Bhagwat Singh and 2 others vs State of Madhya Pradesh

Original petitioner having expired, the petition is being prosecuted by his widow.

Petitioner takes exception to order dated 11.5.1999 whereby in furtherance to the resolution dated 18.3.1999 passed by the Board of Director, order dated 5.4.1984 passed by erstwhile Managing Director creating 2 posts of Deputy General Manager in Grade Rs.3000-4500 was cancelled and the petitioner who was working against one of these posts was directed to be repatriated to the substantive post of Manager.

Relevant facts giving rise to the controversy briefly are that, the petitioner was appointed initially as Salesman by order dated 21.12.1982. Promoted as Assistant Manager by order dated 20.1.1987 (later on re-designated as Manager). That, by order dated 1.6.1995 the petitioner was promoted as Deputy General Manager in pay scale of Rs.3000-4500. The promotion, as contended, was through Departmental promotion committee. It is contended that the promotion was duly approved by the Board of Directors in its 39th meeting held on 24.8.1995 (However, respondents 1 and 2 have raised cavil to the contention that the promotion was approved by the Board of Directors. It is contended that for the promotion, proposal was sent by the Managing Director on 17.5.1995 to be placed before the Board of Directors in its 39th meeting on 24.8.1995. However, in absence of approval by the Board, the petitioner was promoted by order dated 1.6.1995 passed by the Managing Director stating in the order that the promotion is as per approval by the Chairperson. This aspect will be dwelt upon at an appropriate stage).

It is the contention on behalf of the petitioner that after the posting of respondent No. 1 as the Managing Director and because of his personal likes and dislikes, some misunderstanding arose between the petitioner and respondent No. 1, resulting in, petitioner''s suspension by order dated 4.2.1999 and an explanation was sought vide letter dated 6.3.1999. It is urged that, to axe personal grievance, respondent No. 1 after 15 years of existence of two posts of Deputy General Manager took up the issue as to the abolition of these two posts, with the Board of Directors. It is urged that the respondent No. 1succeeded in his evil designs and the Board of Director in its meeting dated 18.3.1999 illegally withdrew/abolished two extra posts of Deputy General Manager from the set up. In furtherance thereto the petitioner who is shown to be the junior-most in the hierarchy of the Deputy General Manager has been reverted to the post of Manager vide impugned order. It is urged that since reversion is in arbitrary exercise of power, accordingly petitioner seeks its quashment.

Respondent Nos. 1 and 2 have refuted the contention that the reversion is an act of mala fides and arbitrary exercise of the powers. It is contended that at relevant time the service rules applicable in Madhya Pradesh Laghu Udyog Nigam Limited were adopted in the respondent Corporation and in accordance with Rule 6 thereof, the Board of Director was only empowered to create posts. It is contended that the Board in its 45th meeting held on 21.5.1998 vide resolution dated 21.5.1998 sought information as to the number of sanctioned post in the Corporation and detail about the posts being filled/to be filled by direct recruitment/deputation. It is urged that in the 47th meeting held on 23.9.1998 it was resolved vide resolution 2 (,) for examining that the posts created by the Chairperson and the Managing Director and whether they were empowered to do so. Thereafter, in a meeting held on 18.3.1999 it was resolved vide resolution No. 21 to abolish the posts of Deputy General Manager in Grade Rs.3000-4500 created by the then Managing Director, vide order passed on 5.4.1984 as the same were created without any authority of law. The Board further resolved to revert the persons holding these posts. It is contended that the petitioner has been reverted in furtherance to the decision by the Board of Director which is not being challenged in the petition. It is contended that there were five sanctioned post of Deputy General Manager and two more were created. Against these posts created on 5.4.1985 one was filled through petitioner whereas the seventh was kept vacant. And with the abolition of two posts petitioner being junior-most was reverted.

The respondents have further meted out the contention made against respondent No. 4 stating that, the petitioner was promoted as Assistant Manager vide order dated 21.1.1987 but he joined on 30.1.1987; whereas, respondent No. 4 was promoted on 1.10.1986 and was placed at Sl. No. 4 and petitioner at Sl. No. 6 in the seniority list of the Assistant Manager as on 15.4.1994. On these contentions respondents submit that the petition does not merit consideration and deserves to be dismissed.

Considered the rival submissions.

The issue is whether the respondent Nos. 1 and 2 are justified in abolishing the posts of Deputy General Manager and by further treating the petitioner junior to respondent No. 4 are justified in reverting him to the post of Manager.

Taking up the issue as to the competency of the Board to abolish the two posts of Deputy General Manager. It is trite as law that the creation of a post and its abolition are essentially matters of administrative policy and expediency related to the need ofadministration. (For an authority please see Avas Vikas Sansthan and another v. Avas Vikas Sansthan Engineers Association and others [(2006) 4 SCC 132], State of U.P. v. Dr. Prem Behari Lal Saxena [(1969) 1 LLJ 247 All 7 B] what has been stated about the power of the Government organisation to create and abolish the posts in these judgments is equally applicable to the Corporations owned and controlled by the State).

In the case at hand Rule 6, of the Rules applicable to the employees of Madhya Pradesh Laghu Udyog Nigam Limited adopted by respondent Nos. 1 and 2 postulates that: "The Board may create posts, in any of the Classes on the scales considered appropriate according to the needs of the Nigam."

Thus, it is within the exclusive jurisdiction of the Board only to create a post, concomitantly it has the power to abolish the post.

In the case at hand except the communication dated 17.6.1995 (Annexure P-9a), no other material is brought on record to substantiate the contention that the posts of Deputy General Manager was created by the Board of Directors. As these posts were not created by the Competent Authority it was within the power of Board to abolish the same. Even otherwise the petitioner has chosen not to challenge the resolution dated 18.3.1999 passed by the Board of Director in its 48th meeting abolishing two posts of Deputy General Manager. And the impugned order being in consonance with the said resolution, cannot be interfered with in absence of challenge to the resolution from where the order emanates.

In these fact situation contention that reversion tantamount to punishment and being punitive deserves to be quashed as no opportunity of hearing was afforded, deserves to be rejected in view of the law laid down in N. Ramanatha Pillai v. The State of Kerala and another (AIR 1973 SC 264) which was though in relation to abolition of posts in government, but the principle of law laid down is equally applicable in respect of abolition of posts in the government owned corporation. It has been held:

"36. The abolition of post may have the consequence of termination of service of a government servant. Such termination is not dismissal or removal within the meaning of Article 311 of the Constitution. The opportunity of showing cause against the proposed penalty of dismissal or removal does not therefore arise in the case of abolition of post. The abolition of post is not a personal penalty against the government servant. The abolition of post is an executive policy decision. Whether after abolition of the post. the Government servant who was holding the post would or could be offered any employment under the State would therefore be a matter of policy decision of the Government because the abolition of post does not confer on the person holding the abolished post any right to hold the post.

37 The High Court was correct in holding that no estoppel could arise against the State in regard to abolition of post. The appellant Ramanathan Pillai knew that the post was temporary. In American Jurisprudence 2d at page 783 paragraph 123 it is stated "Generally, a state is not subject to an estoppel to the same extent as in an individual or a private corporation. Otherwise it might be rendered helpless to assert its powers in government. Therefore as a general rule the doctrine of estoppel will not be applied against the state in its governmental, public or sovereign capacity. An exception however arises in the application of estoppel to the State where it is necessary to prevent fraud or manifest injustice". The estoppel alleged by the appellant Ramanathan Pillai was on the ground that he entered into an agreement and thereby changed his position to his detriment. The High Court rightly held that the, courts exclude the operation of the doctrine of estoppel, when it is found that the authority against whom estoppel is pleaded has owed a duty to the public against whom the estoppel cannot fairly operate.

Counsel for the appellant Ramanathan Pillai repeated in this Court the allegations of mala fide in regard to the abolition of post. Broadly the allegations were two fold.

First, that the second respondent made a speech in the Assembly and made references to the appellant-which would show that the second respondent was biased and prejudiced against the appellant. Second, after the abolition of the Vigilance Commission a new department was created. The functions of the new department were the same as those of the Vigilance Commission. Therefore. the object was not to abolish the Vigilance Commission and only to terminate the services of the. appellant. The High Court held that the State entertained doubts as to the advisability of establishing Vigilance Commission even before it was constituted in 1965. After the retirement of the first Vigilance Commissioner P. D. Nandana Menon the question was again considered. Views were expressed that the Commission had not worked satisfactorily. The State, therefore, de- cided to abolish the Vigilance Commission. The High Court rightly held that the exigencies of administration required alterations in the establishment and creation of a new department. This is a governmental function and a policy decision. The High Court was correct that there was no reason to hold that there was colourable exercise of power by the State.

The right to hold a post comes to an end on the abolition of the post which a Government servant holds. Therefore. a Government servant cannot complain of a violation of Article 19(1) (f) and Article 31 of the Constitution when the post is abolished."

As regard to contention that it was respondent No. 4 who ought to have been reverted, categorical stand is taken on behalf of respondent No. 1 and 2 in the counter affidavit/return in paragraph 10 wherein it is stated. "10. That, the petitioner had been promoted as Assistant Manager vide order dated 21.1.87 but he had joined the said post on 30.1.87 and the respondent No. 4 Subhash Deonath was also promoted on the said post as Assistant Manager on 1.10.86. Therefore, it is clear that the respondent No. 4 is the senior to the petitioner and the Leather Corporation has also issued a provisional seniority list for the said post from time to time. One such provisional seniority list as on 1.1.94 is filed herewith as Annexure R-8 and the department had also called the objection. Thereafter on 15.4.1994 a final seniority list was punished a copy of which is enclosed herewith as Annexure R-9 and in this list, the respondent No. 4 is shown at Sr.No.3 and the petitioner is shown at Sr.No. 6. Therefore, it is clear that the petitioner, on 1.4.94 was much junior to the respondent No. 4."

These contentions are not controverted by the petitioner. In view whereof the petitioner being the junior-most Deputy General Manager working against the post which was abolished, the respondent did not commit any illegality in reverting him to the post of Manager, after abolition of the post.

Taking any view of the matter, no exception is caused to the impugned order dated 11.5.1999. As no relief can be granted to the petitioner, petition fails and is dismissed. However, no costs.