State Of Madhya Pradesh vs Dr. Divya Darshan Sharma And Others

There is delay of 364 days in filing this Appeal under Section 2(1) of Madhya Pradesh Uchcha Nyayalaya (Khandpeeth Ko Appeal) Adhiniyam, 2005.

Condonation whereof is being sought vide I.A.No.16960/2017, though opposed at; however taking into consideration that the time consumed is

because of the adherence to the procedure adopted in the institutional hierarchy, as detailed in paragraph 2 of the application and documents annexed

therewith, we are inclined to accept the explanation tendered. Consequently, delay condoned. I.A. No.16960/2017 stands disposed of.

With the consent of learned counsel for the parties, the matter is finally heard.

This Appeal takes an exception to order dated 30/08/2016 passed in Writ Petition No.151/2015 whereby dwelling on a claim by a daily wager engaged

as Computer Operator, for regularization, learned Single Judge has directed for creation of post and regularization, by taking into consideration the fact

that the respondent had put in more eleven years of service and that Janpad Panchayat Sironj had resolved to provide him an appointment as Assistant

Grade III.

Pertinent, it is to note that no procedure of recruitment known to law had been adhered to while engaging the respondent in Janpad Panchayat Sironj,

though there was no sanctioned post.

In Maharashtra State Road Transport Corporation and Another vs. Casteribe Rajya Parivahan Karmchari Sanghatana [(2009) 8 SCC 556], it is held:

“37, There cannot be any quarrel with the proposition that courts cannot direct creation of posts. In Mahatma Phule Agricultural University and

Others vs. Nasik Zilla Sheth Kamgar Union [(2001) 7 SCC 346: 2001 SCC (L&S) 1180] this Court held: (SCC pp. 352-53, paras 12-14)

Mrs Jaising, in support of Civil Appeals Nos. 4461- 70 and 4457-60 arising out of SLPs (C) Nos. 418-21 of 1999 and SLPs (C) Nos. 9023-32 of

1998 submitted that the workmen were entitled to be made permanent. She however fairly conceded that there were no sanctioned posts available to

absorb all the workmen. In view of the law laid down by this Court the status of permanency cannot be granted when there are no posts. She

however submitted that this Court should direct the Universities and the State Governments to frame a scheme by which, over a course of time, posts

are created and the workmen employed on permanent basis. It was however fairly pointed out to the Court that many of these workmen have died

and that the Universities have by now retrenched most of these workmen. In this view of the matter no useful purpose would be served in undergoing

any such exercise.

To be seen that, in the impugned judgment, theHigh Court notes that, as per the law laid down by this Court, status of permanency could not be

granted. In spite of this the High Court indirectly does what it could not do directly. The High Court, without granting the status of permanency,

grants wages and other benefits applicable to permanent employees on the specious reasoning that inaction on the part of the Government in not

creating posts amounted to unfair labour practice under Item 6 of Schedule IV of the MRTU & PULP Act. In so doing the High Court erroneously

ignores the fact that approximately 2000 workmen had not even made a claim for permanency before it. Their claim for permanency had been

rejected by the award dated 20-2-1985. These workmen were only seeking quantification of amounts as per this award. The challenge, before the

High Court, was only to the quantification of the amounts. Yet by this sweeping order the High Court grants, even to these workmen, the wages and

benefits payable to other permanent workmen.

Further, Item 6 of Schedule IV of the MRTU &PULP Act reads as follows:

To employ employees as `badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and

privileges of permanent employees.

The complaint was against the Universities. The High Court notes that as there were no posts the employees could not be made permanent. Once it

comes to the conclusion that for lack of posts the employees could not be made permanent, how could it then go on to hold that they were continued

as ""badlis"", casuals or temporaries with the object of depriving them of the status and privileges of permanent employees? To be noted that the

complaint was not against the State Government. The complaint was against the Universities. The inaction on the part of the State Government to

create posts would not mean that an unfair labour practice had been committed by the Universities. The reasoning given by the High Court to

conclude that the case was squarely covered by Item 6 of Schedule IV of the MRTU & PULP Act cannot be sustained at all and the impugned

judgment has to be and is set aside. It is however clarified that the High Court was right in concluding that, as per the law laid down by this Court,

status of permanency could not be granted. Thus all orders wherein permanency has been granted (except award dated 1-4-1985 in IT No. 27 of

1984) also stand set aside.

In State of Maharashtra and Another vs. R.S.Bhonde [(2005) 6 SCC 751: 2005 SCC (L&S) 907], this Court relied upon earlier judgment in

Mahatma Phule Agricultural University [Mahatma Phule Agricultural University v. Nasik Zilla Sheth Kamgar Union, (2001) 7 SCC 346: 2001 SCC

(L&S) 1180] and reiterated the legal position thus: (SCC p.754, para7)

Additionally, as observed by this Court in Mahatma Phule Agricultural University v. Nasik Zilla Sheth Kamgar Union the status of permanency

cannot be granted when there is no post. Again in Gram Sevak Prashikshan Kendra v. Workmen, it was held that mere continuance every year of

seasonal work obviously during the period when the work was available does not constitute a permanent status unless there exists post and

regularisation is done.

In Indian Drugs & Pharmaceuticals Ltd. vs. Workmen, [(2007) 1 SCC 408 : (2007) 1 SCC (L&S) 270], this Court stated that courts cannot create

a post where none exists. In para 37 of the report, this Court held: (SCC p.426)

Creation and abolition of posts and regularisation are purely executive functions vide P.U. Joshi v. Accountant General [(2003) 1 SCC 408 :

(2007) 1 SCC (L&S) 270]. Hence, the court cannot create a post where none exists. Also, we cannot issue any direction to absorb the respondents or

continue them in service, or pay them salaries of regular employees, as these are purely executive functions. This Court cannot arrogate to itself the

powers of the executive or legislature. There is broad separation of powers under the Constitution, and the judiciary, too, must know its limits.

In yet another case, Aravali Golf Club vs. Chander Hass [(2008) 1 SCC 683 : (2008) 1 SCC (L&S) 289], this Court said:(SCC p.688, para 15)

The court cannot direct the creation of posts. Creation and sanction of posts is a prerogative of the executive or legislative authorities and the

court cannot arrogate to itself this purely executive or legislative function, and direct creation of posts in any organisation. This Court has time and

again pointed out that the creation of a post is an executive or legislative function and it involves economic factors. Hence the courts cannot take upon

themselves the power of creation of a post. Therefore, the directions given by the High Court and the first appellate court to create the posts of

tractor driver and regularise the services of the respondents against the said posts cannot be sustained and are hereby set aside.

Thus, there is no doubt that creation of posts is not withinthe domain of judicial functions which obviously pertains to the executive. It is also true

that the status of permanency cannot be granted by the Court where no such posts exist and that executive functions and powers with regard to the

creation of posts cannot be arrogated by the Courts.â€​

In State of Jammu and Kashmir and Others vs. District Bar Association, Bandipora [(2017) 3 SCC 410], it is held “26. The principles will have to

be formulated bearing in mind the position set out in the above judgments. Regularisation is not a source of recruitment nor is it intended to confer

permanency upon appointments which have been made without following the due process envisaged by Articles 14 and 16 of the Constitution.

The impugned order when is tested on the anvil of law laid down in Maharashtra State Road Transport (supra) and State of Jammu and Kashmir

(supra) and the fact that respondent was never recruited in a regular manner under law as would create any vested right in him, cannot be upheld.

Consequently, impugned order dated 30/08/2016 in W.P. No.151/2015 is set aside. The Writ Petition filed by respondent is dismissed.

The Appeal is finally disposed of in above terms. No costs.