--- 1 --- HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE S.B.: HON'BLE MR. S. C. SHARMA, J WRIT PETITITION (S) NO. 8583 / 2009 LAXMAN SINGH S/O CHANDAN SINGH Vs. MP HOUSING BOARD & ANOTHER * * * * * O R D E R ( 10/2/2011) The petitioner before this Court has filed this present writ petition being aggrieved by the order dt. 16/11/09 by which the respondent No.1 has passed an order in respect of reversion of the petitioner from the post of Dy. Housing Commissioner to the post of Executive Engineer. The petitioner has further stated that he became Member of Service as a Junior Engineer on 1/4/75 and he was promoted to the post of Executive Engineer in the services of the MP Housing Board on 1/1/03. The petitioner has further stated that a DPC took place for considering cases of promotion and by an order dt. 3/2/03 the petitioner was granted promotion to the post of Dy. Housing Commissioner w.e.f. 1/1/03. The petitioner has further stated that he has submitted his joining in the year 2003. However, to his utter --- 2 --- surprise by an order dt. 16/11/09 the order of promotion dt. 3/10/03 has been cancelled. Learned counsel for the petitioner has argued before this court that the respondents while cancelling the order of promotion of the petitioner of the year 2003 have not issued any show cause notice of any kind and therefore have violated the basic principles of natural justice and fair play. It has also been argued that the cancellation of the petitioner's promotion amounts to relegation to a lower post of Executive Engineer and as the same entails civil consequences, the respondents should have heard the petitioner in the matter while passing any adverse order against him. The petitioner has raised other grounds also in the present writ petition. However, in order to verify the fact whether any opportunity of hearing was granted to the petitioner or not ? learned counsel for the respondent No.1 was directed to inform this court about any show cause notice issued in the matter. Learned counsel for the respondent No.1 Housing Board has admitted that no show cause notice of any kind was issued while reverting the petitioner after a lapse of 6 years. He has also argued --- 3 --- before this court that the promotion of the petitioner in the year 2003 itself was erroneous and has placed reliance upon a judgment delivered by the apex court in the case of Rupa Rani Rakshit and Ors. Vs. Jharkhand Gramin Bank and Ors. (2010) 1 SCC 345. His contention is that the apex court in the aforesaid case has held that any appointment or promotion without considering the claims of every available eligible candidates or without following the relevant Rules cannot be equated to service rendered in pursuance of an appointment or promotion validly or lawfully made and such illegal appointment deserves to be set aside. This Court has carefully gone through the aforesaid judgment and in the aforesaid case certain promotions took place from the post of Clerks – cum – Cashier to the post of Field Supervisor on 20/11/1990. These promotions were set aside by the High Court of Patna on 10/1/2001. Two persons who were aggrieved in the matter, meaning thereby, whose promotions were quashed by the High Court, came up in appeal before the apex court and the apex court in those circumstances, has observed that merely because the appellants have --- 4 --- continued from 1990 ie., from the date of promotion till 2001 ie., the date on which promotions were set aside by the High Court, such continuance on a promotional post which was done contrary to the recruitment Rules or which was illegal, does not create any right in favour of an individual. However, the fact remains that the persons whose promotions were quashed by the High Court were party before the Patna High Court as reflected from the judgment and appeals were preferred by them before the apex court. In the aforesaid case, the employer has not at all set aside the promotions of the employees therein. The apex court has not at all dealt with issue with regard to principles of natural justice and fair play and therefore, the judgment relied upon by the learned counsel is distinguishable on facts. This Court is of the considered opinion that in the present case, as no notice of any kind was issued to the petitioner nor the petitioner was heard in the matter, there appears to be no justification in upholding the order dt. 16/11/09. The least which was required from the respondent No.1 was to issue a show cause notice and to --- 5 --- take appropriate action in accordance with law. The respondents though they have passed an order of reversion dt. 16/11/09 cancelling the earlier promotion of the petitioner of the year 2003 by the same order has observed by the petitioner shall continue to hold current charge of the post of Dy. Housing Commissioner. It is really strange that on the one hand respondents have stated that the petitioner is not entitled to hold the post of Dy. Commissioner and on the other hand they handed over the current charge to the petitioner. This Court fails to understand the justification of handing over current charge, once the respondents have arrived at a conclusion that the petitioner was erroneously promoted to the post of Dy. Housing Commissioner. Not only this while issuing notices on 23/11/09 the impugned order dt. 26/11/09 was stayed, by this court, meaning thereby, permitting the petitioner to continue on the post of Dy. Housing Commissioner. The petitioner has attained the age of superannuation on 31/12/09 and during the pendency of the present writ petition, he has served the Housing Board as a Dy. Housing Commissioner and therefore keeping in --- 6 --- view the totality of the circumstances of the case, the impugned order dt. 16/11/09 to the extent the order of promotion of the petitioner dt. 3/10/03 has been set aside, is quashed. The petitioner shall be entitled for all benefits as he has already worked on the post of Dy. Housing Commissioner and has attained the age of superannuation while serving as Dy. Housing Commissioner. So far as respondent No.2 is concerned, this court has quashed the impugned order dt. 16/11/09 only to the extent it relates to the present petition and therefore respondent No.2 shall be entitled for all benefits flowing out of order dt. 16/11/09. With the aforesaid, this writ petition stands disposed of. No order as to costs. (S. C. SHARMA) J U D G E KR