JUDGMENT Tarun Agarwala, J.
1. The petitioner Mata Prasad Verma was appointed as a Conductor in U.P. State Roadways Transport Corporation (hereinafter referred as the Corporation) in the year 1987. The services of the petitioner was regularised in the year 1989. Under the Service Rules of 1981, the petitioner was entitled to be promoted as Office Assistant Grade-II. As per instructions dated 31.5.1990, the qualification for promotion to the post of Office Assistant Grade-II was that the candidate must have a knowledge of Hindi typing at the minimum rate of 25 words per minute and that he should be in servive for the last five years. It was alleged that the process of promotion was initiated in March, 1997 and prospective candidates were directed to appear for Hindi typing test on 10.3.1997. Based on this typing test a select list was declared on 8.10.1997 in which 17 persons were selected for promotion to the post of Office Assistant Grade-II. The select list also included a "waiting list" of four persons under the heading "Waiting List". Regulation 22(5) provides that the Waiting List would remain valid for a period of one year or till the next selection which ever is earlier.
2. It transpires that after the issuance of the select list, a vacancy occurred on the post of Office Assistant. Shakeel Ahmad, being at Sl. No. 1 of the waiting list, was promoted by an order dated 1.12.1993, on the post of Office Assistant Grade-II. The order of promotion indicated that the promotion was purely on a temporary basis and that he could be reverted back to his original post without giving any previous notice.
3. It transpires that certain complaints were made against the promotions made pursuant to the select list. An enquiry was conducted, in which it was found that Shakeel Ahmad did not have any knowledge of Hindi typing and that he gave the typing test in English.
4. Since Shakeel Ahmad was not eligible for being promoted, the Regional Manager by an order dated 23.12.1997 cancelled the promotion and reverted Shakeel Ahmad to his original post,
5. Since Shakeel Ahmad was reverted to his original post a vacancy arose and since the petitioner Mata Prasad Verma was placed at No. 2 in the waiting list, he became entitled for promotion. The petitioner, therefore, made several representation to the authority concerned requesting them to promotion him on the vacancy caused by Shakeel Ahmad. Since the representation was not being considered, the petitioner filed the present writ petition praying for a writ of mandamus directing the respondents to promote the petitioner on the post of Office Assistant Grade-II.
6. On the other hand Shakeel Ahmad filed Writ Petition No. 508 of 1998 challenging the order dated 23.12.1997 by which his promotion was cancelled and he was reverted back to his original post. Since both the writ petitions are inter linked, the same are being decided together.
7. Heard learned Counsel for the parties.
8. Learned Counsel for Shakeel Ahmad submitted that the order reverting the petitioner back to his original post was violative of principles of natural justice. Since Shakeel Ahmad was promoted on a substantive post, he could not be reverted back to his original post unless and until a show cause notice was given to him or an opportunity of hearing was provided, which in the present case was not done. On the other hand, the learned Counsel for the Corporation submitted that Shakeel Ahmad was not qualified to be promoted as he did not possess the requisite qualification of typing in Hindi and, therefore, he was reightly reverted back to his original post. The learned Counsel for the Corporation further submitted that the order of promotion clearly stipulated that his promotion was temporary and that he could be reverted back without giving any notice, therefore, there was no requirement of giving a notice nor the principles of natural justice was violated.
9. It may be stated here that Shakeel Ahmad had not denied the fact that he gave his typing test in English. It is, therefore, clear that the requisite qualification for being promoted to the post of Office Assistant, Grade-II was lacking in Shakeel Ahmad as he did not give the Hindi typing test. Since the promotion was purely temporary, as is clear from the order of promotion dated 8.10.1997 and since the promotion order was void ab initio, Shakeel Ahmad was not entitled to be given any notice and that he could be reverted back to his original post.
10. In Durga Prasad Swarnkar and Ors. v. Managing Director, U.P.S.R.T.C., Lucknow and Ors., 1994 (68) F.L.R. 739, it was held that where the appointment by promotion to Class-Ill was found to be irregular, such promotion could be cancelled as the person did not require any legal right to hold or continue on that post and, therefore, was not entitled to be given any opportunity of hearing before reverting him to the original post.
11. In G.K. Sinha v. Collector of Central Excise, A.I.R. 1957 Alld. 152, a Division Bench of this Court held that the demotion of certain persons to whom selection grade was wrongly given does not amount to reduction in rank and, therefore, no opportunity of hearing was required to be given. Similar view was expressed by the Supreme Court in Surendra Kumar Gyani v. State of Rajasthan and Anr., AIR 1993 SC 115.
12. The aforesaid judgment clearly applies to the present facts and circumstances of the case. The order promoting Shakeel Ahmad was void. He did not possess the requisite qualification. He was not entitled to be promoted. Consequently, the order cancelling the promotion of Shakeel Ahmad was purely an administrative one and Shakeel Ahmad was not required to be given an opportunity of hearing.
13. In my view where the appointment was irregular or void, it is not necessary to give an opportunity of hearing before cancelling the order of promotion, inasmuch as by making irregular appointment the person does not acquire any legal right to hold or continue on that post. Therefore, the person is not entitled to any opportunity of hearing before being reverted to the original post. Even otherwise, assuming that an opportunity of hearing was required to be given, even then, I do not find any reason to interfere under Article 226 of the Constitution of India especially when I find that the promotion of Shakeel Ahmad was made against the Rules and that he did not possess the requisite qualification and that the respondents acted swiftly and without unnecessary delay. In my view the jurisdiction of this Court under Article 226 of the Constitution of India cannot be invoked to protect illegal and irregular actions. Consequently, Shakeel Ahmad is not entitled to any relief and his writ petition is dismissed.
14. In so far as the writ petition of Mata Prasad Verma is concerned, it is admitted by the respondents that he was placed at Sl. No. 2 of the Waiting List. Since Shakeel Ahmad, who was at Sl. No. 1, was disqualified and his promotion was cancelled, consequently, Sri Mata Prasad Verma became entitled to be promoted in the vacancy caused by Shakeel Ahmad. Since the vacancy arose during the validity period of the select list, Sri Mata Prasad Verma, was entitled to be promoted as Office Assistant, Grade-II from the Select List.
15. Accordingly the writ petition of Mata Prasad Verma succeeds and is allowed and a writ of mandamus is issued to the respondents to promote Mata Prasad Verma to the post of Office Assistant, Grade-II within two months from the date of production of certified copy of this judgment.