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2018 DIGILAW 936 (ALL)

VEER PAL v. STATE OF U. P.

2018-04-17

B.AMIT STHALEKAR

body2018
JUDGMENT Hon’ble B. Amit Sthalekar, J.—Supplementary-affidavit filed today is taken on record. 2. Heard Sri Pradeep Saxena, learned counsel for the petitioners, Sri Abhishek Tiwari, learned counsel holding brief of Sri Vrindavan Mishra for the respondent Nos. 2 and 4 and Sri Hari Ram Tripathi, learned Standing Counsel for the respondent Nos. 1 and 3. 3. The petitioners, who are 32 in number, are seeking a direction to the respondents to make suitable provision for compassionate appointment in Co-operative Sugar Factories and to appoint the petitioners in the Kisan Co-operative Sugar Factory Limited, Sarsava, Saharanpur on compassionate ground. 4. The learned counsel for the petitioners on being asked as to whether there are any rules framed in this regard for making appointment on compassionate ground, accepted very fairly that there are no rules contemplating appointment on compassionate ground but he then submitted that a direction may be issued to the State Government to frame the rules or in the alternative a direction may be issued to the State Government to decide his representation for framing of rules. 5. In the opinion of the Court, no direction can be given to the State Government to frame a rule. Power to frame Rules or other enactment is exclusively within the domain of the Executive, for example issuance of Government Orders in exercise of quasi legislative powers or within the domain of the Parliament or State Legislature, as the case may be, to frame laws. India is a vibrant democracy governed by the Rule of Law enshrined in our Constitution and separation of powers between the three sovereign pillars, namely, the Executive, the Legislature and the Judiciary is the very foundation of our democarcy. Therefore, the Judiciary, thereby the Courts cannot trench upon the powers of the other two sovereign bodies by usurping legislative or quasi legislative powers. Law in this regard is well-settled by the Supreme Court in the case of State of Jharkhand and others v. Ashok Kumar Dangi and others, (2011) 13 SCC 383 . Paragraph 21 of the judgment reads as under : “21. Here, in the present case, neither any statute or rule or the policy of the State of Jharkhand provide for filling up certain percentage of the posts of Primary School Teachers by candidates trained in physical education. Paragraph 21 of the judgment reads as under : “21. Here, in the present case, neither any statute or rule or the policy of the State of Jharkhand provide for filling up certain percentage of the posts of Primary School Teachers by candidates trained in physical education. Any direction to the State Government to make appointment of Physical Trained Candidates as Primary School Teachers do not flow from any of the rules or the policy of the State and as such the direction to make reservation in their favour would tantamount to framing a policy and cannot be said to be failure to exercise the discretion vested in the State Government.” 6. The Supreme Court in the case of State of Uttar Pradesh and others v. Subhash Chandra Jaiswal and others, (2017) 5 SCC 163 , in paragraph 20 referred to the judgements in the case of Suresh Seth v. Indore Municipal Corporation and Supreme Court Employees’ Welfare Association v. Union of India and has held as under : “20. In this context, we may fruitfully refer to the authority in Suresh Seth v. Commr., Indore Municipal Corporation and others, (2005) 13 SCC 287 , wherein it has been held that the Court cannot issue any direction to the legislature to make any particular kind of enactment because under the constitutional scheme, Parliament and Legislative Assemblies exercise sovereign power to enact laws and no outside power or authority can issue a direction to enact a particular piece of legislation. In Supreme Court Employees’ Welfare Association v. Union of India and another, (1989) 4 SCC 187 it has been ruled that: “51.........no Court can direct a legislature to enact a particular law. Similarly, when an executive authority exercises a legislative power by way of a subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law which it has been empowered to do under the delegated legislative authority. This view has been reiterated in State of Jammu & Kashmir v. A.R. Zakki and others, 1992 Supp (1) SCC 548" 7. If the High Court cannot give any direction to the State Government to frame any rule, the High Court also cannot give any direction to decide the representation of the petitioners for framing rules for granting appointment on compassionate grounds. If the High Court cannot give any direction to the State Government to frame any rule, the High Court also cannot give any direction to decide the representation of the petitioners for framing rules for granting appointment on compassionate grounds. What cannot be sought to be done directly, the petitioners are attempting to get done indirectly by seeking a direction to the State Government to decide their representation. 8. The writ petition is thoroughly misconceived and is accordingly, dismissed.