Uttarakhand High Court
Case BriefsHigh Courts

   

Uttaranchal High Court: The Division bench of Vipin Sanghi, C.J., and R.C. Khulbe, J., had held that merely because the communication sanctioning a post does not indicate the promotion rules, does not mean that there are no Rules framed or applicable for promotion, requiring minimum service in the feeder cadre.

Facts:

The appeal was preferred by the appellants after obtaining leave, since they were not parties to the writ proceedings, wherein the impugned order was passed by the Single Judge on 11-08-2017. The writ petitioners are respondents in this instant appeal preferring a writ petition assailing the order dated 09-09-2016 passed by the respondent authority, whereby the respondents were promoted to the post of Assistant Accounts Manager in the Uttarakhand Forest Development Corporation.

The appellants have assailed the impugned order dated 11-08-2017 on the ground that the Court wrongly proceeded on the premise that, for promotion to the post of Assistant Accounts Manager, the persons working in the feeder post should have substantive service of at least 7 years, as a condition of eligibility. According to the appellants there was no minimum qualifying service required.

Arguments:

The counsel for appellant contended that prior to bifurcation of the State of Uttarakhand from the State of Uttar Pradesh, in the Uttar Pradesh Forest Development Corporation, from which the respondent corporation has been carved out, the service conditions were governed by Regulations framed in the year 1985. In the said Corporation's promotion Rules, the minimum required service of 7 years was prescribed in the feeder cadre. However, upon the creation of the State of Uttarakhand, the respondent was created in the year 2001. According to the appellants, after 2001, the 1985 Regulations of the Uttar Pradesh Forest Development Corporation were no longer applicable. He further submitted that on 06-06-2007, a completely new cadre of officers was created in the respondent corporation.

The counsel finally submitted that even the communication did not clearly indicate as to what were the promotion rules. Further, the mandatory requirement of experience must be deemed to have been waived.

The counsel for the respondent corporation drew attention to Sections 67 and 74 of the Uttar Pradesh Reorganisation Act, 2000 (‘UP Reorganization'), which led to the formation of the State of Uttarakhand. He submitted that as the corporation has carved out from Uttar Pradesh Forest Development Corporation it continues to operate in the State of Uttarakhand.

The counsel placed his reliance on Section 74 of the UP Reorganisation Act argued that the conditions service of persons serving in connection with the affairs of the State, could not be alerted to their disadvantage, and they continued to operate as they were operating prior to bifurcation of the State. He submits that no previous approval was obtained by the Central Government to remove the minimum requirement.

Observation and Analysis:

The Court found no merit in the argument that there was any requirement of any minimum qualifying years of service.

Further it was held that merely because the order sanctioning the posts did not indicate the promotion Rules, does not mean that there was no Rule framed or applicable for promotion.

Hence, the respondent corporation was directed to fill up the vacancies in the cadre and the special Appeal was dismissed.

[Krishna Kunwar Singh Dewari v. Kripal Singh, Special Appeal No. 682 of 2018, decided on 19-07-2022]


Advocates who appeared in this case :

Counsel for Appellants: Mr. Bhagwat Mehra, Advocate

Counsel for Respondents: Mr. Abhijay Negi, Advocate

Mr. K.N. Joshi, Deputy Advocate General

Mr. V.K. Kapruwan, Advocate


https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=rC8SUFuyEFsvB5V61cXUrElu1MmZWPXzCwheqkAW3XaTdJ8LLlyIa%2B%2FGilaNnsw2&caseno=SPA/682/2018&cCode=1&appFlag=

Case BriefsSupreme Court

Supreme Court: Stating that the creation and/or sanction of the posts is the sole prerogative of the Government, the bench of MR Shah* and AS Bopanna, JJ has held that High Court cannot, in exercise of the power under Article 226 of the Constitution, issue a Mandamus to direct the Department to sanction and create the posts.

The Court was deciding a case wherein the respondents-original applicants were working as contingent paid part-time sweepers (Safai Karamcharies working for less than five hours a day) in a Post Office at Chandigarh. There is no documentary evidence on record to establish and prove that the respondents were working continuously.

It is important to note that there are no sanctioned posts of Safaiwalas in the Post Office in which the respondents were working.

A regularization policy was framed considering the decision of this Court in the case of Secretary, State of Karnataka v. Umadevi, (2006) 4 SCC 1. It provided that the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure the services of such irregularly appointed, qualified persons, in terms of the statutory requirement of the Rules for the posts, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals.

By the impugned judgment and order, the Punjab and Haryana High Court directed to reformulate the regularization policy and to take a decision to sanction the post in a phased manner.

The Supreme Court, however, noted that since the Union of India/Department has already come up with a regularization policy in consonance with the law laid down by the Supreme Court, which does not apply to the part-time workers who do not work on the sanctioned post, the respondents were not entitled for the benefit of regularization.

The Court explained,

“As per the settled preposition of law, the regularization can be only as per the regularization policy declared by the State/Government and nobody can claim the regularization as a matter of right dehors the regularization policy. Therefore, in absence of any sanctioned post and considering the fact that the respondents were serving as a contingent paid part-time Safai Karamcharies, even otherwise, they were not entitled for the benefit of regularization under the regularization policy dated 30.06.2014.”

The Court took note of the decision in State of Maharashtra v. R.S. Bhonde, (2005) 6 SCC 751 wherein it was held that the status of permanency cannot be granted when there is no post and that mere continuance every year of seasonal work during the period when work was available does not constitute a permanent status unless there exists a post and regularization is done.

Holding that part-time employees are not entitled to seek regularization as they are not working against any sanctioned post and there cannot be any permanent continuance of part-time temporary employees as held, the Court said that

“Part-time temporary employees in a Government run institution cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work.”

Concluding that the regularization policy to regularize the services of the employees working on temporary status and/or casual labourers is a policy decision and in judicial review the Court cannot issue Mandamus and/or issue mandatory directions to do so, the Court held,

“The High Court cannot, in exercise of the power under Article 226, issue a Mandamus to direct the Department to sanction and create the posts. The High Court, in exercise of the powers under Article 226 of the Constitution, also cannot direct the Government and/or the Department to formulate a particular regularization policy. Framing of any scheme is no function of the Court and is the sole prerogative of the Government. Even the creation and/or sanction of the posts is also the sole prerogative of the Government and the High Court, in exercise of the power under Article 226 of the Constitution, cannot issue Mandamus and/or direct to create and sanction the posts.”

[Union of India v. Ilmo Devi, 2021 SCC OnLine SC 899, decided on 07.10.2021]


Counsels

For appellants: ASG Madhvi Divan

For respondents: Advocate Rahul Gupta


*Judgment by: Justice MR Shah