IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 466/2006 Reserved on:9.9.2008 Decided on:23.10. 2008 Sushil Thakur and others. …Petitioners. Versus State of Himachal Pradesh and others. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.yes. For the Petitioners : Ms. Jyotsana Rewal Dua, Advocate. For the Respondents : Mr. Rajinder Dogra, Additional Advocate General with Mr. Vikas Rathore, Deputy Advocate General for respondent No.1. Mr. Ajay Mohan Goel, Advocate for respodnent.2. Rajiv Sharma, J. Brief facts necessary for the adjudication of this writ petition are that the petitioners are working as Steno-Typists in the various subordinate courts situated in the State of Himachal Pradesh. The post of Steno-typist is in the feeder category for promotion to the post of Junior Scale Stenographer. The post of Junior Scale Stenographer is in the feeder category for promotion to the post of Senior Scale Stenographer. 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes 2 The only channel for promotion thereafter is to the post of Personal Assistant to the learned District and Sessions Judge. The Steno-typists working in various subordinate courts in the State of Himachal Pradesh filed a writ petition bearing No. 286/1999 seeking the following reliefs: a) “Direct creation/up-gradation of 18 posts of Judgment Writers in the pay scale of Rs. 2000-3500 plus 100/- as special pay revised to Rs. 6400-10640 in the court of District and Sessions Judge/Addl. District and Sessions Judges in H.P. b) Direct creation of 63 posts of Judgment Writers in the pay scale of Rs. 1800-3200 plus Rs. 80/- as Special pay in the subordinate courts in the H.P. on the recommendation of the High Court. c) Direct filling up 18 posts of judgment writers in the Courts of District and Sessions Judges/Addl. District & Sessions Judge and 63 posts of JWs in other subordinate Courts in H.P. d) Direct the production of all relevant records. e) Allow any other relief in favour of the petitioners which this Hon’ble Court deems fit and proper in the facts and circumstances of the case.” This Court disposed of the writ petition No. 286 of 1999 on 23.2.2004. The operative portion of the judgment reads thus: “After having considered the respective submissions urged on behalf of the parties and also having perused the record produced by respondent No.2 and also particularly keeping in view the fact that certain more Courts were admittedly created in the year 1999 and some are likely to be crated, in course of time, so far prayer made for creation of regular posts in the relevant pay scale in accordance with the rules on behalf of the petitioner is concerned, it cannot be considered favourably at this stage. It is, however, clarified that so far as 27 posts of JWs created in terms of the above 3 extracted communication from respondent No.1 are concerned and for that matter those may be created in future on contract basis, respondent No.1 is directed to continue all such posts indefinitely and not on yearly basis. It is further directed that in course of time these posts will be created in accordance with the recruitment rules as may be applicable from time to time. It is, however, clarified that so far as eligible persons who are already working in all the Courts in the State of H.P. are concerned. First they shall be considered for being promoted against the regularly created posts of JWs in accordance with the Rules and their right will no, in any manner, be affected by the appointments made on contract basis. So far the creation of 50 more posts of JWs in terms of the communication dated 23.12.2003 supra from the High Court to respondent No.1 is concerned, the latter is directed and mandated to examine the matter forthwith. In case any other or further information is required from the Registry of this High Court, Mr. Sharma submitted that needful will be done as and it is sought for. While examining this communication, a decision will be taken for the creation of these posts too by or before 30.4.2004. It hardly needs to be reiterated that so far as requirement of Judiciary is concerned, the opinion of the High Court has to have primacy. In case of any difference as to how the matter is to be resolved is no more res integra. (See Union of India and Another v. S.B. Vohra and others (JT 2004 (1) 38, State of Himachal Pradesh v. Sh. P.D. Attri, (1999) 3 SCC 217; Supreme Court Employees Welfare Association v. Union of India and another, JT (1989) 3 SC 188. In addition to these decisions, respondent No.1, while examining the matter, will also keep in view the decision of the Supreme Court in civil appeal No. 4586 of 1995 (Arising out of SLP (Civil) No. 3341 of 1995), State of H.P. and another v. H.P. Non- Gazetted judicial Employees Welfare Association and another. 4 Writ petition stands disposed of in the aforesaid terms, reserving liberty to the parties to seek further directions, if necessary from the Court. All pending applications also stand disposed of. No costs.” It is borne out from the record that during the pendency of CWP No. 286/1999, 27 posts of Judgment Writers were created on contract basis. The present petition has been filed seeking following reliefs: (i) “That this Hon’ble Court may kindly be pleased to call for the record of this case and pass appropriate orders in the facts and circumstances of the matter and issue appropriate directions. (ii) That the respondents be directed to create regular posts of Judgment Writers in accordance with the Recruitment Rules as applicable to respondent No.2. (iii) That the respondent No.1 be directed to convert the posts of Judgment Writers so appointed on contract basis, as per the judgment passed in CWP 286 of 1999, on regular basis or in the alternative, regular posts of Judgment Writers be created in a phased manner to be filled up in the Subordinate Judiciary as per the directions of the Hon’ble Court in CWP No. 286 of 1999.’ (iv) That the respondents be directed to abide by the judgment passed in CWP No. 286 of 1999 and thus, not affecting the rights of the petitioners adversely. (v) That any other order which this Hon’ble Court deems fit in the facts and circumstances of the matter may also be passed in favour of the petitioners. (vi) That the cost of the petition may kindly be awarded to the petitioners.” It is averred in the petition that the persons, who have been appointed as Judgment Writers on contract basis are drawing more salary than the Steno-typists. Further case of the petitioners is that as per the 5 judgment rendered by this Court in CWP No. 286/1999, 77 posts of Judgment Writers already created on contract basis, should be made permanent and the petitioners should be considered against the same. They have further contended that the rights of the petitioners should not be adversely affected as per the observations made by this Court in the judgment in CWP No. 286/1999 while filling up the posts of the Judgment Writers and they should be given preference. The principal stand of the respondent-State is that the creation of the posts is a policy matter and the financial health of the State has to be taken into consideration. It is further contended by the respondent-State in its reply that the averment made by the petitioners that their pay package is less than the Judgment Writer is factually incorrect. The case set out by respondent No.2 is that the petitioners have no cause of action for the time being and as and when the posts of Judgment Writers are regularly created, the Recruitment and Promotion Rules will be framed for filling up these posts and if the petitioners are found eligible, they shall be considered for appointment against these posts by way of promotion or otherwise alongwith eligible candidates. Ms. Jyotsna Rewal Dua, Advocate has strenuously contended that 77 posts of Judgment Writers have already been created by the respondent-State on contract basis and these posts are required to be created on permanent/regular basis. She further contended that respondent No.2 vide communication dated 23.4.2007 has requested the respondent-State to create 77 posts of Judgment Writers in the pay scale of Rs. 5800-9200 on regular basis. She has lastly relied upon the observations made by this Court in judgment rendered in CWP No. 286/1999 whereby the learned Single Judge had directed the State to examine the entire issue forthwith. 6 Mr. Rajinder Dogra, additional Advocate General has vehemently argued that to create or not create the post is a policy matter and this Court has very limited jurisdiction to interfere in the policy matters. Mr. Ajay Mohan Goel, Advocate has reiterated the stand taken in the reply filed by respondent No.2. He also contended that the case of the petitioners in no manner is comparable with the Judgment Writers, who are manning these posts on contractual basis. I have heard the learned counsel for the parties and perused the documents placed on record. It is not disputed that during the pendency of this writ petition 27 posts of Judgment Writers were created on contract basis. The persons manning these posts were granted consolidated salary of Rs. 6000/- per month, however, as per subsequent letter issued by the respondent-State they have been held entitled to initial of the pay scale + dearness allowance. It is also not disputed that the Registry of the High Court had earlier taken up the issue with the respondent-State for creation of 50 posts of Judgment Writers on regular basis vide communications dated 23.12.2003 and 23.4.2007 in the pay scale of Rs. 5800-9200. The petitioners are working as Steno-typists. Their service conditions are governed under the Himachal Pradesh Subordinate Courts’ Staff (Recruitment Promotion and Conditions of Service) Rules, 1997. The post of steno-typist is in feeder category as discussed hereinabove for the post of Junior Scale Stenographer. The posts of Judgment Writers have been created by the State on contractual basis. It is only when the posts are created on permanent/regular basis the Recruitment and Promotion Rules governing the conditions of service of the members of the cadre will be framed. It is in the domain of the rule making authorities what rules should be made but they should conform to Articles 14 and 16 7 of the Constitution of India. The Court cannot presume that in the Recruitment and Promotion Rules if ultimately, 77 posts of the Judgment Writers are created there would be a provision of promotion of the category to which the petitioner belongs. The submissions that there should be provision for considering the petitioners for appointment against the post of Judgment Writers in the Recruitment and Promotion Rules to be framed is misconceived. The petitioners in the present case have assumed so many imaginary things which are contrary to the well settled principles of service jurisprudence. The submission of the learned counsel for the petitioners that the petitioners are adversely affected by putting the Judgment Writers in the initial pay with dearness allowance is wholly misconceived. This Court had directed the respondent-State to take a decision for the creation of posts on or before 30.4.2004 while disposing of the earlier writ petition on 23.2.2004. The stand of the State is that the creation of posts is a policy matter and this is not open to judicial review by this Court. Their Lordships of the Hon’ble Supreme Court in The Commissioner, Corporation of Madras versus Madras Corporation Teachers’ Mandram and others, AIR 1997 SC 2131 have held that the creation of post or prescribing qualification for post is executive policy of the Government and the Administrative Tribunal cannot give directions for creation of post or to prescribe minimum qualifications for the post. Their Lordships have held as under as under: “Learned counsel for the respondents, in fairness, was unable to meet the contention but he sought to sustain this order on the ground that appointment by transfer affects in-service candidates. We cannot go into it because it is not the subject-matter in this case. Under these circumstances, as stated earlier, the question is : whether the Tribunal can give direction to create a post 8 or to prescribe the minimum qualifications for the post ? It is well settled legal position that it is the legal or executive policy of the Government to create a post or to prescribe the qualifications for the post. The Court or Tribunal is devoid of power to give such direction. The impugned direction, therefore, is clearly illegal.” In the present case the petitioners are seeking directions to the respondents for the creation/conversion of 77 posts of Judgment Writers on permanent basis. This Court is of the firm opinion that mandamus cannot be issued to the State to create posts. It falls in the realm of policy. True it is that once a recommendation has been sent by the Registry of the High Court for the creation of the posts, the same should be viewed in right perspective by the State. Their Lordships of the Hon’ble Supreme Court have held in the following cases that the Court, Tribunal, cannot direct the government to frame statutory rules or amend existing statutory rules under Article 309 of the Constitution of India. Their Lordships have held in Mallikarjuna Rao and others v. State of Andhra Pradesh and others, (1990)2 SCC 707 as under : “Special Rules have been framed under Article 309 of the Constitution of India. The power under Article 309 of the Constitution of India 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 High Courts or the Administrative Tribunals cannot issue a mandate to the State Government to legislate under Article 309 of the Constitution of India. The courts cannot usurp the functions assigned to the executive under the Constitution and cannot even indirectly require the executive to exercise its rule making power in any manner. The courts cannot assume to itself a 9 supervisory role over the rule making power of the executive under Article 309 of the Constitution of India.” Their Lordships of the Supreme Court have held in State of Jammu and Kashmir vs. A.R. Zakki and others, 1992 Supp (1) SCC 548 that the power to frame rules is legislative in nature and a writ of mandamus cannot, therefore, be issued directing the State Government to make the rules. Their Lordships have held as under: “In our opinion there is considerable merit in this submission. A writ of mandamus cannot be issued to the legislature to enact a particular legislation. Same is true as regards the executive when it exercises the power to make rules, which are in the nature of subordinate legislation. Section 110 of the J and K Constitution, which is on the same lines as Article 234 of the Constitution of India vests in the Governor, the power to make rules for appointments of persons other than the District Judges to the Judicial Service of the State of J and K and for framing of such rules, the Governor is required to consult the Commission and the High Court. This power to frame rules is legislative in nature. A writ of mandamus cannot, therefore, be issued directing the State Government to make the rules in accordance with the proposal made by the High Court. The aforesaid observations leave no room for doubt that the purport of the direction that has been given by the High Court is that the amendments that have been recommended by the High Court should be incorporated in the rules. In our opinion, such a direction was impermissible and cannot be upheld.” The Hon’ble Supreme Court has further observed in Union of India and others vs. Syed Mohd. Raja Kazmi and others, 1992 Supp (2) SCC 534 that it is not open for the Administrative Tribunal or for the Courts to interfere with and to dictate the avenues of promotion, which the 10 department should provide for its various employees. Their Lordships have held as under: “It is not for the Administrative Tribunal or for the Courts to interfere with and to dictate the avenues of promotion which the department should provide for its various employees. The Courts cannot, we think, direct that TAs should be made a direct feeder post to HCs superior to UDcs.” Similarly, their Lordships of the Supreme Court have reiterated in Govt. of T.N. and another v. S.Arumugham and others, (1998) 2 SCC 198 that the Government has a right to frame a policy to ensure efficient and proper administration and to provide suitable channels of promotion to officers working in different departments and offices. Their Lordships have held as under : The Tribunal itself came to the conclusion that combining all the departments and having a common seniority list was neither justified nor feasible. But it has given directions for a different kind of allocation and a different scheme. These directions pertain to policy matters. The Tribunal ought not to have directed the Government to change its policy. The Government has a right to frame a policy to ensure efficiency and proper administration and to provide suitable channels of promotion to officers working in different departments and offices. In Indian Rly. Service of Mechanical Engineers’ Assn. v. Indian Rly. Traffic Service Assn. this Court reiterated that the correctness of a policy should not be questioned by the Tribunal. The appellants in their affidavit before the Tribunal have given in detail the history of these provisions and the justification for these provisions in the interests of efficiency and proper administration. The Tribunal cannot substitute its own views for the views of the Government or direct a new policy based on the Tribunal’s view of how the 11 allocation should be made. The three groups which have been formed as far back as in 1977 for the purposes of allocation consist of officers performing different functions and having different prospects and different avenues of promotion. They cannot be equated for the purposes of Articles 14 or 16. In the case of Govind Dattatray Kelkar v. Chief Controller of Imports & Exports this Court held that the concept of equality in the matter of promotion can be predicated only when promotees are drawn from the same source. If the preferential treatment of one source in relation to the other is based on the difference between the two sources, the recruitment can be justified as legitimate classification. This reasoning directly applies in the present case. Therefore, the scheme does not violate Articles 14 of 16, nor is it arbitrary. The quota which should be fixed or the allocation which should be made for the purpose of deputing officers to the Tamil Nadu Revenue Subordinate Service is basically in the domain of the executive. Unless there is a clear violation of any provision of the Constitution, the Tribunal ought not to have given directions for formulating a new policy and a different quota.” Every employee has a right of consideration to promotion but the promotion cannot be claimed as a matter of right. However, he and she has to be considered in accordance with the existing recruitment and promotion rules. It is for the State to decide that who will be suitable for the post and what should be channel of promotion for such post. Their Lordships of the Supreme Court in latest Judgement 2008 (2) Scale 626 T.N.Electricity Board and another vs. T.N.Electricity Board Thozhilalar Aykkiya Sangam have held as under: “Therefore, this a matter of policy decision taken by the Board that henceforth the persons holding N.T.C./N.A.C. appointed as Helpers will have the channel of promotion 12 to the technical post and not to the administrative post. It is true that prior to 1986 the persons who are appointed as Helpers were also appointed as Junior Assistants and Technicians in the office. After the decision taken by the Board Helpers have been appointed who only possess the N.T.C/N.A.C. certificate. The Board has now channelised the promotions of these persons in the category of technical posts and not in the administrative posts. This is a policy decision taken by the Board and it has been incorporated in service regulation. Therefore, the candidates were recruited on the post of Helper possessing this qualification, their channel of promotion is only to technical post and there cannot be any doubt about it. This was a categorical policy decision taken by the Board and therefore, the channel of promotion of these persons now will be only to the technical post and not to the administrative post. Therefore, this provision which has been made in the service condition cannot be said to be discriminatory or arbitrary or violative under Article 19(1)(g) in any manner. This is a policy decision of the Board and it is the Board who has to decide that who will be suitable for the post and what should be the channel of promotion for such post. It is not for the incumbent serving as a Helper to insist that the Board should amend the Regulation which suits him. It is the prerogative of the Board to decide that what shall be the channel of promotion for technical and for non technical persons. In this case the Board has decided on a rational basis that the channel of promotion of technical persons will be on technical side and not on the administrative side.” However, the Court cannot ignore the peremptory directions issued by this court in CWP No. 286/1999 whereby the State was directed to forthwith look into the request made by the Registry of the High Court for 13 creation of posts of Judgment Writers. This decision was to be taken by the State on or before 30.4.2004. Once the peremptory direction has been issued by the High Court, it was incumbent upon the State to take a decision either way. The Registry of the High Court has raised the demand for creation of 77 posts of the Judgment Writers on regular basis by way of two communications as gathered from the pleadings of the parties i.e. 23.12.2003 and 23.4.2007. It is evident from the surrejoinder that in the communication dated 23.4.2007, the High Court while seeking creation of 77 posts of the Judgment Writers has given the financial implications involved therein. The pay scale as suggested by the Court of the Judgment Writers is to be Rs. 5800-9200. The respondent-State should have taken a reasonable view once the demand has been raised by the Registry of the High Court. The State has already created 77 posts of the Judgments Writers on contractual basis. These posts are manned by 77 Judgment Writers. The State is already making the funds available for defraying the salary of these persons. Their Lordships of the Hon’ble Supreme Court in State of Himachal Pradesh versus P.D. Attri and others, (1999) 3 SCC 217 have held that once the proposal is sent by the High Court, the same is required to be dealt with all seriousness it deserves. Their Lordships have held as under: “But then the fact remains that when the chief justice of the Himachal Pradesh High court made recommendations to the governor to redesignate/equate the posts of Senior Translators and Junior Translators in the Himachal Pradesh High court to those in the Punjab & Haryana High court, no decision was communicated which led the respondents to approach the High court on its judicial side. Recommendations of the chief justice of the High court are to be given due deference and utmost consideration by the State 14 government. It certainly cannot sleep over the recommendations. Things have now certainly changed after the decision of this court Sunder Sham Kapoor's case [1997 9