The petitioner has come before this court challenging the order of reversion. The facts of the case are as follows:
2. The petitioner joined in respondent corporation as Sessional Bill Clerk in composite Thanjavur Region and then he was permanently absorbed as Typist in the year 1994. By virtue of his qualification he came to be appointed as Assistant Quality Inspector on 18.8.1997 and after two years by an order dated 23.12.1999 he was declared to have completed probation and the same was recognised with effect from 20.8.1997 and thus he became a permanent employee as per regulation of 4(r) of Employees Service Regulation 1999.
3. After six years of service as Assistant Quality Inspector, by impugned order dated 24.4.2003 the petitioner was sought to be reverted as typist, which is being challenged before this court.
4. Mr.S.Venkataraman, learned counsel for the petitioner submitted that regulation 4(b) defines "probationar", 4(A) defines regular "employee" of the corporation and "Temporary Employee" is defined in 4(c) of the regulation.
5. Mr.S.Venkataraman relied upon a judgement of this court passed by the Single Judge in W.P.No.16027 of 2004 on 30.8.2006 wherein it was held that a person cannot be reverted to the lower post if he had not entered service through the lower post. In the said decision learned single judge relied upon a judgement of the Supreme Court in Hussain Sasan Saheb Kaladgi vs. State of Maharashtra reported in 1988 SCC (L & S) 932 = 1988 (4) SCC 168 which reads as follows:
"A direct recruit to a post, it cannot be gainsaid, cannot be reverted to a lower post. It is only a promotee who can be reverted from the promotion post to the lower post from which he was promoted. These propositions are so elementary that the same are incapable of being disputed and have not been disputed."
Similarly this court in a decision in Joseph William Jayakaran v. The Chairman, Coffee Board and others reported in 2002 Writ L.R.244 held the same proposition.
6. Learned counsel for the respondent submitted that by virtue of interim orders, the petitioner position has not been disturbed and he is likely to get promotion also.
7. In this case, originally the petitioner was appointed as a temporary employee and subsequently he was appointed as permanent typist. Later he was appointed as Assistant Quality Inspector on probation and on satisfaction he was posted as regular employee as Assistant Quality Inspector. As per the regulation, the Assistant Quality Inspector post is by direct recruitment and it is not a promotional post, as there was no feeder category for the said post. Only in 2004, by virtue of resolution dated 22.1.2004 the post of "Junior Quality Inspector" was created which is the feeder category post "Assistant Quality Inspector". As far as the petitioner case is concerned, the petitioner was appointed with effect from 23.12.1999 and his service was regularised with effect from 20.8.1997 on which date the said post was a direct recruitment post. Moreover, as there was no resolution dated 22.1.2004 on the date of petitioner's regularisation, 2004 resolution cannot be applied retrospectively and he cannot be disturbed based on that resolution.
8. Moreover in the impugned order it was stated that in view of discontinuation of certain quality control post, the petitioner, an Assistant Quality Inspector was ordered to be reverted back. In the impugned order there is a reference that the petitioner was appointed as Assistant Quality Inspector temporarily. The said reference is contrary to the order dated 23.12.1999 through which the petitioner was regularised in the cadre of Assistant Quality Inspector. In view of that the impugned order has been passed without any application of mind and contrary to the facts. For the sake of discontinuation of certain posts, the petitioner's right cannot be taken away, that too contrary to the facts and also the procedure.
9. Hence the impugned order is liable to be quashed and accordingly quashed and the writ petition is allowed. Apart from that, the Hon'ble Supreme Court in Hussain Sasan Saheb Kaladgi and this court categorically held that the direct recruitee cannot be reverted to a lower post. As the petitioner is a direct recruitee to the post of "Assistant Qualify Inspector", he cannot be recruited to the lower post. The impugned order is set aside for the following reasons:
(1) The petitioner is a direct recruitee and therefore he cannot be reverted to a lower post.
(2) The resolution dated 22.1.2004 cannot be applied retrospectively to the petitioner, as he was regularised in the post of "Assistant Quality Inspector" on 18.8.2007.
(3) Discontinuation of certain posts of Quality Control Inspector in the respondent corporation cannot infringe/affect the petitioner's right to hold the post.
10. Though this is a fit case for awarding of exemplary cost, no cost is awarded, as the learned counsel for the petitioner does not want the order of cost on the respondent. In view of that there will be no order as to costs. Consequently W.P.M.P.No.278 of 2008 is closed.
10.12.2009 Index : Yes/No Internet: Yes/No vk To The Tamilnadu Civil Supplies Corporation Ltd., Rep. by its Chairman Cum Managing Director, 42, Thambuswamy Road, Chennai-10.
N.KIRUBAKARAN,J.
vk W.P.No.14557 of 2003 10.12.2009