promotion merely because he is eligible and a post is available. In the present case, on account of non-issuance of notification in respect of 2002 Rules, the case of the petitioner could not be taken up by the respondent department, which is an administrative exigency. In support of the aforesaid proposition reliance may be placed on the judgments of Honble the Supreme Court rendered in the cases of Ramanuj Prasad v. Coal India Ltd., (2003) 10 SCC 152 [LQ/SC/2003/941] and State of Uttaranchal v. Dinesh Kumar Sharma, (2007) 1 SCC 683 [LQ/SC/2006/1210] . Therefore, we are of the view that the petitioner has no case even on merit.

9. As a sequel to the above discussion, this petition fails and the same is accordingly, dismissed. No order as to cost.