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Judgment
Hon''ble Shri Satish K Agnihotri, J.
(Writ Petition under Article 226/227 of the Constitution of India)
By this petition, the petitioner seeks a writ in the nature of mandamus or suitable direction to quash the order dated 16.11.2011 (Annexure P-1) passed on his representation and further to consider his claim for promotion on the post of Assistant House Manager with all consequential benefits of service w.e.f. 05.03.2010. The indisputable facts, as projected by the petitioner, are that the petitioner was first appointed on 02.07.2004 (Annexure P-4) on the post of Catering Manager in Raj Bhawan, Chhattisgarh, after due selection. His service was confirmed vide order dated 21.01.2010 (Annexure P-6) w.e.f. 31.05.2007. One name provisional seniority list was also published on 01.04.2010, showing him as regular Catering Manager. The petitioner claims promotion to the post of Assistant House Manager on the ground that he had spent sufficient time on the post of Catering Manager, thus, he may be considered for promotion to the post of Assistant House Manager, in accordance with the provisions of Chhattisgarh Governor Secretariat and House Hold Service (Non-Gazetted) Recruitment Rules, 2002 (for short "the Rules, 2002").
The petitioner approached this Court earlier in Writ Petition (S) No.5530/2010, which was disposed of by order dated 25.09.2010 (Annexure P-10) reserving liberty to the petitioner to make a representation and it was also directed to decide the representation strictly, in accordance with law.
The impugned order was passed, pursuant to the representation made by the petitioner, on 16.11.2011, holding that the appointment on the post of Assistant House Manager can be made only through direct recruitment/promotion/by deputation/contract appointment and if the direct recruitment is made, the post is reserved for Scheduled Tribe. Thus, this petition.
Shri Kesharwani, learned counsel appearing for the petitioner submits that the respondent No.5, who was working as Manager, Chhattisgarh Tourism Corporation has been attached as Assistant House Manager at Raj Bhawan, contrary to the provisions of law. Since, the Assistant House Manager post was a single post, there could not have been reservation as decided and well settled by the Supreme Court in Post Graduate Institute of Medical Education & Research, Chandigarh v. Faculty Association & Others1, S.R.Murthy v. State of Karnataka & Others2 and Union of India & Another v. Hemraj Singh Chauhan & Others3. Thus, the appointment of the respondent No.5 be quashed and respondent No.2 be directed to consider case of the petitioner for promotion on the post of Assistant House Manager.
On the other hand, Shri Rahul Tamaskar, learned counsel appearing for the respondent No.2 & 3 submits that the mode of recruitment is discretionary, as Rule 9 of Rules, 2002, which was incorporated by amendment on 29.11.2003, provides for power of the Governor to relax any provision of Rules, 2002. Thus, it is at the discretion of the Governor to relax the provisions of the Rules and appoint any person who is competent for the post. It is further submitted that there are several modes prescribed in Schedule-One to the Rules, 2002. One post of Assistant House Manager is to be filled by direct recruitment/ promotion/ by deputation/ contract appointment. Thus, it is for the employer to decide the mode of selection, therefore, the contention of the petitioner that he should be considered by way of promotion is frivolous.
Schedule - One to the Rules, 2002 reads as under : 1 Asstt. 6500-200- 1 II 100% . House 10500 I (Direct Manager Recruitment/ Promotion/By Deputation/Contr act Appointment)
The appointment for the post of Assistant House Manager can be made only either by direct recruitment or promotion or by deputation or contract appointment. There is only one post and, as such, there is no question of reservation as has been observed by the office of the respondent No.2 that the post is reserved for Scheduled Tribe.
Law in this respect is very clear and settled that the Post Graduate Institute of Medical Education & Research, Chandigarh (supra), the Constitution Bench of the Supreme Court held as under :
In a single post cadre, reservation at any point of time on account of rotation of roster is bound to bring about a situation where such a single post in the cadre will be kept reserved exclusively for the members of the backward classes and in total exclusion of the general members of the public. Such total exclusion of general members of the public and cent per cent reservation for the backward classes is not permissible within the constitutional frame work. The decisions of this Court to this effect over the decades have been consistent.
The aforesaid decision was referred with approval by three Hon''ble Judges in S.S.Murthy (supra). The above- stated principle of law is consistently held the field till date.
Hemraj Singh Chauhan (supra), cited by the learned counsel for the petitioner, is misplaced, as the case deals with cadre review exercise regularly.
In respect of mode of promotion, this is always for the employer to decide asto how a vacancy be filled whether by direct recruitment or by promotion or on deputation or on contract appointment which is provided in the Schedule One to the Rules 2002, framed in exercise of powers configured under proviso to Article 309 of the Constitution. This is a service in the Raj Bhawan, which has to be done on approval of the Governor of the State. Accordingly, Rule 9 has been incorporated in the Rules, wherein it is clearly provided that the Governor has power to relax any provision of law. Thus, as pleaded in the reply of the respondent No.2 & 3 that in exercise of discretionary power, respondent No.5 has been attached, cannot be flawed. It is further stated by the respondent No.2 in its return that the attempt was made to appoint a person on the post of Assistant House Manager earlier, which was unsuccessful, as is evident from the advertisement inviting applications for appointment (Annexure R-1).
By notification dated 29.11.2003, Rule 9 was inserted after Rule 8, which reads as under :
Power to relax the provisions : Governor of Chhattisgarh may in his discretion relax any provision of "Chhattisgarh Governor Secretariat and House-hold Service (Non-Gazetted) Recruitment Rules, 2002."
Provided that upon relaxation of any provision of the "Chhattisgarh Governor Secretariat and House-hold Service (Non-Gazetted) Recruitment Rules, 2002." By the Governor, the Government shall be informed.
The petitioner working as Catering Manager cannot force the employer to promote him and appoint as Assistant House Manger, even, if he has a long experience and requisite qualification.
On reading of the entire provisions of Rules, 2002, it is clear that the discretion is with the Governor to follow a mode of appointment or relax certain provision for better and suitable appointment on any post. For the reasons mentioned hereinabove, the petition being devoid of merit is dismissed. No order asto costs.