Judgement

N. P. SINGH, J.:- This appeal has been filed on behalf of the Fertilizer Corporation of India Ltd. (hereinafter referred to as the Corporation) for setting aside the judgment dated 24-9-1990 of the High Court by which the writ petition filed on behalf of respondent No.4, Shri D.K. Jain, (hereinafter referred to as the respondent) has been allowed and a direction has been given to the appellant - Corporation to take back the said respondent in service as Director (Finance) w.e.f. 20-4-1986. A further direction has been given that in case the post of Director (Finance) had already been filed up by some other incumbent and it was not possible to appoint the respondent against the said post, then he should be appointed in another equivalent post with all consequential benefits.

2. The respondent joined the Indian Audit and Accounts Service in the year 1958 and was holding a substantive post in junior administrative grade of Rs.1500 - 100 - 3000 w.e.f. 15-7-1982. While the respondent was working as Joint Adviser (Finance), bureau of Public Enterprises, on deputation from his parent cadre of Indian Audit and Accounts Service, he was selected by Public Enterprises Selection Board for the post of Director (Finance) for the Corporation. By an order dated 8-6-1982 issued by the Government of India, Ministry of Petroleum, Chemicals and Fertilizers the respondent was appointed as Director (Finance) of the said Corporation.

3. Article 66 of the Articles of Association of the Corporation which provides for the appointment of Director says:

"66. (1) The Director representing the Govt. shall be appointed by the President of India. All other members of the Board of Directors shall be appointed by the President of India in consultation with the Chairman of the Board of Directors and shall be paid such salary and or allowance as the President may from time to time determine.

(2) All the Directors except the Managing Director, Executive Director/s and Functional Director/s shall retire at the end of their term, not exceeding three years from the date of their appointment. The Managing Director, Executive Director/s and Functional Director/s shall retire on his/her ceasing to hold the office of the Managing Director, Executive Director/s and Functional Director/s. A retiring Directors shall be eligible for re-appointment.

(3) The President shall have the power to remove any Director including the Chairman, the Managing Director, Executive Director/s and Functional Director/s from office at any time and in his absolute discretion.

(4) The President shall have the right to fill any vacancy in the office of a Director caused by retirement, removal, resignation, death or otherwise.

The respondent after having been appointed as Director on the Board of the Corporation was also appointed in terms of Article 69 of the Articles of Association of the Corporation as Director (Finance) of the said Corporation for a period of five years or till the age of his superannuation, whichever was earlier.

4. Pursuant to the aforesaid order, the respondent joined the Corporation on 17-7-1982. On 12-11-1984 another order was issued by the Government of India, Ministry of Industry (Department of Industrial Development) in respect of the said respondent saying that the President had been pleased to appoint the said respondent who was then Director (Finance) of the Corporation as Director (Finance) of the Cement Corporation of India, for a period of two years. The relevant part of the order is as follows :

ORDER

In pursuance of Article 95(a) and (b) of the Articles of Association of the Cement Corporation of India Limited, the President is pleased to appoint Shri D. K. Jain, at present Director (Finance), Fertiliser Corporation of India Limited as Director (Finance), Cement Corporation of India Limited for a period of two years with effect from the date he assumes charge of the post of Director (Finance) in the Cement Corporation of India Limited".

5. The Chairman and Man