1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA C.W.P. No. 416 of 2003 Date of decision: 19.8.2008 State of HP & ors ..Petitioners Versus Roop Lal & anr ..Respondents Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Petitioner: Mr. P.M. Negi, Dy. Advocate General. Respondent No.1 is not present despite having intimated about the actual date of hearing. For the Respondent No.2 : Mr. Rakesh Jaswal, Advocate. Per R.B. Misra, J.(Oral). Heard learned counsel for the parties. 1. The present writ petition has been preferred against the order dated 20.12.2002 passed by the H.P. Administrative Tribunal ( in short the “Tribunal”) in OA No. 2041/2002, preferred b by Roop Lal ( respondent No.1 herein), whereby OA No. 2041/2002, above mentioned, was allowed with the directions to the respondents to appoint the applicant to the post of Water Carrier in addition to 1 Whether the reporters of the local papers may be allowed to see the Judgment? 2 respondent No.5 in Govt. Primary School, Karota within a period of six weeks from the date of the order. It appears that respondent No.1 Roop Lal challenged the appointment of proforma respondent No.2, Rajesh Kumar to the post of Water Carrier on the ground that the said appointment was illegal, arbitrary and in contravention to the policy framed by the State Government. 2. Since the said appointment was made only for a period of 10 months to the post of Water Carrier, therefore, on non controverting the averments of the original application of respondent No.1 Roop Lal, the said averments of the original application were taken to be correct and accordingly learned Tribunal has without quashing the appointment of respondent No.5, has directed to make an appointment of the applicant to the post of Water Carrier. 3. It is well settled that the Tribunal or the Court cannot give a direction or issue mandamus to the State Government or authority to prescribed qualification or to create a post or to issue specific direction to give appointment to a particular post. For this purpose, reliance has been placed on the decision of Hon’ble Supreme in Commissioner, Corporation of Madras Vs. Madras Corporation Teachers’ Mandram & others (1997) 1 SCC 253, the relevant paragraph 4 is extracted below: “4. Learned counsel for the respondents, in fairness, was unable to meet the contention but he sough to sustain this order on the 3 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 or to prescribe the minimum qualifications for the post ?. It is a 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”. 4. In view of the above observations, we find that the impugned order passed by the learned Tribunal is not legally sustainable, therefore, it is set aside and the writ petition is accordingly allowed. No order as to costs. ( R. B. Misra ), J. ( Surjit Singh ), J. 19th August, 2008 (sl)