Allahabad High Court
State Of U.P.Through Its ... vs Sajid Hasan on 18 February, 2020
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 4 Case :- SPECIAL APPEAL No. - 559 of 2010 Appellant :- State of U.P. & others Respondent :- Sajid Hasan Counsel for Appellant :- C.S.C. Counsel for Respondent :- Arvind Kumar Sinha Hon'ble Sudhir Agarwal,J.
Hon'ble Virendra Kumar-II,J.
1. Learned Standing Counsel for the appellants is present. None has appeared for respondent, though this appeal has been called in revised. Since, it is an old matter of 2010, therefore, we proceed to decide this appeal after hearing learned Standing Counsel.
2. This intra Court appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952, has arisen from judgment dated 24.07.2009 passed by learned Single Judge, dismissing a number of writ petitions including Writ Petition No. 946 (S/S) 2007, Sajid Hasan Vs. State of Uttar Pradesh and others, filed by Sajid Hasan, petitioner-respondent. Operative part of the said judgment reads as under:
"In the facts and circumstances brought on the record, the Court must presume that since 1996 there must have been sanction of posts and several posts may have been fallen vacant in the department and thus all the writ petitions are allowed with directions that the petitioners, who are appointed on consolidated pay on the posts sanctioned by the State Government by orders dated 19.12.1995 and 29.2.1996 shall be allowed to continue in service. They shall be placed in the regular pay scale with effect from the date of their appointment on consolidated pay with all benefits of increments and allowances and shall be adjusted as and when the posts are sanctioned in the department. If the posts have not been sanctioned so far, the respondents are directed to sanction of posts and to adjust the petitioners on such posts as and when they are sanctioned. The services shall not be dispensed with except on the ground of misconduct. There shall be no orders as to costs."
3. Learned Standing Counsel submitted that learned Single Judge has erred in law in issuing direction to appellants to sanction post and thereafter adjust petitioner-respondent on such post and petitioner-respondent shall not be terminated except on the ground of misconduct. He said that if a person has been appointed without there being any sanctioned post, appointment for such post is not valid and illegal. No benefit can be claimed by such a person.
4. We find substance in the submission. Direction for sanction of post is within the realm of policy and legislative in character. This aspect has been settled in Union of India & ors Vs. Parul Debnath & ors JT 2009 (9) SC 134, wherein the Apex Court held as under :
"....Court cannot direct the creation of posts since the same is prerogative of the executive or the legislative authorities and the Court could not arrogate to itself this purely executive or legislative function and direct creation of the posts in the organization. It was also observed that this Court has, time and again, pointed out that the creation of a post is an executive and legislative function as it involves economic factors". (emphasis added)
5. The same view has been reiterated in Maharastra State Road Transport Corporation & Anr Vs. Casteribe Rajya P. Karmchari Sanghatana JT 2009 (11) SC 609.
6. In view thereof, the appeal is partly allowed and judgment dated 24.07.2009 passed by learned Single Judge, dismissing Writ Petition No. 946 (S/S) 2007, Sajid Hasan Vs. State of Uttar Pradesh and others, is modified and direction issued by learned Single Judge to appellants to sanction the post and adjust petitioner-respondent on such post, when they are sanctioned, is hereby set aside.
7. Now the appellants shall examine validity of the appointment of petitioner-respondent, as to whether appointment was made against sanctioned post or not and if appointment was made against sanctioned post, they shall give all benefits to petitioner-respondent, as directed by learned Single Judge, but in case appointment was made without availability of sanctioned post, appropriate orders shall be passed since such appointment cannot confer any benefit upon petitioner-respondent so as to continue in service or claim him salary from appellants.
8. No costs.
Order Date :- 18.2.2020 Arvind