JUDGMENT 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.
4. 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.
5. The petitioner was working as Assistant Grade-I in the scale of Rs. 490-760 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 Grade-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.
6. 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 levelled against him, it is against the principles of natural justice and thus the impugned order be set aside.
7. 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.
8. 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 as Block Development Officer was appointed as Manager, Head Office, by the Commissioner of the Division, who is the ex-officto 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 group '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.
9. 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.
10. 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.
11. 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 counter-affidavit. 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.
12. 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.