Allahabad High Court
R.S. Garg vs State Of U.P. And Others on 22 May, 2000
Equivalent citations: 2000(3)AWC2192
Author: R.P. Nigam
Bench: R.P. Nigam
JUDGMENT S.H.A. Raza, J.
1. Mr. R. S. Garg, who is working on the post of Assistant Director of Factories since 1972, assailing the order dated 25.4.1997 by means of which Mr. O. P. Bharti-respondent No. 3 who belongs to reserved category (Scheduled Caste) has been promoted to the post of Deputy Director of Factories (Administration), and has been posted at Head Quarter, has filed the present writ petition. The petitioner also wants the order dated 15.11.1995 to be quashed by means of which respondent No. 3 was appointed regularly on the post of Assistant Director of Factories. Writ of quo warranto was also prayed for commanding the respondent No. 3 to show cause as to how he was holding the post of Deputy Director of Factories (Administration), The petitioner also staked his claim for promotion on the post of Deputy Director of Factories (Administration).
2. The order dated 25.4.97 by means of which respondent No. 3 was promoted on the post of Deputy Director Factories (Administration) as well as regular appointment of respondent No. 3 on the post of Assistant Director of Factories, have been sought to be nullified mainly on the following five grounds :
1. Respondent No. 3 lacked eligibility condition as he has not put in five years service in substantive capacity on the post of Assistant Director of Factories as provided in Rule (iii) of Rule 5 and further that the State Government was not vested with any power to relax the minimum eligibility particularly when no such order for relaxation was ever issued by the State Government.
2. The conversion of the post of Deputy Director of Factories (Chemical) to the post of Deputy Director of Factories (Administration) is vitiated.
3. The promotional order of respondent No. 3 on the post of Deputy Director of Factories (Administration) Is bad as there existed only five posts in the cadre of Deputy Director (Administration) and as one member of the reserved category was already holding the post under Scheduled Caste quota of 21%, therefore, respondent No. 3 could not have been promoted to the post under the Scheduled Caste quota.
4. The post of Deputy Director of Factories (Engineering) could not have been grouped or clubbed for the purposes of promotion.
5. Regular appointment of respondent No. 3 by means of the order dated 15.11.1995 was vitiated for the reason that he could not have been appointed regularly or regularised beyond the cut of date of regularlsation.
3. Before adverting to the legal propositions involved in the writ petition, it is necessary to put forth, the factual matrix of the case in short compass, as set out In the writ petition as well as in the counter-affidavit.
4. The petitioner Mr. R. S. Garg. who belongs to general category joined on the post of Inspector of Factories, which was later on re-designated as Assistant Director of Factories in the year 1984 on ad hoc. basis on 3.1.1972. As the post was within the purview of Public Service Commission, the petitioner on the basis of selection held by the Commission in the year 1976, was regularly appointed on the post of Inspector Factories and was confirmed as such on 8.8.78 with effect from 13.5.1978.
5. According to the petitioner, the Assistant Director who was at serial No. 1 In the seniority list, retired long back, therefore. Vijai Kumar, Moijuddin. Bhuwan Chandra Pandey and Arun Kumar Agrawal who were senior to the petitioner, have already been promoted, thus the petitioner was the senlormost Assistant Director, when selection for the post of Deputy Director Factories was made.
6. Sri O. P. Bharti respondent No. 3 was appointed on the post of Assistant Director of Factories vide order dated 17.1.1987 by the State Government directly on ad hoc basis. He joined on the said post on 29.1.1987. By means of the order dated 15.11.92 respondent No. 3 was appointed regularly to the post of Assistant Director of Factories by the State Government. Sri O. P. Bharti respondent No. 3 was promoted to the post of Deputy Director of Factories (Administration) regularly by the State Government vide order dated 25.2.1997, which has been impugned in the writ petition on the ground that there were six posts of Deputy Director of Factories, being a member belonging to Scheduled Caste. It has been asserted in the counter-affidavit, that the respondent No. 3 could be appointed on the sixth post/vacancy, on the basts of roaster. Even after Sri O. P. Bharti took over charge on the post of Deputy Director of Factories on 26.4.97. by means of the interim order passed by this Court, he was restrained from working on the said poat.
7. Before dealing with the question as to whether Sri O. P. Bharti was within the field of eligibility or not. we have to consider the averment of the petitioner that Sri O. P. Bharti had not completed five years service in substantive capacity on the post of Assistant Director, hence be could not be promoted on the post of Deputy Director of Factories. In that regard it is necessary to have a glance over the U. P. Labour Department (Factories and Boilers Division) Officers Service (Second Amendment) Rules. 1980. which were later on amended in the year 1992.
8. Relevant Rule 5 which existed prior to 1992 rules and the rules which were amended in the year 1992 are reproduced below :
Column I Existing Rule Column 11 Rule as hereby substituted Source of Recruit-ment.
5.
Recruitment to the various categories of posts in the service shall be made from the following sources :
"Source of Recruitment"
5, Recruitment to the various categories of posts tn the service shall be made from the following sources : (i) Inspector of Factories (i) Assistant Director of Factories (a) Seventy five per cent by direct recruitment through the Commission. (a) Seventy five per cent by direct recruitment through the Com mis - (b) Twenty five per cent by promotion, on the basis of merit, through theJunior Engineers of the department who have put In at least ten years service as such. (b) Twenty five per cent by promotion on the basis of merit through the Commis-sion form against substantlvely appointed Junior Engineer of the department, who have put In at least ten years service as such on the first day of
(ii) Assistant Director of Rollers By direct recruitment through the Commission.
(ii) Assistant Director of Rollers By Direct recruitment through the Commission (iii) Deputy Director of Factories (Administration). By promotion on the basis of seniority subject to the rejection of unfit, through the Commission from amongst the Permanent Assistant Director of Factories, who have put In at least five years of continuous Service including temporary and Officiating service. (iii) Deputy Director of Factories (Administration) By promotion on the basis of seniority subject to the rejection of unfit, through the Commission from amongst substantlvely appointed Assistant Director of Factories, who have put In at least five years service as such on the first day of the year of recruitment. (iv) Deputy Director of Factories (Engineering). By promotion on the basis of seniority subject to the rejection of unfit, through the Commission from amongst permanent Assistant Director of Factories who have put In at least five years continuous service Including temporary and officiating service. (iv) Deputy Director of Factories (Engineer-Ing) By promotion on the basis of seniority subject to the rejection of unfit, through the Commls-substantlvely appointed Assistant Director of Factories, who have put In at least five years service as such on the first day of the year of recruitment. (v) Deputy Director of Factories (Chemical) By promotion on the basis of seniority subject to the rejection of unfit through the Commissionnent Assistant Director of Factories who hold Degree or diploma In Chemical Engineering and who have put In at least five years continuous Service Including temporary and officiating service. (v) Deputy Director of Factories By promo- . tlon on the basis of seniority subject to the rejection of unfit through the Commission from amongst substantlvely appointed Assistant Director of Factories, who hold degree or diploma In Chemical Engineering and who have put In at least five years service as such on the first day of the year of recruitment
9. Although the recruitment on the post of Assistant Director of Factories is both by direct recruitment and by promotion, the posts were within the purview of Public Service Commission. Sri O. P. Bharti was firstly appointed on 17.11.1987, on the post of Assistant Director of Factories on ad hoc basis. He continued to work on the said post and ultimately by means of the order dated 15.11.1995 Sri O. P. Bharti was regularly appointed on ten post of Assistant Director of Factories. The order dated 15.11.1995 Indicated that Sri O. P. Bhartl and other persons who were appointed as Assistant Director of Factories, will remain on probation for two years.
10. Main thrust of Mr. S. K. Kalia, learned counsel for the petitioner is that when on 25.4.97 Sri O. P. Bharti was promoted on the post of Deputy Director Factories (Administration), he had not completed five years eligibility qualification as he did not complete five years service of Assistant Director in substantive capacity. Hence, in terms of Rule 5 (iii) his promotion on the post of Deputy Director was vitiated.
11. On the other side, it was contended by Mr. A. P. Singh, learned counsel appearing on behalf of the respondent No. 3 that admittedly respondent No. 3 joined on the post of Assistant Director of Factories on 29.1.1987 and was regularly appointed on the post of Assistant Director of Factories vide order dated 15.11.1995 and was also placed on probation for the period of two years. Thus, he completed for more than ten years of service on the post of Assistant Director of Factories. Respondent No. 3 thereafter, on completion of their ten years period, was considered and promoted to the post of Deputy Director of Factories on 25.4.1997. It was submitted that according to Rule 5 (iii) five years substantive service is not at all the edict of the rule, and in that regard attention of this Court was drawn towards a decision of a Division Bench of this Court in Krishna Bahadur Chandra v. State of U. P. and others, 1988 (6) LCD 223, where a similar rule came up for interpretation before the Court Rule 5 (3) of the U. P. Information Service Rules, 1982, is quoted below :
"5 (3) Deputy Director. --By promotion through the Departmental Selection Committee from amongst such permanent Assistant Directors. Exhibition Officers. Assistant Directors (Urdu), Film Production Officers. Officer-in-charge (Publication), Song and Drama Officers, District Level Public Relations Officers and Editors as have put In at least five years service as such."
Interpreting the said rule, in para 11 of the report, it was observed :
"It is undisputed that Sri K. K. Rai, Opp. Party No. 5 was promoted as Deputy Director under order dated 3.8.1985 vide Annexure-10A. Shri Rajesh Sharma, opposite party No. 6 was also promoted as Deputy Director vide order dated 3.8.1985 contained in Annexure-10B. This is undisputed position that both Shri K. K. Rai and Shri Rajesh Sharma were appointed as Assistant Director on 15.1.1980 on two years probation and were confirmed on their posts prior to 3.8.1985 on which date they were promoted as Deputy Director. Accordingly, both Shri K. K. Ral and Shri Rajesh Sharma were holding the posts of Assistant Directors tn permanent capacity and had also put in five years service on the said post before the date of their promotion as Deputy Director. In case Rule 5 (3) of the said Rules is interpreted to mean that the eligibility requirement was that the officer concerned should be holding any of the eligibility posts In permanent capacity and should have put in five years In that post prior to the date of promotion, he was eligible for such promotion. The language of Rule 5 (3) of the Rules is not very clear and explicit and is capable of yielding the meaning placed by the opposite parties 1 and 2. The difficulty has arisen as to the interpretation of the words 'as such' in the said Rule 5 (3). Learned counsel for the petitioner vehemently argues that the words 'as such' refer to permanent Assistant Directors, Exhibition Officers etc. and not temporary Assistant Directors and Exhibition Officers etc. At first instance there appears some force in this submission because plain meaning of the language employed would connect the words 'as such' to permanent Assistant Directors and Exhibition Officer etc. Learned standing counsel, however. contends that since more than one posts are mentioned in the said rule, the confusion has arisen and that the real intention underlying the rule was that a candidate to be eligible should be permanent on any of these posts and should have put in five years service on that post. It is also argued that had the intention been to lay down the condition of five years service in permanent capacity, the rule would have not stopped at the words 'as such' and it would have been added in permanent capacity. The submission further is that the State Government has always interpreted the rule as laying down condition of five years service and not five years service in permanent capacity. The interpretation sought to be placed by the learned standing counsel appears to be more reasonable because the object underlying the eligibility condition is that the officer to be promoted on the higher post should have put in requisite number of years on the lower post and should have become permanent on that prior to the date on which he is considered for promotion. In other words, the objectivity is relatable to the experience on the lower post and for that purpose it is immaterial whether the experience of having worked on the lower post is in the capacity of substantive or permanent appointment or otherwise. We are Inclined to interpret this rule so as to accept the meaning which Is reasonable and having objectivity as to the purpose to be achieved. Ex facie, the condition of experience alone is relevant and meaningful and a further condition of experience in permanent capacity appears to be unreasonable. When the language is capable of two interpretations, the one which Is reasonable and objective prefers to be adopted. Another aspect is that the appointment of opposite parties 5 and 6 as Editor on 15.1.1980 was in substantive capacity on two years' probation and as such experience of five years on the post of eligibility on 3.8.1985 was in substantive capacity and condition underlying rule 5 (3) was in substance satisfied.
12. We are respectfully in agreement to what has been observed by the Division Bench, which observed that the eligibility condition is that the Officer to be promoted on the higher post should have put in requisite number of years on the lower post and should have become permanent on that prior to the date on which he was considered for promotion. Admittedly the respondent No. 3 had worked for more than ten years on the post of Assistant Director Factories and he was substantlvely appointed or regularly appointed prior to the date when he was promoted to the post of Deputy Director Factories (Administration). hence It cannot be said that the respondent No. 3 was not within the field of eligibility when he was promoted on the post of Deputy Director Factories (Administration), Sub rule (3) of Rule 5 does not refer to five years service in substantive capacity but only lays down five years as such, meaning thereby five years on the post of Assistant Director of Factories and not necessarily In substantive capacity. There existed no question for relaxing the minimum qualification. Hence the contention of the petitioner that minimum eligibility criteria was relaxed in the case of the respondent No. 3, against the rules, is misconceived.
13. Attention of this Court was drawn towards the facts on behalf of learned standing counsel as well as Mr. A. P. Singh, representing the respondent No. 3 that although it is not necessary under the rules but as a measure of abundant caution, exercising the powers under Rule 8 which empowers the Governor to relax the rule and requirement of rules to such an extent and subject to such condition as may be deemed necessary in just and equitable manner, the Governor granted relaxation to respondent No. 3 In the matter of five years service in substantive capacity. The record as produced before this Court, transpired that the Labour Minister and the Chief Minister of U. P. Government had granted relaxation to respondent No. 3 regarding eligible qualification of five years substantive service on the post of Assistant Director. In that regard, there Is an order Issued in the name of the Governor relaxing or dispensing with sub-rule (iii) of Rule 5 but we found that no such order was ever Issued. The rules of business as well as the record were produced before the Court. The department was with the Chief Minister. He had ordered for relaxation in the eligibility condition of five years service in substantive capacity on the post of Assistant Director of Factories.
14. It was contended that as no order was issued, therefore. the provisions of Article 166 would not come Into play. The provisions of Article 167 would come Into play only when the order is Issued. Admittedly the order was passed on the file and that is only the requirement of law. The relaxation was granted under the Service Rules and not under the Reservation Act, Inasmuch as. under the Reservation Act the relaxation can be granted in respect of competitive examination, interview and upper age limit. It was urged that relaxation was granted in eligibility condition under Service Rule 8 of the Rules, which was permissible under the law. It was submitted that the provision of Article 166 of the Constitution shall be attracted only when the document is authenticated and Issued. Admittedly the orders were passed by the Governor/Minister In-charge/Chlef Minister granting relaxation to respondent No. 3 and no order was issued, therefore, the provision of Article 166 of the Constitution are not attracted.
15. Learned counsel for the petitioner relying upon the decision of Hon'ble Supreme Court in Gulab Rao Keshav Rao v. State of Gujarat, (1996) 2 SCC 26. submitted that the order requires to be issued in the name of the Governor and the decision of the Revenue Minister was not final, as It cannot be said that the appropriate Government has decided the objection.
16. Counsel appearing for respondent No. 3 asserted that the precedent mentioned in the foregoing paragraph is not applicable to the facts of the present case. Inasmuch as, in the case of Gulab Rao Keshav Rao (supra), objections were required to be decided and the same was required to be issued but in the case in hand, the rule required that there must be an order of Governor for granting relaxation and it did not require issuance of the same. It was submitted that the Governor had relaxed the rule in favour of respondent No. 3 and the order is on the record, so it cannot be assailed. In that regard, reliance was placed on the decision of Hon'ble Supreme Court in State of M. P. and others v. Dr. Yashwant Trimbak, (1996) 2 SCC 305, wherein in para 12 of the report, it was observed :
"Even where an order is Issued by Secretary of the Government without indicating that it is by order of the Central Government or by order of the President, this Court came to the conclusion that the immunity in Article 166(2) would be available If it appears from other material that in fact the decision had been taken by the Government. In Municipal Corporation of Delhi v. Birla Cotton Spg. and Wvg. Mills, AIR 1968 SC 1232, this Court came to the conclusion that in fact sanction had been given by the Central Government as required under the Act though the order did not Indicate to be so."
In para 13 it was further observed :
"This being the position and the order initiating the departmental proceeding having been signed by the Under Secretary to the Government by the order of the Governor, the same Is immune from attack on the ground that it Is not an order executed by the Governor as provided under Article 166(2) of the Constitution. As such the Tribunal was wholly Incompetent to examine the legality of the same. In fact Article 166(2) of the Constitution has not been looked into at all by the Tribunal. In our opinion, the Tribunal was wholly In error in quashing the order on the ground that the Governor has not executed the same.
17. It is not the case of the petitioner that the order violated the provision of the Constitution and proposes to do something which is contrary to the existing law or seeks to Interfere with the Judicial functions or that the order is ultra vires where it purports to exercise a statutory power and that the person who made the order on behalf of the Government, had no authority to take the decision on behalf of the Governor under any law or the relevant Rules. Even if the requirement of Article 166(2) of the Constitution are not complied with. It will not nullify the order. Itself if it appears from other material that such a decision was in fact taken by the Government. In Dattatraya a. State of Bombay, (1952) SCR 613. It was held that where an order is duly signed by the officer authorised by the Rules made by the Governor under Article 166(2). but the order was not expressed to be made in the name of the Governor, affidavit to the effect that the matter had been placed before the Government was received to hold that the order was that of the Government of Bombay. There is no challenge that either the Minister or the Chief Minister was not authorised by the Governor under the Rules of business to pass such an order. Hence the contention of the petitioner that no order for relaxation was ever issued by the State Government, also falls.
18. As far as the second ground is concerned, it was submitted on behalf of the respondents that the minimum qualification for promotion to the post of Deputy Director Factories (Chemical) is degree/diploma in chemical engineering. Nobody in the department possesses said qualification, the post was lying vacant for number of years with the result the State Government of U. P. converted the post of Deputy Director Factories (Chemical), into the post of Deputy Director Factories (Administration) in public interest. It Is a policy decision and is not liable to be challenged. Petitioner, himself, was promoted to the post of Deputy Director Factories (Administration) against the converted post against which the petitioner sought consideration of his name for promotion to the post of Deputy Director.
19. If the State Government converted the post of Deputy Director of Factories (Chemical) into the post of Deputy Director of Factories (Administration) in public interest, we are of the view that such a challenge cannot be made. It is the prerogative of the State to convert the post of Deputy Director Factories (Chemical). Into the post of Deputy Director of Factories (Administration) in public interest. The petitioner, himself, has not sought any relief in the writ petition to assail the conversion of the post. Hence, the contention of the petitioner In that regard is not tenable.
20. The third contention of the learned counsel for the petitioner is that Mr. O. P. Garg respondent No. 3 could not be promoted on the post of Deputy Director of Factories (Administration) as the quota of Scheduled Caste was complete. It was asserted that there were only five posts of Deputy Director of Factories (Administration) including the converted post. The post of Deputy Director of Factories (Engineering) cannot be clubbed for the purposes of promotion.
21. The contention is devoid of merit inasmuch as, the cadre of Deputy Director consists of Deputy Director or Factories (Administration) and Deputy Director of Factories (Engineering), Inasmuch as. the Deputy Director of Factories (Administration) is liable to be transferred on the post of Deputy Director of Factories (Engineering). The source of recruitment is one and the same with the same qualifications and no difference with the same responsibilities and with the same duties. This is evident from Rule 5 of the Service Rules. Hence, in that regard there is no infirmity or illegality.
22. In the case of State of Orissa and others v. Kishore Chandra Samal and others, JT 1999 (2) (SC) 397. Hon'ble Supreme Court observed :
".....when the posts were inter-changeable and the responsibilities discharged by the respondents and others were identical In constituting such a service, the action of the State appears to us to be unexceptionable."
".....the High Court was not justified in quashing the transfer order and the view taken in Rabinarayan Vyas v. State of Orissa, OJC No. 930 of 1979. appears to be correct and not the view taken in other cases referred to in the course of the Judgment of the Full Bench decision."
23. In S. P. Shiv Prasad Pipal v. Union of India and others, JT 1998 (3) SC 216. Hon'ble Supreme Court held that group/merger of the post is permissible and it is the policy decision and is not liable to be challenged and the objection which was taken in that regard, was not tenable.
24. In view of the aforesaid discussion, the objection of the petitioner that the post of Deputy Director of Factories (Engineering) could not have been clubbed or taken, into consideration for the purposes of promotion, is misconceived. According to the own showing of the petitioner if the post of Deputy Director of Factories (Engineering) Is taken into consideration, then there shall be six posts of Deputy Director of Factories (Administration). The Government of U. P. vide its order dated 20.7.1992 transferred the post of Deputy Director of Factories (Engineering) to Agra against which Shri Arun Kumar Agrawal was promoted to the post of Deputy Director of Factories (Engineering) and was transferred to Agra. The State of U. P. further vide G. O. dated 29.10.1994 attached the post of Deputy Director of Factories (Engineering) from Agra to Ghaziabad against which Shrl Ghanshyam Singh was transferred and posted, that is to say, against the post of Deputy Director of Factories (Engineering) vide Government Order dated 19.12,1994. It is thus evident that the post of Deputy Director of Factories (Administration) and Deputy Director of Factories (Engineering) are interchangeable and transferable and are in the same cadre. Shrl Ghanshyam Singh, a Scheduled Caste candidate, was working on the post of Deputy Director of Factories (Engineering) and not against the post of Deputy Director of Factories (Administration) with the result no reserved category candidate was working on the post of Deputy Director of Factories (Administration). Sri O. P. Bharti was promoted against 6th post of Deputy Director of Factories including the post of Deputy Director of Factories (Engineering), which a cadre post under Scheduled Caste quota as it falls on point No. 6 of roaster. Hon'ble Supreme Court in R. K. Sabharawal's case, JT 1995 (2) SC 351, has been pleased to hold that the roaster has to be applied to its roaster point and when suitable candidate is not available, the reserved category vacancy has to be carried forward.
25. In State of U. P. v. Dina Nath Shukla, JT 1997 (2) SC 467, Hon'ble Supreme Court held that where there is a single post in each faculty. It should be clubbed and roaster has to be applied. The fusion of the post is constitutional and permissible. Hon'ble Supreme Court upheld the roaster.
26. In Ashok Kumar Gupta v. State of U. P. and another. JT 1997 (4} SC 251: Post Graduate Institute of Medical Education and Research etc. v. K. L. Narasimhan and another. JT 1997 (5) SC 313 ; Union of India and others v. R. Ayyappan, JT 1998 (5) SC 346 : Union of India and another v. Madhav, JT 1996 (9) SC 320 ; Union of India and others v. Brij Lal Thakur, JT 1997 (4) SC 195. Hon'ble Supreme Court has upheld the fusion of the post, reservation roaster and promotion on the single cadre post by rotation through roaster point. The reservation to a single post is permissible according to roaster. But. if there is no roaster then the promotion cannot be made on a single post. The ratio of Hon'ble Supreme Court appears to be is that if on a single post in the same pay scale, the rule of roaster has been applied by the Government and the roaster point has to be filled up by the Government : such a rule of roaster is not violatlve of Article 16(1) of the Constitution.
27. Undoubtedly, applicability of the reservation is applicable to the post belonging to a particular cadre. In the present case, the post of Deputy Director of Factories (Engineering) is of the same cadre and, therefore, the same can be clubbed together for implementation of roaster. The reservation is permissible in the matter of promotion where the post is more than one. In the present case, the post of Deputy Director of Factories were more than one, that is to say. the six in number. The petitioner has not assailed the Reservation Act and the roaster. Sri O. P. Bhartl respondent No. 3 has been promoted against sixth post of Deputy Director of Factories and the same Is permissible. It is not a case where the posts of different cadre have been clubbed together. The petitioner belongs to general category candidate, while respondent No. 3 has been promoted to the post of Deputy Director of Factories under the reserved category quota. None of the members belonging to reserved category quota has challenged the promotion of respondent No. 3.
28. The next contention made by learned counsel for the petitioner is that the regular appointment of respondent No. 3 on the post of Assistant Director of Factories made by the State Government on 15.11.1995 contained in Annexure-1 was vitiated mainly for the reason that the respondent No, 3 was not entitled for regular appointment being out of cut of date i.e., October 1. 1986. The State Government vide order dated 15.11.1995 appointed/ regularised as many as eight persons including the opposite party No. 3 regularly to the post of Assistant Director of Factories, who were working on ad hoc basis for the last ten years. None of the persons who is likely to be affected, have been made a party to the writ petition, hence any challenge to the regular appolntment/regularisation. In the present writ petition, cannot be made.
29. There Is another aspect of the matter, which needs consideration. The challenge to the regular appointment of respondent No. 3 was made after a lapse of considerable long time without any explanation. The reason for the delay has not been explained. In fact, the delay could not have been explained as the regular promotion of the respondent No. 3 was in the knowledge of the petitioner as back as on 15.11.1995. The State Government has taken a policy decision for giving regular appointment to the ad hoc appointees in all the department and pursuant thereto, the ad hoc appointees were given regular appointment and the said decision which was a policy decision, cannot be assailed.
30. It has been averred on behalf of the State Government that the requisition for the direct selection of eleven Assistant Directors was sent to the Public Service Commission on 28.7.84 but when the Commission failed to do so up to January, 1987, the Government looking into the necessity of the posts, directly appointed fourteen candidates, out of those only nine candidates joined the services. Later on vide Government Order dated 15.11.1995. the services of ad hoc Assistant Directors were regularised including the respondent No. 3. The regular appointment on the post of Assistant Directors, after a lapse of considerable period, cannot be assailed. Besides the above, the respondent No. 3 was not the only person who was regularised on the post of Assistant Director. The petitioner cannot assail the regular appointment of such persons who are not party to the present writ petition. It has been asserted that the promotion of respondent No. 3 was made in accordance with the rules and the recommendation of the Departmental Promotion Committee. Other Scheduled Caste candidates were considered for promotion but the respondent No. 3 was found suitable and no persons belonging to that category, has challenged the promotion of the respondent No. 3. According to the roaster, six vacancy was to be filled up by the Scheduled Caste candidates and the same was done in accordance with the Rules.
31. After considering the entire controversy, which has been raised in the present writ petition, we are of the view that the petitioner, who belongs to general category candidate, cannot assail the promotion of respondent No. 3 as he belonged to reserved category and according to the Reservation Act and the roaster, he could be promoted on the post of Deputy Director of Factories (Administration). The writ petition is misconceived and is liable to be dismissed.
32. Writ petition is dismissed. Interim order stands vacated.