IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 40 of 2006 [ 1. Uttaranchal Pey Jal Sansadhan Vikas Evam Nirman Nigam Through its Managing Director, Mohini Road, Dehradun. 2. Finance Director, Uttaranchal Pey Jal Sansadhan Vikas Evam Nirman Nigam, Mohini Road, Dehradun. ...…………. Appellants Versus 1. S.N. Nautiyal S/o Sri Bashba Nand Nautiyal Presently posted as Cashier, Construction Division, Uttaranchal Pey Jal Nigam, Uttarkashi. 2. State of Uttaranchal (now State of Uttarakhand) through its Chief Secretary, Secretariat, Dehradun. ...…………. Respondents Mr. D.S. Patni, Advocate, present for the appellants. Mr. C.D. Bahuguna, Advocate, present for respondent No. 1. Mr. Lalit Sharma, Brief Holder, present for respondent No. 2. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble V. K. Bist, J. Prafulla C. Pant, J. (oral) This special appeal is directed against the judgment and order dated 05.05.2006, passed by 2 learned single Judge of this court, in Writ Petition No. 1683 (S/S) of 2005, whereby said court has directed the respondents to take suitable steps to amend Regulation 5 of the U.P. Jal Nigam Accountants Service Regulations of 1997, so as to grant equivalence to the degree / qualification of M.Com. to that of the qualification obtained under Divisional Test (for short DT), within a period of two months. A further direction has been issued by learned single Judge in said writ petition that the Corporation (appellant) shall take fresh steps to reconsider the case of the petitioner and pass appropriate order to promote him to the post of Accountant, within a month thereafter. 2) Heard learned counsel for the parties and perused the record. 3) Brief facts of the case are that the writ petitioner (respondent No. 1) S.N. Nautiyal was appointed as a Clerk in U.P. Jal Nigam on 04.10.1978, in Uttarkashi. Thereafter, he was promoted and posted as Accounts Clerk in the year 1994, and finally as Cashier w.e.f. 07.10.1997. He made a representation on 02.03.1998, to the Finance Director of U.P. Jal Nigam, Lucknow, for his promotion on the post of Accountant on the strength of Government Order dated 11.08.1983, which provided that Assistant Accountant having qualification of M.Com. with Accountancy as a subject in B.Com., would be entitled to the promotion to the 3 post of Accountant. However, when no heed was paid on his representation, he (writ petitioner / present respondent No. 1) filed Writ Petition No. 41325 of 1999, in the Allahabad High Court, which was disposed of vide order dated 27.09.1999, directing the Finance Director of the U.P. Jal Nigam to decide the representation of the petitioner. In compliance of said order of the Allahabad High Court, representation of the writ petitioner was considered and rejected by the authority concerned on 18.11.1999. The writ petitioner (present respondent No. 1) in the second round of litigation, filed another Writ Petition No. 5706 of 2000 before the Allahabad High Court, challenging the rejection of the representation by aforesaid authority. That writ petition was transferred to this court after creation of State of Uttaranchal / Uttarakhand, which was re-numbered as Writ Petition No. 1182 (S/S) of 2001. Said writ petition was disposed of by this court vide its order dated 20th May 2005, directing the respondents of said case that if similarly situated officials in the establishment having qualification of M.Com. or DT, and junior to the petitioner have been promoted, the petitioner shall also be promoted to the post of Accountant. However, a review application appears to have been moved by the present appellants in said writ petition, which was disposed of with the observation that the respondents in the writ petition shall consider promotion of the petitioner on the post of Accountant in accordance with law, within a period of 4 two months. In compliance of this court’s order dated 20th May 2005 read with order dated 11.08.2005, the respondent No. 1 in said case (present appellant No. 2) vide its order dated 07.10.2005, rejected the claim of the petitioner for promotion to the post of Accountant on the ground that the writ petitioner does not fulfill the conditions mentioned in the relevant rule of the Rules applicable to him. Aggrieved by said order, in the third round of litigation, the writ petitioner filed Writ Petition No. 1683 (S/S) of 2005, challenging the order passed by appellant No. 2. A writ in the nature of certiorari was sought quashing the order dated 07.10.2005. By way of amendment a mandamus was sought directing the respondents to take suitable steps to amend Regulation 5 of the Accountants Service Regulations 1997, so as to grant equivalence to the qualification of M.Com. to that of DT. Also, the writ petitioner sought further direction for reconsideration of his case for promotion to the post of Accountant in the light of the amended Rule. 4) In the counter affidavit filed on behalf of the present appellants (respondents in the writ petition) the appointment of the writ petitioner with U.P. Jal Nigam, and thereafter transfer of his services to the appellant organization, after creation of State of Uttarakhand, are not disputed. It is also not disputed that the writ petitioner was working as Cashier. However, it is stated that the Government Order dated 11.08.1983, 5 relied by the writ petitioner was not applicable to the employees of Uttaranchal Pel Jal Nigam (appellant No. 1) [after enforcement of U.P. Jal Nigam Accountants Service Rules, 1997], as such, no benefit can be claimed on its basis. It is also pleaded by the answering respondents (present appellants) in the writ petition, that the services of the employees of appellant No. 1, including that of the writ petitioner, are governed by U.P. Jal Nigam Account Service Regulation, 1997, and petitioner can be given promotion only if he fulfills the conditions under the Rules. It is also stated in the counter affidavit that merely on the basis of seniority the writ petitioner cannot be promoted as Accountant, as the Divisional Test (DT) is required to be cleared for being promoted through the direct quota. The juniors to the writ petitioner who were promoted to the post of Accountant cleared the DT before their promotion. Defending the impugned order dated 07.10.2005, passed by appellant No. 2, it is stated that the same is speaking one and based on the service rules by which the services of the writ petitioner are governed. It is also pleaded by the appellants before the learned single Judge that the Finance Director (appellant No. 2) had considered the promotion of the writ petitioner in compliance of High Court’s order passed in the writ petition filed in earlier round of litigation, but as he did not fulfill the conditions required under the rules, as such, could not be promoted. 6 5) Learned single Judge quoted Regulation 5 of the U.P. Jal Nigam Accountants Service Regulations, 1997, which is admittedly applicable to the employees of the appellant’s organization, and considered the rival submissions of the parties. Learned single Judge opined that there was substance in the argument advanced on behalf of the writ petitioner that the degree / qualification of M.Com. should be given equivalence to DT, and the petitioner should be promoted on its basis. Accordingly, learned single Judge of this court vide impugned order dated 05.05.2006, directed the respondents to take steps to amend Regulation 5 of the U.P. Jal Nigam Accountants Service Regulations, 1997 (for short Regulations of 1997) to give equivalence to the degree / qualification of M.Com. to that of DT, within a period of two months. Learned single Judge further directed that the case of the promotion of the petitioner to the post of Accountant be considered within one month thereafter. Hence, this appeal. 6) Learned counsel for the appellants argued before us that no mandamus can be given to legislate or to make specific provision of law under the writ jurisdiction. In this connection, our attention is drawn to the principle of law laid down by the Apex court in Union of India Vs. Prakash P. Hinduja; (2003) 6 Supreme Court Cases 195. Paragraph 30 of said judgment of said case, reads as under: 7 “Under our constitutional scheme Parliament exercises sovereign power to enact laws and no outside power or authority can issue a direction to enact a particular piece of legislation. In Supreme Court Employees’ Welfare Assn. V. Union of India SCC (para 51) it has been held that no court can direct a legislature to enact a particular law. Similarly, when an executive authority exercises a legislative power by way of a subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law which it has been empowered to do under the delegated legislative authority. This view has been reiterated in State of J & K Vs. A.R. Zakki. In A.K. Roy Vs. Union of India it was held that no mandamus can be issued to enforce an Act which has been passed by the legislature. Therefore, the direction issued regarding conferment of statutory status on CVC cannot be treated to be of such a nature, the non-compliance whereof may amount to contempt of the order passed by this Court.” 7) In view of the principle of law laid down by the Apex court as above, we are of the view that learned single Judge has erred in law in directing the appellants 8 to amend the Regulation 5 of the Regulations of 1997, so as to grant equivalence to the degree / qualification of M.Com. to that of qualification obtained under DT. 8) Learned counsel for the writ petitioner / respondent No. 1 drew attention to the case of Madan Singh Shekhawat Vs. Union of India, 1999 (6) Judgments Today 116, in which Lord Denning’s observation made in Seaford Court Estates Ltd. Vs. Asher (1949) 2 All England Reports 155 is quoted, and it is held that when a defect appears in a legislative provision, a judge should not simply fold his hands and blame the draftsman. He must set to work on the constructive task and iron out the creases. Having gone through the referred case law, we agree with the principle and feel that the court is competent to interpret the law so as its object is not defected. But, in aforesaid case, it is nowhere held that the court should direct the legislative authority or the authority having delegated legislation to make a particular provision to benefit a particular person. 9) Also, reliance is placed on behalf of the writ petitioner / respondent No. 1 to the case of Sanatan Gauda Vs. Berhampur University, AIR 1990 Supreme Court 1075, in which the Apex court impressed upon the University authorities to frame the rules in clear terms. On going through said case law, we find that the rule framed by the University had two possible 9 interpretations, and in that circumstance Hon. Supreme court directed the University to frame rules in clear terms. It is pertinent to mention here that while directing so, the Apex court did not ask to frame the particular rule or rule favouring particular person. As such, we are of the view that this case law is of no help to the writ petitioner / respondent No. 1. We are of the opinion that learned single Judge has needlessly relied on the aforesaid case law while issuing mandamus to amend Regulation 5 of Regulations of 1997 to make degree of M.Com. equivalent to DT. 10) Attention of this court is also drawn to the cases of In Re: Destruction of Public and Private property Vs. State of A.P., 2009 (3) Supreme 557; State of Haryana Vs. Abdul Gaffar Khan, 2006 (8) Supreme 467; Dr. Krushna Chandra Sahu Vs. State of Orissa, 1995 SCC (L&S) 1321; and Inder Prakash Gupta Vs. State of Jammu and Kashmir, 2004 (3) Supreme 593. In In Re: Destruction of Public and Private Property Vs. State of A.P. (supra), the Apex court has held that a mandamus can be issued to enforce the law. In our opinion, there is difference between mandamus to enforce the law, and mandamus to make a particular law. In the present case, learned single Judge has not directed to enforce the existing law. Rather, it has directed to amend the law in particular manner, which is against the principles of law. 10 11) In State of Haryana Vs. Abdul Gaffar Khan (supra), the writ petitioners were denied appointment for not possessing the diploma of Unani Dispenser, while they held degree of Unani Dispenser, and in that situation the Apex court interpreted that unless it is expressly excluded that degree of Unani Medicine and Surgery shall not be requisite qualification unless the diploma is also held by the candidate, merely not holding the diploma cannot disqualify the person. In the present case, the facts and circumstances are different. Regulation 5 of the Regulations of 1997, provides that there shall be two sources for recruitment to the post of Accountant –(a) 75 per cent by promotion, and (b) 25 per cent by direct recruitment. It is further provided in said Regulation 5 that those employees who had cleared 1988 and 1989 Divisional Test (DT) held by the Accountant General of U.P., they will be entitled to the direct recruitment. It is not the case of the writ petitioner that he ever cleared DT which entitles him promotion. On behalf of the appellants it is pointed out that the juniors to the writ petitioner who were given promotion to the post of Accountant had cleared DT held by Accountant General of U.P. What the writ petitioner wants is that since he holds M.Com. qualification, and for appearing in the examination for DT lesser qualification is required, as such, the M.Com. should be treated equivalent to DT. We are unable to accept this 11 contention. If this kind of contention is accepted, tomorrow a peon holding degree of Master of Arts may ask for declaring himself as member of the Indian Administrative Services on the ground that minimum qualification is graduation (including degree in Bachelor of Arts) for appearing in Civil Services Examination. In our opinion where a test is required to be cleared merely on the strength of a higher degree one cannot say that he be declared equivalent to those who have cleared the test, unless the law specifically provides so. 12) In the case of Dr. Krushna Chandra Sahu Vs. State of Orissa (supra) relied by the writ petitioner, the Apex court has issued the direction to the Government either suitably amend a rule or issue instruction laying down the basis on which suitability of the candidate would be determined. It nowhere says that law should be framed in a particular form or to make a particular provision making one qualification equivalent to the other. In Inder Prakash Gupta Vs. State of Jammu and Kashmir (supra) there was inconstancy in Rule 8 and Rule 51 of the J & K Public Service Commission’s (Business and Procedure) Rules 1980, and as such, Supreme Court observed that recasting of Rule 51 was required. As such, these cases also do not help the writ petitioner / respondent No. 1. 12 13) For the reasons as discussed above, in our opinion, the order passed by learned single Judge directing the appellants to amend Regulation 5 of the Regulations of 1997 making therein provision of equivalency to M.Com. with the Divisional Test, and then considering the promotion of the writ petitioner, is erroneous in law and the order cannot be upheld. 14) Therefore, the appeal is allowed. The impugned judgment and order dated 05.05.2006, passed by learned singe Judge, in Writ Petition No. 1683 (S/S) of 2005, is set aside. The writ petition filed by respondent No. 1 shall stand dismissed. No order as to costs. (V.K. Bist, J.) (Prafulla C. Pant, J.) Dt. May 05, 2011. H. Negi