IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 191 of 2010 State of Uttarakhand and others. …...Appellants. Versus Sri Pratap Singh Bhauriyal ….…Respondent. Present:- Mr. K.P. Upadhyay, Addl. Chief Standing Counsel for the State of Uttarakhand/appellants. Mr. Rajendra Dobhal, Senior Advocate, assisted by Mr. Manoj Sah, Advocate for the respondent. & Special Appeal No. 138 of 2010 Nagar Palika Parishad, Nainital …...Appellant. Versus Sri Pratap Singh Bhauriyal and others. ….…Respondents. Present:- Mr. D.S. Patni, Advocate for the appellants. Mr. Rajendra Dobhal, Senior Advocate, assisted by Mr. Manoj Sah, Advocate for respondent no. 1. Mr. K.P. Upadhyay, Addl. Chief Standing Counsel for the State of Uttarakhand/respondent nos. 2 to 4. Coram: Hon’ble Barin Ghosh, C.J. Hon’ble Sudhanshu Dhulia, J. Barin Ghosh, C.J, (Oral) 1. In these two Appeals, one filed by the State Government and other by the Municipal Board, the judgment rendered by a Single Judge on 18.6.2010 allowing the writ petition of the respondent in both the Appeals has been assailed. 2. Sometimes prior to 4.6.1987, the respondent was engaged by the appellant Municipal Board to work as a Toll Moharrir. On 4.6.1987, the Municipal Board asked the respondent to work as Revenue Tax Inspector subject to sanction of a post of Revenue Tax Inspector. In the order dated 4.6.1987, by which the respondent was, thus, asked to work as Revenue Tax Inspector, it was mentioned that the respondent would not receive the salary of Revenue Tax Inspector. In the year 2002, a post of Revenue Tax Inspector was sanctioned. Despite sanction of the said post, the respondent was not accorded the status of Revenue Tax Inspector or the remuneration payable to 2 Revenue Tax Inspector. The respondent, thus, filed a writ petition registered as Writ Petition No. 131 of 2002 (S/B) praying for reguarisation of his services on the post of Revenue Tax Inspector and also for payment of salary of Revenue Tax Inspector with effect from 4.6.1987. The said writ petition was ultimately disposed of by an order dated 4.6.2003 directing the Secretary, Nagar Vikas Evam Awas, Dehradun to consider the case of petitioner for payment of salary as well as regularisation of service. The Secretary by an order dated 23.9.2003 refused to accede to any of the said claims of the respondent. That resulted in filing of a writ petition registered as Writ Petition No. 1441 of 2003 (S/S), which has been allowed by the judgment and order under Appeal. By the judgment and order under Appeal, a mandamus has been issued commanding the Municipal Board to pay salary of the petitioner on the post of Revenue Tax Inspector from 1987 to 2002 and the State Government has been directed to pay the salary of Revenue Tax Inspector from 2002 till 31.01.2008 i.e. the date the respondent attained the age of superannuation. Being aggrieved thereby, these two Appeals have been filed. 3. The post in question i.e. the post of Revenue Tax Inspector is a centralised post and is governed under the U.P. Palika (Centralised) Services Rules, 1966. In terms of the said Rules, State Government alone is entitled to create such a post. The appellant Municipal Board had no authority to create any such post. While no post of Revenue Tax Inspector was created, the Municipal Board appointed the respondent as Revenue Tax Inspector subject to creation of the post in future. The law does not authorise a person to be appointed in a post, which has not been sanctioned. At the time when the respondent was appointed as Revenue Tax Inspector, he was told by the appellant Municipal Board that he shall not be paid remuneration of Revenue Tax Inspector. Respondent purported to act as Revenue Tax Inspector knowing fully well that the appellant Municipal Board has no obligation to pay the respondent remuneration payable to Revenue Tax Inspector. 3 4. As noted by the learned Single Judge while rendering impugned judgment, the sources of recruitment for the posts of Revenue Tax Inspector are direct recruitment, promotion and deputation. In terms of the mandate contained in the said Rules, only a person already working in a centralised post governed by the said Rules can be promoted to a post available in centralised posts. The respondent never worked in any centralised post. He, therefore, could not be promoted to the post of Revenue Tax Inspector. Then again in terms of the mandate of the said Rules, only an officer serving under the Government could be deputed as Revenue Tax Inspector. Respondent never served under the Government. He, therefore, in terms of the Rules could not be deputed as Revenue Tax Inspector. As yet no step has been taken to effect direct recruitment to fill-up the post, which was sanctioned in 2002. Merely because the respondent worked in the circumstance as above since 1987 as Revenue Tax Inspector, he could not be accorded the status of Revenue Tax Inspector contrary to statutory Rules. The respondent having accepted the assignment with clear understanding that he shall not be paid remuneration of Revenue Tax Inspector until such time, as was held out impliedly, he is recognized in law as Revenue Tax Inspector, the respondent could not ask for the salary payable to Revenue Tax Inspector. 5. In the circumstances, we allow the Appeals, set aside the judgment and order under Appeals and dismiss the Writ Petition. 6. Let a copy of this judgment be kept in the file of the connected Special Appeal. (Sudhanshu Dhulia, J.) (Barin Ghosh, C.J.) 26.10.2010 Rathour