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