D.K. Kuraria vs M.P. Rajya Matsya Vikas Nigam and Another

S.R. Alam, C. J.

In this intra-Court appeal, the appellant has challenged the validity of the dated 4.10.2007 passed by learned Single Judge by which writ petition preferred by the appellant has been dismissed. In order to appreciate the appellant''s challenge to the impugned order, relevant facts need mention which are stated herein under.

The appellant was initially appointed as Assistant Engineer by direct recruitment vide order dated 2.6.1982 in the services of respondent No. 1 namely Madhya Pradesh Rajya Matsya Vikas Nigam. The service conditions of the appellant are governed by Madhya Pradesh Rajya Matsya Vikas Nigam Prabandhkiya Sewa Bharti Niyam, 1993 (hereinafter referred to as the Rules, 1993) which have been framed by the respondent No. 1 Corporation with prior approval of the State Government in exercise of powers u/s 40 of the Madhya Pradesh Matsya Vikas Adhiniyam, 1979. Rule 14 of the Rules lays down the condition of eligibility for promotion. From perusal of Schedule 1 appended to the Rule it is evident that one post of Executive Engineer and two posts of Assistant Engineer is sanctioned in the set up of respondent No. 1. Schedule 2 of the Rules provides that the post of Executive Engineer shall be filled in by promotion or by deputation. Schedule 4 provides that an Assistant Engineer should have worked on the post of Assistant Engineer for a period of five years in order to be eligible for consideration for promotion to the post of Executive Engineer.

After rendering 14 years of service, the appellant on the basis of recommendation of the Departmental Promotion Committee, was promoted on ad-hoc basis on the post of Executive Engineer vide order dated 31.12.1996. However, the appellant was reverted to the post of Assistant Engineer vide order dated 6.7.1998 with immediate effect. The appellant challenged the validity of the aforesaid order in the writ petition before the learned Single Judge. The learned Single Judge by an interim order dated 20.7.1998 stayed the operation of the order of reversion of the appellant. Thereafter, while deciding the petition by an order dated 4.10.2007, the learned Single Judge inter-alia held that appellant was promoted to the post of Executive Engineer on ad-hoc basis. He therefore does not have any right to hold the post and, therefore, no opportunity of hearing was required to be afforded to him before passing the order of reversion. It was further held that the post of Executive Engineer was required to be filled in by a candidate belonging to the reserved category. Accordingly, the writ petition preferred by the appellant was dismissed.

Shri Rajendra Tiwari, learned senior counsel for the appellant submitted that the appellant was promoted in accordance with the Rules. Since, there is only one sanctioned post of Executive Engineer in the set up respondent No. 1, therefore, the same could neither have been reserved for candidates belonging to reserved category nor any roster for promotion could have been applied. It is further submitted that the action of respondents in reverting the appellant from the post of Executive Engineer to that of Assistant Engineer is patently arbitrary. In support of his submissions, learned senior counsel for the appellant has placed reliance on decisions of Supreme Court in Chakradhar Paswan Vs. State of Bihar and Ors, , Post Graduate Institute of Medical Education & Research, Chandigarh v. Faculty Association and others, (1998) 4 SCC and S.R. Murthy v. State of Karnataka and others, AIR 1999 SCW 4602.

On the other hand, Shri Mrigendra Singh, learned counsel for the respondents has submitted that the appellant was promoted to the post of Executive Engineer on ad-hoc basis on 31.12.1996. The appellant did not challenge his promotion on ad-hoc basis and joined the post of Executive Engineer. In the year 1998, a decision was taken to wind up the Corporation and, therefore, the ad-hoc promotion of the appellant was cancelled. It was further submitted that since the post of Executive Engineer as per the roster was meant to be filled in by reserved category candidate, therefore, the appellant was reverted to the post of Assistant Engineer.

We have considered the submissions made by learned counsel for the parties. Admittedly, by virtue of interim order passed by this Court, the appellant has continued on the post of Executive Engineer and has superannuated during the pendency of the appeal in the month of June, 2011. It is also not in dispute before us the pursuant to the recommendations made by the Departmental Promotion Committee, the appellant was promoted on the post of Executive Engineer on ad-hoc basis vide order dated 31.12.1996. In the order dated 6.7.1998, on reasons have been assigned for reverting the appellant to the post of Assistant Engineer. However, in the return, the respondents have asserted that as per the roster prescribed for promotion, the post of Executive Engineer was required to be filled in by a candidate belonging to the reserved category. It is also not in dispute before us that there is only one sanctioned post of Executive Engineer in the set up of respondent No. 1.

In Dr. Chakradhar Paswan, supra, the Supreme Court has held that if there is only one post in the cadre, there can be no reservation with reference to that post either for recruitment at the initial stage or for filling up a future vacancy in respect of the post. No reservation can be made under Article 16(4) of the Constitution of India so as to create a monopoly otherwise it would render the guarantee of equal opportunity contained in Article 16(1) and (2) wholly meaningless and illusory. Similar view has been reiterated by the Supreme Court in Post Graduate Institute of Medical Education & Research. Chandigarh and S.R. Murthy, supra.

Admittedly, there is only sanctioned post of Executive Engineer in the set up of respondent No. 1. Therefore, in view of aforesaid enunciation of law by the Supreme Court, the post of Executive Engineer cannot be earmarked for reserved category candidate as the same would amount to 100% reservation, which is violative of Article 16(4) of the Constitution of India. Thus, the explanation offered by respondents that the appellant was reverted to the post of Assistant Engineer as the post of Executive Engineer was meant to be filled up from candidate belonging to reserved category is not worthy of acceptance. Besides that, respondent No. 1 Corporation is still in existence, therefore, the reason assigned by the respondents in the return that the services of the appellant were reverted on account of winding up of the respondent No. 1 Corporation also cannot be accepted.

For the aforementioned reasons, in our considered opinion, the order of reversion dated 6.7.1998 cannot be sustained in the eye of law. Accordingly, the order of reversion dated 6.7.1998 as well as the order passed by the learned Single Judge in W.P. No. 2895/98 dated 4.10.2007 are hereby quashed.

In the result, the writ appeal is allowed. However, there shall be no order as to cost.