JUDGMENT Rakesh Tiwari, J.
1. Heard Counselor the parties and perused the record.
2. The petitioner was appointed on 9.8.1973 on the post of Junior Clerk by President Nagar Palika Parishad, Ujhani, district Badaun in the pay scale of Rs. 176-250. The petitioner claims that the Commissioner, Rohail Khand Division, Bareilly sanctioned a post of Sectional Head Clerk iri Water Works Department at Nagar Palika Parishad, Ujhani, district Badaun on 31.5.1974 on which one Sri K.M.L. Chaturvedi was appointed by promotion on 12.7.1974. It is further claimed that the petitioner was confirmed and regularized on the post of Junior Clerk by the President, Nagar Palika Parishad, Ujhani district Badaun on 15.10.1974 and he was promoted as Senior Clerk in the pay scale of Rs. 185-280 in place of one Sri Girish Chandra Tripathi on 4.7.1977. It is urged by Counsel for the petitioner that by clarification dated 18.10.1982, the services of non-teaching staff were made transferable from colleges to Nagar Palika Parishad.
3. It appears that the petitioner was promoted on the post of Sectional Head Clerk in place of one Sri Kishori Lal Jha who was working on the said post and who retired on 30.9.1995. It is submitted that the petitioner, after confirmation, was sent on deputation on the post of Clerk in the office of Panchayat Evam Sthaniya Nikaya Election Office, Kannauj. U.P. After the period of deputation of the petitioner was over, he was relegated back to his parent department.
4. It further appears that by order dated 23.10.2000, the promotion of the petitioner was cancelled on the ground that the post of Sectional Head Clerk had not been created, as such, promotion of the petitioner on the said post could not have been made made. Order dated 23.10.2000, which is in Hindi Devnagri script is as under:
Aapko suchit kiya jata hat ki vibhagiya anubhagiya pradhan lipik ka pad srijit na hone ke karan aapko ukta pad par padonnati January 1,1996 ko di gai thi. Wah padonnati aadesh tatkal prabhav se nirasta kiya jata hai tatha anubhagiya pradhan lipik pad par 4.2.97 se aapki sewain sthai ki gai thi, ukta sthaikaran ke aadesh ukta pad na hone ke karan nirastha kiye jate hain. Yad aadesh tatkal prabhav se honge mool pad peshkar/lipik ka 1.1.1996 se hi mana jawega.
Aadesh evam suchna se avgat hon.
5. It is contended by Counsel for the petitioner that it is only when the petitioner came back from deputation that he came to know about the aforesaid order dated 23.10.2000. Counsel for the petitioner also contended that the petitioner has been reverted in order to accommodate another person and on coming to know about the said order, the petitioner preferred an appeal before the Commissioner, Rohailkhand Division, Bareilly, which was dismissed on the ground of limitation as well as on merits. The petitioner has filed this writ petition challenging the validity and correctness of the aforesaid order passed by the Commissioner, Rohailkhand Division, Bareilly. dated 25.8.2005.
6. Counsel for the petitioner vehemently urged that when the petitioner was appointed against a sanctioned post his reversion without affording him any opportunity of hearing is violative of principles of natural justice.
7. From the perusal of the impugned order, it is evident that there is no Government order available on record sanctioning the post of Sectional Head Clerk in the institution in question run by the Nagar Palika Parishad, Ujhani as such, promotion/appointment of the petitioner on the said post was illegal and was cancelled by order dated 23.10.2005.
8. As regards the contention of the Counsel for the petitioner that the order of reversion of the petitioner has been passed in order to accommodate another person is concerned, this argument is fallacious. When there is no sanctioned post of Sectional Head Clerk, no one can be accommodated in place of the petitioner.
9. The controversy, therefore, revolves around on the factum as to whether there was any sanctioned post, as claimed by the petitioner or there was no sanctioned post as has been held in the impugned appellate order. The petitioner was admittedly a Senior Clerk, who, according to the material available on record, was wrongly promoted without there being a sanctioned post, It requires findings of facts by an industrial adjudicator.
10. In State of U.P. v. Neeraj Awasthi (2006) 1 SCC-667, Hon'ble Supreme Court has held that mere description of 'illegal' appointments as 'irregular' does not mean that they were not illegal. Such persons, therefore, do not derive any status and a fortiori to continue in service. In Bhadehi Rai v. Union of India and Ors. (2005) 11 SCC-298, the Hon'ble Supreme Court dealing with the case of ad hoc promotion and claim of regularization and absorption on the promotional post, held that it cannot be sustained. The petitioners in that case were daily rated workmen and holders of temporary status of group 'D' post. Later on, they were granted promotion to group 'C post on a higher pay scale. After cont8nuing on the promotional post for a period of 20 years, the appellant in that case was reverted to his parent division on a group 'D' post carrying lower pay scale. It was held by Hon'ble Apex Court that the Central Administrative Tribunal or the High court had rightly rejected the claim of the appellant as his promotion was purely ad hoc and order of his reversion to a lower post in the parent division cannot be questioned.
11. The promotion of the petitioner, in the instant case, was illegal/irregular as there was no sanctioned post. Hence, his order of promotion was rightly cancelled.
The petitioner has no legal right to continue on a higher post or to resist reversion to the parent cadre or to enjoy higher promotional post in the circumstances. In the facts and circumstances of the case, opportunity of hearing before cancellation of the order of promotion, was not necessary.
12. The petitioner being a Senior Clerk has an alternate and efficacious remedy of raising industrial dispute as has been held by a Full Bench of this Court in Chandrama Singh v. Managing Director U.P. Cooperative Union Lucknow and Ors. (1991) 1 UPLBEC (2)-898. It is not feasible for this Court to give findings of fact on the basis of documentary and oral evidence which can be adduced before the Labour Court.
13. Without going into the merits of the controversy, this writ petition is dismissed on the ground of availability of alternate and efficacious remedy in view of decisions of Hon'ble Supreme Court in Hindustan Steel Works Construction Ltd., and Anr. v. Hindustani Steel Works Construction Ltd., Employees Union (2005) 6 SCC-725 and U.P. State Spinning Co. Ltd. v. R.S. Pandey and Anr. (2005) 107 FLR-729. No order as to costs.