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Judgment
This appeal under Section 2 (1) of Madhya Pradesh Uchcha Nyayalay (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005, is directed against the order
dated 07.03.2010 passed in Writ Petition No.4521/2010.
The Writ Petition at the instance of the respondent No.1 was for the direction to present appellant for considering her for regularization with seniority
from the date of her junior (respondent No.3) was regularized on the contention that, she has been discriminated in non consideration for
regularization. The claim was denied. Learned Single Judge after taking into consideration the rival contention and adverting to the cogent material on
record upheld the claim that respondent was discriminated as to regularization, on the finding that, though eligible was not considered alongwith her
contemporaries.
However, instead of directing the appellant to consider the claim of the respondent, learned Single Judge directed for regularization, by creating
vacancy, if there is no vacancy and for consequential benefit :
“Therefore, this petition in the light of law laid down by Hon'ble Supreme Court in case of C.Lalitha (supra) deserves to be allowed and is allowed.
It is directed that if there is no vacancy in the cadre of LDC, then respondents shall create vacancy from the date of which her juniors were
regularized and shall give all consequential benefits of regularization from the date from which her juniors were regularized with all consequential
benefits like seniority, arrears of pay etc. Thus, the petition succeeds and is disposed of in above terms.â€
Evidently, decision in State of Karnataka and Others Vs. C.Lalitha, (2006) 2 SCC 747 has been relied upon while directing the Authorities to
regularize by even creating vacant post. In C.Lalitha (Supra), the issue was of different nature than the present case which can be perceived from the
verdict therein, reproduced below in extenso:
It is not in dispute that the respondent herein had been working from the very beginning in the Revenue Department. The order of this Court dated
15-3-1994 as noticed supra should, thus, be construed in the light of the decision of this Court and the pleadings of the parties.
For the said purpose, we may notice the prayers made by the respondent before the Karnataka Administrative Tribunal which are as under:
(i) Declare by the issue of an appropriate order or direction as the case may be, the action of the State Government in denying the benefits to the
applicants flowing from the decision of the Hon'ble Supreme Court of India in Civil Appeals Nos. 2270-73 of 1987 and connected appeals, as illegal
and discriminatory, with a further declaration that the applicants are entitled to be considered for appointment to Group  'A'  Services  (Assistant
Commissioners). On the basis of the first select list prepared by the Karnataka Public Service Commission vide notification dated 23.2.1976 published
in the Karnataka Gazette dated 26.2.1976 (Annexure A-1) and entitled to all consequential benefits, in the interest of justice and equity.
(ii) Issue an appropriate order or direction, as the case may be, directing the State Government to pass appropriate orders appointing the applicants to
Group 'A' services (Assistant Commissioners), pursuant to the declaration to be granted as per the above prayer, w.e.f. the dates, the same has
become due with all consequential benefits, in the interest of justice and equity. (iii) Pass such orders just and expedient in the circumstances of the
case, including the award of cost.
Prayers made in the said original application before the Tribunal must be construed having regard to the pleadings thereof. We have been taken
through the application filed by the respondent before the Administrative Tribunal. No statement far less any claim grounded on legal right was raised
to the effect that she was entitled to be appointed as Assistant Commissioner from the very inception. Such a plea could not have been taken.
In para 6 of her application, she accepted that her name was included in the additional list of Category I service. In subpara (e) of the said
paragraph, she moreover accepted that her name had appeared at Sl. Nos. 26 and 5 respectively in Category II Service (Tahsildars) now designated
as Group 'B' service omitting her name from Group 'A' service. In sub-para (g) of para 6 she stated:
By order dated 30.3.1990, the Hon'ble Supreme Court of India struck down the government order dated 23.4.1976. Thus, with the setting aside of the
government order dated 23.4.1976, the applicants also became entitled to be appointed to Group 'A' Services on the basis of the first select list
(Annexure A-1). The judgment of the Hon'ble Supreme Court of India also enures to the benefit of the applicants and accordingly the applicants
became entitled to be appointed to Group 'A' services w.e.f. the respective dates the candidates included in the second list to Annexure B were
appointed with all consequential benefits except any express benefits denied by the State Government by order dated 22.5.1990 proceeded to grant
benefits only to the petitioners before the Hon'ble Supreme Court of India.......
Yet again, in the grounds contained in the said application, she merely contended:
........With the setting aside of the directions, even the deletion of the names of the applicants from the additional list of Group 'A' services is
automatically held to be illegal and discriminatory.....
Furthermore, in sub-para (m) of para 6, she stated:
The applicants submit that they too are similarly and equally placed like those who were the appellants before the Hon'ble Supreme Court, in the
matter of appointment on the basis of first select list (Annexure-A-1.....)
It is, thus, only in the prayer portion, she prayed for being considered for appointment to Group 'A' service (Assistant Commissioner) without there
being any requisite pleadings therefor. She had, thus, never questioned the merit position.
The Commission issued a notification on 23.2.1976 showing the names of the candidates who became eligible to hold the posts of Assistant
Commissioners being Category I service. The name of the respondent did not figure therein. Her name did not figure even in the posts of Assistant
Controllers which were also Category I posts. Her name appeared at Sl. No. 2 in the Additional List of Category I service. It is true that having
regard to Devin Katti (supra), the said List was revised but even on revision of the list, her name could have been placed only below K.C.
Ramamurthy who got 871 marks as she got 868 marks. Even some candidates belonging to the Scheduled Castes category as, for example, Shri T.
Muktamba got higher marks than her i.e. 893 marks. It further appears that even in the list of Commercial Tax Officers, the last candidate therein Shri
M. Viswanatha who was a general category candidate got 875 marks. Thus, there were many persons who were above the respondent both amongst
general category as also reserved category candidates. Upon revision of the list, she had, thus, been placed at Sl. No. 26 of Category II service which
was meant for Tahasildars. It is not in dispute that if the name of the respondent was to be included in the Assistant Commissioner from the general
merit category, then cases of six more candidates, namely, A.C. Suryaprakash, C. Vasumathi, V. Mohan Kumar, M. Vishwanatha, K.C. Ramamurthy
and B.N. Mahesh, being above her, were also required to be considered. It is, furthermore, not in dispute that those who had been offered the post of
Assistant Controller of Accounts in 1993 are currently working as Joint Controller. Only one person, Shri M.V. Munirathnappa has been promoted as
Additional Controller of State Accounts on 22.5.1997. The merit position of the candidates, as noticed hereinbefore, had never been questioned and
even now has not been disputed. The respondent, on her own showing, has been presently working in Karnataka Administrative Service, Group 'A',
super-selection post in the scale of pay of Rs. 13820-17220. There are 62 posts in the selection grade and 45 posts in the super selection Grade. The
post of Controller is only one whereas the number of posts of Additional Controller is 9 and that of Joint Controller is 50.
The respondent herself in her additional affidavit stated:
That it is directed by this Hon'ble Court on 15.3.1994 'that for the purposes of seniority, the appellant shall be placed below the last candidate
appointed in 1976, but she will not be entitled to any back wages'. I submit that the select list of the 1976 batch in the Administrative Service (Post
Karnataka Administrative Service Group 'A') comprised 15 candidates. Three of them died, while one did not join service. The service particulars and
promotion accorded to the remaining 11 candidates are indicated in the chart marked herewith as Annexure R-1. I further submit that the 1976 batch
Karnataka Administrative Service Group 'A' (Junior Scale) Officers were promoted to the Karnataka Administrative Service Group 'A' (Senior
Scale). Vide Notification dated 2.9.1983, a copy of which is marked herewith as Annexure R-2, while I was promoted to Karnataka Administrative
Service Group 'A' (Senior Scale) in 1997, vide Notification dated 10.4.1987 the true copy of which is marked herewith as Annexure R-3.
It is, therefore, evident that it had never been nor could be her claim that she should be placed in higher grade ignoring the case of persons
similarly situated.
It is true that the Appellant herein filed an application praying for review of the said order dated 15.03.1994 contending:
…It is respectfully submitted that the Respondent was only included in the additional list of Category I in the prerevised list and was not allocated to
any particular service. The question of appointment of persons included in the additional list would arise only after exhausting the appointment of all
the selected candidates in the main list and as already stated, the Respondent came to be included in the list of Category II after the revision taken by
the K.P.S.C. as directed by the State Government at that point of time. It is also relevant to state here that the Government took a decision not to
operate the Additional List and accordingly the relevant provision providing for publication of the Additional List as provided in SubRule (4) of Rule 11
of the 1966 Rules came to be deleted as per the Notification No. DPAR 46, SRR 76 dt. 21.8.1976
In the order dated 15.03.1994, this Court noticed that the respondent herein had since been promoted to Class I Post of Assistant Commissioner.
As the Respondent was to be appointed in the said post with retrospective effect, a direction was issued to create a supernumerary post therefor as
otherwise it was not necessary to issue any such direction. Furthermore, this Court directed that the Respondent should be placed below the last
candidate appointed in 1976 meaning thereby the same post which she had been holding at the relevant point of time. She was held not to be entitled to
any back wages therefor.
The judgment of this Court dated 15th March, 1994 must be construed in the aforementioned backdrop.
Devin Katti (supra) was not directly applicable to the case of the Appellant. Therein this Court was concerned with the selection process which
started by a notification dated 23.05.1975 which was published on 29.05.1975 only for the post of Tehsildars whereas the respondent herein was
selected in terms of the notification dated 28.11.1974. This Court in the case of the respondent proceeded on the basis that her case was covered by
Devin Katti (supra) in all force, only for applying the ratio that after the selection process had started, her status could not have been altered by the
reservation policy. Her name was not in the First List but was in the Additional List.
Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only because
one person has approached the court that would not mean that persons similarly situated should be treated differently. It is furthermore wellsettled that
the question of seniority should be governed by the rules. It may be true that this Court took notice of the subsequent events, namely, that in the
meantime she had also been promoted as Assistant Commissioner which was a Category I post but the direction to create a supernumerary post to
adjust her must be held to have been issued only with a view to accommodate her therein as otherwise she might have been reverted and not for the
purpose of conferring a benefit to which she was not otherwise entitled to.
It is furthermore not in dispute that the correct position as regard her ranking amongst the successful candidates had not been brought to the notice
of this court and if it had been so done, this Court would have found that she was entitled only to the post of Assistant Controller of Accounts.
It may be true that in the Appellant's application for review, more or less similar pleas were raised, but rejected, but, herein the same is not an
issue as we are concerned only with construction of this Court's order dated 15.03.1994.
Justice demands that a person should not be allowed to derive any undue advantage over other employees. The concept of justice is that one
should get what is due to him or her in law. The concept of justice cannot be stretched so as to cause heart-burning to more meritorious candidates.
Moreover, at the end of the day, the respondent has got what could be given to her in law. As of now, she had already been enjoying a higher scale of
pay than what she would have got if she was to join the post of Assistant Controller. We, therefore, are of the opinion that interest of justice would be
sub-served if she is allowed to continue in her post and direct the appellant to consider her seniority in the administrative service in terms of the order
of this Court dated 15.03.1994 that she would be the last in the seniority list of the appointees in the post of Category I Assistant Commissioner
(Karnataka Administrative Service).
Careful reading of the decision in C.Lalitha (Supra), therefore, reveals that it does not lay down the preposition that Court is empowered to direct the
appointment or regularize by creating supernumerary 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 impugnedjudgment, the High 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 ofthe 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 1-41985 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 ofposts is not within the 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.â€
In view whereof, the impugned order directing for regularization and for creating vacancy and the consequential relief cannot be upheld, consequently
set aside. The impugned order is modified to the extent that the appellant shall consider the case of respondent No.1 in accordance with law, while
keeping the fact in mind that her contemporaries have been considered and regularized.
The appeal is disposed of finally in above terms.