Case: U.P. State Tourism Development Corpn Vs. I.B. Misra

2. These appeals relate to appointment on the post of General Manager in the U.P. State Tourism Development Corporation (hereinafter referred to as `the Corporation) which is a company registered under the Companies Act and is an undertaking of the Government of Uttar Pradesh. The said appointment is governed by Rule 19 of the U.P. State Tourism Development Corporation Rules, 1981 (hereinafter referred to as `the Rules). The post of General Manager is a class one post in the Corporation. I.B. Misra, respondent No. 1, joined the Corporation on the post of Manager Grade-II in 1978. In March, 1984 he was promoted as Manager Grade-I. He was selected for appointment on the post of Project Officer by the Corporation in 1989 but as he was not appointed on the said post he filed a Writ Petition No. 4733 of 1991 which is pending before the Lucknow Bench of the Allahabad High Court. While the said Writ Petition was pending a vacancy occurred on the post of General Manager in the Corporation and respondent No. 1 filed Writ Petition No. 677 of 1992 giving rise to these appeals in the Allahabad High Court, Lucknow Bench, wherein he prayed that direction, order or a writ of mandamus be issued directing the respondents in the said Writ Petition to hold selection for the said post of General Manager in accordance with the Rules. It appears that the said post of General Manager is being filled by having on deputation officers in the State services of the Government of Uttar Pradesh. The High Court by its judgment dated March 24, 1994 allowed the said Writ Petition filed by respondent No. 1 and issued a writ in the nature of mandamus commanding the respondents in the said Writ Petition to make selection on the post of General Manager in accordance with observations made in the said judgment within a period of four months and it was further directed that the deputation of the present incumbent holding the post of General Manager in the Corporation would come to an end after the expiry of four months. Review Petition filed by the appellant against the said judgment was dismissed by the High Court by order dated May 30, 1994. These appeals have been filed by the appellant against the said order dated March 24, 1994 and May 30, 1994 passed by the High Court.

Reasoning:
11. This Court construed clause (1) of Regulation 3 in the light of clause (3) of the said Regulation to hold that the post must be filled by promotion of eligible Executive Engineers of the Housing Board on the basis of seniority-cum-merit and it is only if no suitable candidate is available from amongst the Executive Engineers of the Housing Board that the appointment should be made on deputation from amongst the Executive Engineers of the State Building and Communication Department and failing this, the appointment can be made by direct selection amongst the candidates called for interview. The language used in Rule 19 of the Rules is, however, different from that used in Regulation 3 of the Gujarat Housing Board Services Classifications of and Recruitment Regulations, 1981 which was considered by this Court in Gujarat Housing Board Engineers Association & Anr. v. State of Gujarat (supra). There is no provision in Rule 19 of the Rules providing for promotion as a mode of appointment. Moreover, in Rule 19 there is no provision similar to clause (3) of Regulation 3 of the said Regulations and it is left to the Corporation to make appointment on Class I post either by selection or by deputation. The fact that ever since 1981 no appointment has been made by selection and all appointments on the post of General Manager have been made on deputation would not justify construing Rule 19 in the way the High Court has construed it.12. It is no doubt true that as a result of appointments that have been made on the post of General Manager by deputation the other mode of appointment, namely, by selection, as provided in Rule 19, has been rendered otiose. Shri R.K. Jain, the learned senior counsel appearing for the appellant, has submitted that the Corporation has preferred appointment on the post of General Manager by deputation in order to secure officers having high level of administrative ability from the State Government because for the post of General Manager a person with high administrative capacity is needed and furthermore an officer appointed on deputation, if he is not found suitable for the job, can be sent back at any time but this may not be possible if regular appointment is made by selection. Having regard to the aforesaid submissions made by Shri Jain we are unable to hold that the Corporation has been acting arbitrarily in making appointments on the post of General Manager by deputation and in not resorting to the process of selection for making such appointment.13. The High Court has observed that the present policy of making appointment on the post of General Manager by deputation would result in impairing the efficiency of the person holding a post just below the post of General Manager because he knows that he would never be appointed on the post of General Manager and would have to stagnate on that post forever. The High Court has pointed out that avenue of promotion is one of the methods by means of which a person shows his skill and efficiency. These observations are in consonance with the law laid down by this Court.But this does not justify reading into Rule 19 the requirement that appointment on the post of General Manager should be made by promotion and if no suitable person was available appointment may be made by deputation. That is a matter which appertains to the promotion policy to be adopted by the Corporation. It is expected that the Corporation while revising its promotion policy will keep in view these observations.