High Court of H.P. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

CWP No.7013 of 2013 a/w CWP Nos.6996, 7012, 7014 to 7027, 7036,

7037, 7039, 7041 to 7045, 8216 and 9804

of 2013.

Judgment reserved on: 25.4.2014

Date of decision: 6.5.2014.

______________________________________________________

1. CWP No.7013 of 2013.

Naresh Kumar Vs. The State of H.P. & Ors.

2. CWP No.6996 of 2013

Ran Singh Vs. The State of H.P. & Ors.

3. CWP No.7012 of 2013

Ramesh Kumar Vs. The State of H.P. & Ors.

4. CWP No.7014 of 2013

Yog Raj Vs. The Stat e of H.P. & Ors.

5. CWP No.7015 of 2013

Man Singh Vs. The State of H.P. & Ors.

6. CWP No.7016 of 2013

Sohan Lal Vs. The St ate of H.P. & Ors.

7. CWP No.7017 of 2013

Surinder Singh Vs. The State of H.P. & Ors.

8. CWP No.7018 of 2013

Rajender Kumar Vs. The State of H.P. & Ors.

9. CWP No.7019 of 2013

Mohammad Gani Vs. The State of H.P. & Ors.

10. CWP No.7020 of 2013

Rakesh Kumar Vs. The St ate of H.P. & Ors.

11. CWP No.7021 of 2013

Sarita Kumari Vs. The State of H.P. & Ors.

12. CWP No.7022 of 2013

Dumnu Ram Vs. The Stat e of H.P. & Ors.

13. CWP No.7023 of 2013

Surinder Kumar Vs. The State of H.P. & Ors.

14. CWP No.7024 of 2013

Lata Rani Vs. The St ate of H.P. & Ors.

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15. CWP No.7025 of 2013

Anil Kumar Vs.The State of H.P. & Ors.

16. CWP No.7026 of 2013

Surinder Kumar Vs.The State of H.P. & Ors.

17. CWP No.7027 of 2013

Madan Lal Vs.The State of H.P. & Ors.

18. CWP No.7036 of 2013

Vinod Kumar Vs.The State of H.P. & Ors.

19. CWP No.7037 of 2013

Raj Kamal Vs.The State of H.P. & Ors.

20. CWP No.7039 of 2013

Arti Devi Vs.The State of H.P. & Ors.

21. CWP No.7041 of 2013

Surinder Kumar Vs.The State of H.P. & Ors.

22. CWP No.7042 of 2013

Hem Singh Vs.The State of H.P. & Ors.

23. CWP No.7043 of 2013

Mukesh Kumar Vs.The State of H.P. & Ors.

24. CWP No.7044 of 2013

Satish Kumar Vs.The State of H.P. & Ors.

25. CWP No.7045 of 2013

Balwant Singh Vs.The State of H.P. & Ors.

26. CWP No.8216 of 2013

Karam Chand & Ors. Vs.The State of H.P. & Ors.

27. CWP No.9804 of 2013

Rajesh Kumar & others Vs.The State of H.P. & Ors.

Coram

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

Whether approved for reporting?

1

Yes

For the Petitioner(s) : Mr. Sunil Chaudhary, Advocate, for

the petitioner(s) in CWP No.7013 of

2013 a/w CWP Nos.6996, 7012,

7014 to 7027, 7036, 7037, 7039,

7041 to 7045.

Whether the reporters of the local papers may be allowed to see the Judgment? Yes

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High Court of H.P. 3

Ms. Archana Dutt, Advocate, for

petitioner(s) in CWP Nos.8216 and

9804 of 2013.

For the Respondents : Mr. Shrawan Dogra, Advocate

General with Ms. Meenakshi

Sharma, Addl. Advocate General,

Ms. Parul Negi and Mr. Kush

Sharma, Deputy Advocate

Generals.

( In all the above petitions)

Tarlok Singh Chauhan, J)

Since common questions of law and facts arise for

consideration, therefore, this batch of writ petitions are taken up

together for hearing and are being disposed of by common

judgment.

2. The Government of Hiamc hal Pradesh, Department of

Panchayati Raj issued Notification No.PCH-HC(1)-5/2000 dated

21.10.2000, whereby it issued guidelines for engaging Technical

Staff in the Gram Panchayats for the execution of developmental

works. As per this notification, the scheme envisaged was

applicable for all over the State and was to provide employment

opportunities to those unemployed persons who otherwise were

qualified in various trades like Junior Engineers/Surveyors/

Draftsman etc.

3. The petitioners were elig ible and participated in the

selection process and ultimately were appointed as Technical

Assistants (Takniki Sahayak) in the respondent department on

contract basis. The petitioners initially at the time of appointment

were paid fixed honorarium of `1200/- per month and apart from

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this they were also being paid commission at the rate as prescribed

by the respondents department from time to time. As per terms and

conditions of this notification, the petitioners were required to work

only for 4 hours a day.

4. On 18.2.2005, the re spondents issued another

notification superseding the notification dated 21.10.2000 and

formulated a new scheme for engaging Technical Assistants in the

Gram Panchayats. The eligibility of qualification was fixed as

degree/diplomas in Civil Engineering from recognized institution. It

was further provided that all the persons appointed under the

scheme of 21.10.2000 shall also be eligible, if otherwise qualified. It

was further provided that Technical Assistant ( Takniki Sahayak)

was to be paid 2% of the cost of each work as service fee and the

same would be paid in two installments i.e. one on the completion

of 50% of the work and final installment at the completion of the

work.

5. The State Government in supersession of Notification

dated 18.5.2005, issued yet another Notification dated 7.4.2008,

whereby once again new scheme was formulated for engaging

Technical Assistant (Takniki Sahayak) for Gram Panchayats. Now

as per this scheme, the Takniki Sahayak were required to ensure

quality and cost effectiveness of civil works being carried out and

executed by the Gram Pancha yats under National Rural

Employment Guarantee Scheme and all other development works

in the State of Himachal Pradesh. In this notification, the Takniki

Sahayak were given powers to accord technical approval and

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assessment of work of `1,50,000/-. The service fee for the works

upto `50,000/- was fixed at 2% and thereafter 1.5% upto

`1,50,000/-.

6. The State vide notificatio n dated 25.8.2012 enhanced

the minimum fixed monthly amount payment to the petitioners from

`4,000/- and `5,000/- to `5500/-. Besides this, the rate of the

commission for works upto `1,00,000/- was fixed at the rate of 2%,

works upto `2,00,000/- at the rate of 1.50% while the works of

above `2,00,000/- the commission was fixed at the rate of 1.25%.

7. In September, 2012, the respondent-State issued

Notification whereby it was decided to pay `240/- per day to the

Technical Assistants who had completed 10 years of service.

Another change brought in this notification was that the services of

the petitioners from the status of “contract employee” was

converted to that of “daily wager”.

8. Now, the claim of the petitioners is that despite having

been engaged on contract basis from the year 2001 onwards, their

services were required to be regularized as per existing policy of

the State Government but instead of regularizing their services the

same had been converted as aforesaid. The petitioners claim that

no doubt as per notification dated 21.10.2000 they had to work

only for four hours but thereafter this notification was superseded

by notification dated 18.2.2005 and thereafter the petitioners are

working on contract basis for full day. Thus, according to them their

services are required to be regularized as per the existing policy of

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the State Government for contract employees i.e. after completion

of six years of contract service.

9. It was also claimed that the department had not framed

any Recruitment and Promotion Rules for filling up the post of

Takniki Sahayak and the appointments were being made in

accordance with executive instructions/notification issued from time

to time. However, in the year 2012, the draft rules for Recruitment

and Promotion were framed but till date the same have not been

notified by the State Government.

10. On the basis of such submissions, the petitioners

prayed that the notification dated September, 2012 issued by the

respondents department whereby the status of the petitioners has

been converted from “contract employee” to “daily wager” may be

quashed and set aside and the respondents be directed to

regularize the services of the petitioners as per the policy of the

State Government for regularization of contact employees from due

date alongwith all consequential benefits. It is further prayed that

the respondents be directed to consider the case of the petitioners

for paying them `360/- per day with effect from the year 2008 and

lastly, it was prayed that the respondents be directed to frame rules

for regularization of the services of the petitioners keeping in view

the fact that they have already put in more than 12 years of service.

11. The respondents filed thei r reply wherein by way of

preliminary submissions, it was submitted that the petitions were

not maintainable as all the Panchayats which were the appointing

authorities of the petitioners have not been impleaded as necessary

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parties. It was claimed that the petitioners were in fact the

employees of the concerned Panchayats and not of the State

Government and therefore, the services cannot be regularized. It

was also alleged that petitioners have not been recruited through

the Himachal Pradesh Public Service Commission or the Himachal

Pradesh Subordinate Services Selection Board and therefore, they

cannot claim regularization at par with other employees recruited

through these agencies. It was claimed that the job of the Takniki

Sahayak was contractual in nature extendable on the availability of

resources and performance of the concerned Takniki Sahayak. It

was admitted that the Scheme dated 21.10.2000 was superseded

by new Scheme notified vide Notification dated 18.2.2005. The

object of the new scheme was to provide a panel of technically

qualified Takniki Sahayaks at the Block level. The Gram Panchayat

was given choice to select Takniki Sahayak from the panel for

execution of work in the concerned Gram Panchayat. It was

envisaged that there will be no liability on the Gram Panchayat to

pay honorarium to the Takniki Sahayak , in case there was no work

in the Gram Panchayat. Thus, the engagement of the Takniki

Sahayak was “work related which was the main objective of the

Notification dated 18.2.2005”

12. It was claimed that the post of Takniki Sahayak was

not a cadre post of the department and only a panel had been

prepared for requisitioning their services of the Takniki Sahayak as

per the requirement of the Gram Panchayat. Therefore, in such

facts and circumstances, the policy framed by the State

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Government for regularizing the services of its employees was not

applicable to the cases of the petitioners.

13. The petitioners filed rejoinder(s) whereby they denied

the averments made in the reply(s) and reiterated the averments

made in the petitions. In addition to that the petitioners placed on

record an office order issued by the Block Development Officer,

Battiyat, District Chamba to claim that the appointments of the

petitioners in fact had been made by the Government and not by

the concerned Panchayats.

14. During the pendency of the petitions, different

applications for placing on record additional documents was

preferred by the petitioners. The petitioners had sought to place

on record the proceedings of the Cabinet whereby the proposal

made by the Principal Secretary through finance department to the

State Government for considering the wages of the petitioners at

the rate of `360/-per day w.e.f. 7.4.2008 was rejected by the

Cabinet. The petitioners also pointed out in the applications that

the respondents had granted similar relief to the Panchayat

Sahayaks. The Panchayat Sahayaks who have now been re-

designated as Contract Secretary have been regularized w.e.f.

2007 with all consequential benefits. The petitioners placed on

record Notification dated 24.3.2005 issued by the respondents-

State whereby 100 new posts of Junior Engineers was sought to

be filled up and the Selection Committee like in the case of the

petitioners was to comprise and consists of the following members:-

1. Sub Divisional Magist rate : Chairman

2. Chairman P.S. : Member.

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3. Assistant Engineer ( De v.) : Member

4. Executive Officer P.S. : Member Secretary.

It was for the Panchayat Sami ti to invite the application

and would the appointing authority.

15. The petitioners also pl aced on record letter dated

4.4.2014 whereby the Junior Engineers who have completed their 8

years of contract service upto 31.3.2013 have been ordered to be

regularized. Letter dated 9.7.2013 written by the Director

( Panchayati Raj) to the Secretaries Zila Parishad, Shimla,

Hamirpur, Una, Mandi, Kangra, Chamba and Solan, whereby it has

been informed that the contract services of the Junior Engineers

who have completed 6 years services upto 31.3.2013 would be

regularized. Notification dated 9.9.2008 whereby the contract

appointees in the Government Departments had been ordered to

be regularized on completion of 8 years of continuous service upto

31.3.2008, and lastly the proceedings of the Cabinet held on

4.3.2014 wherein the Cabinet had considered and approved the

proposal to regularize the services of the Panchayat Assistants.

16. The learned counsel for the petitioners have

strenuously argued that when their counter parts i.e. Panchayat

Assistants and Junior Engineers were appointed by the similar

selection committee on similar terms and conditions have been

regularized, they alone cannot be singled out. The petitioners had

undergone proper selection in accordance with the scheme and are

duly qualified like to JEs and Panchayat Sahayaks. In fact the draft

rules have been prepared which clearly shows that the cadre of the

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Takniki Sahayak is existing in the department. The matter had

even gone to the Cabinet which gave a step motherly treatment to

the petitioners. In such circumstances, the learned counsel for the

petitioners have contended that the respondents should be called

upon to create distinct and separate cadre and sanction the post

of Takniki Sahayak as had been done by the Hon’ble Supreme

Court in Nihal Singh and others vs. State of Punjab and others

(2013) 14 SCC 65.

17. I need not refer to this judgment in extenso because In

CWP No.6451 of 2011 titled Rakesh Kumar vs. State of H.P. and

others, a co-ordinate Bench (Justice Rajiv Sharma, J) has already

considered the same. The petitioner in the aforesaid case had

claimed to be working uninterruptedly w.e.f. 13.3.2001 and claimed

that his services be regularized. The writ petition was allowed and

the respondents were directed to regularize the services of the

petitioner as Junior Engineer in the District Rural Development

Agency, Shimla. It was observed therein as under:-

9. Mr. Virender K. Verma, learned Additional Advocate General,

has also argued that the petitioner has now been shifted to

Integrated Watershed Management Programme and he has

joined his duties on 13.9.2011. Since the petitioner has been

working as Junior Engineer since 8.3.2001 uninterruptedly, he

had no alternative but to join his duties on 13.9.2011. The

action of the respondent not to regularize the petitioner, who

has put in more than twelve years’ service uninterruptedly, is

arbitrary. It is violative of articles 14 and 16 of the Constitution

of India. The action of the respondent-State not to regularize

the petitioner amounts to unfair labour practice as well. The

respondent-State cannot be permitted to exploit the petitioner

and similar situated persons by keeping them on contract basis

for more than a decade. The respondents have also also not

complied with the letter dated 16.6.2009 annexure P-4. It has

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clearly been spelt out in the letter that after consultation from

the Finance Department, it was agreed that all the District Rural

Development Agencies may adopt the Government of Himachal

Pradesh policy for regularization of daily wages/contract basis

employees as per approved norms of the Government of India.

The petitioner was entitled to be regularized as per instructions

issued by the State Government since he has completed now

more than eight years’ uninterrupted service. There is master

and servant relationship between the petitioner and District

Rural Development Agency, Shimla. The Disciplinary and

Appointing authority of the petitioner, as noticed hereinabove, is

District Rural Development Agency, Shimla.

10. Their Lordships of Hon’ble Supreme Court in Nihal Singh

and ors. vs. State of Punjab and ors., have held as under:-

“17. It is obvious both from the said section and also the

appointment orders, the appellants are appointed by the State

in exercise of the statutory power under section 17 of the Act.

The appellants are amenable to the disciplinary control of the

State as in the case of any other regular police officers. The

only distinction is that they are to be paid daily wages of Rs.35

(which came to be revised from time to time). Further, such

payment was to be made by the bank to whom the services of

each one of the appellants is made available.

18. From the mere fact that the payment of wages came from

the bank at whose disposal the services of each of the

appellants was kept did not render the appellants employees of

those banks. The appointment is made by the State. The

disciplinary control vests with the State. The two factors which

conclusively establish that the relationship of master and

servant exists between the State and the appellants. A fact

which is clearly recognized by the division bench of the High

Court in LPA No.209 of 1992. It may be worthwhile mentioning

here that under the law of contracts in this country the

consideration for a contract need not always necessarily flow

from the parties to a contract. The decision of the SSP to reject

the claim of the appellants only on the basis that the payment of

wages to the appellants herein was being made by the

concerned banks rendering them disentitled to seek

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regularization of their services from the State is clearly

untenable.

21. But we do not see any justification for the State to take a

defence that after permitting the utilization of the services of

large number of people like the appellants for decades to say

that there are no sanctioned posts to absorb the appellants.

Sanctioned posts do not fall from heaven. State has to create

them by a conscious choice on the basis of some rational

assessment of the need.

22. The question is whether this court can compel the State of

Punjab to create posts and absorb the appellants into the

services of the State on a permanent basis consistent with the

Constitution Bench decision of this court in Umadevi’s case. To

answer this question, the ratio decidendi of the Umadevi’s case

is required to be examined. In that case, this Court was

considering the legality of the action of the State in resorting to

irregular appointments without reference to the duty to comply

with the proper appointment procedure contemplated by the

Constitution. “4. … The Union, the States, their departments and

instrumentalities have resorted to irregular appointments,

especially in the lower rungs of the service, without reference to

the duty to ensure a proper appointment procedure through the

Public Service Commissions or otherwise as per the rules

adopted and to permit these irregular appointees or those

appointed on contract or on daily wages, to continue year after

year, thus, keeping out those who are qualified to apply for the

post concerned and depriving them of an opportunity to compete

for the post. It has also led to persons who get employed,

without the following of a regular procedure or even through the

backdoor or on daily wages, approaching the courts, seeking

directions to make them permanent in their posts and to prevent

regular recruitment to the posts concerned. The courts have not

always kept the legal aspects in mind and have occasionally

even stayed the regular process of employment being set in

motion and in some cases, even directed that these illegal,

irregular or improper entrants be absorbed into service. A class

of employment which can only be called “litigious employment”,

has risen like a phoenix seriously impairing the constitutional

scheme. Such orders are passed apparently in exercise of the

wide powers under Article 226 of the Constitution. Whether the

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wide powers under Article 226 of the Constitution are intended

to be used for a purpose certain to defeat the concept of social

justice and equal opportunity for all, subject to affirmative action

in the matter of public employment as recognized by our

Constitution, has to be seriously pondered over.”

(emphasis supplied)

23. It can be seen from the above that the entire issue pivoted

around the fact that the State initially made appointments without

following any rational procedure envisaged under the Scheme of

the Constitution in the matters of public appointments. This court

while recognising the authority of the State to make temporary

appointments engaging workers on daily wages declared that the

regularisation of the employment of such persons which was made

without following the procedure conforming to the requirement of

the Scheme of the Constitution in the matter of public

appointments cannot become an alternate mode of recruitment to

public appointment. It was further declared that the jurisdiction of

the Constitutional Courts under Article 226 or Article 32 cannot be

exercised to compel the State or to enable the State to perpetuate

an illegality. This court held that compelling the State to absorb

persons who were employed by the State as casual workers or

daily-wage workers for a long period on the ground that such a

practice would be an arbitrary practice and violative of Article 14

and would itself offend another aspect of Article 14 i.e. the State

chose initially to appoint such persons without any rational

procedure recognized by law thereby depriving vast number of

other eligible candidates who were similarly situated to compete for

such employment.

24. Even going by the principles laid down in Umadevi’s case, we

are of the opinion that the State of Punjab cannot be heard to say

that the appellants are not entitled to be absorbed into the services

of the State on permanent basis as their appointments were purely

temporary and not against any sanctioned posts created by the

State.

25. In our opinion, the initial appointment of the appellants can

never be categorized as an irregular appointment. The initial

appointment of the appellants is made in accordance with the

statutory procedure contemplated under the Act. The decision to

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resort to such a procedure was taken at the highest level of the

State by conscious choice as already noticed by us. The High

Court in its decision in LPA No.209 of 1992 recorded that the

decision to resort to the procedure under section 17 of the Act was

taken in a meeting dated 24.3.1984 between the Advisor to the

Government of Punjab and senior officers of the various Banks in

the public sector. Such a decision was taken as there was a need

to provide necessary security to the public sector banks. As the

State was not in a position to provide requisite police guards to the

banks, it was decided by the State to resort to section 17 of the

Act. As the employment of such additional force would create a

further financial burden on the State, various public sector banks

undertook to take over the financial burden arising out of such

employment. In this regard, the written statement filed before the

High Court in the instant case by respondent nos.1 to 3 through the

Assistant Inspector General of Police (Welfare & Litigation) is

necessary to be noticed. It is stated in the said affidavit:

“2. That in meeting of higher officers held on 27.3.1984 in

Governor House Chandigarh with Shri Surinder Nath, IPS, Advisor

to Governor of Punjab, in which following decisions were taken:-

i) That it will not be possible to provide police guard to banks

unless the Banks were willing to pay for the same and additional

force could be arranged on that basis, it was decided that police

guards should be requisitioned by the Banks for their biggest

branches located at the Distt. and Sub Divisional towns. They

should place the requisition with the Distt. SSPs endorsing a

copy of IG CID. In the requisition, they should clearly state that

the costs of guard would be met by them. It will then be for the

police department to get additional force sanctioned. This task

should be done on a top priority. In the meantime depending

upon the urgency of the need of any particular branch, police

Deptt. may provide from police strength for its protection.

ii) For all other branches guards will be provided by Distt. SSP

after selecting suitable ex-servicemen or other able bodied

persons who will be appointed as Special Police Officer in terms

of Section 17 of the Police Act. Preference may be given to

persons who may already be in possession of licence weapons.

All persons appointed as SPO for this purpose will be given a

brief training for about 7 days in the Police Lines in the handling

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of weapons taking suitable position for protection of branches.

These SPOs will work under the discipline and control and as per

Police Act, they will have the same powers, privileges and

protection and shall be amenable to same penalty as an ordinary

police personnel.”

26. It can be seen from the above that a selection process was

designed under which the District Senior Superintendent of

Police is required to choose suitable ex-servicemen or other able

bodied persons for being appointed as Special Police Officers in

terms of section 17 of the Act. It is indicated that the persons who

are already in possession of a licensed weapon are to be given

priority.

28. Such a procedure making recruitments through the

employment exchanges was held to be consistent with the

requirement of Articles 14 and 16 of the Constitution by this Court

in Union of India and Ors. v. N. Hargopal and Ors. (1987) 3 SCC

308.[4]

29. The abovementioned process clearly indicates it is not a case

where persons like the appellants were arbitrarily chosen to the

exclusion of other eligible candidates. It required all able bodied

persons to be considered by the SSP who was charged with the

responsibility of selecting suitable candidates.

30. Such a process of selection is sanctioned by law under

section 17 of the Act. Viewed in the context of the situation

prevailing at that point of time in the State of Punjab, such a

process cannot be said to be irrational. The need was to obtain

the services of persons who had some experience and training in

handling an extraordinary situation of dealing with armed

miscreants.”

I am afraid that the ratio of the judgment in Rakesh

Kumar’s case (supra) cannot be made applicable to the case in

hand because unlike the present case there existed a regular cadre

of Junior Engineers against which post the petitioners therein

(Rakesh Kumar) had been ordered to be regularized, while in the

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present case, it is an admitted fact that there is no cadre of Takniki

Sahayak in the respondent department against which post the

petitioner can be ordered to be regularized. Insofar, Nihal Singh

case (supra) is concerned, the appointment of the petitioner therein

was held to be made in exercise of the statutory power under

section 17 of the Police Act, therefore, essentially the post to which

the petitioner therein had been appointed was cadre post. But

nonetheless the other observations of the Apex Court as quoted

above are required to be observed and followed by the

respondents.

18. To counter such arguments, learned Advocate General

has contended that in exercise of jurisdiction, this court would not

venture to legislate nor issue a direction to the legislature to enact

the law in a particular manner. It is argued that the Court would

have a very limited role and in exercise of that power it was not

open to have judicial legislation which is only in exceptional

circumstances where there is inaction by the executive, for

whatever reason, the judiciary must step in, in exercise of its

constitutional obligations to provide a solution till such time the

legislature acts to perform its role by enacting proper legislation to

cover the field. In support of such arguments, the learned Advocate

General has placed reliance on the judgment of the Hon’ble

Supreme Court in V.K. Naswa vs. Home Secretary, Union of

India and others (2012) 2 SCC 542 wherein it has been held that:-

6. It is a settled legal proposition that the court can neither

legislate nor issue a direction to the Legislature to enact in a

particular manner.

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7. In Mullikarjuna Rao. v. A-P (1990 2 SCC 707) and V.K. Sood

v. Department of , Civil Aviation, AIR 1993 SC 2285, this Court

has held that the Writ Court, in exercise of its power under Article

226, has no power even indirectly to require the Executive to

exercise its law-making power. The Court observed that it is

neither legal nor proper for the High Court to issue directions or

advisory sermons to the Executive in respect of the sphere which

is exclusively within the domain of the Executive under the

Constitution. The power under Article 309 of the Constitution to

frame rules is the legislative power. This power under the

Constitution has to be exercised by the President or the

Governor of a State, as the case may be. The Courts cannot

usurp the functions assigned to the Executive under the

Constitution and cannot even indirectly require the Executive to

exercise its law-making power in any manner. The Courts cannot

assume to themselves a supervisory role over the rule-making

power of the Executive under Article 309 of the Constitution.

While deciding the said case, the Court placed reliance on a

large number of judgments, particularly Narinder Chand Hem Raj

& UT, H.P, (AIR 1971 SC 2399, where it has been held that

legislative power can be exercised only by the legislature or its

delegate and none else.

8. In State of H.P. v. A Parent of a Student of Medical College,

AIR 1985 SC 910, this Court deprecated the practice adopted by

the Courts to issue directions to the legislature to enact a

legislation to meet a particular situation observing : (SCC p.174,

para-4.

"4..The direction given by the Division Bench was really nothing

short of an indirect attempt to compel the State Government to

initiate legislation with a view to curbing the evil of ragging, for

Otherwise it is difficult to see why, after the clear and categorical

statement by the chief Secretary on behalf of the State

Government that the Government will introduce legislation if

found necessary and so advised, the Division Bench should have

proceeded to again give the same direction. Thus the Division

Bench was clearly not entitled to do. It is entirely a matter for the

executive branch of the Government to decidd whether or not to

introduce any particular legislation."

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High Court of H.P. 18

9. In Asif Hameed. v. State of J & K, AIR 1989 SC 1899, this

Court while dealing with a case like this at hand observed: (SCC

p.374,para-19)

“19. While doing so, the Court must remain within its self-

imposed limits. The Court sits in judgment on the action of a co-

ordinate branch of the Government. While exercising power of

judicial review of administrative action, the Court is not an

Appellate Authority. The Constitution does not permit the Court to

direct or advise the Executive in matter of policy or to sermonize

qua any matter which under the Constitution lies within the

sphere of Legislature or Executive."

(Emphasis added)

10. In Union of India. v. Deoki Nandan Aggarwal, AIR 1992 SC

96, this Court similarly observed : (SCC p.332, para-14)

“14….It is not the duty of the Court either to enlarge the scope of

the legislation.....The Court cannot rewrite, recast or reframe the

legislation for the very good reason that it has no power to

legislate. The power to legislate has not been conferred on the

Court."

11. Similarly in Ajaib Singh v. Sirhind Co-operative Marketing-

cum-Processing Service Society Ltd. AIR 1999 SC 1351, this

Court held that Court cannot fix a period of limitation, if not fixed

by the legislature, as "the Courts can admittedly interpret the law

and do not make laws." The Court cannot interpret the statutory

provision in such a manner "which would amount to legislation

intentionally left over by the legislature".

12. A similar view has been reiterated by this Court in Union of

India v. Assn. for Democratic Reforms AIR 2002 SC 2112,

observing that the Court cannot issue direction to the legislature

for amending the Act or Rules. It is for the Parliament to amend

the Act or Rules. In District Mining Officer v. TISCO(2001) 7 SCC

358, this Court held that function of the Court is only to expound

the law and not to legislate.

13. Similarly, in Supreme Court Employees' Welfare Assn. v.

Union of India (1989) 4 SCC 187, this Court held that Court

cannot direct the legislature to enact a particular law for the

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High Court of H.P. 19

reason that under the constitutional scheme the Parliament

exercises sovereign power to enact law and no outside power or

authority can issue a particular piece of legislation. (See also:

State of J & K v. A.R. Zakki AIR 1992 SC 1546).

14. In Union of India v. Prakash P. Hinduja AIR 2003 SC 2612,

this Court held that if the Court issues a direction which amounts

to legislation and is not complied with by the State, it cannot be

held that the State has committed the Contempt of Court for the

reason that the order passed by the Court was without

jurisdiction and it has no competence to issue a direction

amounting to legislation.

15. The issue involved herein was considered by this Court in

University of Kerala v. Council of Principals' of Colleges, AIR

2010 SC 2532. The Court elaborately explained the scope of

separation of powers of different organs of the State under our

Constitution; the validity of judicial legislation and if it is at all

permissible, its limits; and the validity of judicial activism and the

need for judicial restraint, etc. The Court observed: (SCC p.361,

para-13)

“13….. 19. At the outset, we would say that it is not possible for

this Court to give any direction for amending the Act or the

statutory rules. It is for Parliament to amend the Act and the

Rules.,*"

16. In State of U.P. & Ors. v. Jeet S. Bisht (2007) 6 SCC 586, this

Court held that issuing any such direction may amount to

amendment of law which falls exclusively within the domain of

the executive/legislature and the Court cannot amend the law.

17. In Delhi Jal Board v. National Campaign for Dignity and

Rights of Sewerage and Allied Workers (2011) 8 SCC 568, this

Court while dealing with the issue made the observation that in

exceptional circumstances where there is inaction by the

executive, for whatever reason, the judiciary must step in, in

exercise of its Constitutional obligations to provide a solution till

such time the legislature acts to perform its role by enacting

proper legislation to cover the field. (See also: Vishaka v. State of

Rajasthan. AIR 1997 SC 3011; Common Cause v. Union of India

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High Court of H.P. 20

, AIR 2008 SC 2116; and Destruction of Public and Private

Properties v. State of A.P. AIR 2009 SC 2266)

18. Thus, it is crystal clear that the Court has a very limited role

and in exercise of that, it is not open to have judicial legislation.

Neither the Court can legislate, nor has it any competence to

issue directions to the legislature to enact the law in a particular

manner.

19. It is not in dispute that the Panchayat Sahayaks and

Junior Engineers of the Panchayats were appointed by the

respondents in the same and similar manner to that of the

petitioners herein and have already been regularized. It is only the

petitioners who have been given step motherly treatment for no

justifiable reason The action of the respondents not to regularize

the services of the petitioners, who have admittedly put in more

than twelve years’ service at the time of filing of the petitions

uninterruptedly, to say the least, is arbitrary. It is also violative of

Articles 14 and 16 of the Constitution of India. The State has

indulged in exploitation and unfair labour practice by keeping the

petitioners on ‘contract basis’ for more than a decade. The

petitioners have been discriminated as their counter parts i.e. Junior

Engineers and Panchayat Saha yaks have already been

regularized.

20. The State is a Model employer and cannot be

permitted to indulge in discrimination with its employees. This Court

in H.P. State Industial Development Corporation Ltd. vs. Shri

Rajesh Kumar Kashyap 2014(2) HLR (DB) 764 has held as

follows:-

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High Court of H.P. 21

“17.The Central Government, State Governments and likewise all

Public Sector Undertakings are expected to function like model

employers. A model employer is under an obligation to conduct

itself with high probity and expected candour. An employer who

is duty bound to act as a model employer has social obligation to

treat an employee in an appropriate manner so that an employee

is not condemned to feel totally subservient to situation. A

model employer should not exploit the employees and take

advantage of their helplessness and misery. Even in this case,

the stand of the respondent is reprehensible and falls short of

expectation of a model employer.”

21. However, despite making the aforesaid observations

this Court cannot order the creation of the posts and at the same

time cannot also direct the status of permanency or regularization

to be granted to the petitioners, as held by the Hon’ble Supreme

Court in Maharashtra State Road Transport Corporation and

another vs. Casteribe Rajya Parivahan Karamchari Sanghatana

(2009) 8 SCC 556:-

“37. There cannot be any quarrel with the proposition that courts

cannot direct creation of posts. In Mahatma Phule Agricultural

University vs. Nasik Zilla Sheth Kamgar Union (2001) 7 SCC

346, this Court held: (SCC pp.353-53, paras 12-14).

"12. 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

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High Court of H.P. 22

the matter no useful purpose would be served in undergoing any

such exercise.

13. To be seen that, in the impugned judgment, 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.

14. Further, Item 6 of Schedule IV of the MRTU & PULP Act

reads as follows:

‘6. 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

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High Court of H.P. 23

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."

38. In the case of State of Maharashtra and Another vs.

R.S.Bhonde (2005) 6 SCC 751, this Court relied upon earlier

judgment Mahatma Phule Agricultural University and reiterated

the legal position thus: SCC p.754, para-7)

"7. Additionally, as observed by this Court in Mahatma Phule

Agricultural University v. Nasik Zilla Sheth Kamgar Union (2001)

7 SCC 346 the status of permanency cannot be granted when

there is no post. Again in Gram Sevak Prashikshan Kendra v.

Workmen (2001) 7 SCC 356, 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."

39. In Indian Drugs & Pharmaceuticals Ltd. vs. Workmen, Indian

Drugs & Pharmaceuticals Ltd. (2007) 1 SCC 408, this Court

stated that courts cannot create a post where none exists. In

paragraph 37 of the report, this Court held: (SCC p.426)

"37. Creation and abolition of posts and regularisation are purely

executive functions vide P.U. Joshi v. Accountant General (2003)

2 SCC 632. 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."

40. In yet another case, Aravali Golf Club and Another vs.

Chander Hass (2008) 1 SCC 683, this Court said: (SCC p.688

para-15)

"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

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High Court of H.P. 24

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."

41. Thus, there is no doubt that creation of posts 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.”

22. Nonetheless, the matter ca nnot be permitted to rest

here. The respondents-State who are model employer still owe a

duty to remove the discrimination, discontent and hard burning of

the petitioners, particularly, when their counter parts i.e. Junior

Engineers and Panchayat Saha yaks have already been

regularized. The State cannot be permitted to continue to exploit

the petitioners and perpetuate and prolong the illegality especially,

when the appointments of the petitioners are not illegal or irregular

as they have been appointed after due selection in accordance with

the scheme like the Junior Engineers and Panchayat Sahayaks.

23. Taking into considerat ion the aforesaid facts and

circumstances, all the abovesaid petitions are disposed of with the

directions to the State Government to consider the cases of the

petitioners in light of the decision already taken by it in the case of

Junior Engineers and Panchayat Sahayak and also keeping in view

the observations made hereinabove, with due deference to the

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High Court of H.P. 25

judgment of the Hon’ble Supreme Court in Nihal Singh’s case.

The decision be taken positively within a period of three months.

Needless to say that the petitioners are at liberty to approach the

Court in case the decision goes against them. All the pending

application(s) are also disposed of with no order as to costs.

May 6, 2014 (Tarlok Singh Chauhan),

(sks) Judge.

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