# Shiv Shankar Pal v. Gorakhpur Mandal Vikas Nigam Ltd

- **Citation:** (2003) 2 ILRA 494
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-07-02
- **Case number:** Civil Misc. Writ Petition No. 22253 of 1987
- **Bench:** D.P. Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-shankar-pal-v-gorakhpur-mandal-vikas-nigam-ltd-40148
- **Pages:** 4

## Headnote

Constitution of India Article 226-Govt.
Com. and controlled by the Govt.-within
the meaning of state-writ petition held
maintainable

Held- Para 6

The
first
argument
of
the
learned
counsel for the petitioner appears to be
correct. A bare perusal of the counter
affidavit
filed
on
behalf
of
the
respondents
shows
that
it
is
a
Government
company
and
fully
controlled by the State Government
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2 All] Shiv Shankar Pal V. Gorakhpur Mandal Vikas Nigam Ltd.
495
which nominates the Board of Director
etc. and is also amenable to State
control, therefore, there is no hesitation
in holding that the respondent is a State
within the meaning of Article 12.

Service promotion order issued by such
person having who did not have no
power or authority-totally illegal & a
void order-do not confer any right.

Held- Para 9

The
petitioner's
promotion
order
is
Annexure-2 to the writ petition and
which is authored by Sri P.L. Srivastava.
Counsel for the petitioner urged that the
promotion order has been signed by Sri
P.L. Srivastava as Managing Director.
Nomenclature is not determinative of the
power
legally
exercisable
by
an
individual. As it has already been noted
above, Sri P.L. Srivastava was neither
authorized by the Board of Directors to
make appointment nor was he ever
appointed as Managing Director by the
Government. So merely signing the order
as General Manager/ Managing Director
would not validate the promotion order.
Even this promotion order is purely
temporary and does not confer any right
to the petitioner.

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2003
494
"It is to be seen that when the
recruitment is sought to be made, the last
date has been fixed for receipt of the
applications, such of those candidates,
who possessed of all the qualifications as
on that date, alone are eligible to apply for
and to be considered for recruitment
according to Rules."

11. In State of Rajasthan Vs. R.
Dayal & ors., (1997) 10 SCC 419, the
Hon'ble
Supreme
Court,
while
considering the case for promotion, held
that the eligibility for promotion must be
as in the year when the vacancies arose,
but that was not a case of direct
recruitment.

12. In Ashok Kumar Sharma Vs.
Chandra Shekhar & ors., (1997) 4 SCC
18, the Hon'ble Supreme Court held that
where
applications
are
called
for
prescribing a particular date as the last
date for filing the applications, the
eligibility of the candidates shall have to
be adjudged with reference to that date
and that date alone, is a well established
proposition of law.

13. In Dr. Ramulu & Anr. Vs. Dr. S.
Suryaprakash Rao & ors., AIR 1997 SC
1803, the Hon'ble Apex Court considered
a large number of its earlier judgments
and held that if the Rules have been
amended, person has a right to be
considered as per the amended Rules
unless his existing rights prior to the
amendment have specifically been saved
and for the reason that he cannot claim to
have acquired any vested right for being
considered in accordance with the Rules
existing prior to the amendment.

14. In Utkal University etc. Vs. Dr.
Nrusingha Charan Sarangi & ors., AIR
1999 SC 943; and Gopal Krushna Rath
Vs. M.A.A. Baig, AIR 1999 SC 2093, the
Hon'ble Supreme Court again reiterated
that the eligibility is to be assessed as per
the Rules existing on the last date of
submission of the applications.

15. In view of the above, as it is
settled legal proposition that the candidate
must
possess
requisite
qualification/
eligibility on the last date of submission
of the Application Form, we see no
ground to interfere. The petition is,
accordingly, dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.07.2003

BEFORE
THE HON'BLE D.P. SINGH, J.

Civil Misc. Writ Petition No. 22253 of 1987

Shiv Shanker Pal

...Petitioner
Versus
Gorakhpur Mandal Vikas Nigam Ltd.

 ...Respondent

Counsel for the Petitioner:
Sri Dr. R.G. Padia

Counsel for the Respondent:
S.C.

Constitution of India Article 226-Govt.
Com. and controlled by the Govt.-within
the meaning of state-writ petition held
maintainable

Held- Para 6

The
first
argument
of
the
learned
counsel for the petitioner appears to be
correct. A bare perusal of the counter
affidavit
filed
on
behalf
of
the
respondents
shows
that
it
is
a
Government
company
and
fully
controlled by the State Government
http:\\allahabadhighcourt.nic.in
2 All] Shiv Shankar Pal V. Gorakhpur Mandal Vikas Nigam Ltd.
495
which nominates the Board of Director
etc. and is also amenable to State
control, therefore, there is no hesitation
in holding that the respondent is a State
within the meaning of Article 12.

Service promotion order issued by such
person having who did not have no
power or authority-totally illegal & a
void order-do not confer any right.

Held- Para 9

The
petitioner's
promotion
order
is
Annexure-2 to the writ petition and
which is authored by Sri P.L. Srivastava.
Counsel for the petitioner urged that the
promotion order has been signed by Sri
P.L. Srivastava as Managing Director.
Nomenclature is not determinative of the
power
legally
exercisable
by
an
individual. As it has already been noted
above, Sri P.L. Srivastava was neither
authorized by the Board of Directors to
make appointment nor was he ever
appointed as Managing Director by the
Government. So merely signing the order
as General Manager/ Managing Director
would not validate the promotion order.
Even this promotion order is purely
temporary and does not confer any right
to the petitioner.

(Delivered by Hon'ble D.P. Singh, J.)

1. Learned counsel for the petitioner
is present while none has appeared for the
contesting respondent even in the revised
list.

2. From the record, it is apparent
that earlier Sri G.P. Mathur, as he then
was (now Hon'ble Mr. Justice G.P.
Mathur) was appearing as counsel for the
respondents and after his elevation notice
was issued in the year 1993 to the
respondents for engaging another counsel
but none has filed his appearance, though
notice is sufficient in view of the office
report dated 1.7.2003. I see no reason to
adjourn the case on this score, especially
so, when pleadings have been exchanged
between the parties.

3. I have heard learned counsel for
the petitioner and the learned Standing
Counsel.

This writ petition is directed against
an order dated 24.11.1987 by which the
temporary promotion of the petitioner has
been recalled and he has been reverted to
his original post. The respondent is a
company incorporated under the Indian
Companies
Act
having
its
own
memorandum and Service Rules as
"Gorakhpur
Mandal
Vikas
Nigam
Limited, Gorakhpur General Service
Rules" (hereinafter referred to as the
Service Rules). The Company is engaged
in promoting and establishing industries
and enterprises for manufacturing goods
and other materials having its own Board
of Directors. It is fully controlled by the
State of U.P. and has a Managing
Director, who is appointed by the State
Government.

4. The petitioner was working as
Assistant Grade-I in the scale of Rs.490760/- at the Head Office when he was
asked
to
temporarily
discharge
the
functions of a Manager vide an order
dated 15.6.1985. The said order makes it
clear that he would remain in the pay
scale of Assistant Grate-I and would be
liable for reversion to his original post
without notice. Again vide order dated
1.3.1986 he was granted temporary
promotion and also scale of Manager with
the condition that he can be reverted to his
original post without notice. By the
impugned order he has been reverted to
his original post of Assistant Grade-I.

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INDIAN LAW REPORTS ALLAHABAD SERIES [2003
496
5. Learned counsel for the petitioner
has raised two submissions before me.
Firstly, that the respondent company
being wholly controlled by the State
Government is a State within the meaning
of Article 12 and secondly, that the
reversion being made without any enquiry
especially when charges were leveled
against him, it is against the principles of
natural justice and thus the impugned
order be set aside.

6. The first argument of the learned
counsel for the petitioner appears to be
correct. A bare perusal of the counter
affidavit
filed
on
behalf
of
the
respondents shows that it is a Government
company and fully controlled by the State
Government which nominates the Board
of Director etc. and is also amenable to
State control, therefore, there is no
hesitation in holding that the respondent is
a State within the meaning of Article 12.

7. A perusal of the counter affidavit
shows that the Managing Director is
appointed by the Governor and Board of
Directors is appointed by the State
Government. One Sri P.L. Srivastava who
was working a Block Development
Officer was appointed as Manager, Head
Office, by the Commissioner of the
Division, who is the ex-officio Chairman
of the Nigam. The post of Managing
Director fell vacant in 1985 and the Board
vide
its
resolution
dated 12.4.1985
authorised said Sri P.L. Srivastava to
operate the accounts of the Nigam and to
furnish Government guarantee etc. A
copy of the resolution is annexed with the
counter-affidavit. The power of making
appointment is governed by the service
Rules. Under Rule 16, the Board of
Directors is the competent authority to
nominate the appointing authority for
various categories of employees, but till
the authority is created, the Managing
Director
was
made
the
appointing
authority. Classification of posts has also
been given in the service rules and the
post of Manager is classified as group-A
post. Under Rule 17 all groups 'A' posts
are selection posts and the appointing
authority is the Board or the Managing
Director as already observed hereinabove.
From the rules and the counter affidavit, it
is apparent that (a) the appointing
authority, unless resolved otherwise by
the Board, is the Managing Director and
(b) the post of Manager is a selection
post. In paragraph 13 of the counter
affidavit, it has been mentioned that the
petitioner was placed at serial no.5 in the
seniority list of Assistant Grade-I in the
respondent Nigam. This specific averment
has not been denied in the rejoinder
affidavit. Further, in paragraph 9 it has
been averred that Sri P.L. Srivastava was
never given the power or authority for
making appointment by the Board except
the power as given by the Board of
Directors in its resolution dated 12th April,
1985. Though, there is bald denial, no
resolution has been annexed with the
rejoinder affidavit to show that the Board
of Directors had authorized Sri P.L.
Srivastava to function as the Managing
Director.

8. From the aforesaid, it would be
evident that Sri P.L. Srivastava had
limited power as described in the
resolution dated 12.4.1985 and this power
does not include the power of Managing
Director or the power of making any
appointment. With this background, it has
to be examined as to whether the
petitioner's reversion to his original post
was valid.
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2 All] Union of India and others V. G.P. Yadav and another
497
9. The petitioner's promotion order
is Annexure-2 to the writ petition and
which is authored by Sri P.L. Srivastava.
Counsel for the petitioner urged that the
promotion order has been signed by Sri
P.L. Srivastava as Managing Director.
Nomenclature is not determinative of the
power
legally
exercisable
by
an
individual. As it has already been noted
above, Sri P.L. Srivastava was neither
authorized by the Board of Directors to
make appointment nor was he ever
appointed as Managing Director by the
Government. So merely signing the order
as General Manager/ Managing Director
would not validate the promotion order.
Even this promotion order is purely
temporary and does not confer any right
to the petitioner.

10. Counsel for the petitioner went
on to urge that prior to the impugned
order, he was issued a show cause notice
listing several alleged charges against
him. The show cause notice is annexed as
Annexure-3 to the writ petition. The stand
taken in the counter-affidavit is that right
from the date of his alleged promotion to
the post of Manager, the petitioner had
been working in a manner detrimental to
the interest of the Nigam. In paragraph 14
it has been averred that several warning
letters were issued to the petitioner, the
warning
letter
dated
24.1.1986,
10.10.1986, 10.12.1986, 19.2.1987 and
27.10.1987, are annexed with the counteraffidavit. A perusal of the same would
show that he had always been warned to
improve his functioning but to no effect.
It appears that the letter dated 21.11.1987
was also in continuation of the earlier
warning letters and asking for his
explanation. Therefore, the contention of
the petitioner that the order is stigmatic
has no force. Even otherwise the very
promotion of the petitioner was totally
illegal and against the rules and fell into
the category of a void order. Such an
order that too a temporary promotion
order, will not clothe the petitioner with
any defensible right. An explanation was
called from the petitioner in this case
where the petitioner has no right to the
post, no full fledged enquiry was
necessary, especially in the background of
the facts noted above. Thus, the second
argument of the petitioner has no force.

11. In view of the discussions above
and after perusal of the record, I do not
find that it is a fit case for interference
under Article 226 of the Constitution of
India. The writ petition is hereby
dismissed with costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.07.2003

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE D.P. GUPTA, J.

Civil Misc. Writ Petition No.28394 of 2003

Union of India and others ...Petitioners
Versus
G.P. Yadav and another ...Respondents

Counsel for the Petitioners:
Sri B.N. Singh, S.S.C.

Counsel for the Respondents:
Sri S.N. Gupta
Sri Rakesh Verma
Sri J.P. Singh, Caveator
Sri B.N. Singh, S.C.C.

Constitution of India Article 226- Factual
controversy raised questioning the order
passed by tribunal-can not be gon by
High Court- only remedy to file review
application before the same tribunal-
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