Full Judgment Text
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CASE NO.:
Appeal (civil) 2937 of 2002
PETITIONER:
SAYYED FAKHRUL ISLAM
Vs.
RESPONDENT:
MAHARASHTRA STATE ROAD TRANSPORT CORPN. & ORS.
DATE OF JUDGMENT: 26/04/2002
BENCH:
Syed Shah Mohhammed Quadri & S.N. Variava
JUDGMENT:
SYED SHAH MOHAMMED QUADRI, J.
Leave is granted.
The order of the Division Bench of the High Court of
Judicature at Bombay, Bench at Nagpur, in Writ Petition No.3216 of
1998 dated April 6, 2000 is brought under challenge by the appellant.
By the said order the High Court dismissed the Writ Petition filed by
the appellant.
The facts giving rise to the petition may be briefly noted to
appreciate the grievance of the appellant. On July 4, 1975, the
appellant was initially appointed as Clerk by the first respondent and
thereafter as Assistant Works Superintendent from direct sector in the
month of June 1979. He passed promotional examination and became
eligible for consideration for promotion to the post of Depot Manager
’A’/Assistant Mechanical Engineer in July 1985. On September 5,
1994, he was temporarily promoted as Depot Manager ’A’
Junior(M)/Assistant Mechanical Engineer in Class II Junior Grade.
On August 28, 1998, he was, however, reverted to his original post of
Senior Foreman. He assailed the validity of the said order in the
aforementioned writ petition before the High Court. By the impugned
order the said writ petition was dismissed.
Mr.A.K.Sanghi, the learned counsel appearing for the appellant,
contended that as the post of Depot Manager ’A’ was not filled up on
regular basis the appellant was entitled to continue temporarily on the
said post having regard to the terms of his promotion.
It may be appropriate to refer to the relevant portion of the
terms of the order of promotion of the appellant which reads as
under :
"General Establishment Order
No.325(SB) of 1994
The following Sr.Foreman/Assistant Works
Superintendent are temporarily promoted as Depot
Manager(A) Jr.(M)/Assistant Mechanical Engineer in
Class II Jr.Grade of Rs.2200-3700 and on promotion
posted to the Regions mentioned against their names in
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Col.(4) below :-
---------------------------------------------------------------------
S.No. Name and Present Place Region to
Designation of posting which posted
on promotion
--------------------------------------------------------------------
1 to 14 *
15 Shri I.S.Fakhrul Wardha Divn. Amravati
Sr.Foreman Region
16 to 18 *
2. The promotion of above AWS/Sr.Foreman is on
temporary basis and without prejudice to the seniority of
others. This order does not confer on them any right of
seniority, continuity or preference over others.
3. Further, the promotion of the above
AWS/Foreman is effected against the direct sector
vacancies and on availability of candidates from direct
sector they will be reverted to their original posts.
4. to 6. *
Sd/- Illegible
for Vice Chairman & Managing Director
M.S.R.T.Corporation
No.ST/EST/SB/1675
Date : 5th September, 1994."
From a perusal of clause (2) it is evident that the promotion of
the appellant was on temporary basis. Clause (3) shows that the
promotion was against the direct sector vacancies and on availability
of candidates from direct sector he would be reverted to his original
post.
The bone of contention is that under Standing Order 32
M.S.R.T.Corporation the appellant is entitled to continue till there is a
direct recruitment to the said post. Standing Order 32(a) is in the
following terms :
"32(a). When a suitable candidate is not available for
direct recruitment to a post reserved for direct
recruitment, a suitable departmental candidate may be
given a purely temporary promotion lasting up to such
time as a suitable direct recruitment is available for
appointment. A fresh attempt shall be made to get a
suitable direct recruit by re-advertising the post. If after
one year from the date of the temporary appointments of
the departmental candidate and even after making a fresh
attempt no suitable direct recruitment is available, the
competent authority may consider the question of making
the appointment of the departmental candidate
substantive."
A perusal of the Standing Order, extracted above, makes it clear
that it deals with a situation when a vacancy reserved for direct
recruitment arises and postulates that : (i) a suitable candidate is not
available for direct recruitment; (ii) till such time a suitable direct
recruitment is available for appointment, a suitable departmental
candidate may be promoted temporarily; (iii) such temporary
promotion will last till such time as a suitable direct recruitment is
available; (iv) the authorities are under an obligation to make fresh
attempt to get a suitable direct recruit by re-advertising the post; and
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(v) if after one year from the date of the temporary appointments of
the departmental candidate and even after making a fresh attempt no
suitable direct recruitment is available, the competent authority may
consider the question of making the appointment of the departmental
candidate substantive.
A perusal of the counter of the respondents discloses that the
appellant was considered by the Departmental Promotion Committee
in September 1985, December 23, 1986, February 1, 1989 and
December 31, 1992 but he was not found fit for promotion. In view
of this position, the appellant was reverted to his original post.
The right conferred, under the aforementioned Standing Order,
on a candidate appointed temporarily, is that if no direct recruit is
available even after making a fresh attempt, he must be considered for
substantive promotion. The appellant was in fact considered for
regular promotion but he was not found fit; therefore, the reversion
cannot be said to be in breach of Standing Order 32(a). However, we
make it clear that this order does not preclude the authorities from
considering his case for promotion to the said post in future in
accordance with law.
In this view of the matter we do not find any illegality in the
impugned order of the High Court. The appeal is devoid of merit and
it is accordingly dismissed. In the facts and circumstances of the case
we make no order as to costs.
....................................................J.
[Syed Shah Mohammed Quadri]
...............................................
.....J.
[S.N.Variava]
April 26, 2002.