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Judgment
This LPA has been directed against the judgment dated: 12.12.2003 passed by the learned Single Judge whereby the writ petition of the
petitioner has been dismissed seeking regularization of promotion to the post, of Head Kitchen Steward.
The petitioner while working as Kitchen Steward was directed to officiate as Head Kitchen Steward on temporary basis by the Manager, (O),
CLVH, Srinagar vide his order dated: 31.8.1995. The petitioner was neither promoted nor regularized. This order has been withdrawn vide
impugned order dated: 05.03.2003 by the respondents. Aggrieved of this impugned order, petitioner approached the court by means of SWP No.
405/2003. On hearing the learned counsel for the parties, learned Single Judge dismissed the writ petition on the ground that there was no post and
arrangement made was unwarranted.
Aggrieved of the order of the learned Single Judge, the appellant has filed this LPA on the ground that there is a post and the reply filed by the
respondents is incorrect.
We have heard learned counsel for the parties and perused the record.
Learned counsel for the appellant has submitted that respondents were not correct and justified in taking a stand in the Counter Affidavit that
there is no vacancy to Head Kitchen Steward whereas the appellant was placed in a particular pay scale in the year 1995 against a vacancy. The
appellant could not make out by way of any evidence that the vacancy of Head Kitchen Steward exists against which the appellant was adjusted.
The respondents have stated in the Counter Affidavit that there is no vacancy and, therefore, the order has been withdrawn. No appointment can
be made unless there is a vacancy. This proposition of law has been settled by the Supreme Court in case titled Himachal Road Transport
Corporation Vs. Dinesh Kumar, holding that:
We are of the view that the Himachal Pradesh Administrative Tribunal acted illegally and without jurisdiction in passing the orders dated:
27.3.1995 and 6.3.1995 and in directing that the respondents be appointed in the regular clerical posts forthwith. In the absence of vacancy it is
not open to the Corporation to appoint a person to any post. It will be a gross abuse of the powers of a public authority to appoint persons when
vacancies are not available. If persons are so appointed and paid salaries, it will be a mere misuse of public funds, which is totally unauthorized.
It is not made out by the appellant that there was a vacancy and the petitioner against that vacancy was to be considered for regularization of
promotion. No case for interference is made out. The LPA is accordingly dismissed.