Gordhan Meghwal vs State & Ors on 8 July, 2008

Rajasthan High Court – Jodhpur
Gordhan Meghwal vs State & Ors on 8 July, 2008
                                   1

   IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
                       AT JODHPUR



                            O R D E R

S.B. CIVIL WRIT PETITION NO.1127/2006
(Gordhan Meghwal & Ors. Vs. State of Raj. & Ors.)

Date of order : 8.7.2008

HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS

Mr. Rajesh Joshi, for the petitioner.

Mr. N.M. Lodha, Addl. Advocate General.
Mr. Sanjeev Johri, for respondent No.2.

Heard learned counsel for the parties.

In this case, the petitioners low paid

employees of respondent Urban Improvement Trust,

Jodhpur are challenging the order of reversion dated

23.2.2006, which is said to be a resolution passed by

the Departmental Promotion Committee in which it was

decided to revert the petitioners from the post of

electrician/wiremen to the post of Gang-man.

It is contended by learned counsel for the

petitioners that the petitioners were granted

promotion on the post of electrician/wiremen on
2

regular basis vide order dated 13.5.1997. Upon

perusal of promotion order, it is nowhere stated that

the posts upon which the petitioners were promoted

were temporary in nature and required any sanction

from the Government. More so, these promotion were

made after financial sanction as evident from the

order itself. Thus, the petitioners were promoted and

granted the pay scale of promotional post of

electrician/wireman.

Learned counsel for the petitioner vehemently

argued that earlier for grant of permanent and semi

permanent status, an industries dispute was raised by

the petitioner and that dispute was decided in favour

of the petitioners vide award dated 25.9.2000 by the

Judge, Labour Court, Jodhpur. In pursuance of that,

the petitioners were granted semi permanent and

permanent status. The case of the petitioners is that

they were eligible for promotion on the posts of

electrician and wiremen. Therefore, after due

consideration of their qualification and experience,

they were granted promotion on their respective posts

in the year 1997 and they are holding the posts since

13.5.1997.

It is also contended that Urban Improvement

Trust, Jodhpur is an autonomous body and creation and

abolition of posts is within the domain of Urban

Improvement Trust and there is no requirement of any
3

rule to get any sanction from the Government prior to

granting promotion and for creating any vacancy by the

autonomous body, therefore, on 13.5.1997, the

promotion order was issued in which it is nowhere

stated that the petitioners have been granted

promotion on temporary basis or any sanction is

required for promotion from the Government. Meaning

thereby, the service conditions of the petitioners are

required to be governed by the terms and conditions of

the appointment order and in the order of promotion of

the petitioners there is no such restriction or

condition mentioned for obtaining any sanction.

According to the learned counsel for the

petitioners though promotions were made on regular

basis as per requirement of U.I.T. but one Sher Khan

preferred a writ petition before Hon’ble High Court

against the award passed by Judge, Labour Court,

Jodhpur wherein this Hon’ble High Court has passed an

order on 20.4.2005 whereby direction was issued that

the case of Sher Khan may be considered for promotion

w.e.f. 13.5.1997 and his suitability on the post of

electrician and wireman may be adjudged. According to

learned counsel for the petitioners, for compliance of

the said directions issued by this Hon’ble High Court,

the case of Sher Khan was considered and on illegal

grounds, it has been resolved in the meeting of

Departmental Promotion Committee that the order of

promotion of the petitioners dated 13.5.1997 was
4

against the law. Upon perusal of the resolution

passed by D.P.C., it is obvious that the D.P.C. has

illegally observed that the day on which the

petitioners were promoted, there was no sanction for

creation of the post by the State Government,

therefore, the promotion were made contrary to law and

without sanction of the State Government.

In pursuance of the specific query made by

this Court, learned Additional Advocate General

appearing on behalf of State has placed on record the

communication dated 23.11.2006 in which a specific

assertion has been made by Dy. Secretary, which is as

follows :

                           "र ज       सरक र क पस व पष               करन स पव इन
       करच रर          क        ग     , प त , वररष         एव पद ननत       च"नल क
       तन र न$स र पर%कण कक                   ष)न    पद स*जन क पस व र ज
       सरक र क पष                कक    ह" ज तन र न$स र उतच          नह% ह" र नन.
       उचच न           ल       द र पदत आदश क प लन सर                     पर स$तनश5
       करन आवश क ह" ।


                 अ : उक पकरण र: पद                   क स*जन ह $ तन र न$स र
       पत ,           ग         एव वररष       एव पद ननत     च"नल क पररकण कर
       उक पकरण र: ग$ण वग$ण पर न स रण=ल र: तनण                             अपन स र
       पर ल:          तप5        आवशक          ह         सवपरर      पस व क स थ
       सव.क* त    ह $ रज            सरक र क पष       कर व: ।"



                 It       is    observed       in   the     communication            dated

23.11.2006            by       the    State     Government          that        U.I.T.    is
                                        5

competent     and       having     jurisdiction            to     decide       the

suitability and eligibility of the persons concerned,

therefore, as per counsel for the petitioners, the

reversion order of the petitioners Annexure-10 is

contrary to the basic principles of law. The

petitioners were promoted without any condition in the

promotion order that their promotion is subject to any

sanction by the State Government or till D.P.C. found

them suitable for promotion, therefore, at the time of

considering the case of Shri Sher Khan in compliance

of order of this Court, the petitioners were illegally

ordered to be reverted from the post of

Electrician/wireman upon which petitioner’s were

promoted in the year 1997. The directions were issued

in Sher Khan’s case for considering his case w.e.f.

13.5.1997 but at the time of considering case of Sher

Khan by D.P.C., it is illegally resolved that there

were no sanctioned post upon which petitioners were

promoted in the year 1997. As per learned counsel for

the petitioner, there was no direction of this Court

in Sher Khan’s case that all those promotions made

earlier may be reviewed. Therefore, without any

jurisdiction, D.P.C. has held that the vacancies were

not in existence and petitioners were wrongly

promoted. More so, the work of D.P.C. was to adjudge

the suitability of Sher Khan but the D.P.C. reopened

the promotion case of the petitioners also without any

jurisdiction. The D.P.C. was to consider the case of

Sher Khan only and his suitability was to be adjudged
6

but only to file reply in the contempt petition, all

the cases of promotion made earlier were reviewed and

after reviewing past case, it is decided by the D.P.C.

that the promotions were not given after getting

sanction from the State Government, therefore,

promotions are illegal. As per learned counsel for

the petitioner, the case of Sher Khan was to be

considered but illegally, they interfered with the

case of the petitioners by reviewing the earlier

promotion orders, therefore, the decision of D.P.C.

with regard to reviewing the earlier promotion is

illegal, therefore, the reversion order of the

petitioners passed by U.I.T. is not in consonance with

the law. More so, the promotions were made in the

year 1997 and in the month of February, 2006, the

reversion order has been passed, meaning thereby,

petitioners were allowed to work for more than eight

years on the promotional posts and meeting of review

D.P.C. was convened when the order was passed in Sher

Khan’s writ petition by this Court before that there

was no objection by the U.I.T. with regard to

promotion of the petitioners, it is no where stated

that petitioners’ promotion was illegal so also no

documentary evidence has been produced before the

Court or explained that the petitioners’ promotions

were made on adhoc or temporary basis or any sanction

was required for their promotion. For the first time,

at the time of considering the case of Sher Khan, it

was observed that the petitioners promotion was
7

illegal for want of sanction, therefore, the impugned

order of reversion is illegal and there was no valid

jurisdiction with respondents to review the promotion

case of the petitioners which was made in the year

1997. According to petitioners, the order of

reversion is against the principles of natural justice

because it has been passed without affording

opportunity of hearing and without any provision of

law to review the decision of D.P.C.

Per contra, learned counsel appearing on

behalf of U.I.T. argued that although petitioners were

reconsidered at the time of considering the case of

Shri Sher Khan but in fact when the case of Sher Khan

was considered it has come to the knowledge of D.P.C.

that the promotions made earlier are not in consonance

with the provisions of law because no sanction was

obtained prior to granting promotion by the U.I.T.,

Jodhpur, therefore, it was rightly resolved by D.P.C.

that the petitioners were wrongly promoted without any

sanction posts.

Learned counsel for the U.I.T. vehemently

argued that the resolution passed by the D.P.C. is in

consonance with the provisions of law, therefore, the

petitioners were rightly reverted for want of

sanction from the State Government. Learned counsel

for the respondents lastly argued that if promotion

were made contrary to law then it is always open for
8

the employer to rectify the mistake committed by the

U.I.T., Jodhpur by way of taking proper decision,

therefore, the order impugned does not require any

interference by this Court under Article 226 of the

Constitution of India.

Learned Additional Advocate General upon

query made by this Court has filed short reply and it

is stated in the reply that “as per directions given

by this Court, the communication dated 29.7.2006

addressed by the Secretary, U.I.T., Jodhpur to

Principal Secretary, Urban Development Department,

Government of Rajasthan, has been considered and reply

has also been given to the Secretary, U.I.T., Jodhpur

making it clear that the suitability of the candidates

must be examined, and since the posts for which

sanction was sought comes under the control of U.I.T.

itself hence, U.I.T. can take decision at its own.

However, it has also been made clear that even if the

U.I.T. feels that approval of the State Government is

required, then send the same with appropriate

proposal/resolution.”

While inviting attention towards the

aforesaid reply, it is submitted by learned Additional

Advocate General that for adjudging suitability and

eligibility of the candidates on promotional post, the

U.I.T. itself is competent and having jurisdiction to

promote any person on the promotional post. Here in
9

this case, no sanction is required then proposal is to

be made to the State Government. Meaning thereby, it

is nowhere stated by the State Government that for

creating any post, the sanction of the State

Government is mandatory.

I have considered the rival submission made

by the parties.

First of all, it is required to be seen

whether in the promotion orders of the petitioners,

any condition was imposed by the U.I.T. For this

purpose, I have perused the promotion order Annexure-

4. Upon perusal of promotion order, it is obvious

that the petitioners’ merit and experience was

considered as per their seniority, thereafter as per

recommendations of the Committee, the petitioners were

promoted on the posts of electrician and wireman and

for the said purpose sanction was issued by U.I.T.,

which is evident from the order itself. Meaning

thereby, the suitability of the petitioners was

adjudged for promotion and sanction was also granted

by the U.I.T. Therefore, the promotions were made by

the U.I.T. at their own and it is nowhere stated in

the promotion order that for these promotions any

sanction is required from the State Government.

Meaning thereby, the promotions were substantive in

nature and there was no illegality in the promotion

order of the petitioners on the post of
10

electrician/wireman. Subsequently one Sher Khan

preferred industrial dispute and later on preferred a

writ petition before this Court in which specific

direction was issued for considering his candidature

on the post of wireman. Meaning thereby, the case of

Sher Khan was to be considered but while considering

the case of Sher Khan, for promotion without any

jurisdiction the case of petitioners was reviewed and

it is observed by the D.P.C. That petitioners’

promotions were made without any sanction from the

State Government. From perusal of reply filed by

State, it is clear that no sanction is required from

the State Government for creation of the post and only

assertion is made in the communication dated

23.11.2006 that if U.I.T. feels that sanction is

required, then, proposals can be sent but it is

nowhere stated that for creation of any post any

sanction is required from the State Government.

Therefore, in absence of any mandatory provision,

which is not brought to the notice of this Court, it

cannot be presumed that for the propose of promotion

any sanction is required by any autonomous body like

U.I.T. In my opinion, the decision taken by D.P.C.

for reversion of the petitioners is totally

unwarranted, illegal and is totally without

jurisdiction. The D.P.C. was required to comply with

the directions issued by this Court in Sher Khan’s

case and if Sher Khan was entitled for promotion then

he was to be given promotion as per his suitability
11

and merit as ordered by this Court. The petitioners

were promoted in the year 1997 and till filing writ

petition in the year 2006 for the first time it has

been held by the D.P.C. that promotions were made

without any sanctioned post but in my opinion in the

promotion order, it is nowhere stated that these

promotions are temporary or adhoc or any sanction is

required from the State Government. Therefore,

promotions were made on regular post, which was

substantive in nature, therefore, the decision of

U.I.T. for reverting the petitioners to their

respective posts is contrary to law and in

contravention of the terms and conditions of the

promotion order. Further, there is no document

produced before this Court showing that any sanction

is necessary from the State Government for creation of

posts or abolition of post. Therefore, there is no

substance in the ground taken by the respondents,

which is totally baseless.

With the aforesaid discussions, this writ

petition is allowed. The reversion order dated

23.2.2006 Annexure-10 is hereby quashed and set aside

with all consequential benefits to the petitioners.

The petitioners are hereby held entitled for promotion

on their respective posts as per the earlier order

dated 13.5.1997 (Annexure-4). However, it is made

clear that this Court is adjudicating the validity of

the promotion order of the petitioners and it has
12

nothing to do with the consideration of the case of

Sher Khan in which order was passed by this Court in

the writ petition filed by Sher Khan. No order as to

costs.

(GOPAL KRISHAN VYAS), J.

arun

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