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2007 DIGILAW 347 (GAU)

State of Tripura v. Sunil Chandra Debnath

2007-05-15

MAIBAM B.K.SINGH, R.B.MISRA

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JUDGMENT R.B. MISRA. J. 1. Heard Mr. P. Dutta, learned Counsel for the appellants. Also heard Mr. B. Das, learned Sr. Counsel assisted by Ms. S. Das, learned Counsel for the respondent-writ petitioner. 2. The present writ appeal has been preferred against the order dated 3.9.01 passed by the learned Single Judge of this court in Civil Rule No. 233 of 1997 where by keeping in view the prayer of the writ petitioner for issuance of a Writ directing the authorities to provide him a suitable job in the Tripura Horticulture Corporation Ltd. for short, 'the Corporation') commensurate to his qualifications such as Assistant Manager (Finance) in the scale of pay of Rs. 2100-5000/- with retrospective effect where by learned Single Judge by the impugned order directed the State Government to accord approval of creation of one post of Marketing Inspector and as soon as the post was created the writ petitioner was directed to be absorbed to the said post. 3. It appears that the writ petitioner is a science graduate having Diploma course in Master of Business Administration (MBA) and was deployed as a management trainee in the Corporation vide office order dated 9.10.90 at a fixed amount of Rs. 1,000/- per month for a period of one year. The writ petitioner has submitted several representations to the 'Corporation/as well as the State authorities and in reference thereto the 'Corporation' has also written to the Director of Industries, State of Tripura and to the State Government in reference to a resolution proposing creation of one post of Marketing Inspector and seeking direction for creation of a post of Marketing Inspector so that the case of the writ petitioner could be considered for accommodational him to the said post keeping in view his qualification, eligibility and experience. It appears that the State Government did not accord approval to the said post of Marketing Inspector. 4. By not getting any relief, the writ petitioner preferred Civil Rule No. 233 of 1997 for seeking direction for his accommodation to a suitable job commensurate to his qualification. The 'Corporation' had submitted its counter affidavit controverting the claims of the writ petitioner indicating that for lack of availability of post and for non-sanction of post of Marketing Inspector, the 'Corporation' could not accommodate the writ petitioner to the post of Marketing Inspector. The 'Corporation' had submitted its counter affidavit controverting the claims of the writ petitioner indicating that for lack of availability of post and for non-sanction of post of Marketing Inspector, the 'Corporation' could not accommodate the writ petitioner to the post of Marketing Inspector. The State Government, however, has not submitted any affidavit-in-opposition before the learned single Judge. As revealed from the counter affidavit of the 'corporation', the post in question was declined to be created by the State Government. 5. Keeping in view the submissions of the writ petitioner in writ petition/civil rule and the response of the Corporation, learned Single Judge has observed that the State Government was not justified in withholding the approval in creating the post of Marketing Inspector and withholding of approval in creating the post of Marketing Inspector was treated to be detrimental to the interest of the 'Corporation' as the Corporation was cent percent financed by the State Government. In those circumstances, learned Single Judge has allowed the writ petition/Civil Rule No. 233 of 1997 with aforesaid directions. 6. The learned Counsel for the appellant has submitted as below: (a) In view of the decision of the Supreme Court (Constitution Bench) in Secretary, State of Karnataka and Ors. v. Umadevi and Ors., (2006) II LLJ 722 SC, in exercise of its power under Article 226 of the Constitution, the High Court has not to give any direction for absorption of a candidate in permanent employment and the court has not to impose any financial burden on the state by giving direction of any kind for accommodating an aspirant in a permanent employment by way of regularisation or absorption. (b) In view of the decision of the Supreme Court in ICMR v. K. Rajyalakshmi AIR 2007 SCW 1642 , the creation or sanction of a post is essentially an executive function and the Court has not to issue any direction for creation of a post. (c) In view of the decision of the Supreme Court in Managing Director, A.P. SRTC v. B. Bangaramma, (2001) 10 SCC 514 , even the direction of a High Court for creating a new post for appointment of kith and kin of an ex-employee on compassionate ground was held to be not proper. (c) In view of the decision of the Supreme Court in Managing Director, A.P. SRTC v. B. Bangaramma, (2001) 10 SCC 514 , even the direction of a High Court for creating a new post for appointment of kith and kin of an ex-employee on compassionate ground was held to be not proper. (d) In view of the decision of the Supreme Court in Principal, Mehar Chand Polytechnic v. Anu Lamba, AIR 2006 SC 3074 , the State Government has exclusive right to create a post and recruit people in public employment. The relevant paragraph 16 of the said judgment is quoted below: 16. Public employment is a facet of right to equality envisaged under Article 16 of the Constitution of India. The State although is a model employer, its right to create posts and recruit people therefore emanates from the statutes or statutory rules and/or rules framed under the proviso appended to Article 309 of the Constitution of India. The recruitment rules are framed with a view to give equal opportunity to all the citizens of India entitled for being considered for recruitment in the vacant posts. 7. On the other hand, Mr. B. Das, learned senior Counsel for the respondent-writ petitioner has submitted as below: (a) In view of the decision of the Supreme Court in Sushma Gosain v. Union of India, (1990) I LLJ 169 SC there should not be any delay in giving appointment in the matter of compassionate appointment as the purpose of providing appointment is to mitigate the hardship due to death of the bread earner in the family and the appointment on compassionate ground should, therefore, be provided immediately to redeem the family in distress and to keep the claim of the aspirant for years is held to be improper with further observation that if there is no suitable post for appointment supernumerary spot should be created to accommodate the claimants. According to the learned Counsel for the appellant, the facts of Sushma Gosain are different and distinguishable as the Supreme Court has not deviated in that case from its settled principle that the creation or sanction of a post is essentially an executive function. (b) In Sudha Srivastava v. Comptroller and Auditor General of India, (1996) 1 SCC 63 , the writ petitioner was directed to be given benefit of promotion with retrospective effect. (b) In Sudha Srivastava v. Comptroller and Auditor General of India, (1996) 1 SCC 63 , the writ petitioner was directed to be given benefit of promotion with retrospective effect. According to the learned Counsel for the appellant, the facts of Sudha Srivastava (supra) are absolutely different and not at all applicable to the present case and the decision of Sudha Srivastava (supra) is not a guideline as it has not indicated any creation of a spot and to give a benefit to the aspirant. (c) In State of Madhya Pradesh v. Bani Singh, 1990 CriLJ 1315 the direction of Administrative Tribunal for giving retrospective promotion to the claimant on over all consideration of entire facts and circumstances of the case was not interfered with. Even on this aspect learned Counsel for the appellant submits that the facts of the present case are different and distinguishable from that of the decision in Bani Singh (supra) and the Hon'ble Supreme Court has not laid down any law for creating a post and then to absorb or accommodate any particular employee to such post. We have heard the learned Counsel for the parties at length and have also perused the documents and carefully examined the impugned order passed by the learned Single Judge. 8. We are of the considered view that creating any post or giving sanction to any post is the prerogative of the State Government under its executive functioning. The writ petitioner though undoubtedly was in possession of the requisite qualification and experience, however, the State Government cannot be directed to create the post of Marketing Inspector for accommodating the writ petitioner to the said post. The learned single Judge was not legally correct to issue such direction to the State Government to give approval or sanction for creating the post of Marketing Inspector, where by the 'Corporation' could have absorbed the writ petitioner to the said post. 9. In the facts and circumstances, the impugned order of the learned Single Judge is not legally sustainable and therefore the same is set aside and the writ appeal is allowed. Accordingly, no order as to cost. Appeal allowed