Fakhrul Islam Vs. Maharashtra
State Road Transport Corpn.
& Ors  Insc 221 (26 April 2002)
Shah Mohhammed Quadri & S.N. Variava Syed Shah Mohammed Quadri, J.
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
said order the High Court dismissed the Writ Petition filed by the appellant.
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
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.
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
be appropriate to refer to the relevant portion of the terms of the order of
promotion of the appellant which reads as under :
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 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 *** *** ***
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.
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.
6. *** *** *** Sd/- Illegible for Vice Chairman & Managing Director M.S.R.T.Corporation
No.ST/EST/SB/1675 Date : 5th
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.
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 :
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 :
suitable candidate is not available for direct recruitment;
such time a suitable direct recruitment is available for appointment, a
suitable departmental candidate may be promoted temporarily;
temporary promotion will last till such time as a suitable direct recruitment
authorities are under an obligation to make fresh attempt to get a suitable
direct recruit by re-advertising the post; and
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.
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
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.
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.
Shah Mohammed Quadri] ....................................................J.
April 26, 2002.